Citation: Armand-Iskak v R [2014] NSWCCA 325
Court: Court of Criminal Appeal
Date: 19 December 2014
Judges: Simpson J, Rothman J, Wilson J
Background
The applicant was convicted after a District Court trial of attempting to choke a person with intent to commit an indictable offence (indecent assault), contrary to s 37 of the Crimes Act 1900. The offence carried a maximum sentence of 25 years' imprisonment. The applicant received a non-parole period of 7 years commencing 17 January 2012, with a total sentence expiring 16 January 2021.
The offence occurred in the early hours of 13 January 2012 on King Street, Newtown. The applicant approached an unknown woman from behind, placed his arm around her neck, choked her until she lost consciousness, and dragged her into an alley where he lay on top of her. Nearby residents heard the commotion, called emergency services, and intervened. The applicant then left the scene and hailed a taxi.
The prosecution case was supported by the complainant's own evidence, several independent witnesses who heard and partially observed the assault, CCTV footage, DNA evidence matching the applicant to scratches on the complainant's fingernails, and admissions the applicant made during a recorded police interview, including the word "Correct" in response to a question about whether he had choked and dragged the complainant.
Legal Issues
- Whether the jury's verdict was unreasonable and could not be supported by the evidence
- Whether the sentence of 7 years' non-parole period (with a total term of 9 years and 4 months) was manifestly excessive
Decision
Conviction appeal: Rothman J (with whom Simpson and Wilson JJ agreed) found no arguable basis for the claim that the verdict was unreasonable. The evidence against the applicant was substantial: multiple independent witnesses corroborated the complainant's account, DNA evidence placed the applicant at the scene, CCTV footage tracked his movements, and his own interview included admissions amounting to a concession of guilt. The applicant sought to emphasise a discrepancy between the complainant's and a witness's evidence about the precise placement of his arm, but the Court found this inconsistency immaterial given the weight of the remaining evidence.
The Court applied the well-established test from M v R and SKA v R, which requires the appellate court to consider whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. In this case, there was no doubt the verdict was open to the jury.
Sentence appeal: The Court acknowledged that the sentencing judge had taken into account the applicant's intoxication at the time of the offence and his brain and psychiatric injuries as mitigating factors. The sentencing judge also noted that the ultimate offence completed after the choking was indecent assault rather than sexual intercourse without consent, which reduced the applicant's culpability to some degree. However, the assault was only interrupted by the intervention of nearby residents. Taking all these factors together, the Court found the sentence was within the available range and disclosed no error of principle warranting appellate interference under the Markarian principles.
Leave to appeal was refused on both grounds. Wilson J separately endorsed the credibility of the applicant's trial solicitor and counsel, both of whom gave evidence before the Court of Criminal Appeal, describing them as witnesses of integrity who kept thorough contemporaneous records.
Orders Made
• Leave to appeal refused
Key Takeaways
- The Court of Criminal Appeal confirmed that leave to appeal against conviction and sentence will be refused where the proposed grounds are wholly lacking in merit, even where some inconsistency in witness evidence exists at trial.
- Under the M v R and SKA v R standard, an appellate court asks whether it was open to the jury to be satisfied of guilt beyond reasonable doubt on the whole of the evidence; peripheral inconsistencies between witnesses do not automatically render a verdict unreasonable.
- A defendant's own admissions during a recorded police interview, including a direct "Correct" in response to a description of the offence, constitute powerful evidence capable of supporting a conviction independently of other proof.
- In dismissing the manifest excess ground, the Court applied Markarian, reaffirming that sentencing discretion will not be disturbed on appeal absent an error of principle or a sentence falling outside the available range.
- Mitigating factors such as intoxication and psychiatric or brain injury were weighed by the sentencing court, but did not render a 7-year non-parole period for a serious s 37 Crimes Act 1900 offence excessive in the circumstances.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 37 (choking with intent to commit indictable offence)
- Criminal Appeal Act 1912 (NSW), s 5
Cases:
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Morris v R [1987] HCA 50; (1987) 163 CLR 454
- M v R [1994] HCA 63; (1994) 181 CLR 487
- MFA v R [2002] HCA 53; (2002) 213 CLR 606
- SKA v R [2011] HCA 13; (2011) 243 CLR 400