Citation: Massaquoi v R [2024] NSWCCA 125
Court: New South Wales Court of Criminal Appeal
Date: 17 July 2024
Judges: Mitchelmore JA, Garling J, Wilson J (all agreeing with Wilson J)
Background
The applicant was convicted after a jury trial in the District Court of maintaining an unlawful sexual relationship with a child, contrary to s 66EA of the Crimes Act 1900 (NSW), a charge carrying a maximum sentence of life imprisonment. The offending occurred between July 2013 and September 2016, when the complainant (referred to as Ms A) was between 12 and 16 years old. The applicant had been in a relationship with Ms A's mother and was regarded by Ms A as a father figure.
The jury found the applicant guilty on the principal charge following a trial in September 2020. On 15 March 2021, the sentencing judge imposed a term of 16 years' imprisonment with a non-parole period of 10 years, commencing from the date of arrest in March 2019.
The applicant then sought to appeal against his sentence to the Court of Criminal Appeal. The application was significantly out of time, requiring both an extension of time and leave to appeal. The sole ground of appeal was that the sentencing judge failed to make "evidence-based findings of fact" concerning the extent of the offending.
Legal Issues
- Whether an extension of time should be granted to bring an out-of-time application for leave to appeal against sentence.
- Whether the sentencing judge erred by failing to make independent, evidence-based findings of fact about the extent of the offending, rather than accepting the whole of the complainant's evidence.
- Whether, at sentencing after a jury trial, a judge is obliged to find facts consistent with the jury's verdict, and whether that obligation was breached here.
Decision
The Court found that the appeal ground lacked merit. The applicant's complaint, reduced to its essence, was that the sentencing judge should have made discrete findings about which specific acts of offending were established, rather than accepting the complainant's evidence in its entirety. However, the Court noted that no such argument had been advanced before the sentencing judge. Because the applicant raised no basis at first instance for distinguishing any particular aspect of the complainant's evidence, the sentencing judge had no occasion to make differentiated findings and was entitled to proceed on the basis that the whole of the complainant's account was accepted.
The Court confirmed the general principle that, following a jury trial, a sentencing judge must find facts consistent with the jury's verdict. Where the complainant's evidence was accepted as reliable and no challenge was mounted to discrete aspects of it at sentencing, there was no error in the judge sentencing on the basis of that evidence as a whole.
On the question of delay, the Court found the explanation offered was inadequate. The applicant's affidavit attributed the delay primarily to his girlfriend's inability to raise funds for private legal representation, despite his possible entitlement to legal aid. Wilson J found this did not constitute a reasonable explanation for the failure to seek legal assistance or to apply for an extension of the Notice of Intention to Appeal in a timely way. Only a portion of the delay, attributable to obtaining court records and awaiting the High Court's resolution of a related issue in Xerri v The King [2024] HCA 5, was considered satisfactorily explained.
The Court held that, because the appeal lacked merit, that consideration did not weigh in favour of granting the extension despite the largely unexplained delay. Wilson J added that, even if an extension had been granted, the appeal would have been dismissed.
Orders Made
- Extension of time to bring an application for leave to appeal against the sentence imposed on 15 March 2021 refused.
Key Takeaways
- At sentencing following a jury trial, a sentencing judge is obliged to find facts consistent with the jury's verdict. Where no argument is advanced at the sentencing hearing to distinguish or limit specific aspects of a complainant's evidence, the sentencing judge commits no error in accepting that evidence in its entirety.
- A ground of appeal that was not raised before the sentencing judge faces a significant obstacle in the Court of Criminal Appeal, particularly where no factual basis for the argument was established at first instance.
- Unexplained delay in bringing a sentence appeal weighs heavily against the grant of an extension of time. Waiting for a private funder to raise legal fees, while disregarding a possible entitlement to legal aid, was not regarded as a satisfactory explanation.
- Where an appeal lacks merit, that absence of merit is a decisive factor against extending time, even where some portion of the delay is explicable.
- The Court of Criminal Appeal confirmed it would have dismissed the appeal on its merits in any event, providing clear guidance that the sentencing approach in this case disclosed no identifiable error.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61DE, 66DB, 66EA, 578A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
- Criminal Procedure Act 1999 (NSW), s 150
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.1
- Criminal Appeal Rules 1952 (NSW)
Cases:
- Xerri v The King [2024] HCA 5
- Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- KMC v Director of Public Prosecutions (SA) (2020) 94 ALJR 415; [2020] HCA 6
- Burr v R [2020] NSWCCA 282
- MK v R; RB v R [2023] NSWCCA 180
- RB v R [2022] NSWCCA 142
- Zreika v R [2012] NSWCCA 12
- Edwards v R [2009] NSWCCA 199
- R v M, DV [2019] SASCFC 59