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Court of Criminal Appeal 9 July 2015

McIntosh v R

[2015] NSWCCA 184

Sexual offencesAssault & violence
APPEAL LEAVE TO APPEAL CRIMINAL TRIAL INTERLOCUTORY DECISION BASHA INQUIRY HELD COMPLAINANTS CROSS

Citation: McIntosh v R [2015] NSWCCA 184
Court: Court of Criminal Appeal
Date: 9 July 2015
Judge(s): Basten JA (at [1]); Hidden J (at [172]); Wilson J (at [176])

Background

The applicant was convicted across two separate District Court trials of 42 offences of assault and indecent assault involving four young male complainants. The first trial (2009) concerned a single complainant who had been a student in a school cadet unit in 1991 and 1992. The second trial (2011) concerned three complainants from the Inverell area, where the offending occurred primarily between 1977 and 1983.

The trial judge imposed an overall aggregate sentence of 32 years imprisonment with a non-parole period of 20 years. Sentencing did not take place until after both trials had concluded, in August 2011.

The applicant sought leave to appeal both his convictions and his aggregate sentence. The conviction grounds centred on the admissibility of tendency evidence and the adequacy of jury directions. The sentence grounds raised issues about the availability of aggregate sentencing, the correct sentencing regime for historical offences, and the alleged excessiveness of the indicative and aggregate sentences.

Legal Issues

  • Whether the possibility of concoction or contamination is a factor that must be taken into account in assessing whether tendency evidence has "significant probative value" under ss 97 and 101 of the Evidence Act 1995 (NSW)
  • Whether the trial judge erred in admitting evidence of uncharged acts from two supporting witnesses as tendency evidence
  • Whether the trial judge adequately distinguished between tendency and coincidence evidence in jury directions
  • Whether the joinder of the three complainants from the second trial in a single trial was appropriate
  • Whether the applicant was denied a fair trial because counsel allegedly believed no further application for a separate trial could be made after the voir dire
  • Whether the power to impose an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) was available for offences from the 2009 trial, given that section had not yet commenced when the jury returned its verdict
  • Whether the sentencing judge failed to apply the sentencing principles applicable at the time of the historical offending, including appropriate leniency for the earliest offences
  • Whether the indicative sentences and the aggregate sentence were manifestly excessive

Decision

Grounds 1–4 (Tendency Evidence and Concoction):

The Court held that the possibility of concoction is not a factor that must be taken into account in determining whether tendency evidence has "significant probative value" for the purposes of s 97 of the Evidence Act (at [47]). Contestable questions of credibility and reliability are for the jury, not the trial judge at the admissibility stage. Because cross-examination directed at suggesting collusion occurred after the evidence was admitted, and no searching cross-examination on the voir dire was conducted on this point, no error arose in the trial judge's admissibility rulings (at [49]–[50]). The evidence of CC regarding the beating at Towlers Bay was highly plausible, complemented the complainant's own account, and its probative value substantially outweighed its prejudicial effect (at [51]–[52]). Grounds 2, 3, and 4 were rejected.

Ground 5 (Context or Relationship Evidence, Dion Chandler):

The Court held that oblique references in Dion Chandler's evidence to earlier beatings were properly admitted as an inherent part of the tendency evidence already ruled admissible. Those references were necessary to explain the plausibility of his response to the applicant's demands; without them, his conduct would have appeared inexplicable (at [71]–[72]). The trial judge did not admit evidence previously ruled inadmissible. Ground 5 was rejected.

Ground 6 (Jury Directions, Tendency versus Coincidence Evidence):

No objection was taken to any of the directions at trial. The summing up devoted three transcribed pages to tendency and coincidence evidence, and the Court found the trial judge did not fail to address the distinction (at [77]). Counsel at trial could not, when invited on appeal, formulate the missing direction that was said to have been required. Leave under r 4 of the Criminal Appeal Rules was refused (at [79]).

Second Trial, Conviction Grounds (Joint Trial and Voir Dire):

The Court held that the joinder of the three complainants for a single trial was appropriate, as the offences were sufficiently related that separate trials would have created complete unreality and unduly prolonged proceedings (at [94]). Following a Basha inquiry (a pre-trial examination of witnesses on oath before the judge, in the absence of the jury), counsel cross-examined all three complainants about their contacts with each other. No application for a separate trial was then made. The Court found the most plausible explanation was that, on a reasonable assessment of the evidence, there was no tenable basis for a concoction or contamination argument (at [107]). There was no evidence of concoction or contamination, and the tendency evidence of each complainant carried significant probative value with respect to the counts involving the others (at [105], [109], [113]). Leave was granted on ground 2 but the appeal was dismissed.

Aggregate Sentencing: Availability of s 53A (Ground 1 on Sentence):

Section 53A applies unless the court "has convicted the person being sentenced" before the section's commencement. The Court held that, in the context of this provision, "convicted" refers to the formal act of the court in convicting, not the return of the jury's verdict (at [130]). The applicant was formally convicted by the sentencing judge on 22 August 2011, after s 53A had commenced. Accordingly, the aggregate sentencing power was available for offences from both trials (at [130]–[133]). Ground 1 on sentence was rejected.

