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6
Court of Criminal Appeal 26 August 2015

RP v R

[2015] NSWCCA 215

Sexual offences
CRIMINAL LAW AGGRAVATED INDECENT ASSAULT ACCUSED WAS OLDER HALF BROTHER OF VICTIM ACCUSED AGED BETWEEN 11 AND 13 YEARS DOLI INCAPAX

Citation: RP v R [2015] NSWCCA 215
Court: NSW Court of Criminal Appeal
Date: 26 August 2015
Judge(s): Johnson J, Davies J, Hamill J

Background

The applicant was an older half-brother of the complainant, aged between approximately 11 years 6 months and 12 years 3 months at the time of the alleged offending. He was charged with four counts arising from sexual assaults on his younger half-brother, who was aged between approximately 6 and 7 years old at the relevant times. The offences included two counts of sexual intercourse with a child under 10 years and two counts of aggravated indecent assault, all alleged to have occurred between October 2004 and July 2007.

The trial proceeded by judge alone before Judge Letherbarrow in the Wagga Wagga District Court. The sole issue at trial was whether the Crown had rebutted the presumption of doli incapax (the legal presumption that a child aged between 10 and 14 years lacks the capacity to commit a crime) beyond reasonable doubt. The applicant did not contest that the physical elements of the offences had been proved.

The trial judge acquitted the applicant on count 1, but found the presumption rebutted on counts 2, 3, and 4, recording guilty verdicts on those counts. The applicant subsequently sought leave to appeal against both conviction and sentence.

  • Whether the verdict on count 2 was unreasonable, specifically whether the trial judge correctly found that the applicant knew his conduct was seriously wrong
  • Whether the verdicts on counts 3 and 4 were unreasonable, including whether the trial judge erred by treating the rebuttal of doli incapax on count 2 as automatically establishing rebuttal on later counts
  • Whether the trial judge erred in finding the applicant occupied a position of trust for sentencing purposes
  • Whether the trial judge failed to apply or consider the applicant's willingness to facilitate the course of justice under the relevant sentencing provision
  • Whether the sentence imposed was manifestly excessive

Decision

The Court of Criminal Appeal was divided on the conviction appeals. The majority (Johnson J and Davies J) confirmed the conviction on count 2, finding that the circumstances surrounding that offence were sufficient to establish beyond reasonable doubt that the applicant knew his conduct was seriously wrong. In relation to count 3, the majority and Hamill J agreed that the finding on count 2 was relevant context when assessing the applicant's state of knowledge at the time of the later offence, but disagreed on the ultimate outcome.

On counts 3 and 4, the majority allowed the conviction appeal and entered acquittals. The critical error at trial was the judge's approach of treating rebuttal of doli incapax on count 2 as an automatic consequence for counts 3 and 4. The Court confirmed that the presumption must be rebutted to the criminal standard on each individual count, though prior findings remain relevant context. Johnson J, agreeing with Davies J on the ultimate orders, reasoned that the particular facts of count 3 (including the complainant's attempted flight and the applicant's physical restraint of him) did support rebuttal, but the majority view favoured acquittal on both counts 3 and 4 given the automaticity error below.

On sentence, the Court allowed the sentence appeal on count 2. It found error in the trust finding and in the failure to account adequately for the applicant's cooperation. Taking into account his youth at the time of the offence, his intellectual disability, emotional immaturity, and the hardship he had experienced in custody, the Court resentenced the applicant to a 20-month term of imprisonment, backdated to the date of remand, with the entire sentence suspended on conditions including supervision and participation in an appropriate rehabilitation program.

Orders Made

  • Leave to appeal against conviction granted; appeal allowed in part
  • Conviction on count 2 confirmed
  • Convictions and sentences on counts 3 and 4 quashed; verdicts of acquittal entered on each
  • Leave to appeal against sentence on count 2 granted; sentence appeal allowed
  • In lieu of the original sentence, the applicant sentenced to imprisonment for 20 months commencing 5 December 2014, the whole of which was suspended on the applicant entering a bond under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), subject to conditions including:
  • Supervision by the adult Probation and Parole Service and compliance with all reasonable directions
  • Participation in the CUBIT Outreach (CORE) Program or such other program as directed

Key Takeaways

  • The presumption of doli incapax requires the Crown to rebut it to the criminal standard separately on each individual count; no automatic consequence flows from rebuttal on an earlier count to later counts arising from the same proceedings.
  • A prior finding that the presumption was rebutted on an earlier count is nonetheless relevant contextual material when assessing a child offender's knowledge of serious wrongdoing in respect of subsequent similar offences committed weeks later, as it forms part of the child's developing understanding, knowledge, and experience.
  • Where a trial judge applies an incorrect "automatic consequence" approach to doli incapax across multiple counts, the Court of Criminal Appeal will treat that as legal error capable of infecting the verdicts on those counts.
  • In sentencing a child offender (sentenced as an adult), factors such as intellectual disability, emotional immaturity, and the hardship of custody bear heavily on the appropriate sentence, and the reduced significance of general deterrence may support a suspended custodial term even for serious sexual offences.
  • A finding that an accused occupied a "position of trust" as an aggravating factor at sentencing requires proper procedural fairness, and errors in that finding, combined with failure to account for a willingness to facilitate the course of justice, can ground a successful sentence appeal.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW), ss 61M(2), 66A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 12, 22A
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases:
- AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
- BP v Regina, SW v Regina [2006] NSWCCA 172
- C (A Minor) v Director of Public Prosecutions [1996] AC 1
- Filippou v The Queen [2015] HCA 29
- KRM v R [2001] HCA 11; (2001) 206 CLR 221
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MS2 & Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93