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17
Court of Criminal Appeal 22 April 2020

RC v R; R v RC

[2020] NSWCCA 76

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION CHILD SEXUAL ASSAULT OFFENCES WHETHER VERDICTS INCONSISTENT SENTENCE APPEAL COMMUNITY BASED SENTENCE IMPOSED

Citation: RC v R; R v RC [2020] NSWCCA 76
Court: NSW Court of Criminal Appeal
Date: 22 April 2020
Judge(s): R A Hulme J, Hamill J, Wilson J

Background

The appellant, RC, was the paternal grandfather of the complainant, LC, who was six years old at the time of the alleged offences. On the evening of 10 October 2017, while LC's mother and sister were away from the family home, the appellant gave LC his bath. Three offences were alleged to have occurred during that bath: an indecent assault by rubbing LC's genitals (count 1), and two separate acts of digital penetration of LC's anus (counts 2 and 3).

The appellant was tried in the District Court at Newcastle. The jury acquitted him on counts 1 and 3 but convicted him on count 2. The primary judge sentenced the appellant to a community corrections order of 18 months.

The appellant appealed his conviction on count 2. The Director of Public Prosecutions separately appealed the sentence, arguing it was manifestly inadequate for an offence of sexual intercourse with a child under 10 contrary to s 66A(1) of the Crimes Act 1900 (NSW).

  • Whether the guilty verdict on count 2 was inconsistent with the not guilty verdicts on counts 1 and 3, rendering it unsafe
  • Whether the trial judge erred by failing to give a Markuleski direction (a direction about how to treat evidence across related counts) after the jury returned partial verdicts
  • Whether the trial judge erred by giving a Black direction (an Allen-type direction urging jurors to continue deliberating) without simultaneously giving a Markuleski direction
  • Whether the guilty verdict on count 2 was unreasonable or unsupported by the evidence
  • Whether the 18-month community corrections order was manifestly inadequate for a s 66A(1) offence
  • Whether the Court should exercise its residual discretion to decline resentencing, even if the sentence was found to be manifestly inadequate

Decision

Conviction appeal

The Court rejected all four grounds of the conviction appeal. On the question of inconsistent verdicts, the Court found that the acquittals on counts 1 and 3 were not logically irreconcilable with the conviction on count 2. A jury may accept one allegation and reject others without producing an inconsistent result, particularly where the counts involve distinct acts.

The Court also rejected the arguments about the Markuleski direction. A Markuleski direction addresses how a jury should approach evidence that is relevant to multiple counts; the Court was not satisfied that the trial judge's failure to give such a direction, either after partial verdicts were returned or in conjunction with the Black direction, produced a miscarriage of justice on the facts of this case.

On the reasonableness of the verdict, the Court found the conviction was open to the jury. LC's JIRT interview evidence, including his account that the appellant inserted his finger into his anus twice and his complaint to his mother immediately after the bath, was described as important and compelling. The Court noted, consistently with Pell v The Queen and SKA v The Queen, that there was no reason to review the audio-visual recordings of the interview beyond what Wilson J had already assessed in her written reasons.

Crown sentence appeal

The Court unanimously found that the 18-month community corrections order was manifestly inadequate for a s 66A(1) offence. Wilson J, with whom the other judges agreed, indicated that an appropriate sentence would have been 3 years imprisonment with a non-parole period of 1 year, reflecting the objective gravity of the offending while accounting for the isolated nature of the offence, the respondent's long history of good character, and the time already served on the community corrections order.

Nonetheless, the Court exercised its residual discretion to decline resentencing. The respondent was 76 years old and suffered from a long-term bronchial condition. The Court accepted that incarcerating him during the COVID-19 pandemic would expose him to a materially heightened risk of serious harm or death, creating a level of fear and suffering beyond that experienced by a younger, healthier prisoner. The Court considered that the purposes of a Crown appeal, primarily laying down sentencing principles for future courts, could be fulfilled by pronouncing the sentence manifestly inadequate and announcing what the correct sentence would have been, without actually imposing it.

Orders Made

  • Conviction appeal dismissed
  • Crown appeal against inadequacy of sentence dismissed (residual discretion exercised)

Key Takeaways

  • Acquittals on some counts do not automatically render a guilty verdict on another count inconsistent; the verdicts must be logically irreconcilable before inconsistency is established.
  • A Markuleski direction, which addresses how a jury should use evidence across related counts, is not automatically required every time a Black direction is given; the obligation depends on the particular circumstances of the trial.
  • Under s 66A(1) of the Crimes Act 1900, a community corrections order will ordinarily be a manifestly inadequate response to the objective gravity of sexual intercourse with a child under 10, and the Court of Criminal Appeal indicated that 3 years imprisonment with a 1-year non-parole period was the appropriate range on these facts.
  • The residual discretion to decline resentencing, even where a sentence is found to be manifestly inadequate, can be enlivened by a combination of the offender's advanced age, serious health vulnerabilities, and exceptional external circumstances such as a pandemic.
  • Announcing the correct sentence without imposing it can itself fulfil the primary purpose of a Crown sentence appeal, which is to provide guidance to future sentencing courts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Appeal Act 1912 (NSW), ss 5, 5D(1)
- Criminal Procedure Act 1986 (NSW), ss 306S, 306U
- Evidence Act 1995 (NSW)

Cases
- Black v The Queen (1993) 179 CLR 44
- EG v R [2015] NSWCCA 21
- Green v The Queen (2011) 244 CLR 462
- Hili v The Queen (2010) 242 CLR 520
- MFA v The Queen (2002) 213 CLR 606
- M v The Queen (1994) 181 CLR 487
- Mackenzie v R (1996) 190 CLR 348
- Markarian v The Queen (2005) 228 CLR 357
- Pell v The Queen [2020] HCA 12
- R v Dinsdale (2000) 202 CLR 321
- R v JJ [2019] NSWCCA 148
- R v Markuleski (2001) 52 NSWLR 82
- R v ND [2016] NSWCCA 103
- R v Qi [2019] NSWCCA 73
- R v Toohey [2019] NSWCCA 182
- Roos v R [2019] NSWCCA 67A