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7
Court of Criminal Appeal 28 April 2017

Mol v R

[2017] NSWCCA 76

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION THREE COMPLAINANTS SIX COUNTS OF INDECENT ASSAULT TENDENCY EVIDENCE LEAVE TO APPEAL GRANTED

Citation: Mol v R [2017] NSWCCA 76
Court: NSW Court of Criminal Appeal
Date: 28 April 2017
Judge(s): Payne JA (lead judgment); Johnson J and Fullerton J (agreeing)

Background

The appellant was convicted by jury of six counts of indecent assault and five counts of sexual intercourse without consent against three separate complainants. He had contacted each complainant through the classifieds website Gumtree, responding to advertisements they had placed seeking casual work. He represented himself as a professional artist and invited each woman to his home studio to work as an artist's model.

Each complainant was subjected to unwanted sexual contact in circumstances where the appellant used his apparent professional status to gain their initial cooperation. The jury acquitted the appellant on a further six counts arising from the same conduct.

On sentence, the trial judge imposed an aggregate non-parole period of 10 years with a balance of term of 4 years. The appellant sought leave to appeal against both conviction and sentence.

  • Whether the probative value of tendency evidence (going to the appellant's state of mind, specifically recklessness as to consent) was outweighed by the risk of unfair prejudice to the accused
  • Whether the trial judge's withdrawal and replacement of a jury direction on consent caused a miscarriage of justice
  • Whether the trial judge adequately responded to a jury note concerning the complainants' state of mind about consent
  • Whether the relationship between the appellant and the complainants constituted a relationship of trust capable of operating as an aggravating factor at sentence
  • Whether the appellant's use of his professional reputation to facilitate the offending justified reducing the weight given to his prior good character
  • Whether the post-offence destruction of a memory card was relevant to the objective seriousness of the offences

Decision

Tendency evidence (Issue 1): The Court of Criminal Appeal held that the tendency evidence was highly probative on the question of the appellant's recklessness as to consent, drawing on the High Court's analysis in IMM v R (2016) 257 CLR 300. The trial judge's directions to the jury on the permissible use of the tendency evidence were sufficiently clear to eliminate or significantly reduce the identified risk of prejudice. No error was established in the admission of the evidence or in the decision not to order separate trials.

Jury directions on consent (Issues 2 and 3): The Court found no miscarriage of justice arising from the trial judge's withdrawal and replacement of the original consent direction. The re-direction given was adequate in the circumstances. The trial judge's written response to the jury's note about the complainants' state of mind was also held to have adequately addressed the subject of the question.

Breach of trust as an aggravating factor (Issue 4): Fullerton J (with Payne JA and Johnson J agreeing) held that the relationship between the appellant and the complainants was one of trust. The appellant had presented himself as a professional artist and each complainant had agreed to pose nude or partially nude on that basis. Breaching that trust was properly treated as an aggravating factor under the sentencing legislation.

Good character and post-offence conduct (Issues 5 and 6): The Court confirmed that where an offender used an aspect of his good character to gain access to victims, a sentencing judge may give reduced weight to prior good character as a mitigating factor. This approach was consistent with settled authority. The destruction of the memory card after the offences was also properly considered relevant to objective seriousness in a case where consent to sexual intercourse was in dispute.

Orders Made

• Application for leave to appeal against sentence be dismissed

Key Takeaways

  • Tendency evidence directed at an accused's state of mind (recklessness as to consent) can be highly probative under IMM v R, and clear limiting directions to the jury may be sufficient to address the risk of unfair prejudice.
  • A relationship of trust does not require a formal fiduciary or professional duty in the strict sense. The Court of Criminal Appeal confirmed that a person who represents himself as a professional to induce another person to undress can be found to have occupied a position of trust, the breach of which is an aggravating factor at sentence.
  • Where an offender used prior good character or professional reputation to facilitate the commission of offences, a sentencing court is entitled to reduce the mitigating weight ordinarily given to that good character.
  • Post-offence conduct such as destroying potential evidence can be taken into account in assessing the objective seriousness of the offending, particularly in cases turning on consent.
  • In dismissing all grounds of appeal against both conviction and sentence, the Court of Criminal Appeal left the aggregate non-parole period of 10 years undisturbed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L, 61N(2), 578A
- Crimes (Sentencing) Procedure Act 1999 (NSW), s 21A(3)(f)
- Evidence Act 1995 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- IMM v R (2016) 257 CLR 300; [2016] HCA 14
- R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319
- DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
- BC v R [2015] NSWCCA 327
- R v Ngatikaura (2006) 161 A Crim R 329; [2006] NSWCCA 161
- Suleman v R [2009] NSWCCA 70
- KAB v R [2015] NSWCCA 55
- R v Kennedy [2000] NSWCCA 527
- Stubley v Western Australia (2011) 242 CLR 374; [2011] HCA 7
- House v The King (1936) 55 CLR 499
- Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4