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Court of Criminal Appeal 3 December 2013

TDP v R; R v TDP

[2013] NSWCCA 303

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION APPLICANT SELF REPRESENTED CHALLENGE TO SUMMING UP BY TRIAL JUDGE WHETHER POST

Citation: TDP v R; R v TDP [2013] NSWCCA 303
Court: NSW Court of Criminal Appeal
Date: 3 December 2013
Judge(s): Hoeben CJ at CL; Blanch J; R A Hulme J

Background

A stepfather (referred to as TDP, the applicant) was convicted by a jury in the District Court of nine counts of aggravated sexual intercourse without consent and two counts of aggravated indecent assault under the Crimes Act 1900. The offences were committed against his stepdaughter over approximately three and a half years, beginning when she was 13 years old. The offences occurred in a range of settings, including motel rooms and a vehicle, during trips the applicant took the complainant on for work and entertainment purposes.

The applicant was sentenced to a total effective term of imprisonment with a non-parole period of seven and a half years, expiring in November 2019, with a balance of term expiring in November 2022. He appealed against his conviction, representing himself. The Crown separately appealed against the adequacy of the sentence.

  • Whether the Crown failed to place all relevant evidence before the jury, including a toxicology report on the complainant's hair
  • Whether the trial judge's summing-up adequately highlighted contradictions in the complainant's evidence
  • Whether the trial judge should have given a warning about the unreliable nature of the complainant's evidence under s 165(1)(c) of the Evidence Act 1995
  • Whether the trial judge adequately addressed corroboration of the complainant's evidence
  • Whether an alleged miscarriage of justice arose from incompetence of the applicant's trial counsel
  • Whether post-conviction admissions by the applicant could be taken into account on a conviction appeal, and if so, in what way
  • Whether the sentencing judge erred by imposing fixed terms without non-parole periods for certain counts, contrary to s 45(1) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the applicant's mental health was properly taken into account at sentence
  • Whether the sentences were properly accumulated and whether they were manifestly inadequate

Decision

Conviction appeal dismissed. The Court of Criminal Appeal found no appellable error in the conduct of the trial. The applicant's challenges to the summing-up, including the alleged failure to highlight inconsistencies in the complainant's evidence and to give an unreliable evidence warning, were each examined and rejected. The Court found the trial judge's directions were adequate in context and that no substantial miscarriage of justice had occurred.

On the question of trial counsel's alleged incompetence, the Court applied established principles requiring a demonstrated connection between the incompetence alleged and an identifiable miscarriage of justice. No such connection was established on the facts. The Court also considered the relevance of post-conviction admissions attributed to the applicant, addressing the circumstances in which such admissions can be taken into account on a conviction appeal, and concluded they did not alter the outcome.

Crown sentence appeal substantially dismissed. The Court found the sentencing judge had taken the applicant's mental health into account appropriately, and that the accumulation of sentences was not in error. The sentences were not found to be manifestly inadequate. However, the Crown appeal succeeded on one specific technical ground: for counts 2, 3, 5, and 7, the sentencing judge had imposed fixed-term sentences without setting non-parole periods, without providing the reasons required by s 45(2) of the Crimes (Sentencing Procedure) Act 1999. Significantly, the discretion under s 45(1) to decline to set a non-parole period is not available for offences that carry a standard non-parole period, which applied to some of those counts.

To remedy this error, the Court added a parole period to the affected sentences rather than increasing the overall term. The Court assessed that the sentencing judge had likely intended the fixed terms to represent what would otherwise have been non-parole periods, and the correction was made on that basis. The practical effect was that the total sentence and minimum custodial period remained unchanged.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that an applicant alleging miscarriage of justice from trial counsel's incompetence must demonstrate a direct connection between the conduct complained of and an actual miscarriage; a general assertion of incompetence is insufficient.
  • Post-conviction admissions by an applicant may be considered on a conviction appeal, but the Court examined the circumstances carefully and found they did not affect the outcome in this case.
  • Under s 45(1) of the Crimes (Sentencing Procedure) Act 1999, the discretion to decline to set a non-parole period is not available for offences that carry a prescribed standard non-parole period; a sentencing court that purports to exercise that discretion in such cases falls into error.
  • Where a sentencing court imposes a fixed term without providing reasons as required by s 45(2), the Court of Criminal Appeal may remedy the error either by adding a parole period to the existing term or by setting a non-parole period within it; there is no uniform approach, and the Court will seek to give effect to the sentencing judge's evident intention.
  • In dismissing the Crown's broader challenge, the Court confirmed that proper accumulation of sentences and consideration of an offender's mental health do not, of themselves, produce a manifestly inadequate result.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61M(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 45
- Criminal Appeal Act 1912 (NSW), ss 6(1), 8
- Evidence Act 1995 (NSW), s 165(1)(c)

Cases
- AP v R [2013] NSWCCA 189
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52; 236 CLR 358
- Collier v R [2012] NSWCCA 213
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 231
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Grey v R [2001] HCA 65; 184 ALR 593
- Ignjatic v R (1993) 68 A Crim R 333
- Lipchin v R [2013] NSWCCA 77
- M v The Queen [1994] HCA 63; 181 CLR 487
- Monteiro v R [2011] NSWCCA 113
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Nguyen v R [2007] NSWCCA 14
- Papakosmas v R [1999] HCA 37; 196 CLR 297
- R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
- R v Bikic [2001] NSWCCA 537
- R v Birks (1990) 19 NSWLR 677
- R v De-Cressac [1985] 1 NSWLR 381
- R v Gudgeon (1995) 83 A Crim R 228