AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 23 November 2017

DV v R

[2017] NSWCCA 276

Sexual offences
CRIMINAL LAW CONVICTION AND SENTENCE APPEALS WHETHER EVIDENCE FRESH WHETHER EVIDENCE CREDIBLE EVIDENCE NOT FRESH EVIDENCE NOT CREDIBLE

Citation: DV v R [2017] NSWCCA 276
Court: NSW Court of Criminal Appeal
Date: 23 November 2017
Judges: Hoeben CJ at CL; Latham J; N Adams J

Background

The applicant was the stepfather of the complainant, who was born in 1996. Following the marriage of the applicant to the complainant's mother in 2001, the family lived together in a home in Ballina. The Crown alleged that between 2007 and 2014 the applicant sexually assaulted the complainant on multiple occasions, beginning when she was 11 years old.

The applicant was tried before Judge King SC and a jury on 14 counts, comprising eight counts of sexual intercourse with a child aged between 10 and 14 in circumstances of aggravation, five counts of aggravated indecent assault on a person under 16, and one count of aggravated indecent assault on a person over 16. The jury returned guilty verdicts on Counts 1 to 12 and acquitted on Counts 13 and 14. The trial judge sentenced the applicant to a total term of 16 years' imprisonment, with a non-parole period of 12 years.

The applicant appealed against conviction on two grounds and sought leave to appeal against sentence. The conviction grounds concerned the trial judge's directions on complaint evidence and the absence at trial of evidence that had since become available.

  • Whether the trial judge erred in directing the jury on the use it could make of complaint evidence
  • Whether a miscarriage of justice was occasioned by the absence at trial of evidence that had since become available (the "fresh evidence" ground)
  • Whether, on the fresh evidence ground, the evidence was truly "fresh" and sufficiently credible
  • Whether the aggregate sentence was manifestly excessive, having regard to the objective seriousness of the offences

Decision

Ground 1: Complaint evidence directions. The Court refused leave to rely on this ground. The complaint evidence concerned disclosures made by the complainant to various recipients at different times. The Court found no appellable error in the trial judge's directions to the jury regarding the permissible use of that evidence.

Ground 2: Fresh evidence. Leave to rely on this ground was granted, but the appeal was dismissed. To succeed on a fresh evidence ground, an applicant must establish that the evidence was not available at trial, that it is credible, and that there is a significant possibility a jury acting reasonably would have acquitted had the evidence been before it. The Court concluded that the evidence put forward did not meet the threshold: it was not "fresh" in the relevant legal sense, and it was not credible. Accordingly, no significant possibility arose that a reasonable jury would have reached a different verdict.

Sentence appeal. The bench was divided. Hoeben CJ at CL found the aggregate sentence of 16 years with a 12-year non-parole period was manifestly excessive, noting that the bulk of the offending was concentrated within a period of approximately three weeks, and that eight of the twelve offences occurred on a single occasion. His Honour proposed reducing the total term to 14 years with a non-parole period of 10 years and 6 months. Latham J disagreed, finding the sentence stern but not outside the sentencing discretion, given the seriousness of the offending and the applicable statutory framework. N Adams J agreed with the majority outcome, resulting in the sentence being reduced in accordance with Hoeben CJ at CL's proposed orders.

Orders Made

  • Leave to rely on conviction Ground 1 refused.
  • Leave to rely on conviction Ground 2 granted; conviction appeal dismissed.
  • Leave to appeal against sentence granted; sentence appeal allowed.
  • The original sentence quashed and replaced with a total term of 14 years' imprisonment, with a non-parole period of 10 years and 6 months commencing 9 May 2016 and expiring 8 November 2026; total sentence expiring 8 May 2030; eligible for parole from 8 November 2026.

Key Takeaways

  • A fresh evidence ground requires the applicant to establish that the evidence was unavailable at trial, that it is credible, and that there is a significant possibility a jury acting reasonably would have acquitted. All three elements must be satisfied; the absence of any one is fatal to the ground.
  • Where proposed fresh evidence fails the credibility threshold, the court need not determine whether a reasonable jury might have acquitted, as the necessary foundation for the ground is not established.
  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that complaint evidence directions are assessed in context, and a refusal of leave signals that not every impugned direction will reach the threshold required to constitute an appellable error.
  • The Court of Criminal Appeal confirmed, by majority, that an aggregate sentence may be manifestly excessive even where individual offences are serious, particularly where the period of offending is compressed and a significant number of counts occurred on a single occasion. The principle of totality remains a live consideration under the s 53A aggregate sentencing mechanism.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, indicative sentences must be assessed individually for each offence; a blanket approach treating multiple offences identically is erroneous, and the aggregate mechanism does not diminish the obligation to assess each offence's criminality separately.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 59, 61, 66, 78, 61M(1), 66C(2)
- Crimes Amendment (Sexual Offences) Act 2003 (NSW)
- Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 53A
- Evidence Act 1995 (NSW) ss 66(1), 66(2)

Cases:
- AK v R [2016] NSWCCA 238
- AL v Regina [2017] NSWCCA 34
- ALS v R [2013] NSWCCA 63
- BIP v R [2011] NSWCCA 224
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Chamseddine v R [2017] NSWCCA 176
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Franklin v R [2016] NSWCCA 319
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- House v The King [1936] HCA 40; 55 CLR 499
- IMM v The Queen [2016] HCA 14; 257 CLR
- JM v R [2014] NSWCCA 297
- Magnuson v R [2013] NSWCCA 50
- Pearce v The Queen [1998] HCA 57; 194 CLR 610