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9
Court of Criminal Appeal 11 February 2022

Tomlinson v R

[2022] NSWCCA 16

Also reported as (2022) 107 NSWLR 239
Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION SIGNIFICANCE OF DIRECTION GIVEN TO JURY NO PREJUDICE TO APPLICANT NO MISCARRIAGE OF JUSTICE

Citation: Tomlinson v R [2022] NSWCCA 16
Court: NSW Court of Criminal Appeal
Date: 11 February 2022
Judges: Brereton JA; N Adams J; Cavanagh J

Background

The appellant was convicted after trial in the District Court on 22 counts involving sexual intercourse with two underage girls (DA and HS), aggravated sexual assault, and child abuse material offences. The offences occurred between May 2012 and January 2015, when the appellant was aged 32 to 34. Both complainants were schoolgirls he had contacted via Facebook.

The appellant did not dispute having a sexual relationship with both girls. His primary defence was honest and reasonable mistake as to age: he claimed both girls had told him they were 16, and that he had believed them. He was sentenced to an aggregate term of 13.5 years' imprisonment with a non-parole period of eight years.

The appellant sought leave to appeal against both his convictions and his sentence.

  • Whether the trial judge erred by refusing to discharge the jury after a witness made an unresponsive disclosure suggesting the appellant was in custody at the time of trial
  • Whether the convictions were unreasonable or could not be supported having regard to the evidence, particularly on the element of knowledge of the complainants' ages
  • Whether the sentencing judge erred in making adverse findings about the appellant's insight and prospects for rehabilitation
  • Whether the sentencing judge applied an incorrect standard non-parole period in respect of one count, and if so, what sentence should be imposed on re-sentencing

Decision

Refusal to discharge the jury: The Court confirmed that an appeal against a refusal to discharge the jury is, in substance, an appeal against the conviction itself. For a "miscarriage of justice" to be established under s 6(1) of the Criminal Appeal Act 1912 (NSW), there must be a material irregularity, meaning one that could have influenced the jury's verdict. The Court found that being remanded in custody is an ordinary feature of the criminal justice process, and that the direction given by the trial judge adequately addressed any risk of prejudice. No miscarriage of justice was established.

Unreasonable verdict: The Court held the jury was entitled to accept each complainant's evidence that she had disclosed her true age to the appellant before their relationship became sexual. On that basis, the jury was entitled to be satisfied beyond reasonable doubt that the appellant actually knew the complainants were under 16. Even on a hypothesis where the jury considered it reasonably possible he had an honest belief, the Court held it was open to find that belief was not objectively reasonable. Regarding Count 3 (the aggravated assault count involving HS, who was 13 at the time), the Court held that a man of 32, who was himself misrepresenting his own age, could not establish a reasonable basis for believing a girl was of sufficient age merely by accepting her word, even where she had previously said she was 15.

Sentence appeal: The Court identified that the sentencing judge had applied a standard non-parole period to Count 3 that was not in force at the time that offence was committed. This error had the capacity to affect both the indicative sentence on that count and the aggregate sentence. The Court was therefore required to re-sentence the appellant afresh. The Court confirmed the sentencing judge had been entitled to consider the appellant's attitude toward his partner as evidence bearing on his insight and remorse, and that adverse findings about rehabilitation were open on the evidence. In re-sentencing, the Court held (N Adams J; Cavanagh J agreeing; Brereton JA dissenting in part on this point) that, in all counts except Count 3, the appellant was to be re-sentenced on the basis that he knew the victims were under 16. The Court ultimately dismissed the sentence appeal on the basis that no lesser sentence was warranted at law.

Orders Made

  • Appeal against conviction dismissed
  • Appeal against sentence dismissed

Key Takeaways

  • An appeal against a refusal to discharge the jury is ultimately an appeal against the conviction; the Court of Criminal Appeal must ask whether there was a material irregularity capable of influencing the verdict, taking into account any corrective direction given by the trial judge.
  • A witness disclosure that an accused is in custody does not automatically constitute a miscarriage of justice, particularly where being remanded in custody is an unremarkable feature of the criminal trial process and an appropriate direction is given.
  • Where a complainant gives evidence that she told the accused her true age before offending occurred, the jury is entitled to find actual knowledge of age on the accused's part; even absent proof of actual knowledge, a belief in the victim's age must be reasonable, not merely honestly held.
  • A man seeking sexual access to a young person cannot establish a reasonable basis for believing she is of sufficient age by simply accepting her word, particularly where he is himself being deceptive about his own circumstances.
  • Where an appellate court re-sentences following identification of sentencing error, it may in exceptional cases make factual findings different from those made at first instance, provided procedural fairness is extended to both parties, with the relevant standard of proof being satisfaction beyond reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66C(2), 66C(3), 91G(2)(a), 91H(2)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1), 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D
- Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW)

Cases:
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- Hofer v The Queen [2021] HCA 36; 95 ALJR 937
- Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78
- Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219