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Court of Criminal Appeal 15 December 2023

Steel (a pseudonym) v R

[2023] NSWCCA 326

Sexual offences

Citation: Steel (a pseudonym) v R [2023] NSWCCA 326
Court: NSW Court of Criminal Appeal
Date: 15 December 2023
Judges: Payne JA; Fagan J; Sweeney J

Background

The applicant, referred to by the pseudonym John Steel, had been in an on-again-off-again relationship with the complainant's mother since the complainant was an infant. He was the biological father of the complainant's two younger siblings. Three counts related to two occasions during the Easter school holidays in April 2016, when the applicant allegedly took the five-year-old complainant from her bedroom in the middle of the night and indecently assaulted her in the backyard. A fourth count concerned a separate alleged incident at a different address in late 2018 or early 2019.

The complainant first disclosed the conduct to a teacher in mid-2019 during a child protection lesson. Following a judge alone trial in the District Court at Sydney, the trial judge found the applicant guilty on Counts 1 to 3 (indecent assault on a child under 16, contrary to s 61M(2) of the Crimes Act 1900 (NSW)) and not guilty on Count 4 (sexually touching a child under 10, contrary to s 66DA). The trial judge attributed the not guilty verdict on Count 4 to a deficiency in the complainant's memory on that count, expressly noting it did not undermine the complainant's credibility and reliability on the other counts.

The applicant was sentenced to an aggregate term of 7 years and 6 months' imprisonment with a non-parole period of 4 years and 6 months. He applied for leave to appeal both his convictions and his sentence.

  • Whether the guilty verdicts on Counts 1 to 3 were unreasonable, specifically whether they were inconsistent with the not guilty verdict on Count 4 and could not otherwise be supported by the evidence.
  • Whether the aggregate sentence was manifestly excessive, with particular reference to the adequacy of the sentencing judge's treatment of the applicant's intellectual disability.

Decision

Conviction appeal. The Court confirmed that the legal standard for challenging a verdict as unreasonable, developed in the context of jury trials, applies equally to verdicts in judge alone trials. The appellate court must independently assess whether, on the whole of the evidence, the fact-finder must (not merely might) have entertained a reasonable doubt as to guilt. The Court acknowledged the advantage held by the trial judge in seeing and hearing witnesses give evidence, and that advantage cannot be disregarded.

All three judges conducted independent reviews of the trial evidence and reached the same conclusion. There was a qualitative difference between the complainant's evidence on Count 4 and her evidence on Counts 1 to 3, and the acquittal on Count 4 did not undermine the reliability or credibility of her account on the remaining counts. No member of the Court was left with a reasonable doubt about the applicant's guilt on Counts 1 to 3. The appeal against conviction was dismissed.

Sentence appeal. The Court reiterated that when assessing manifest excess, the principal focus is whether the aggregate sentence reflects the total criminality of the offending; indicative sentences for individual counts are not themselves amenable to appeal but may serve as a guide. An offender's intellectual disability is relevant to sentencing across several considerations, including moral culpability, and the weight given to both general and specific deterrence.

The Court found that the applicant's intellectual disability had not been sufficiently reflected in the indicative sentences identified by the sentencing judge, establishing error in the aggregate sentence. The Court resentenced the applicant to an aggregate term of 6 years and 6 months' imprisonment with a non-parole period of 4 years, reducing the head sentence by 12 months while adjusting the non-parole period accordingly.

Orders Made

  • Leave to appeal against conviction granted; appeal against conviction dismissed.
  • Leave to appeal against sentence granted; appeal against sentence allowed.
  • Applicant resentenced to an aggregate term of imprisonment of 6 years and 6 months with a non-parole period of 4 years.
  • First eligible for parole on 9 August 2024.
  • Indicative sentences set for each count, including:
  • Count 1: 3 years' imprisonment with a non-parole period of 18 months.
  • Count 2: 2 years' imprisonment with a non-parole period of 12 months.
  • Count 3: 5 years' imprisonment with a non-parole period of 3 years.

Key Takeaways

  • The principles governing unreasonable verdict appeals in jury trials apply with equal force to verdicts in judge alone trials: the appellate court must independently assess whether the fact-finder was bound to have a reasonable doubt, while still giving due weight to the trial judge's advantage in observing witnesses.
  • A not guilty verdict on one count does not automatically render guilty verdicts on related counts unreasonable. Where there is a rational, evidence-based explanation for the different outcomes, such as a qualitative difference in the quality of memory on a particular count, verdicts can stand as consistent with one another.
  • An offender's intellectual disability is a relevant sentencing consideration that bears on moral culpability and the weight to be given to both general and specific deterrence, consistent with Bugmy v The Queen (2013) 249 CLR 571 and Muldrock v The Queen (2011) 244 CLR 120.
  • In dismissing the conviction appeal, all three judges noted they had each conducted an independent review of the whole of the evidence before reaching their conclusions, reflecting the appellate obligation set out in Dansie v The Queen (2022) 274 CLR 651.
  • Insufficient reflection of a significant mitigating factor such as intellectual disability in indicative sentences can ground a finding of manifest excess in the aggregate sentence, even where the sentencing judge has nominally identified the factor.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66DA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
- Criminal Procedure Act 1986 (NSW), s 306U

Cases
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Libke v The Queen (2007) 230 CLR 559
- Muldrock v The Queen (2011) 244 CLR 120
- Bugmy v The Queen (2013) 249 CLR 571
- Kentwell v The Queen (2014) 252 CLR 601
- JM v The Queen [2014] NSWCCA 297
- Filippou v The Queen (2015) 256 CLR 47
- Hughes v R [2018] NSWCCA 2
- R v Guode (2020) 267 CLR 141
- McTague v R [2020] NSWCCA 83
- AJ v R (2022) 110 NSWLR 339
- DS v The Queen (2022) 109 NSWLR 82
- Dansie v The Queen (2022) 274 CLR 651
- Pell v The Queen (2020) 268 CLR 123