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11
Court of Criminal Appeal 8 October 2012

NM v R

[2012] NSWCCA 215

Sexual offences
CRIMINAL LAW APPEALS CONVICTION APPEAL SEXUAL INTERCOURSE WITHOUT CONSENT APPEALS SENTENCE APPEAL

Citation: NM v R [2012] NSWCCA 215
Court: NSW Court of Criminal Appeal
Date: 8 October 2012
Judge(s): Macfarlan JA; McCallum J; Grove AJ

Background

The appellant was convicted by a District Court jury of five counts of sexual intercourse without consent under s 61I of the Crimes Act 1900. The offences arose from a single incident on the night of 30 April 2009 involving his former partner, with whom he had been in an on-and-off relationship since 2006. The complainant had earlier that day sent a text message inviting the appellant over for consensual sex, but gave evidence that, when he arrived, she withdrew that invitation and the appellant proceeded to force himself upon her. The incident involved five distinct acts of non-consensual intercourse.

The appellant was sentenced in the District Court to an aggregate term of nine years and six months' imprisonment, with a non-parole period of six years and six months. He appeared unrepresented on appeal, having been represented by counsel at trial and by a solicitor at sentencing.

The appellant challenged both his convictions and his sentence. His conviction grounds alleged the verdict was unsafe, that the trial judge gave prejudicial directions, that the judge was biased against him, and that evidence of consent had not been discredited by the Crown. The sentence grounds alleged the sentence was manifestly excessive and relied on the High Court's decision in Muldrock v R, which had reconsidered the proper approach to standard non-parole periods.

  • Whether the jury's verdict was unreasonable or could not be supported having regard to the evidence, including alleged inconsistencies in the complainant's account
  • Whether the trial judge gave erroneous or prejudicial directions to the jury
  • Whether the trial judge demonstrated judicial bias against the appellant
  • Whether the sentencing was manifestly excessive
  • Whether the prior relationship between the parties and their ongoing intermittent sexual contact was relevant to the objective seriousness of the offences
  • Whether the sentencing failed to conform with the principles established in Muldrock v R regarding standard non-parole periods

Decision

On the conviction appeal, the Court dismissed all grounds. Applying the test from M v R (1994) 181 CLR 487, each member of the Court conducted an independent assessment of the evidence and concluded it was well open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The complainant's evidence was supported by text messages exchanged in the days following the incident, by her daughter's observations of her distressed physical state, and by medical and forensic evidence. Any inconsistencies in the complainant's account did not render the verdict unsafe.

The Court also found no error in the trial judge's directions and no evidence of judicial bias. These grounds were not established on the material before the Court.

On the sentence appeal, the Court granted leave and found that the sentencing had not conformed with the principles in Muldrock v R, which requires that the standard non-parole period be used as a guideline rather than a statutory benchmark. The Court also accepted that the original aggregate sentence of nine and a half years was manifestly excessive in the circumstances, including the prior consensual relationship between the parties, and that the principle of totality had not been properly applied. The Court resentenced the appellant to an overall term of five years' imprisonment with a non-parole period of three years and six months. Special circumstances were found to justify a longer balance of term than the statutory ratio, given the appellant had not previously been in custody and would benefit from an extended period of supervised parole.

Orders Made

  • The appeal against conviction was dismissed.
  • Leave to appeal against sentence was granted.
  • The sentences imposed in the District Court on 23 August 2010 were quashed.
  • In substitution, the appellant was sentenced as follows:
  • Counts 1 and 3: concurrent terms of 4 years' imprisonment, with non-parole periods of 3 years each, commencing 19 May 2010
  • Counts 2, 4 and 5: concurrent terms of 5 years' imprisonment, with non-parole periods of 3 years and 6 months each, commencing 19 May 2010
  • Overall sentence: 5 years' imprisonment with a non-parole period of 3 years and 6 months, commencing 19 May 2010
  • Earliest eligible release on parole: 19 November 2013

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that an "unreasonable verdict" ground requires the appellate court to conduct its own independent assessment of the evidence, asking whether it would be dangerous to allow the guilty verdict to stand, even where evidence capable of supporting conviction exists.
  • Inconsistencies in a complainant's evidence do not automatically render a verdict unsafe, particularly where that evidence is corroborated by contemporaneous communications, physical observations by a witness, and medical findings.
  • A prior consensual sexual relationship between an offender and a complainant is a relevant factor in assessing the objective seriousness of sexual offences, though it does not operate as a defence or negate the gravity of non-consensual acts.
  • Following Muldrock v R, sentencing courts are required to treat the standard non-parole period as a guidepost in the instinctive synthesis of all relevant factors, not as a statutory minimum or primary determinant; failure to apply this approach is a sentencing error that can ground a successful appeal.
  • Special circumstances justifying a departure from the standard ratio of non-parole period to balance of term can be established where an offender has no prior custodial experience and would benefit from extended post-release supervision on parole.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Evidence Act 1995 (NSW)
- Criminal Appeal Rules

Cases
- M v R [1994] HCA 63; 181 CLR 487
- Muldrock v R [2011] HCA 39; 85 ALJR 1154
- SKA v R [2011] HCA 13; 243 CLR 400
- Markarian v R [2005] HCA 25; 228 CLR 357
- Bellchambers v R [2011] NSWCCA 131
- Mohamed v R [2008] NSWCCA 45
- R v Hendricks [2011] NSWCCA 203
- R v Koloamatangi [2011] NSWCCA 288
- R v XX [2009] NSWCCA 115; 195 A Crim R 38
- Zreika v R [2012] NSWCCA 44
- R v Mason [2001] VSCA 62
- Wiren v R (1996) 89 A Crim R 356