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Court of Criminal Appeal 19 December 2019

GBB v R

[2019] NSWCCA 296

Sexual offencesAssault & violence
CRIMINAL LAW SEXUAL INTERCOURSE WITH CHILD UNDER 10 YOUNG OFFENDER ASSAULT BY HALFBROTHER RETRACTION OF COMPLAINT IN CROSS EXAMINATION

Citation: GBB v R [2019] NSWCCA 296
Court: NSW Court of Criminal Appeal
Date: 19 December 2019
Judges: Basten JA; Macfarlan JA; Campbell J

Background

The appellant, a young man just weeks short of his seventeenth birthday at the time of the alleged offending, was convicted in a judge-alone trial of two counts of sexual intercourse with a child under the age of ten years, contrary to s 66A(1) of the Crimes Act 1900 (NSW). The complainant was his half-sister. Both offences were alleged to have occurred on the evening of ANZAC Day in April 2017 in the family home, where several adults and children were present.

The complainant provided immediate complaints to multiple family members, was taken to hospital that evening, and gave a detailed account to police the following morning. During cross-examination at trial, however, she appeared to retract part of her evidence, particularly in relation to one of the two counts. The trial judge, sitting without a jury, ultimately convicted the appellant on both counts and sentenced him to a custodial term. He was sentenced shortly before his eighteenth birthday.

The appellant appealed both his convictions and his sentence to the Court of Criminal Appeal. He raised grounds concerning procedural fairness, the proper application of unreliability warnings in judge-alone trials, and the appropriateness of a custodial sentence given his age, intellectual disabilities, and the sentencing court's stated rejection of general deterrence as a relevant consideration.

  • Whether the trial judge erred by directing herself that parts of the complainant's in-court testimony were unreliable under s 165 of the Evidence Act 1995 (NSW), when that type of warning in a jury trial would operate in favour of the accused rather than against them
  • Whether it was procedurally unfair for the trial judge to form a view about the unreliability of the complainant's retraction without informing defence counsel of that assessment during cross-examination, thereby preventing counsel from addressing it
  • Whether the trial judge erred in her treatment of the retraction in assessing the overall reliability and credibility of the complainant's evidence
  • Whether a custodial sentence was appropriate for a young offender with intellectual disabilities, where the sentencing judge had expressly rejected general deterrence as a relevant factor but had still emphasised denunciation

Decision

Ground 1: Unreliability direction in a judge-alone trial

The appellant argued that s 165 unreliability warnings exist to protect accused persons and that the trial judge had improperly used one against the appellant by treating the complainant's retraction as itself unreliable. The Court rejected this ground. Basten JA held that in a judge-alone trial, the judge's obligation under s 133(3) of the Criminal Procedure Act 1986 (NSW) is to take the relevant warning "into account," which means the judge must genuinely consider the possibility of unreliability. The judge had done exactly that, applying the warning to the complainant's evidence in the round, including the retraction itself. This was not a legal error.

Ground 2: Procedural unfairness

The appellant contended that the trial judge reached a conclusion about the unreliability of the retraction without alerting defence counsel during cross-examination, depriving him of the opportunity to re-examine or otherwise address the point. The Court acknowledged that procedural fairness is a live consideration in judge-alone proceedings but found that no procedural unfairness arose on the facts. The judge's assessment was reached in the course of evaluating all of the evidence after trial, not as an adverse ruling made behind counsel's back during the proceedings. Defence counsel had full opportunity to address the retraction and its significance.

Ground 3: Sentence appeal

The appellant submitted that the sentencing judge had been internally inconsistent by rejecting general deterrence as a sentencing objective while nonetheless emphasising denunciation, and that the judge had failed to give adequate weight to his intellectual disabilities and youth. The Court of Criminal Appeal rejected these arguments. Denunciation and general deterrence are distinct sentencing considerations, and the use of one does not require the other. The sentencing judge had expressly considered the appellant's age, intellectual disabilities, and personal vulnerabilities, and had not erred in principle by imposing a custodial sentence in the circumstances. Leave to appeal against sentence was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal against conviction granted (to the extent necessary); conviction appeal dismissed
  • Leave to appeal against sentence granted; sentence appeal dismissed
  • Bail revoked (to the extent it did not otherwise cease under s 12(1)(b) of the Bail Act 2013 (NSW))
  • Appellant directed to be taken into custody to serve the unserved balance of the sentence

Key Takeaways

  • In a judge-alone trial, s 133(3) of the Criminal Procedure Act 1986 (NSW) requires the judge to take unreliability warnings into account when assessing evidence, but this does not confine such warnings to operating solely in an accused's favour. The judge may treat the possibility of unreliability as applying to any aspect of the evidence, including a complainant's retraction.
  • A finding that a witness's retraction is itself unreliable does not automatically constitute procedural unfairness; the question is whether the accused had a meaningful opportunity to address the evidence and its significance before the judge formed a final view.
  • Denunciation and general deterrence are separate sentencing considerations under NSW law. A sentencing court may place weight on denunciation even where it has concluded that general deterrence carries little or no weight, without falling into inconsistency.
  • Where a young offender with intellectual disabilities is sentenced to a custodial term, the sentencing court must engage with those vulnerabilities, but acknowledging them does not automatically preclude imprisonment for serious offences.
  • The Court confirmed the operation of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW): publication restrictions protecting identification of a person connected with criminal proceedings apply even after that person has ceased to be a child, provided they were a child when the offence occurred.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), ss 165, 165A, 165B
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 10, 15A
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 6, 8
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 12
- Bail Act 2013 (NSW), s 12
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Legislation (Amendment) Act 1990 (NSW), Sch 1, cl 2

Cases
- HT v The Queen [2019] HCA 40
- BM v R [2019] NSWCCA 223
- Bromley v The Queen (1986) 161 CLR 315; [1986] HCA 49
- Devaney v R [2012] NSWCCA 285
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- R v Muldrock [2012] NSWCCA 108
- R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260