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6
Court of Criminal Appeal 23 December 2020

RA v R

[2020] NSWCCA 356

Sexual offences

Citation: RA v R [2020] NSWCCA 356
Court: NSW Court of Criminal Appeal
Date: 23 December 2020
Judges: McCallum JA at [1]; Button J at [108]; Ierace J at [111]

Background

The applicant was the uncle of the complainant. He was convicted by a jury in the District Court of two historical sexual offences alleged to have occurred approximately 40 years before trial: an indecent assault (a kiss) and carnal knowledge of a girl under the age of 10. Both offences arose from a single incident alleged to have taken place between August 1980 and December 1981, when the complainant was eight or nine years old.

The age element was critical to count 3A (carnal knowledge). Under the then-applicable provision of the Crimes Act 1900 (NSW), the Crown was required to prove the offence occurred before the complainant turned 10, which happened in January 1982. The date range in the indictment ended on 31 December 1981, leaving only weeks before that birthday. During the trial, the Crown successfully applied to add a substantive count of carnal knowledge as an alternative to the existing attempt charge, following a further conference with the complainant.

The applicant was acquitted of the earliest count on the indictment (an indecent assault alleged to have occurred between 1977 and 1980) but convicted on both the indecent assault (count 2) and carnal knowledge (count 3A). He appealed against both conviction and sentence.

  • Whether the jury's verdicts were unreasonable or could not be supported having regard to the evidence, including inconsistencies and discrepancies in the complainant's account
  • Whether, in particular, the evidence was sufficient to establish beyond reasonable doubt that the carnal knowledge occurred before the complainant turned 10
  • Whether the sentence of five years' imprisonment was manifestly excessive, given the applicant's age (16 to 17 years) at the time of the offending and the historical nature of the offences

Decision

Conviction appeal dismissed. The Court applied the well-established principles from M v The Queen (1994) and SKA v The Queen (2011), asking whether it was open to the jury to be satisfied beyond reasonable doubt of guilt on the whole of the evidence. The Court took care to note that the decision in R v Pell [2020] HCA 12 did not alter those principles, describing the relevant passage from Pell as an unexceptionable restatement of longstanding law.

The applicant argued the complainant's evidence was so inconsistent and unreliable that the jury ought to have entertained a reasonable doubt, and alternatively that the Crown had not proven the offence occurred before the complainant's 10th birthday. The Court rejected both arguments. Acknowledging that proving the age element presented a real question at trial, McCallum JA and Button J each concluded, having reviewed the evidence and addresses, that the jury was entitled to resolve that question in the Crown's favour to the criminal standard. The Court reiterated that inconsistencies in evidence do not of themselves establish that a jury should have entertained a doubt; resolving such conflicts is a quintessential jury function.

Sentence appeal allowed. The sentencing judge (Wilson SC DCJ) had found that the applicant's youth and immaturity at the time of offending reduced his moral culpability, but McCallum JA found that finding was not adequately reflected in the sentence actually imposed. A five-year term was characterised as "very stern" and outside the upper range for an offender who may have been only 16 or 17 at the time of the offence. The Court reduced the sentence to four years' imprisonment.

Orders Made

  • Leave to appeal against conviction and sentence granted
  • Appeal against conviction dismissed
  • Appeal against sentence allowed
  • Sentence imposed at first instance quashed
  • In substitution: imprisonment with a non-parole period of 2 years and 5 months commencing 28 March 2019 and expiring 27 August 2021, and a balance of term of 1 year and 7 months expiring 27 March 2023

Key Takeaways

  • The Court of Criminal Appeal confirmed that R v Pell [2020] HCA 12 did not alter the principles governing unreasonable verdict appeals; the applicable test remains that articulated in M v The Queen (1994) and SKA v The Queen (2011), as reflected in the language of the relevant legislation.
  • Inconsistencies and discrepancies in a complainant's evidence do not automatically establish that a jury should have entertained a reasonable doubt; resolving conflicts in evidence is described as a quintessential jury function.
  • Where a sentencing judge makes a finding that youth and immaturity reduce an offender's moral culpability, that finding must be given genuine weight in the sentence actually imposed, not merely acknowledged in reasoning.
  • In dismissing the conviction appeal, the Court accepted that proving an age-based element of a historical offence on the evidence available can present a genuine forensic difficulty, while still finding the jury's verdict was open on the evidence.
  • No error was established in the sentencing judge's approach to special circumstances or the ratio of non-parole period to balance of term; the Court of Criminal Appeal maintained the 60% ratio when resentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A, 67, 68, 71, 76
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(2)(g), 25AA
- Criminal Appeal Act 1912 (NSW), ss 6(1), 7(2)
- Evidence Act 1995 (NSW), ss 32(2)(b)(i), 38

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- MFA v R (2002) 213 CLR 606; [2002] HCA 53
- R v Pell [2020] HCA 12
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- BT v R [2019] NSWCCA 147
- Paul Campbell v R [2018] NSWCCA 87
- SM v R [2014] NSWCCA 137
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- RJP v R [2006] NSWCCA 149
- R v RA (No 1) [2019] NSWDC 375
- R v RA (No 2) [2019] NSWDC 463