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8
Court of Criminal Appeal 7 November 2018

Beavis v R

[2018] NSWCCA 248

Sexual offences
CRIMINAL LAW WHETHER VERDICT OF JURY UNREASONABLE LEAVE REFUSED TO RAISE FIRST GROUND APPEAL ALLOWED APPELLANT RE SENTENCED

Citation: Beavis v R [2018] NSWCCA 248
Court: Court of Criminal Appeal, NSW
Date: 7 November 2018
Judges: Ward JA; Bellew J; Beech-Jones J

Background

The appellant was convicted following a nine-day trial in the District Court at Newcastle of two counts of aggravated indecent assault and three counts of sexual intercourse with a child aged between 10 and 14 years who was under his authority, contrary to the Crimes Act 1900 (NSW). All five offences occurred on a single night in late 2004, when a 10-year-old school friend of the appellant's daughter attended his home for a sleepover.

The complainant did not disclose the conduct until December 2004, and the matter was not pursued by her family at the time. She reopened the investigation in 2011 and provided a formal statement in 2014. The appellant was charged in 2016 and pleaded not guilty, maintaining at trial that the alleged conduct had never occurred.

The District Court sentenced the appellant to an aggregate term of 8 years' imprisonment with a non-parole period of 4 years and 10 months. He appealed against both conviction and the severity of sentence.

  • Whether a miscarriage of justice occurred because the trial judge failed to properly direct the jury regarding the appellant's own sworn evidence (ground 1 of conviction appeal)
  • Whether the jury's verdict was unreasonable or unsupported by the evidence (ground 2 of conviction appeal)
  • Whether the sentencing judge erred by treating breach of trust as an aggravating factor for counts 3, 4 and 5, when being "under the authority" of the appellant was already an element of those offences
  • Whether the sentencing judge failed to give adequate weight to the delay in prosecution as a mitigating factor
  • Whether the sentencing judge failed to adequately account for the appellant's assessed low risk of reoffending
  • Whether the sentence was otherwise manifestly excessive

Decision

Conviction appeal: Ground 1 (jury directions)
The Court refused leave to raise the first ground of the conviction appeal. No complaint had been raised by defence counsel at trial about the jury directions concerning the appellant's sworn evidence, and the Court found no basis to grant leave in those circumstances.

Conviction appeal: Ground 2 (unreasonable verdict)
The Court granted leave to raise the second ground but dismissed it. After examining the evidence, including the complainant's account, the tendency evidence, and the various inconsistencies raised by the defence, the Court was not persuaded that the jury's verdicts were unreasonable or could not be supported by the evidence.

Sentence appeal: Breach of trust (Ground 1(a))
The Court allowed the sentence appeal on the first limb of ground 1. The sentencing judge had treated a "significant breach of trust" as an aggravating factor under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW) for counts 3, 4 and 5. However, each of those offences required, as a statutory element, that the complainant was a child "under the authority" of the appellant. Using the same factual circumstance to aggravate the sentence amounted to double-counting, and the Court held this constituted error.

Sentence appeal: Remaining grounds
The Court was not persuaded that the sentencing judge erred in relation to delay or the low reoffending risk assessment, and it declined to find the sentence manifestly excessive on those bases. In resentencing, the Court reduced the aggregate term to 7 years' imprisonment with a non-parole period of 4 years and 2 months, maintaining the special circumstances finding given that it was the appellant's first time in custody.

Orders Made

  • Leave to raise ground 2 of the conviction appeal granted; conviction appeal dismissed.
  • Leave to raise ground 1 of the sentence appeal granted; sentence appeal allowed.
  • Original sentence set aside.
  • Aggregate sentence of 7 years' imprisonment imposed, commencing 7 December 2017 and expiring 6 December 2024.
  • Non-parole period of 4 years and 2 months, commencing 7 December 2017 and expiring 6 February 2022.
  • Earliest parole eligibility date: 6 February 2022.
  • Indicative individual sentences recorded: count 1, 9 months (non-parole 5 months); count 2, 2 years (non-parole 1 year 3 months); count 3, 4 years 3 months; count 4, 2 years 6 months; count 5, 3 years 3 months.

Key Takeaways

  • Under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court cannot treat breach of trust as an aggravating factor where the trust relationship is already embedded in an element of the offence itself, as doing so constitutes impermissible double-counting.
  • Leave to raise a ground of appeal against conviction will ordinarily be refused where defence counsel raised no complaint about the relevant jury direction at trial and no adequate justification for the omission is provided.
  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal applied the established test: the question is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.
  • No error was established in the sentencing judge's treatment of prosecution delay or the low reoffending risk assessment, demonstrating that these factors do not automatically reduce a sentence without clear evidence of specific prejudice or other compelling circumstances.
  • The Court of Criminal Appeal resentenced the appellant directly, reducing the aggregate term from 8 years to 7 years while preserving the special circumstances variation to the statutory non-parole ratio on account of the appellant's first period of custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 53A
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), s 165B

Cases:
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Blanco v R [1999] NSWCCA 121
- Faehringer v R [2017] NSWCCA 248
- Franklin v R [2013] NSWCCA 122; [2016] NSWCCA 319
- Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44
- Holyoak v R (1995) 82 A Crim R 502
- Hughes v R [2018] NSWCCA 2
- JM v R [2014] NSWCCA 297
- Johnston v R [2017] NSWCCA 53
- JRM v R [2012] NSWCCA 112
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- MRW v R [2011] NSWCCA 260
- R v Abusafiah (1991) 24 NSWLR 531
- R v Clarke (1995) 78 A Crim R 226
- R v Humphries [2004] NSWCCA 370
- R v Ita (2003) 139 A Crim R 340