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Court of Criminal Appeal 5 December 2014

Nand v R

[2014] NSWCCA 293

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE APPLICANT UNREPRESENTED

Citation: Nand v R [2014] NSWCCA 293
Court: NSW Court of Criminal Appeal
Date: 5 December 2014
Judges: Gleeson JA, Schmidt J, Bellew J

Background

The applicant pleaded guilty in January 2012 to two offences of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). Both offences were committed on 16 December 2010 at Newtown Railway Station against an 18-year-old woman who was unconscious at the time. The applicant was arrested by police while committing the second offence and was, at the time, on parole for earlier offences of assault with an act of indecency and aggravated break and enter. That parole was revoked upon his arrest.

The applicant was sentenced in April 2012 by Norrish DCJ to a total term of 11 years imprisonment with a non-parole period of 7 years and 6 months. The maximum penalty for each offence was 14 years, with a standard non-parole period of 7 years.

The applicant appeared unrepresented before the Court of Criminal Appeal and sought leave to appeal on the basis that his sentences were severe and manifestly excessive.

  • Whether the applicant received false and incompetent advice from his former legal representatives, leading to a late guilty plea and a lost discount on sentence
  • Whether expert medical reports tendered by the defence were not properly considered by the sentencing judge
  • Whether the applicant's history of childhood sexual abuse was not adequately taken into account at sentencing

Decision

Ground 1: Incompetent legal advice

Schmidt J, with whom Gleeson JA and Bellew J agreed, rejected the first ground. The overall sentence was not considered heavy given the gravity of the offences. His Honour had regard to both the maximum penalty and the standard non-parole period as the required statutory guideposts, applying the instinctive synthesis required by Muldrock v The Queen and Markarian v R. The agreed facts described a prolonged assault on an unconscious victim, captured on CCTV and partly on footage the applicant himself recorded on his phone, matters that reflected the very serious nature of the conduct.

The applicant's case that earlier legal advice had prevented him from entering an earlier plea, and thereby obtaining a greater sentencing discount, was not established. The sentencing judge had formed an adverse view of the applicant's reliability as a witness, findings that the Court of Criminal Appeal found were plainly open on the evidence.

Ground 2: Expert medical reports

Schmidt J found no error in the sentencing judge's treatment of the expert reports. Four forensic experts (a psychologist and three psychiatrists) had examined the applicant before sentencing, but the applicant had given each of them accounts that differed from the agreed facts and from each other. The sentencing judge was entitled to treat those reports with caution, and nothing in the judgment indicated the reports had been overlooked. This ground was dismissed.

Ground 3: Childhood sexual abuse

The third ground also failed. Norrish DCJ had acknowledged the applicant's claims of childhood sexual abuse but found there was no reliable evidence establishing any connection between that history and the commission of the offences. The Court of Criminal Appeal accepted that conclusion as plainly open, consistent with the approach taken in Dousha v R, where it was observed that an absence of causal connection between childhood abuse and adult offending renders the abuse of limited relevance to the sentencing discretion.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentence of 11 years with a non-parole period of 7 years and 6 months for two offences of sexual intercourse without consent against an unconscious victim was not manifestly excessive, where the offences were found to be of high gravity and relevant aggravating and mitigating factors were taken into account.
  • Sentencing courts are required to treat the maximum penalty and the standard non-parole period as statutory guideposts, applying an instinctive synthesis rather than a two-stage arithmetical approach: Muldrock v The Queen and Markarian v R both confirmed this requirement.
  • Where an applicant has given inconsistent and unreliable accounts to expert witnesses, a sentencing judge is entitled to place limited weight on those experts' reports, even where the reports were formally tendered.
  • No error was established in the sentencing judge's finding that childhood sexual abuse lacked sentencing relevance in the absence of reliable evidence of a causal connection between that abuse and the offending, consistent with Dousha v R.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an unrepresented applicant's claims of receiving incompetent legal advice will not succeed merely by assertion; the applicant must demonstrate that the resulting sentence was not otherwise appropriate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent), s 66 (certificate)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Dousha v R [2008] NSWCCA 263
- Markarian v R [2005] HCA 25; (2006) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383