AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 10 November 2023

Horne v R

[2023] NSWCCA 276

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE

Citation: Horne v R [2023] NSWCCA 276
Court: NSW Court of Criminal Appeal
Date: 10 November 2023
Judge(s): Ward ACJ; Fagan J; Sweeney J

Background

The applicant was convicted by jury of two counts of sexual intercourse without consent and one count of indecent assault, all committed in a single episode in 2016 while the victim, a former friend, was unconscious in her own home. The offending came to light in August 2020 when police seized a USB drive from the applicant's residence containing a video recording of the acts. The applicant was aged approximately 42 at the time of the offences and 48 at sentencing.

At the sentence hearing, a forensic psychiatrist's report was tendered on the applicant's behalf. That report recorded a history of childhood sexual abuse allegedly perpetrated by the applicant's older brother when the applicant was aged nine to eleven. The psychiatrist noted that this history had been disclosed to a clinical psychologist, Ms Samowitz, during sessions in 2019 and 2020, before the applicant was charged.

The sentencing judge expressed reservations about accepting the alleged abuse as fact. Those reservations arose from the applicant's denial of any childhood abuse in psychological assessments conducted in 2007 and 2012, the absence of any reference to such abuse in a letter from the applicant's parents, and the absence of the applicant's own evidence. Counsel for the applicant indicated that Ms Samowitz's notes could be obtained but did not pursue that course. The judge ultimately declined to give weight to the alleged abuse and imposed an aggregate sentence of five years and three months with a non-parole period of three years and four months.

  • Whether the failure of the applicant's legal representatives to tender Ms Samowitz's clinical consultation notes occasioned a miscarriage of justice at the sentence hearing.
  • Whether the absence of those notes materially adversely affected the applicant's case on sentence, including whether the notes would have led the sentencing judge to accept the alleged childhood sexual abuse as fact.
  • Whether, even if the notes would not have altered the factual finding on abuse, the finding itself was of such significance to the sentencing exercise that a lesser sentence might have resulted.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. The Court found that tendering Ms Samowitz's notes would not have overcome the sentencing judge's reservations. The notes would have constituted further hearsay of the applicant's allegations, adding nothing to the psychiatrist's report, which itself relied on the same secondhand account. The only evidence capable of resolving the judge's doubts was the applicant's own testimony, which was not called.

The Court also noted that the sentencing judge's skepticism was grounded in specific contradictory material: the applicant's explicit denial of childhood abuse to psychologists in 2007 and 2012, and the silence of his parents' letter on the subject. No reasonable weight could be attributed to the notes in the face of that material.

Separately, the Court concluded that even if the alleged childhood abuse had been accepted as fact, it would not have meaningfully altered the sentencing outcome. The sentencing judge accepted the psychiatrist's diagnoses, including the applicant's paraphilic disorder, for whatever weight they carried in the sentencing exercise. The question of what caused those conditions was immaterial to that exercise. Because the factual finding of abuse was not significant to the subjective case, there was no real possibility that its acceptance would have produced a lesser sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a miscarriage of justice arising from a representative's failure requires a significant possibility that the omission led to a heavier sentence than would otherwise have been imposed.
  • Additional hearsay evidence of the same allegation already in a tendered psychiatric report is unlikely to overcome a sentencing judge's reservations where those reservations are grounded in contradictory firsthand records and the absence of the offender's own evidence.
  • Where a sentencing judge accepts a psychiatric diagnosis for the purposes of sentence, the causal explanation for that diagnosis is generally immaterial to the sentencing exercise, and the absence of a finding on causation does not, of itself, produce a miscarriage of justice.
  • Counsel who indicate that further evidence can be obtained to address a sentencing judge's expressed concerns, but then do not pursue that course, may face scrutiny on appeal, though the omission will not automatically constitute error if the evidence would not have been determinative.
  • A finding of childhood abuse may form part of an offender's subjective case, but the significance of that finding depends on whether it materially connects to the psychiatric or other conditions accepted by the sentencing court. Where that connection is immaterial, the failure to establish the finding does not affect the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L
- Child Protection (Offenders Registration) Act 2000 (NSW)

Cases:
- John Wayne Tsiakas v R [2015] NSWCCA 187
- Rossall v R [2021] NSWCCA 200