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Court of Criminal Appeal 29 April 2019

Wan v R; R v Wan

[2019] NSWCCA 86

Sexual offences
SENTENCED

Citation: Wan v R; R v Wan [2019] NSWCCA 86
Court: Court of Criminal Appeal, NSW
Date: 29 April 2019
Judges: Macfarlan JA; R A Hulme J; Davies J

Background

The applicant was convicted in the District Court in April 2018 on 13 counts of sexual assault and indecent assault under the Crimes Act 1900 (NSW). The offences were alleged to have occurred on a single day in March 2015, when the applicant, then aged 69, brought the complainant, an 88-year-old man with whom he had formed a friendship, to his apartment. The Crown alleged the applicant placed sleeping medication (Doxylamine, sold as Restavit) in the complainant's coffee, rendering him incapacitated, before committing a series of sexual and indecent assaults on him.

The applicant video-recorded the majority of the acts. He later sent an edited copy of the recording to a community association of which the complainant was a member. The applicant was acquitted on the drugging charge and on two of the sexual offence counts; he was convicted on 13 counts. He denied wrongdoing and maintained throughout that all sexual activity was consensual.

Two appeals were heard together. The applicant sought leave to appeal against his convictions, and the Crown appealed the sentences imposed at first instance as manifestly inadequate.

  • Whether the convictions were unreasonable or could not be supported by the evidence, particularly the video footage
  • Whether the guilty verdicts were inconsistent with the acquittals, including the acquittal on the drugging charge
  • Whether the sentencing judge erred in assessing the objective seriousness of the offences and in identifying relevant sentencing factors
  • Whether the primary judge failed to treat the victim's age as a vulnerability aggravating the offences
  • Whether the prior friendship between the applicant and the complainant was a mitigating factor
  • Whether the victim impact statement was properly taken into account
  • Whether the totality principle was correctly applied, and whether the resulting aggregate sentence was manifestly inadequate

Decision

Conviction appeal dismissed

The Court rejected the argument that the convictions were unreasonable. Macfarlan JA, with Davies J agreeing on independent examination of the evidence, held that it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt on the convicted counts. The Long Video, combined with expert toxicological evidence about the effects of Doxylamine on an elderly person, provided a sufficient evidentiary basis for the jury's conclusions.

On the inconsistency ground, the Court held that the acquittal on the drugging count did not render the remaining guilty verdicts inconsistent. The jury was entitled to entertain a reasonable doubt about the drugging while still being satisfied beyond reasonable doubt, on the totality of the evidence, that the complainant was incapacitated and did not consent to the sexual acts. The acquittal on Count 10, which related to footage where the complainant appeared to participate, was also explicable on a rational basis and did not undermine the other convictions.

Crown sentence appeal allowed

The Court found multiple errors in the primary judge's sentencing. The sentencing judge erred in failing to treat the complainant's advanced age as making him a vulnerable person, which was a statutory aggravating factor under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The prior friendship between the parties was incorrectly treated as a mitigating factor; the Court held it was not. The sentencing judge also referred to relevant sentencing principles and statutory provisions without applying any reasoning about how they operated on the facts, and the victim impact statement was apparently ignored entirely.

The Court further found that the totality principle was misapplied, resulting in an aggregate sentence that was manifestly inadequate given the number and seriousness of the offences, the vulnerability of the victim, and the fact that the offending was recorded and used to humiliate the complainant. The Court exercised its discretion to intervene and re-sentenced the respondent to an aggregate term of 8 years' imprisonment with a non-parole period of 5 years, noting that special circumstances existed warranting an adjusted ratio to allow for adequate supervision on release after a significant period in custody.

Orders Made

  • Leave to appeal against conviction granted; appeal against conviction dismissed.
  • Crown appeal against sentence allowed.
  • Sentence imposed in the District Court on 30 August 2018 quashed.
  • The respondent sentenced to an aggregate term of imprisonment of 8 years with a non-parole period of 5 years, dating from 18 August 2016, with eligibility for parole from 17 August 2021.

Key Takeaways

  • An acquittal on a drugging charge does not automatically render guilty verdicts on related sexual assault counts inconsistent, provided the jury could rationally distinguish between the two conclusions on the evidence.
  • A victim's advanced age can constitute a relevant vulnerability for the purposes of the statutory aggravating factor in s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and a failure to apply it where the evidence supports it is a sentencing error.
  • A pre-existing friendship between an offender and a victim is not, without more, a mitigating factor in sentencing for sexual offences committed against that victim.
  • Sentencing judges are required to engage in actual reasoning about how relevant principles and statutory provisions apply to the facts; merely citing them without applying them constitutes error.
  • Victim impact statements must be substantively considered in sentencing; ignoring one altogether is a separate, identifiable error that can contribute to a finding of manifest inadequacy.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 38(a), 61I, 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(l), 44(2B), 54B(4)
- Criminal Appeal Act 1912 (NSW), ss 5D(1), 6(1)
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
- Crimes Act 1914 (Cth), s 20(1)(a)
- Criminal Code 1995 (Cth), s 471.12

Cases
- Green and Quinn v R (2011) 244 CLR 462; [2011] HCA 49
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 543
- R v Lachlan [2015] NSWCCA 178; (2015) 252 A Crim R 277
- Davis v R [2018] NSWCCA 277
- Holloway v R [2017] NSWCCA 17
- NM v R [2012] NSWCCA 215
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12