Indicative Sentences and Sentencing Errors (Grounds 3, 4, 5, 6, 7, 9):

The Court identified several errors in the sentencing exercise. The indicative sentences were found to be arbitrary, with a uniform tendency to approach or reach the maximum available penalty without proper calibration to the individual seriousness of each offence (at [157]). The trial judge erred in treating the applicant as being on parole for earlier Grafton offences when committing the offences against the first complainant, as the parole period had probably expired by March 1991 (at [150]). The trial judge also failed to afford leniency for the earliest offences committed when the applicant was in his late teens or early twenties, which sentencing principles required (at [149]–[151]). The trial judge's finding of special circumstances to justify a 12-year parole period was not supported by adequate reasoning (at [161]).

Aggregate Sentence: Manifestly Excessive (Ground 9):

Given the identified errors, the Court re-exercised the sentencing discretion. An aggregate sentence of 24 years imprisonment with a non-parole period of 18 years was substituted (at [170]). No basis for a finding of special circumstances was established, so the statutory ratio between non-parole period and balance of term applied.

Orders Made

  • With respect to the 2009 convictions: leave to appeal granted; appeal dismissed.
  • With respect to the 2011 convictions: leave to appeal granted limited to ground 2; appeal on ground 2 dismissed.
  • With respect to the aggregate sentence: leave to appeal granted; sentence imposed on 22 August 2011 set aside.
  • In substitution: aggregate sentence of 24 years imprisonment with a non-parole period of 18 years, commencing 28 December 2008. First eligible for parole: 27 December 2026.

Key Takeaways

  • The possibility of concoction or contamination is not a mandatory consideration when a trial judge assesses whether tendency evidence has "significant probative value" under s 97 of the Evidence Act 1995 (NSW). Contestable credibility questions remain for the jury; absent searching voir dire cross-examination raising a concrete basis for concern, no error arises from a judge who does not address concoction in the admissibility ruling (at [47]–[50]).

  • Under the transitional provisions governing the commencement of s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), "convicted" refers to the formal court act of conviction at sentencing, not the return of the jury's verdict. Where a judge formally convicts an offender at a sentencing hearing held after s 53A commenced, the aggregate sentencing power is available even if the jury verdicts were returned before commencement (at [129]–[133]).

  • Sentencing for historical sexual offences requires calibration to the circumstances of the offender as they would have appeared to a court at the time of the offending. Failure to afford any leniency for the earliest offences in a series, because of later offending discovered after the fact, constitutes an error; it amounts to sentencing with hindsight (at [120], [149]–[151]).

  • Indicative sentences required under s 53A(2) must bear a proper relationship to the individual seriousness of each offence. A pattern of imposing sentences uniformly at or near the maximum, without identifying where each offence falls within the available range, is arbitrary and constitutes a miscarriage of the sentencing exercise (at [157]).

  • The principle of totality does not apply to an aggregate sentence in the same way it applies to accumulated individual sentences. Where a single aggregate term is imposed under s 53A, the appropriate mechanism for ensuring proportionality is the fixing of that aggregate term itself, not adjustments for concurrency across indicative sentences (at [144]–[145]).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), s 61M, 556A
- Criminal Appeal Act 1912 (NSW), ss 2, 5, 6
- Criminal Appeal Rules (NSW), r 4
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3(3A),10, 44, 45, 53A; Sch 2, Pt 2, cl 62; Pt 7, cl 45; Pt 19, cl 59
- Crimes (Sentencing Procedure) Amendment Act 2010 (NSW), ss 3A, 21A; Sch 2 [14]
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW), Sch 1
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW), Sch 2
- Evidence Act 1995 (NSW), ss 97, 98, 101, 137
- Interpretation Act 1987 (NSW), s 33

Cases
- AE v R [2008] NSWCCA 52
- Black v R [2013] NSWCCA 265
- BJS v R [2011] NSWCCA 239
- BJS v R [2013] NSWCCA 123; 231 A Crim R 532
- Collier v R [2012] NSWCCA 213
- Convery v R [2014] NSWCCA 93
- Griffiths v The Queen (1977) 137 CLR 293
- Hoch v The Queen (1988) 165 CLR 292
- JM v R [2014] NSWCCA 297
- Jones v R [2014] NSWCCA 280
- Kentwell v The Queen [2014] HCA 37; 88 ALJR 947
- Lee v R; Tang v R [2015] NSWCCA 157
- Lipchin v R [2013] NSWCCA 77
- Magnuson v R [2013] NSWCCA 50
- Mariam v R [2013] NSWCCA 338
- Maxwell v The Queen (1996) 184 CLR 501
- MPB v R [2013] NSWCCA 213; 234 A Crim R 576
- Pfennig v The Queen (1995) 182 CLR 461
- R v Basha (1989) 39 A Crim R 337
- R v Colby [1999] NSWCCA 261
- R v Dunn [2004] NSWCCA 346
- R v Ellis [2003] NSWCCA 319; 58 NSWLR 700
- R v Leonard [2006] NSWCCA 267; 67 NSWLR 545
- R v OGD (No 2) [1999] NSWCCA 261
- R v Preston (CCA (NSW), 9 April 1997, unrep)
- R v Reinsch [1978] 1 NSWLR 483
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- R v Taumaialo [2000] NSWCCA 14
- R v XY [2013] NSWCCA 121; 84 NSWLR 363
- Richards v The Queen [1993] AC 217
- RJB v R [2015] NSWCCA 93
- RL v R [2015] NSWCCA 106
- Tuvunivono v R [2013] NSWCCA 176