Citation: Cheung v R [2022] NSWCCA 168
Court: Court of Criminal Appeal, New South Wales
Date: 12 August 2022
Judge(s): Simpson AJA; Ierace J (principal judgment); Dhanji J
Background
The applicant was convicted by a jury of one count of sexual intercourse with a child under ten years, contrary to s 66A of the Crimes Act 1900 (NSW). The offence was alleged to have occurred on either 24 or 25 July 2018 at the complainant's family home in Sydney. The complainant was three years and nine months old at the time.
The applicant had attended the home regularly on Tuesdays and Wednesdays to assist his wife, who was employed as a nanny and cleaner by the complainant's family. The Crown alleged that the applicant digitally penetrated the complainant while alone with her at the home, causing a vaginal abrasion. The complainant first disclosed the assault on the evening of 26 July 2018, in response to questioning by her parents after they noticed an injury during bathing.
On 14 May 2021, the applicant was sentenced to ten years imprisonment with a non-parole period of six years. He sought leave to appeal both his conviction and his sentence.
Legal Issues
- Whether the jury's verdict of guilty was unreasonable, or could not be supported having regard to the evidence at trial (the sole conviction ground)
- Whether the sentence of ten years imprisonment with a six-year non-parole period was manifestly excessive (the sole sentence ground)
Decision
Conviction appeal: The Court applied the established test for unreasonable verdict appeals, which requires the appellate court to make an independent assessment of the evidence and ask whether it was open to the jury to be satisfied of guilt beyond reasonable doubt. Ierace J, with Simpson AJA and Dhanji J agreeing, conducted a careful review of the complainant's account across several recorded statements, the circumstances of the complaint, and the medical evidence.
The applicant identified a number of difficulties with the complainant's evidence, including the delay in complaint, the fact that disclosure arose in response to parental questioning, inconsistencies in the complainant's descriptions of the offence, and uncertainties about the foundation for the medical evidence regarding the injury. The Court acknowledged the need to assess the reliability of very young complainants' accounts with caution. However, it concluded that, on an independent assessment of the evidence, the complainant's account was sufficiently reliable to have satisfied the jury of the applicant's guilt beyond reasonable doubt. Dhanji J observed that the complainant had, on occasions, resisted leading questions from her parents and corrected herself without prompting, which were features consistent with reliability.
Sentence appeal: The applicant argued that the objective and subjective circumstances of the case made the sentence unreasonable, and relied on seven comparable cases decided by the Court of Criminal Appeal. The Court noted that the maximum penalty for the offence is life imprisonment. Ierace J observed that the applicant had denied guilt with respect to a very young victim in circumstances where he had access to her home as a trusted person. The total sentence was two-thirds of the standard non-parole period, and a finding of special circumstances had been made, resulting in a ratio of 60 per cent between the non-parole period and the total sentence. The Court was not persuaded that the sentence fell outside the range appropriate for this type of offending, and declined to find manifest excess.
Orders Made
- Leave to appeal against conviction: granted; appeal dismissed
- Leave to appeal against sentence: granted; appeal dismissed
Key Takeaways
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that an unreasonable verdict challenge requires the appellate court to independently assess all the evidence and determine whether a guilty verdict was open to the jury, giving appropriate weight to the need for caution when evaluating the reliability of a very young complainant's account.
- Inconsistencies in a complainant's evidence, a complaint arising from parental questioning, and uncertainties in supporting medical evidence did not, in the circumstances of this case, render the jury's verdict unreasonable or unsupported by the evidence.
- Behavioural observations, such as a complainant resisting leading questions and self-correcting without prompting, may form part of the basis on which an appellate court assesses the reliability of a child's evidence on an unreasonable verdict review.
- A range of sentences across comparable cases does not automatically establish that a particular sentence within that range is manifestly excessive; the Court reiterated that manifest excess requires the sentence to fall outside the available range to a degree that demonstrates error.
- Under s 66A of the Crimes Act 1900 (NSW), which carries a maximum of life imprisonment, a ten-year term with a six-year non-parole period for a single offence against a victim aged under four years was held not to be manifestly excessive in light of the particular circumstances of the offending.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66A
- Criminal Procedure Act 1986 (NSW), Sch 2, cll 84, 88
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 54D
- Evidence Act 1995 (NSW), ss 13, 18, 38
Cases:
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- R v GW (2016) 258 CLR 108; [2016] HCA 6
- Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78
- Koloamatangi v R; Popovic v R (2020) 282 A Crim R 160; [2020] NSWCCA 52
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- AT v R [2020] NSWCCA 178
- RC v R [2020] NSWCCA 76
- Scott v R [2020] NSWCCA 81
- BS v R [2021] NSWCCA 39
- BT v R [2019] NSWCCA 147
- EG v R [2015] NSWCCA 21
- R v ND [2016] NSWCCA 103
- R v Scavera [2016] NSWCCA 145
- R v King [2009] NSWCCA 117
- Browne v Dunn (1893) 6 R 67