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44
Court of Criminal Appeal 6 December 2011

MRW v R

[2011] NSWCCA 260

Sexual offences
CRIMINAL LAW APPEAL CONVICTION FRESH EVIDENCE APPEAL SENTENCING

Citation: MRW v R [2011] NSWCCA 260
Court: Court of Criminal Appeal, New South Wales
Date: 6 December 2011
Judge(s): Bathurst CJ (with James J and Johnson J agreeing)

Background

The appellant was convicted by a jury in the Taree District Court on one count of sexual intercourse with a child under his authority, contrary to s 66C(2) of the Crimes Act 1900. The complainant was his daughter, aged 10 years and two months at the time of the offence. The jury acquitted him on a second count involving an act of indecency.

The prosecution case rested principally on the complainant's evidence, corroborated by accounts from her mother and aunt of having been told about the incident in 2002 and 2008 respectively. The appellant was sentenced to a term of imprisonment of just under half the maximum penalty of 10 years.

The appellant challenged both his conviction and his sentence on appeal to the Court of Criminal Appeal.

  • Whether fresh evidence not available at trial gave rise to a miscarriage of justice, in that there was a significant possibility a reasonable jury would have acquitted had the evidence been before them
  • Whether "abuse of trust" and "abuse of authority" are legally distinct concepts for the purpose of sentencing aggravation under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether "abuse of trust" can operate as an aggravating factor under s 21A(2) where "under authority" is already an element of the offence under s 66C(2) of the Crimes Act 1900
  • Whether the sentence imposed was manifestly excessive

Decision

Conviction appeal: fresh evidence

The Court considered whether the fresh evidence, assessed against the full body of evidence before the jury, created a significant possibility that a reasonable jury would have returned a verdict of not guilty. Bathurst CJ analysed the strength of the prosecution case, including the complainant's detailed account, the corroborating evidence from both the mother and the aunt, and the appellant's alleged admissions. The Court found that, even with the fresh evidence, no such significant possibility arose. The conviction appeal was dismissed.

Sentencing appeal: abuse of trust as an aggravating factor

A central sentencing question was whether the trial judge had impermissibly treated "abuse of trust" as an aggravating factor under s 21A(2) when "being under the authority" of the offender was already an element of the offence charged. Bathurst CJ held that abuse of trust and abuse of authority are distinct concepts. The parental relationship between the appellant and his daughter gave rise to a relationship of trust over and above the authority element required by s 66C(2). Accordingly, treating the breach of that trust as an additional aggravating factor did not amount to double counting.

Sentencing appeal: manifest excess

The Court noted that the offence carried a maximum of 10 years' imprisonment and that no standard non-parole period applied at the time. Bathurst CJ observed that statistical comparisons and individual comparable sentences were of limited assistance given the breadth of conduct captured by the provision. Taking into account the nature of the offence, the age of the complainant, the appellant's prior criminal history, the absence of any identifiable error in the sentencing judge's reasoning, and the fact that the appellant was sentenced following a not-guilty plea, the Court concluded the sentence was not unreasonable or unjust. The sentence appeal was also dismissed.

Orders Made

  • Leave to appeal against conviction granted; appeal dismissed.
  • Leave to appeal against sentence granted; appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, on a fresh evidence ground, the relevant test is whether there is a significant possibility that a reasonable jury, having considered all the evidence including the fresh material, would have acquitted the appellant.
  • Abuse of trust and abuse of authority are treated as legally distinct concepts in NSW sentencing law. A parental relationship can give rise to a trust that goes beyond the mere "authority" element of an offence under s 66C(2) of the Crimes Act 1900, permitting abuse of trust to operate independently as an aggravating factor.
  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, an aggravating factor does not amount to prohibited double counting simply because the offence also contains an element relating to authority, provided the trust relied upon is a genuinely separate consideration.
  • In assessing manifest excess, comparator sentences and sentencing statistics will carry limited weight where they cover too wide a range of potential conduct and circumstances to illuminate the particular case.
  • No error was established in the sentencing judge's approach, and a sentence of just under half the maximum penalty was upheld as neither unreasonable nor unjust on the facts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)

Cases
- Bourke v R [2010] NSWCCA 22
- FV v R [2006] NSWCCA 237
- Gallagher v R [1986] HCA 26; (1986) 160 CLR 392
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
- R v Abou-Chabake [2004] NSWCCA 356
- R v LTP [2004] NSWCCA 109
- R v Johnson [2005] NSWCCA 186
- R v Slater [2003] NSWCCA 178
- Ratten v R [1974] HCA 35; (1974) 131 CLR 510
- Williams v R [2010] NSWCCA 15
- Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584