AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 14 August 2019

TH v R

[2019] NSWCCA 184

Sexual offences
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE FINDING MADE BEYOND REASONABLE DOUBT APPEAL DISMISSED

Citation: TH v R [2019] NSWCCA 184
Court: NSW Court of Criminal Appeal
Date: 14 August 2019
Judges: Leeming JA, Davies J, Hidden AJ

Background

The applicant, the paternal grandfather of the complainant, was convicted by a jury of one count of aggravated indecent assault of a child under 16 years, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The complainant was eight years old at the time of the offending. On the night in question, she shared a bed with the applicant at his home while her sisters slept in another room.

The applicant pulled down the complainant's clothing while pressed against her from behind. The complainant described feeling his genitals against her and a discharge on her bottom area, which she referred to as a "wee-wee." The applicant, by contrast, claimed he suffered from urinary incontinence and denied any sexual arousal.

At sentence, Judge Letherbarrow SC in the District Court found beyond reasonable doubt that the applicant had an erection and ejaculated during the assault, rejecting the incontinence explanation. He sentenced the applicant to five years' imprisonment with a non-parole period of three years. The applicant sought leave to appeal against that factual finding, arguing it was not supported by the evidence.

  • Whether the sentencing judge erred in finding, beyond reasonable doubt, that the applicant had an erection and ejaculated during the assault.
  • Whether that factual finding was consistent with the jury's verdict, given that the verdict did not necessarily depend on that specific finding.
  • Whether the only rational inference open on the evidence supported the sentencing judge's conclusion.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's factual determination.

The Court accepted that the jury's verdict was not inconsistent with either version of events. The jury could have convicted on the basis of the act of pulling down the complainant's clothing alone, without necessarily resolving whether ejaculation had occurred. Accordingly, the sentencing judge was required to determine the contested fact independently, applying the beyond reasonable doubt standard before treating it as an aggravating circumstance.

Davies J held that the sentencing judge's finding was the only rational inference available from the evidence. Several factors supported this conclusion: the complainant's evidence that the pain she felt persisted until the applicant moved away from her; the fact that the applicant had deliberately removed her clothing before the incident; and, significantly, medical records showing that the applicant did not attend a doctor reporting incontinence symptoms until four days after he first learned of the complainant's allegation. The applicant's own descriptions of his incontinence, which involved dribbling while asleep in his own clothing, were inconsistent with the scale and circumstances of the discharge described.

Davies J also observed that nothing in the applicant's reported experience of incontinence suggested an episode of the kind he described: a substantial discharge onto another person while he was awake and pressed against her. The inference that the applicant was sexually aroused and ejaculated was, in the Court's view, the only rational one available and was established beyond reasonable doubt. Leeming JA and Hidden AJ agreed with Davies J.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge may make factual findings that go beyond what the jury's verdict strictly required, provided any fact adverse to the offender is established beyond reasonable doubt before being used to increase objective seriousness.
  • Where a jury's verdict is consistent with more than one version of events, the sentencing court must resolve the contested factual question independently and to the criminal standard before treating the more serious version as proven.
  • Medical evidence that contradicted the timing of the applicant's reported incontinence complaints played a central role in the Court's conclusion that the sentencing judge's finding was open and correct.
  • No error is established in a factual finding at sentence merely because the jury did not need to resolve that specific fact in order to return a guilty verdict.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where the only rational inference from the totality of the evidence supports one version of events, a sentencing judge is entitled, and indeed required, to act on it.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2) (aggravated indecent assault of a child under 16)

Cases
- AB v R [2014] NSWCCA 339
- Aoun v R [2011] NSWCCA 284
- Cheung v R (2001) 209 CLR 1; [2001] HCA 67
- Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150
- Hordern v R [2019] NSWCCA 138
- Peters v R [2013] NSWCCA 324
- R v O'Donoghue (1988) 34 A Crim R 397
- Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278; (2015) 213 LGERA 220