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10
Court of Criminal Appeal 24 August 2016

Flaherty v R; R v Flaherty

[2016] NSWCCA 188

Also reported as (2016) 92 NSWLR 290
Sexual offences
CRIMINAL LAW CONVICTION APPEAL HISTORIC SEXUAL OFFENCE INDECENT ASSAULT ON MALE WHETHER ERROR IN SUMMING UP WHETHER ONUS OF PROOF REVERSED

Citation: Flaherty v R; R v Flaherty [2016] NSWCCA 188
Court: NSW Court of Criminal Appeal
Date: 24 August 2016
Judges: Hoeben CJ at CL, Simpson JA, Price J

Background

The appellant, a former Catholic priest, was charged in 2013 with five counts of indecent assault on a male child under s 81 of the Crimes Act 1900 (NSW). All offences were historic, occurring between 1972 and 1981. The complainant was aged 11 to 12 at the time of the two offences that proceeded to trial, which involved fellatio and the insertion of an object into the complainant's anus, both occurring on the same evening.

The appellant pleaded guilty to three counts and was convicted by jury of the remaining two. On 25 February 2016, the sentencing judge imposed an aggregate sentence of 2 years and 3 weeks imprisonment, with a non-parole period of 6 months, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Three separate appeals followed: the appellant challenged his conviction, the appellant sought leave to appeal the sentence as excessive, and the Crown appealed the sentence as inadequate.

  • Whether the trial judge's direction to the jury that verdicts must be "logically consistent" reversed the onus of proof and caused a miscarriage of justice
  • Whether the sentencing judge failed to apply sentencing standards applicable at the time the offences were committed
  • Whether the sentencing judge gave adequate weight to the appellant's age, ill health, and the delay in prosecution
  • Whether the sentencing judge erroneously applied a two-stage sentencing approach rather than instinctive synthesis
  • Whether the sentencing judge erred by double-counting the appellant's personal circumstances in both the aggregate sentence and in finding special circumstances
  • Whether the sentencing judge erred by ordering that the two offences against the same victim on the same occasion be served concurrently
  • Whether the sentencing judge failed to have any regard to general deterrence
  • Whether the aggregate sentence was manifestly inadequate
  • Whether errors identified by the Crown in a Crown appeal could be used to benefit the appellant in his own sentence appeal

Decision

Conviction appeal: The Court dismissed the conviction appeal. No objection to the "logical consistency" direction had been taken at trial, engaging rule 4 of the Criminal Appeal Rules. The Court found that the absence of any trial objection was itself indicative that experienced counsel saw no error or injustice at the time. The direction was consistent with R v Markuleski, and was appropriate in a "word against word" case where both offences occurred at virtually the same time. Leave under rule 4 was refused because the appellant failed to demonstrate an arguable ground or a miscarriage of justice.

Crown sentence appeal: The majority (Hoeben CJ at CL and Simpson JA) and Price J each found that three of the Crown's five grounds disclosed error. The sentencing judge had engaged in a two-stage approach rather than instinctive synthesis, had double-counted the appellant's age and ill health by using those matters both to set the sentence length and to justify a finding of special circumstances, and had failed to have any regard to general deterrence. Despite these errors, the Court exercised its residual discretion to dismiss the Crown appeal, the majority concluding that the sentence, though affected by error, remained within the range justly available on the facts. Price J considered the sentence manifestly inadequate but also exercised the residual discretion on compassionate grounds.

Appellant's sentence appeal: The majority found that none of the appellant's own grounds disclosed error. The sentencing judge had applied historic sentencing standards correctly and had given full weight to the appellant's personal circumstances. However, the majority held that the errors identified by the Crown meant the appellant had not been sentenced according to law. Simpson JA, with Hoeben CJ at CL agreeing, held that it would be a distortion of justice to leave an unlawful sentence in place simply because the error was exposed by the Crown rather than the appellant. The majority applied Kentwell v The Queen broadly, confirming that where an error of principle is established, the appellate court's role is to recommence the sentencing process, not merely to assess whether the error affected the outcome. The Crown's duties of fairness and candour to the court extend to drawing errors to the attention of the court or offender even where doing so might reduce the sentence. The appellant was re-sentenced to an aggregate of 2 years with a non-parole period of 3 months.

Price J dissented on re-sentencing. His Honour considered that errors pointing to the inadequacy of a sentence should not be deployed to benefit an appellant, and that Kentwell did not require re-sentencing in circumstances where the identified errors indicated that a longer sentence would have been appropriate. Price J would have dismissed the appellant's sentence appeal.

Orders Made

  • Conviction appeal dismissed
  • Crown appeal dismissed
  • Leave granted to the appellant to appeal against sentence
  • Appeal allowed
  • In lieu of the District Court sentence, the appellant sentenced to an aggregate term of 2 years imprisonment, commencing 24 August 2016, with a non-parole period of 3 months, expiring 23 November 2016
  • Direction that the appellant be released on parole at the expiration of the non-parole period

Key Takeaways

  • A jury direction requiring "logical consistency" between verdicts is not necessarily an error reversing the onus of proof; in word-against-word cases involving contemporaneous offences against the same victim, such a direction may be appropriate and consistent with R v Markuleski.
  • Under Kentwell v The Queen, where an error of principle is established in sentencing, the appellate court's function is to re-sentence rather than to assess the degree to which the error affected the result, and the majority held this principle applies regardless of whether the error is exposed by the Crown or the offender.
  • The Crown's duty of fairness and candour in criminal proceedings extends to correcting sentencing errors even when doing so may benefit the offender and reduce the sentence, as the integrity of the criminal justice system depends on that obligation being met.
  • Exercising the residual discretion to dismiss a Crown sentence appeal does not insulate a sentence from appellate intervention if errors of principle are independently established through the offender's own appeal, at least where the majority concludes the sentence falls within a just range.
  • Price J's dissent serves as a counterpoint: his Honour considered that errors identified by the Crown as demonstrating a sentence's inadequacy cannot logically be re-deployed to the appellant's advantage, and that Kentwell should not be read so broadly.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 81
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(1), 53A, 76
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 5D, 6(3)

Cases
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
- R v Tripodina [1998] 35 A Crim R 183
- R v MJR [2002] NSWCCA 129; 54 NSWLR 368
- Magnuson v R [2013] NSWCCA 50
- Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
- Jones v R [1997] HCA 12; 191 CLR 439
- Mackenzie v R [1996] HCA 35; 190 CLR 348
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- R v Abusafiah (1991) 24 NSWLR 531