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Court of Criminal Appeal 25 May 2020

Cabezuela v R

[2020] NSWCCA 107

Sexual offences
CRIMINAL CONVICTION APPEAL JUROR WITH LEGAL TRAINING WHETHER JURISDICTIONAL ERROR DENIAL OF JURISDICTION SECTION 53B OF THE JURY ACT

Citation: Cabezuela v R [2020] NSWCCA 107
Court: NSW Court of Criminal Appeal
Date: 25 May 2020
Judges: Hoeben CJ at CL, Walton J, Harrison J

Background

The appellant was convicted in the Sydney District Court on 27 counts of historical sexual offences committed against four sisters, his nieces by marriage, over a period of approximately 15 years between 1966 and 1981. The victims were children aged between 3 and 13 at the time of the offending. The offences included indecent assault, carnal knowledge of a girl under 10, rape, and buggery.

The jury returned a unanimous guilty verdict on all 27 counts after deliberating for approximately 4.5 hours. The appellant was subsequently sentenced to an aggregate 28 years' imprisonment with a non-parole period of 18 years. At the time of the appeal, the appellant was elderly and in poor health.

The appellant appealed his conviction and sought leave to appeal his sentence on three grounds. The conviction appeal concerned the trial judge's handling of a juror with legal training. The sentence appeal raised both manifest excess and, separately, the potential impact of the COVID-19 pandemic on a prisoner of advanced age and poor health.

  • Whether the trial judge fell into jurisdictional error by concluding he had no legal basis to discharge a juror who had legal training, thereby denying the appellant a trial according to law.
  • Whether the aggregate sentence, and certain indicative sentences, were manifestly excessive.
  • Whether the COVID-19 pandemic, in combination with the appellant's age and poor health, rendered the sentence manifestly excessive, and whether fresh evidence on that issue should be admitted.

Decision

Ground 1: Juror with legal training

The Court rejected the conviction appeal. The juror in question had disclosed legal qualifications during empanelment, and the appellant argued the trial judge had wrongly concluded he lacked the power to discharge that juror under s 53B of the Jury Act 1977 (NSW). The Court found the trial judge did not deny himself jurisdiction. Rather, the trial judge was aware of his discretion to discharge the juror but exercised that discretion by declining to do so. No jurisdictional error was established.

Ground 2: Manifest excess

The Court refused leave to appeal on this ground. It found the offending was of very serious objective gravity, involving sustained and repeated sexual abuse of four young children by a trusted family member over 15 years. The indicative sentences were not shown to be manifestly excessive, either individually or in combination. Even allowing for a strong subjective case, the aggregate sentence of 28 years with an 18-year non-parole period was not outside the range available to the sentencing judge.

Ground 3: COVID-19 and fresh evidence

The Court granted leave to appeal on this ground, recognising the novel and significant nature of the issues raised, but ultimately dismissed the appeal. The fresh evidence relating to the impact of COVID-19 on older, unwell prisoners was rejected for the purpose of impugning the sentence. The Court noted that, given the extreme seriousness of the offending, no different sentence would have been warranted even if substantially greater weight had been given to the appellant's age, health, and the additional restrictions arising from the pandemic. The Court also observed that, at the time of judgment, the NSW prison system had not experienced the kind of COVID-19 outbreaks seen in aged care settings.

Orders Made

  • Leave to appeal granted with respect to Ground 3 (COVID-19 and fresh evidence).
  • Appeal dismissed.

Key Takeaways

  • A trial judge who is aware of the discretion to discharge a juror under s 53B of the Jury Act 1977 (NSW) but declines to exercise it does not commit jurisdictional error; the ground of appeal requires a denial of jurisdiction, not merely a disagreement with how the discretion was exercised.
  • Indicative sentences imposed as part of an aggregate sentencing structure are not independently amenable to appellate challenge unless they can be shown to have infected the aggregate sentence with manifest excess.
  • In dismissing the COVID-19 sentencing ground, the Court of Criminal Appeal confirmed that fresh evidence of additional custodial hardship arising from the pandemic will not affect a sentence where the objective seriousness of the offending is so high that no different sentence would properly follow.
  • Where the objective gravity of sexual offending against multiple child victims over an extended period is extreme, strong subjective factors including advanced age and poor health will not, of themselves, render a lengthy aggregate sentence manifestly excessive.
  • The Court acknowledged the legitimacy of raising COVID-19 conditions as a sentencing consideration in principle, reflected in its decision to grant leave on that ground, even though the appeal ultimately failed on the facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 63, 67, 76, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(a), s 5(1)(c)
- Jury Act 1977 (NSW), s 53B
- Legal Profession Uniform Law 2014 (NSW)

Cases:
- Betts v The Queen (2016) 258 CLR 420
- Borg v R; Gray v R [2020] NSWCCA 67
- Craig v South Australia (1995) 184 CLR 163
- Doe v R [2013] NSWCCA 248
- Douar v R (2005) 159 A Crim R 154
- Dinsdale v R (2000) 202 CLR 321
- Gilbert v The Queen (2000) 201 CLR 414
- House v The King (1936) 55 CLR 499
- JM v R (2014) 246 A Crim R 528
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- Markarian v The Queen (2005) 228 CLR 357
- Obeid v R (2017) 96 NSWLR 155
- Scott v R [2020] NSWCCA 81