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Court of Criminal Appeal 3 March 2025

Wardell v R

[2025] NSWCCA 26

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION MISCARRIAGE OF JUSTICE JURY DIRECTIONS TENDENCY DIRECTIONS

Citation: Wardell v R [2025] NSWCCA 26
Court: NSW Court of Criminal Appeal
Date: 3 March 2025
Judges: Wright J; Ierace J; Rigg J

Background

The applicant was convicted in the NSW District Court on 10 counts of aggravated indecent assault and 13 counts of aggravated sexual assault against two complainants. Both complainants had undertaken work experience placements and paid employment at the applicant's rural stock horse business, and both were aged between 16 and 19 at the relevant times. The offending spanned from 2012 to 2018.

On 22 October 2021, the applicant was sentenced to an aggregate term of 14 years imprisonment with a non-parole period of 9 years. The applicant was in his late fifties to mid-sixties during the period of offending.

The applicant sought leave to appeal against both the convictions and the sentence. Because the notice of appeal was filed out of time, he also required leave to make the applications out of time.

  • Whether the trial judge's tendency directions caused a miscarriage of justice by failing to comply with the approach required by the High Court in DPP v Benjamin Roder (a pseudonym) [2024] HCA 15, particularly by creating a risk that the jury engaged in impermissible circular reasoning
  • Whether the sentencing judge erred by nominating indicative sentences of imprisonment for individual offences where the threshold for a sentence of imprisonment under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) may not have been independently crossed
  • Whether the sentencing judge erred in determining the non-parole period by failing to properly account for the applicant's life expectancy

Decision

Conviction appeal: tendency directions

The trial judge's directions did not comply with the approach set out in Roder, which requires that tendency evidence be assessed against the civil standard of proof (on the balance of probabilities) before it can be used to reason toward guilt on the charged offences. The applicant argued this created a risk that the jury engaged in circular reasoning, using the charged conduct itself to establish the tendency and then using the tendency to prove the charged conduct.

The Court of Criminal Appeal acknowledged the non-compliance but applied the principle from JS v R [2022] NSWCCA 145: the question is whether, reading the summing-up as a whole, there was a realistic possibility that the jury did not understand or properly apply the onus and standard of proof. The Court found no such realistic possibility on the facts of this case, and therefore no miscarriage of justice occurred.

Sentence appeal: indicative sentences

The applicant challenged the sentencing judge's nomination of indicative periods of imprisonment for certain offences where, in isolation, those offences may not have crossed the s 5 threshold requiring imprisonment as a last resort. The Court held there was no error. Where an aggregate sentence is imposed, the sentencing judge is required by s 53A(2) of the Crimes (Sentencing Procedure) Act to indicate what sentence would have been imposed for each offence. Those individual offences must be considered within the broader pattern of offending, not in artificial isolation from the totality of the conduct before the court.

Sentence appeal: life expectancy

The applicant argued the sentencing judge failed to properly account for his advanced age and life expectancy in fixing the non-parole period. The Court found the sentencing judge did take the applicant's age into account on multiple occasions, ameliorating the sentence significantly as a result. Critically, the judge did not apply a mechanical formula tying the non-parole period to projected life expectancy. The Court held that using life expectancy as a determinative shortcut would be contrary to sentencing principle, and the sentencing judge had correctly declined to do so.

Orders Made

  • Leave granted to make the application for leave to appeal out of time
  • Leave granted to appeal against conviction
  • Appeal against conviction dismissed
  • Leave granted to appeal against sentence
  • Appeal against sentence dismissed

Key Takeaways

  • A non-compliant tendency direction does not automatically produce a miscarriage of justice. The Court of Criminal Appeal confirmed that the critical question is whether, read as a whole, the summing-up left a realistic possibility that the jury misapplied the onus or standard of proof.
  • Where a trial judge imposes an aggregate sentence, the obligation under s 53A(2) of the Crimes (Sentencing Procedure) Act to nominate indicative sentences for each offence requires those offences to be assessed within the broader pattern of offending, not as though each stood entirely alone.
  • Indicating a period of imprisonment as an indicative sentence for an offence that may not independently cross the s 5 threshold is not an error when the offending forms part of a pattern for which an aggregate custodial sentence is plainly appropriate.
  • An offender's advanced age and life expectancy are relevant sentencing considerations, but treating life expectancy as a mechanical cap or determinative ceiling for the non-parole period would be contrary to principle. The Court confirmed that significant amelioration short of a formulaic approach is the correct method.
  • In dismissing all grounds, the Court applied Roder, JS v R, and established principles on aggregate sentencing, without disturbing the 14-year aggregate sentence with a 9-year non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 10(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)
- Evidence Act 1995 (NSW), ss 55(1), 97, 142
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.5(5), 4.15

Cases
- Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644
- JS v R [2022] NSWCCA 145
- The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
- Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Astill v R [2024] NSWCCA 118
- BRC v R [2020] NSWCCA 176; 284 A Crim R 124
- Davies v R [2019] NSWCCA 45; 277 A Crim R 1
- Gould v R [2023] NSWCCA 103; 377 FLR 26
- Geraghty v R [2023] NSWCCA 47
- Khorami v R; R v Khorami [2021] NSWCCA 228
- Mohindra v R [2020] NSWCCA 340
- Mol v R [2017] NSWCCA 76
- R v JRD [2007] NSWCCA 55
- R v Holyoak (1995) 82 A Crim R 502
- Director of Public Prosecutions v Roder (a pseudonym) [2023] VSCA 262