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Court of Criminal Appeal 1 March 2001

R v AJH [2001] NSWCCA 62 revised - 24

[2001] NSWCCA 62

Sexual offencesDrugs
SEVERITY APPEAL

Citation: R v AJH [2001] NSWCCA 62 revised - 24/08/2001
Court: NSW Court of Criminal Appeal
Date: 1 March 2001
Judges: Ipp AJA, Simpson J, Carruthers AJ

Background

The appellant, a 35-year-old man, hosted a birthday party at his Marrickville apartment for his teenage daughter, with two 14-year-old girls among those invited to stay overnight. During the evening, he provided the girls with alcohol (wine and scotch whisky) and cannabis. The Crown case was that he did so to render them less capable of resisting sexual assault.

The first complainant became seriously ill after smoking cannabis and was helped to a bed by the appellant. A series of sexual offences was then alleged to have occurred against her on the double bed and, later that night, against both complainants in the bunk area of the same room.

At trial before Gibson DCJ and a jury in the Sydney District Court, the appellant was convicted on all ten counts relating to the two complainants: four counts of aggravated sexual intercourse without consent, five counts of indecent assault, and one count of common assault. He had separately pleaded guilty to one count of supplying cannabis (count 11). He appealed against both his convictions and the severity of his sentences.

  • Whether, on the whole of the evidence properly before the jury, it was open to them to be satisfied beyond reasonable doubt of the appellant's guilt on each of the ten contested counts.
  • Whether the sentences imposed by Gibson DCJ were within the range of sentencing discretion available to him, including whether the sentence for the cannabis supply offence (count 11) was manifestly excessive.
  • Whether the structure of the non-parole period attached to count 4 was appropriate, and whether it required correction.

Decision

The Court of Criminal Appeal dismissed the conviction appeal. The Court found it was open to the jury to be satisfied beyond reasonable doubt on all ten counts, having regard to the totality of the evidence before them. The sole ground of appeal, that no reasonable jury could have reached guilty verdicts on the evidence, was not made out.

On the severity appeal, the Court upheld the sentences for all counts except count 4. The Court accepted that the appellant had supplied cannabis and alcohol to the two 14-year-old girls for the specific purpose of facilitating the sexual offences, and regarded this as a significant aggravating feature relevant to the sentencing exercise generally, and to count 11 in particular. The sentence imposed for the cannabis supply offence was described as "high" but not beyond the available sentencing discretion, given those circumstances.

A technical defect was identified in the structure of the sentence for count 4. The non-parole period as originally imposed was not consistent with the applicable sentencing principles. Carruthers AJ proposed reducing the head sentence for count 4 from six to four years with a two-year non-parole period. Simpson J preferred an alternative formulation, reducing only the non-parole period to four years while retaining the six-year head sentence, on the basis that this better reflected the criminality involved and better aligned with the principles in R v Pearce. The Court ultimately adopted the orders proposed by Carruthers AJ, which had the same practical effect.

Orders Made

  • A non-publication order was made prohibiting publication of any material capable of identifying the complainants, having regard to their age.
  • Leave to appeal against sentence was granted on all counts (counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11).
  • The appeal against sentence was dismissed in respect of counts 1, 2, 3, 5, 6, 7, 8, 9, 10 and 11.
  • The appeal against sentence in respect of count 4 was allowed to the extent of varying the sentence in the manner proposed by Carruthers AJ.
  • The conviction appeal was dismissed.

Key Takeaways

  • Sufficient evidence existed, taking all the evidence before the jury as a whole, to sustain guilty verdicts on ten counts of sexual and indecent assault against two 14-year-old complainants, even where the defence challenged the sufficiency of that evidence.
  • The Court of Criminal Appeal confirmed that the purpose for which a drug was supplied is a relevant and proper sentencing consideration for the drug supply offence itself, though that same purpose cannot be double-counted by also factoring it into the sentences imposed for the related sexual offences.
  • Where an adult deliberately provides alcohol and cannabis to teenage girls to diminish their capacity to resist sexual assault, the Court treated that conduct as materially aggravating when assessing the seriousness of the supply offence.
  • A technically defective sentencing structure (specifically the relationship between head sentence and non-parole period) may be corrected on a severity appeal even where the overall outcome is substantially unchanged.
  • Simpson J noted the increasing use of sentencing statistics in NSW courts and acknowledged that individual sentences, once imposed, become part of that statistical dataset, with potential to influence future sentencing patterns for serious offences of the same kind.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 61J (aggravated sexual intercourse without consent), 61M (indecent assault), 61 (common assault)
- Drug Misuse and Trafficking Act 1985 (NSW): ss 25(1), 32(1)(h)

Cases:
- R v Pearce [1998] HCA 57; 194 CLR 610
- C M v The Queen (1994) 181 CLR 487
- Board of Education v Rice [1911]
- Mahon v Air New Zealand Ltd [1984] AC 808
- R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456