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18
Court of Criminal Appeal 20 February 2017

TO v R

[2017] NSWCCA 12

Also reported as (2017) 265 A Crim R 191
Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SENTENCE APPEAL WHETHER MULDROCK ERROR APPELLANT RESENTENCED

Citation: TO v R [2017] NSWCCA 12
Court: Court of Criminal Appeal of New South Wales
Date: 20 February 2017
Judge(s): Price J (principal judgment), Button J, Fagan J

Background

The appellant was convicted by a jury in the District Court of three offences against a nine-year-old girl, the daughter of his former partner, with whom he had lived in a shared household. The offences were: aggravated sexual intercourse with a child under ten (anal penetration in the shower), and two counts of attempting to have sexual intercourse with a child under ten (an attempt in the shower and a further attempt in the appellant's bedroom). All offences were alleged to have occurred over a three-day period in June 2012, when the complainant was absent from school with chickenpox.

The appellant did not give evidence at trial. A recorded police interview in which he denied all allegations was played to the jury. The complainant was interviewed twice by police, with those recordings also played at trial.

On sentence, the District Court imposed 16 years imprisonment with a 12-year non-parole period for count 1, and concurrent fixed terms of 8 years for counts 2 and 3. The appellant appealed both conviction and sentence.

  • Whether the trial judge's refusal to discharge the jury, following aspects of the Crown Prosecutor's closing address, occasioned a miscarriage of justice
  • Whether trial counsel's failure to seek a forensic disadvantage direction under s 165B of the Evidence Act 1995 (NSW), regarding delay in the complaint, constituted a miscarriage of justice
  • Whether the trial judge had an independent obligation to give a forensic disadvantage direction without a request from the defence
  • Whether the verdicts of guilty were unreasonable or unsupported by the evidence
  • Whether the sentencing judge applied the standard non-parole period provisions under Part 4, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) incorrectly (a "Muldrock error")
  • Whether the sentences imposed were manifestly excessive

Decision

Conviction appeal dismissed. The Court found no miscarriage of justice arising from the trial judge's refusal to discharge the jury after the Crown Prosecutor's address. Whatever concern the address may have raised, the judge's directions adequately addressed any potential prejudice, and the threshold for discharge was not met.

On the forensic disadvantage direction, the Court examined whether trial counsel's failure to seek a direction under s 165B of the Evidence Act 1995 constituted an error that caused a miscarriage. The Court concluded it did not. There was a reasonable forensic basis for counsel's decision not to seek the direction, and the statutory preconditions for such a direction were not clearly satisfied in any event. The Court also considered whether the judge had an independent obligation to give the direction of her own volition and found that she did not, given the circumstances of this case.

The unreasonable verdict ground was also rejected. Having regard to the complainant's detailed and consistent accounts, the corroborating school absence records, and the absence of evidence raising reasonable doubt, the Court was satisfied the verdicts were open to the jury.

Sentence appeal allowed in part. All three judges agreed that a Muldrock error had occurred: the sentencing judge had given excessive weight to the standard non-parole period for count 1 as a sentencing determinant rather than treating it as a legislative guideline. The Court resentenced the appellant. Price J and Button J differed somewhat in the sentences they proposed, with Button J ultimately providing the orders endorsed by the Court. Fagan J agreed with Button J's approach on counts 2 and 3, finding the original fixed terms of 8 years manifestly excessive for offences involving attempts that did not involve physical contact and were resisted by the complainant.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Sentences imposed by Wells DCJ on 18 August 2015 set aside
  • In lieu thereof, the appellant resentenced as follows:
  • Count 1: Non-parole period of 9 years commencing 15 June 2015, expiring 14 June 2024; balance of term of 3 years commencing 15 June 2024, expiring 14 June 2027
  • Count 2: Non-parole period of 3 years commencing 15 June 2015, expiring 14 June 2018; balance of term of 1 year commencing 15 June 2018, expiring 14 June 2019
  • Count 3: Non-parole period of 3 years commencing 15 June 2015, expiring 14 June 2018; balance of term of 1 year commencing 15 June 2018, expiring 14 June 2019
  • Appellant eligible for release to parole on 14 June 2024

Key Takeaways

  • A forensic disadvantage direction under s 165B of the Evidence Act 1995 is not automatically required in every case involving delayed complaint; where trial counsel had a rational forensic basis for not seeking the direction, and the statutory conditions were not clearly engaged, the omission does not necessarily constitute a miscarriage of justice.
  • The Court of Criminal Appeal confirmed that a trial judge does not have an independent obligation to give a forensic disadvantage direction on the court's own initiative in all cases, at least where the defence has not sought one and there is no clear statutory trigger.
  • Applying Muldrock, standard non-parole periods under Part 4, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) are legislative guideposts, not mandatory starting points; a sentencing court that treats them otherwise commits error justifying resentencing on appeal.
  • In assessing manifest excess for attempted sexual offending under s 66B of the Crimes Act 1900 (NSW), the Court considered the relative seriousness of the specific conduct: attempts that were resisted without physical contact being completed were treated as warranting lesser sentences than the original fixed terms reflected.
  • Verdicts in child sexual assault proceedings resting substantially on complainant testimony can withstand an unreasonable verdict challenge where the account is detailed, internally consistent, and supported by independent corroboration such as school records.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A, 66B
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21, 54A–54D, Part 4 Division 1A
- Criminal Appeal Act 1912 (NSW), s 6
- Evidence Act 1995 (NSW), ss 9, 165, 165B

Cases
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Kentwell v R (2014) 252 CLR 601
- Longman v R (1989) 168 CLR 79
- Crofts v R (1996) 186 CLR 427
- M v The Queen (1994) 181 CLR 487
- Libke v R (2007) 230 CLR 559
- Crampton v The Queen (2000) 206 CLR 161
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Lowndes v The Queen (1999) 195 CLR 665
- CH v R [2014] NSWCCA 119
- GN v R [2012] NSWCCA 96
- KB v R [2015] NSWCCA 220
- Jarrett v R (2014) 86 NSWLR 623
- Greensill v R (2012) 37 VR 257