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Court of Criminal Appeal 12 October 2018

McGrory v R

[2018] NSWCCA 226

Sexual offencesAssault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL LAW APPEAL ASSAULT OCCASIONING ACTUAL BODILY HARM SEXUAL ASSAULT INFLUENCING A WITNESS JUDGE ALONE TRIAL

Citation: McGrory v R [2018] NSWCCA 226
Court: NSW Court of Criminal Appeal
Date: 12 October 2018
Judge(s): White JA, Price J, Wilson J

Background

The applicant and the complainant were in a de facto relationship of approximately seven years and had two children together. Over a 24-hour period beginning on 30 September 2013, the applicant subjected the complainant to a sustained series of physical and sexual assaults at their home in North Boambee Valley.

The matter proceeded as a judge-alone trial before Judge Wells SC in the District Court. Her Honour convicted the applicant on all 11 counts: four counts of assault occasioning actual bodily harm, five counts of sexual intercourse without consent, and two counts of sending letters from custody to persuade the complainant to give false evidence or withhold true evidence. On 20 June 2016, the applicant received an aggregate sentence of nine years and six months imprisonment with a non-parole period of seven years.

The applicant sought leave to appeal against both conviction and sentence. The appeal grounds focused primarily on the sexual assault convictions, and also challenged the overall severity of the sentence.

  • Whether the primary judge erred in accepting the complainant's evidence and in finding the sexual activity was not consensual
  • Whether any of the conviction findings were unsafe or unsupported by the evidence
  • Whether the primary judge erred in her sentencing approach, including with respect to domestic violence as an aggravating feature
  • Whether the aggregate sentence was manifestly excessive, including by reference to sentencing statistics

Decision

White JA, with whom Price J and Wilson J agreed, dismissed all grounds of appeal and refused leave to appeal against both conviction and sentence.

On the conviction grounds, the Court found no error in the primary judge's approach to the evidence. Her Honour gave careful and detailed reasons for accepting the complainant's account and rejecting the applicant's case that the sexual activity was consensual and consistent with normal behaviour within their relationship. The Court found no basis to disturb those findings.

On sentencing, the primary judge had treated the domestic context of the offending as an aggravating factor, in accordance with the approach sanctioned by the High Court in Munda v Western Australia and R v Kilic (2016) 259 CLR 256. White JA confirmed that this approach reflects the changed societal attitudes to domestic violence recognised in those authorities, and that it had been applied consistently by the Court of Criminal Appeal in subsequent decisions.

The applicant's attempt to challenge the sentence by reference to Judicial Information Research System data was rejected. The applicant failed to provide the data to the Court and offered no elaboration of his interpretation of it. White JA reiterated the well-known limitations on the utility of sentencing statistics in such arguments.

Orders Made

  • The applicant's application for leave to appeal against conviction and sentence was refused.

Key Takeaways

  • In dismissing all grounds, the Court of Criminal Appeal confirmed that a primary judge's credibility findings in a judge-alone trial will not be disturbed on appeal absent identifiable error in the reasoning.
  • Treating the domestic relationship between an offender and victim as an aggravating sentencing factor is consistent with High Court authority and reflects current societal attitudes to domestic violence.
  • Sentencing statistics drawn from the Judicial Information Research System carry well-recognised limitations and will not support a finding of manifest excess where the data itself is not provided to the court and no interpretive analysis is offered.
  • A prisoner's letters from custody intending to persuade a prospective witness to give false evidence or withhold true evidence constitute a distinct and serious category of offending under s 323(a) of the Crimes Act 1900 (NSW).
  • No error was established in the imposition of an aggregate sentence of nine years and six months for a sustained course of domestic violence and sexual assault offending committed over a single 24-hour period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59 (assault occasioning actual bodily harm), 61I (sexual intercourse without consent), 323 (influencing a witness)
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW), ss 133, 293

Cases:
- R v Kilic (2016) 259 CLR 256; [2016] HCA 48
- Munda v Western Australia (cited by reference in sentencing discussion)
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Skocic v R [2014] NSWCCA 225
- Patsan v R [2018] NSWCCA 129
- Cherry v R [2017] NSWCCA 150
- Director of Public Prosecutions v Darcy-Shillingsworth [2017] NSWCCA 224