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23
Court of Criminal Appeal 23 August 2012

FP v R

[2012] NSWCCA 182

Also reported as (2012) 224 A Crim R 82
Sexual offencesDrugsPublic order & justice offences
CRIMINAL LAW APPEAL CRIMINAL APPEAL RULES, RULE 4 APPEAL CONVICTION MISDIRECTION BY TRIAL JUDGE

Citation: FP v R [2012] NSWCCA 182
Court: NSW Court of Criminal Appeal
Date: 23 August 2012
Judges: McClellan CJ at CL, R A Hulme J, Schmidt J

Background

The appellant, FP, was tried jointly with two co-accused (her husband and a man regarded in the local Greek community as a spiritual healer) on an indictment arising from events between April and June 2008. The Crown alleged that the three accused conspired to exploit a female complainant by convincing her and her husband that they had been cursed and that the only remedy required the complainant to participate in "prayer sessions" during which she was sexually assaulted. The co-accused spiritual figure was said to wield his claimed supernatural authority over the complainant, who held strong religious beliefs and feared "the evil eye."

FP's role, as alleged by the Crown, was to introduce the complainant and her husband to the spiritual figure and to assist in maintaining the deception that gave the scheme its hold over the victims. The scheme involved placing a mysterious object near the complainant's home to simulate a curse, sending threatening text messages, and progressively escalating demands, including demands for large sums of money and for the complainant to submit to naked prayer sessions.

Following a jury trial in the District Court, FP was convicted on three counts of administering an intoxicating substance with intent to enable a sexual assault (s 38 Crimes Act 1900), three counts of sexual assault in company (s 61J Crimes Act 1900), and one count of conspiracy to commit sexual assault. She was sentenced to an aggregate term of nine years' imprisonment with a non-parole period of five years.

  • Whether 14 grounds of appeal against conviction (including alleged misdirections on tendency and coincidence evidence, the meaning of "in company," knowledge of lack of consent, and the criminal standard of proof) warranted leave to appeal
  • Whether the jury's verdict on the conspiracy count was reasonably open on the evidence (ground 15)
  • Whether the sentencing judge erred in applying the standard non-parole period framework following Muldrock v The Queen [2011] HCA 39
  • Whether the sentencing judge failed to take into account the appellant's subjective features
  • Whether the aggregate sentence of nine years was manifestly excessive

Decision

Conviction appeal: Grounds 1 to 14

The Court refused leave to appeal on all 14 grounds. The grounds raised included alleged misdirections concerning tendency and coincidence evidence, the meaning of "in company" under s 61J, directions on knowledge of lack of consent, the adequacy of the judge's directions on the criminal standard of proof, and the failure to direct the jury on a charge the subject of a directed acquittal. The Court found no miscarriage of justice or irregularity going to the root of the trial sufficient to warrant leave on any of those grounds.

Conviction appeal: Ground 15 (unreasonable verdict on conspiracy)

The Court granted leave on ground 15 and quashed the conspiracy conviction. R A Hulme J concluded that the evidence was insufficient to support the jury's verdict on the conspiracy count beyond reasonable doubt, and entered a verdict of acquittal in its place. The remaining six convictions were undisturbed.

Sentence appeal

The Court allowed leave to appeal against sentence, but only to the extent that the quashing of the conspiracy conviction warranted a reduction in the aggregate sentence. The Court found no separate error in the application of the standard non-parole period, no failure to take account of the appellant's subjective features, and the original sentence was not otherwise manifestly excessive. The conspiracy count had made some contribution to the overall criminality, and the Court assessed that contribution as modest, reducing the aggregate sentence by six months with a proportional reduction in the non-parole period.

Orders Made

Conviction appeal:
- Leave to appeal refused on grounds 1 to 14
- Leave to appeal granted on ground 15
- Conviction for conspiracy (count 42) quashed and a verdict of acquittal entered
- Appeal otherwise dismissed

Sentence appeal:
- Leave to appeal against sentence granted
- Aggregate sentence of nine years with a non-parole period of five years quashed
- In lieu, aggregate imprisonment of eight years and six months with a non-parole period of four years and eight months, commencing 29 April 2011, with eligibility for parole on 28 December 2015
- Indicative individual sentences for offences under ss 38 and 61J Crimes Act 1900 remained as indicated by the District Court

Key Takeaways

  • A verdict of acquittal was entered on the conspiracy count after the Court of Criminal Appeal found the evidence was insufficient to support guilt beyond reasonable doubt, even where convictions on related substantive counts were upheld.
  • Where a quashed conviction made only a modest contribution to the total criminality, the Court of Criminal Appeal reduced the aggregate sentence by a correspondingly modest amount (six months), rather than resentencing entirely or remitting to the District Court.
  • Fourteen grounds of appeal against conviction, spanning evidentiary directions, the "in company" element of aggravated sexual assault, and the adequacy of the reasonable doubt direction, were all refused leave because none disclosed a miscarriage of justice or an irregularity going to the root of the trial.
  • No error was established in the sentencing judge's application of the standard non-parole period framework following Muldrock v The Queen (2011) 244 CLR 120, nor in the treatment of the appellant's subjective features.
  • The decision illustrates that the threshold for leave to appeal under the Criminal Appeal Rules remains high: a point not raised below will succeed only where it reveals a miscarriage of justice or a fundamental trial irregularity.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 38, 61J
- Crimes (Administration of Sentences) Regulation 2008
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW), Rule 4

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- HML v R [2008] HCA 16; (2008) 235 CLR 334
- Phillips v R [2006] HCA 4; (2006) 225 CLR 303
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Gilbert v R [2000] HCA 15; (2000) 201 CLR 414
- Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467
- ARS v R [2011] NSWCCA 266
- Gilham v R [2012] NSWCCA 131
- Markou v R [2012] NSWCCA 64
- Mendes v R [2012] NSWCCA 103
- Picken v R; R v Picken [2007] NSWCCA 319
- John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344
- Lowndes v R [1999] HCA 29; 195 CLR 665
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Green v The Queen (1971) 126 CLR 28
- Clough v R (1992) 28 NSWLR 396
- Mohan v The Queen [1967] 2 AC 187
- Brown v Dunn (1893) 6 R 67