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Court of Criminal Appeal 3 November 2023

HA v R

[2023] NSWCCA 274

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION INCONSISTENT VERDICTS 9 OFFENCES AGAINST SAME COMPLAINANT WHERE APPLICANT CONVICTED OF TWO COUNTS

Citation: HA v R [2023] NSWCCA 274
Court: NSW Court of Criminal Appeal
Date: 3 November 2023
Judge(s): Stern JA (principal judgment); Harrison J and N Adams J agreeing

Background

The applicant was tried in the District Court before a judge and jury on nine counts of sexual and related offending against the younger sister of his wife. The offending was alleged to have spanned from June 2013 to June 2019, during which time the complainant was aged between approximately seven and thirteen years old. The counts included charges of sexual intercourse with a person under ten years of age, aggravated acts of indecency, and stalking or intimidating with intent to cause fear.

The jury returned a mixed verdict: guilty on counts 3 and 4 (both charges of sexual intercourse with a person under ten, relating to what the court described as the "second incident"), and not guilty on all remaining seven counts. The applicant was sentenced to concurrent terms of nine years imprisonment on each of counts 3 and 4, with a non-parole period of five years and six months.

The applicant sought leave to appeal both his convictions and his sentence. On the conviction appeal, he argued the guilty verdicts were unreasonable because they were inconsistent with the acquittals on the other counts. On the sentence appeal, he argued the sentencing judge had committed a De Simoni error by treating the complainant being "under the offender's authority" as an aggravating feature when that circumstance was an element of a more serious offence with which he had never been charged.

  • Whether the jury's guilty verdicts on counts 3 and 4 were unreasonable or inconsistent with the acquittals on all other counts, given that all counts relied substantially on the same complainant's evidence
  • Whether the sentencing judge fell into De Simoni error by treating the complainant being "under the offender's authority" as an aggravating feature at sentencing, when that circumstance formed the basis of the aggravated offence under s 66A(2) of the Crimes Act 1900 (NSW), a more serious charge than that for which the applicant was convicted

Decision

On the conviction appeal, the Court found that the verdicts were not inconsistent and the convictions were not unreasonable. There were logical explanations for the acquittals on counts 1 and 2 and counts 5 through 9 that did not require the jury to have wholly rejected the complainant's evidence. The jury was entitled to be cautious about accepting the complainant's account on those counts beyond reasonable doubt in the absence of corroborating evidence, while still accepting her evidence in relation to counts 3 and 4.

The Court emphasised that, unlike the other counts, there was no evidence that affirmatively contradicted the complainant's account of the second incident underlying counts 3 and 4. There was also corroborating evidence in relation to those two counts. It was therefore open to a reasonable jury to convict on counts 3 and 4 while acquitting on all others.

On the sentence appeal, the Court found that the sentencing judge had committed De Simoni error. The principle in The Queen v De Simoni (1981) 147 CLR 383 provides that a sentencing court cannot take into account, as an aggravating circumstance, conduct that would have constituted a more serious offence than that charged. At the time of the offending, the circumstance that the victim was "under the authority of the offender" was a statutory element of the aggravated offence under s 66A(2) of the Crimes Act, which carries a higher maximum penalty than the basic offence under s 66A(1) of which the applicant was convicted. The Court held that the sentencing remarks could not be read in any way other than as treating the complainant's position under the applicant's authority as an aggravating factor, separate from and in addition to the position of trust finding. That was impermissible.

The Court resentenced the applicant, setting aside the original sentence. Taking into account the unchallenged factual findings of the sentencing judge, excluding the impermissible aggravating factor, and having regard to relevant post-sentence conduct, the Court determined a lesser sentence was warranted.

Orders Made

  • Leave to appeal against both conviction and sentence granted
  • Appeal against conviction dismissed
  • Appeal against sentence allowed
  • Sentence imposed by the primary judge quashed
  • Applicant resentenced to an aggregate sentence of 8 years and 3 months, commencing 5 April 2022, with a non-parole period of 5 years (expiring 4 April 2027); balance of term expiring 4 July 2030
  • Indicative sentence for count 3: 7 years and 6 months with a non-parole period of 4 years and 6 months
  • Indicative sentence for count 4: 7 years with a non-parole period of 4 years and 3 months

Key Takeaways

  • Mixed jury verdicts are not automatically inconsistent simply because all counts rely substantially on the same complainant's evidence. The Court of Criminal Appeal confirmed that a jury may reasonably accept a complainant's evidence on some counts while declining to convict on others, particularly where corroboration exists for certain counts but not others.
  • Under the De Simoni principle, a sentencing court cannot treat as an aggravating circumstance any conduct that would have constituted a more serious charge than the one for which the offender was convicted. This applies even where the aggravating conduct overlaps with an element of a statutory aggravated offence.
  • Where the "victim under authority" circumstance was, at the time of the offending, the defining element of the aggravated offence under s 66A(2) of the Crimes Act 1900 (NSW), reliance on that circumstance in sentencing a conviction for the basic offence under s 66A(1) constitutes De Simoni error.
  • A position of trust and a position of authority are treated as distinct concepts in this context. A sentencing court may legitimately treat an offender's position of trust as an aggravating feature under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW), but the two concepts may overlap and their boundaries require careful attention at sentencing.
  • In resentencing following a De Simoni error, the Court of Criminal Appeal exercises the sentencing discretion afresh, having regard to all unchallenged factual findings, the erroneously applied factor excluded, and any relevant post-sentence developments.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A(1), 66A(2), 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(k), 53A
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases:
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- DL v R (2018) 265 CLR 215; [2018] HCA 32
- Cordeiro v R [2019] NSWCCA 308
- Burr v R [2020] NSWCCA 282
- Collins v R [2020] NSWCCA 198
- Dansie v R (2022) 274 CLR 651; [2022] H