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24
Court of Criminal Appeal 21 February 2011

Ingham v R

[2011] NSWCCA 88

Sexual offences
CRIMINAL APPEAL AGAINST CONVICTIONS BLACK DIRECTION APPEAL DISMISSED. CRIMINAL LEAVE TO APPEAL GRANTED

Citation: Ingham v R [2011] NSWCCA 88
Court: Court of Criminal Appeal, New South Wales
Date: 21 February 2011
Judge(s): McClellan CJ at CL; James J; Davies J

Background

The appellant was convicted by a jury in the District Court of eleven sexual offences against two child complainants, aged eight and nine, committed over the night of 13 to 14 October 2006. The offences included eight counts of sexual intercourse with a person under the age of 10, two counts of aggravated indecent assault, and one count of attempting sexual intercourse with a person under the age of 10, all contrary to the Crimes Act 1900 (NSW). He was acquitted on one further count of aggravated indecent assault.

The appellant had been known to the family of one complainant and had acted as a babysitter on the night in question. Geraghty DCJ sentenced the appellant to an overall effective total term of 22 years imprisonment with an effective non-parole period of 17 years, commencing 20 October 2006.

The appellant brought two distinct challenges before the Court of Criminal Appeal: an appeal against his convictions, and an application for leave to appeal against sentence. He was legally represented on the conviction appeal but was unrepresented on the sentence application.

  • Whether the trial judge's jury directions, including a "Black direction" (a direction encouraging a deadlocked jury to continue deliberating) and accompanying "perseverance directions" regarding majority verdicts, were legally adequate and did not undermine the appellant's common law right to a unanimous verdict.
  • Whether the sentencing judge erred in treating the commission of offences in the victim's home as a statutory aggravating factor under the Crimes Act 1900.
  • Whether the sentencing judge erred in treating the fact that the offences were committed for the offender's own sexual gratification as an aggravating factor.
  • Whether the sentencing judge erred in his assessment of the objective seriousness of individual offences and their relationship to the mid-range of offending.

Decision

Conviction appeal: The Court dismissed the appeal against conviction. The central complaint was that the trial judge's directions to the jury, including the direction to persevere toward a verdict, had the effect of coercing the jury into returning verdicts and undermining the appellant's right to a unanimous decision. The Court found that the directions, viewed as a whole, were appropriate and consistent with established principles derived from Black v The Queen (1993) 179 CLR 44. No error was established that would warrant disturbing the convictions.

Sentence appeal (aggravating factors): The Court granted leave to appeal against sentence and upheld two of the grounds. The sentencing judge had applied a statutory aggravating factor on the basis that the offences were committed in the victim's home. The Court held that this factor only applies where the offender has invaded or entered the victim's home without lawful authority. Because the appellant was lawfully present in the home as a babysitter, this factor was not available. The Court also held that committing offences for the offender's own sexual gratification is not a proper aggravating factor. Such gratification is inherent in this category of offending and cannot stand separately as an aggravating circumstance.

Sentence appeal (overall sentence): Despite identifying errors in the application of aggravating factors to counts 3 and 8, the Court found that those errors had not materially distorted the overall sentencing outcome. The sentences for all counts except 3 and 8 were confirmed. The Court considered whether the overall sentence required reduction in light of the corrections to those two counts and concluded it did not. The total sentence remained appropriate given the gravity of the overall offending and the operation of the standard non-parole period regime.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted.
  • Sentences for all counts except counts 3 and 8 confirmed.
  • Sentence for count 3 quashed and replaced: non-parole period of 5 years commencing 20 October 2006, with an additional term of 1 year and 8 months commencing 20 October 2011 and expiring 19 June 2013.
  • Sentence for count 8 quashed and replaced: non-parole period of 5 years commencing 20 October 2007, with an additional term of 1 year and 8 months commencing 20 October 2012 and expiring 19 June 2014.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a "Black direction" and accompanying perseverance directions to a jury do not, of themselves, undermine a defendant's common law right to a unanimous verdict, provided the directions are consistent with the principles in Black v The Queen.
  • Under the Crimes Act 1900 (NSW), the aggravating factor of committing an offence in the victim's home applies only where the offender has entered or remained without lawful authority. An offender who is lawfully present, such as a babysitter, cannot have that factor applied against them at sentencing.
  • Committing a sexual offence for the offender's own sexual gratification does not constitute a separate aggravating factor. The Court treated such gratification as inherent to this class of offending rather than an additional circumstance warranting heavier punishment.
  • Identifying sentencing errors does not automatically require a reduction in the overall sentence. Where the total sentence remains proportionate to the full pattern of offending and consistent with the statutory non-parole period regime, appellate intervention on the global sentence may not be warranted.
  • In dismissing the overall sentence reduction, the Court acknowledged the role of the standard non-parole period regime enacted by Parliament in shaping the minimum custodial terms applicable to serious sexual offences against children.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66A, 66B, 578A
- Jury Act 1977 (NSW)
- Jury Amendment (Verdicts) Act 2006 (NSW)
- Criminal Code Act (NT)
- Criminal Procedure Act 2004 (WA)
- Juries Act 1927 (SA)
- Juries Act 1967 (Vic); Juries Act 2000 (Vic); Juries (Amendment) Act 1993 (Vic)

Cases
- Black v The Queen (1993) 179 CLR 44
- Cheatle v The Queen (1993) 177 CLR 541
- Coco v The Queen (1994) 179 CLR 427
- Markarian v R [2005] HCA 25
- R v Abusafiah (1991) 24 NSWLR 531
- Hanna v Regina (2008) 191 A Crim R 302; [2008] NSWCCA 173
- EK v R [2010] NSWCCA 199
- GSH v R; R v GSH (2009) NSWCCA 214
- R v Doklu (2010) NSWCCA 309
- R v Knight; R v Biuvanua [2007] NSWCCA 283
- R v Ahmet [2009] VSCA 86
- Ngati v R [2008] NSWCCA 3
- R v ITA (2003) 139 A Crim R 340
- CEV v R [2008] NTCCA 10
- R v K (1997) 68 SASR 405
- R v Jeffrey (unreported, NSWCCA, 16 December 1993)
- R v AJP (2004) NSWCCA 434; R v Comert (2004) NSWCCA 125; R v DH [2000] NSWCCA 360; R v King [2000] NSWCCA 507