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Court of Criminal Appeal 17 April 2019

Sivell v R

[2019] NSWCCA 77

Sexual offences
CRIME APPEAL AGAINST CONVICTION APPREHENDED BIAS EXAMINATION NO APPREHENSION ARISES INCOMPETENCE OF COUNSEL

Citation: Sivell v R [2019] NSWCCA 77
Court: NSW Court of Criminal Appeal
Date: 17 April 2019
Judges: Hoeben CJ at CL, McCallum J, Beech-Jones J

Background

The applicant was tried before a judge sitting alone in the District Court on an indictment containing 19 sexual offences against two sisters, referred to as 'A' and 'B', who had migrated from Africa to Australia with their family. The offending occurred after the applicant introduced himself to the family by claiming to arrange modelling opportunities for children. He subsequently gained access to both complainants over a sustained period.

On 7 September 2015, the trial judge found the applicant guilty of all 19 counts. Those offences included aggravated sexual intercourse, acts of indecency, and using children for pornographic purposes. The applicant was sentenced on 29 February 2016 to an aggregate term of 21 years and 6 months, with a non-parole period of 16 years.

The applicant sought leave to appeal against both his conviction and his sentence. The appeal against conviction raised apprehended bias, incompetence of trial counsel, and a fresh evidence application. The sentence appeal contended the aggregate sentence was manifestly excessive.

  • Whether the trial judge's conduct during proceedings gave rise to a reasonable apprehension of bias, specifically his reference to the applicant's criminal history and his treatment of one complainant during cross-examination
  • Whether trial counsel's failure to subpoena or locate certain witnesses constituted incompetence that resulted in a miscarriage of justice
  • Whether fresh evidence, in the form of anticipated witness testimony and evidence of a past medical procedure, should be admitted and whether it cast doubt on the convictions
  • Whether the Court should issue summonses to witnesses to facilitate the fresh evidence application
  • Whether the aggregate sentence of 21 years and 6 months was manifestly excessive

Decision

Apprehended Bias

The Court rejected the apprehended bias ground entirely. The applicable test, drawn from cases including Johnson v Johnson and Ebner v Official Trustee in Bankruptcy, asks whether a fair-minded lay observer, properly informed, might reasonably apprehend that the judge might not bring an impartial mind to bear. Nothing in the trial judge's references to the applicant's criminal history, nor in his treatment of the complainant during cross-examination, met that threshold.

Incompetence of Counsel

The Court found no miscarriage of justice arising from trial counsel's conduct. The applicant complained that counsel failed to subpoena and "track down" certain witnesses. However, the Court was not satisfied that any failure by counsel to pursue those witnesses caused a substantial miscarriage of justice, which is the required standard for such a ground to succeed on appeal.

Fresh Evidence

The applicant sought to tender evidence from witnesses not called at trial and evidence relating to a past medical procedure, contending these cast doubt on the complainants' accounts. The Court refused the application for summonses and declined to admit the fresh evidence. It found the anticipated evidence was not shown to be admissible and, more fundamentally, that none of it cast any real doubt on the applicant's guilt.

Sentence Appeal

The Court dismissed the sentence appeal. It accepted the trial judge's findings regarding the gravity of the offending: sustained abuse of two vulnerable children facilitated by deliberate manipulation of the family. The Court noted that if all indicative sentences had been accumulated they would have totalled 122 years, making the aggregate of just over 21 years a substantial reduction. The applicant's serious criminal history disentitled him to leniency. The Court applied the principle, drawn from R v E, that a very heavy sentence must sometimes be imposed even if it is crushing in effect, and held the sentence was not manifestly excessive.

Orders Made

  • The applicant's notice of motion filed 17 September 2018 dismissed
  • Leave to appeal refused in respect of grounds 2 and 3 of the conviction appeal
  • Appeal against conviction dismissed
  • Extension of time granted to seek leave to appeal against sentence until 7 September 2018
  • Leave to appeal against sentence granted, but the sentence appeal dismissed

Key Takeaways

  • The apprehended bias test requires a fair-minded lay observer, properly informed of context, to reasonably apprehend partiality. A trial judge's incidental reference to criminal history or conduct during witness examination does not automatically satisfy that test.
  • A ground of appeal based on counsel incompetence requires more than identifying steps counsel did not take. The applicant must establish that the omissions caused a substantial miscarriage of justice.
  • Fresh evidence applications will fail where the anticipated evidence is not demonstrated to be admissible and does not, in any event, cast real doubt on guilt.
  • In sentencing for multiple serious offences against children, the principle of totality operates to moderate the accumulation of individual sentences, but the result is not required to be lenient where the overall criminality is grave.
  • Upholding the 21-year aggregate sentence, the Court of Criminal Appeal confirmed that the "crushing sentence" principle does not require a court to reduce a very heavy sentence simply because of its severity on the offender. Where the gravity of the offending demands it, such a sentence must be imposed.

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW), ss 61J, 61M, 61N, 91G
  • Criminal Appeal Act 1912 (NSW), ss 5(1)(a), 5(1)(b), 5(1)(c)
  • Criminal Procedure Act 1986 (NSW), ss 132(1), 133(2)
  • Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Evidence Act 1995 (NSW)
  • Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
  • Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW)

Cases

  • Johnson v Johnson (2000) 201 CLR 488
  • Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
  • Michael Wilson & Partners v Nicholls (2011) 244 CLR 427
  • Nudd v R [2006] HCA 9
  • TKWJ v R [2002] HCA 46; 212 CLR 124
  • Norman v R [2012] NSWCCA 230
  • ZA v R [2017] NSWCCA 132
  • R v E (2005) 93 SASR 20; [2005] SASC 332
  • R v Sivell [2009] NSWCCA 286
  • Obeid v R [2017] NSWCCA 221
  • MRW v R [2011] NSWCCA 260
  • R v Saleam (1989) 16 NSWLR 14
  • Mathews v R [2013] NSWCCA 187