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19
Court of Criminal Appeal 17 April 2014

Peiris v R

[2014] NSWCCA 58

Also reported as 240 A Crim R 114
Sexual offences
CRIMINAL LAW APPEAL FROM CONVICTION SEXUAL ASSAULT JURY CONVICTED ON 2 OF 3 COUNTS APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Peiris v R [2014] NSWCCA 58
Court: NSW Court of Criminal Appeal
Date: 17 April 2014
Judge(s): Leeming JA; Button J; RS Hulme AJ

Background

The appellant was convicted by a District Court jury on two counts of aggravated indecent assault, and acquitted on a third count of aggravated sexual intercourse without consent. The offences involved a young girl who was 10 years old at the time of the first offence (Count 1) and 14 years old at the time of the third (Count 3). The appellant was a close family friend who had regular access to the family's home and financial ties to the family.

The Crown case rested on the complainant's testimony, which the appellant denied in its entirety. There were no other witnesses to the alleged incidents, no medical evidence, and no other contemporaneous documentary evidence apart from a Facebook message and notes made on the complainant's iPhone prior to her police interview.

The appellant was sentenced to a total of 18 months imprisonment with a non-parole period of 9 months. He was subsequently granted bail pending appeal, having served just over five weeks in custody. On appeal, he challenged both his convictions and his sentence.

  • Whether the jury's verdicts were inconsistent, given the acquittal on Count 2 but convictions on Counts 1 and 3
  • Whether the sentencing judge erred by failing to take into account the appellant's assistance to authorities
  • Whether the sentencing judge erred in treating "breach of trust" as an aggravating factor under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge erred in assessing the objective seriousness of the offending
  • Whether the sentence was manifestly excessive, including by reference to Local Court sentencing statistics
  • Whether the time interval between the two offences was properly treated as increasing objective criminality

Decision

Conviction appeal dismissed. Leeming JA, with whom Button J and RS Hulme AJ agreed, rejected the inconsistent verdicts argument. The Court confirmed the applicable test from M v The Queen (1994): a verdict is not inconsistent merely because a rational jury, acting properly, could have convicted on some counts while acquitting on others. Here, the jury was entitled to accept the complainant's evidence on Counts 1 and 3 while entertaining doubt about Count 2, particularly given the complainant's iPhone notes, which did not expressly mention the digital penetration alleged in Count 2. That was a rational basis for differentiation.

Sentence appeal allowed in part. The Court identified two errors in the sentencing process. First, the sentencing judge had referred to Local Court sentencing statistics when imposing sentence. The Court held this was erroneous: those statistics were irrelevant to District Court sentencing, and reliance on them misidentified the correct sentencing range. Second, the Court accepted that there was error in the treatment of objective seriousness, including the weight placed on "breach of trust."

Breach of trust distinction. RS Hulme AJ, in additional remarks, observed that the sentencing judge appeared to conflate "breach of trust" (a factual circumstance) with "abuse of a position of trust," which is a listed aggravating factor under s 21A(2)(k). These are not identical concepts, as confirmed in MAH v R [2006] NSWCCA 226. His Honour also considered that the two-year interval between the offences was improperly treated as increasing objective criminality beyond the mere commission of two separate offences.

Resentencing. The Court resentenced the appellant. Given that he had already served a period of imprisonment and had been on bail, the Court imposed fully suspended sentences with good behaviour bonds, reflecting both the identified errors and the time already served.

Orders Made

  • Conviction appeal dismissed
  • Leave to appeal against sentence granted; sentence appeal allowed
  • Sentence on Count 3 varied to 8 months imprisonment, execution suspended for 8 months, appellant released on a good behaviour bond for 8 months
  • Sentence on Count 1 varied to 14 months imprisonment, execution suspended for 14 months, appellant released on a good behaviour bond for 14 months

Key Takeaways

  • Inconsistent verdicts require more than a mere difference in outcome across counts: under the test in M v The Queen, verdicts are only inconsistent if no rational jury, acting properly, could have reached them simultaneously. An acquittal and conviction on related counts may both be rational where the evidence supports different conclusions on each.
  • Under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999, "abuse of a position of trust" as a listed aggravating factor is distinct from a general finding of "breach of trust." Conflating the two may constitute sentencing error, as the Court of Criminal Appeal confirmed by reference to MAH v R [2006] NSWCCA 226.
  • Reliance on Local Court sentencing statistics when sentencing in the District Court constituted error: those statistics do not reflect the correct sentencing range for District Court proceedings and their use misidentified the applicable benchmark.
  • The time interval between separate offences does not, of itself, operate as a factor that increases the objective criminality of each offence beyond the fact of their commission as distinct events.
  • Where a sentencing judge has already served time in custody and errors are identified on appeal, the Court of Criminal Appeal may impose fully suspended sentences to reflect both the identified errors and the custodial period already served.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW), s 30AA
- Crimes Act 1900 (NSW), ss 61J(1), 61M, 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 21A(2)(k), 23, 50
- Criminal Appeal Act 1912 (NSW), ss 6(3), 18

Cases:
- M v The Queen (1994) 181 CLR 487
- MAH v R; R v MAH [2006] NSWCCA 226
- Barbaro v The Queen [2014] HCA 2; 88 ALJR 372
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- Jones v The Queen (1997) 191 CLR 439
- McKenzie v The Queen (1997) 190 CLR 348
- Morris v The Queen (1987) 163 CLR 454
- Baumgartner v Baumgartner (1987) 164 CLR 137
- BT v R [2010] NSWCCA 267
- Bonwick v R [2010] NSWCCA 177
- Fisher v R [2008] NSWCCA 129
- Flanagan v R [2013] NSWCCA 320
- Giles v Director of Public Prosecutions (NSW) [2009] NSWCCA 308
- Hughes v R [2008] NSWCCA 48
- LB v R [2011] NSWCCA 220
- LP v R [2013] NSWCCA 330
- Matthews v R [2013] NSWCCA 187
- Mitchell v R [2013] NSWCCA 318
- DRS v The Queen [2012] VSCA 276
- Karl Suleman v R [2009] NSWCCA 70