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36
Court of Criminal Appeal 10 July 2003

Regina v ITA [2003] NSWCCA 174 revised - 11

[2003] NSWCCA 174

Also reported as (2003) 139 A Crim R 340
Sexual offences
CRIMINAL LAW CRIMINAL PROCEDURE ACT 1986, S 99 FACTORS FOR CONSIDERATION WHEN RE SENTENCING.

Citation: Regina v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
Court: NSW Court of Criminal Appeal
Date: 10 July 2003
Judge(s): Ipp JA; Buddin J; Shaw J

Background

The appellant was tried jointly with another person, AK, on an indictment containing multiple counts. The appellant was convicted on count 1 of sexual assault in circumstances of aggravation, specifically that the offence was committed "in company." He was also convicted on an alternative charge to count 3 of indecent assault, without any aggravating element. The trial was conducted before Moore ADCJ in the District Court.

At sentencing, Moore ADCJ imposed a total sentence of seven and a half years imprisonment with a non-parole period of five years, made up of concurrent and partially cumulative terms across the two counts. The appellant appealed against both convictions and sought leave to appeal against the sentences.

  • Whether the indictment was defective because it charged two persons jointly
  • Whether the trial judge's summing up was adequate, including directions on the elements of the offences, the cases of counsel, lies, complaint, and the "in company" element
  • Whether the trial judge erred in failing to warn the jury that evidence relating to AK's counts could not be used against the appellant
  • Whether the trial judge should have directed the jury on mistaken belief as to consent
  • Whether the evidence was sufficient to support the jury's finding that count 1 was committed "in company"
  • Whether the sentences imposed were excessive and required reassessment on appeal

Decision

The indictment. The Court of Criminal Appeal dismissed the argument that the indictment was defective for naming two accused. Under section 61(1) of the Criminal Procedure Act 1986, objections to the form of an indictment must be raised in a timely manner. No miscarriage of justice arose from the joint indictment because the offences alleged against both accused were sufficiently related to warrant their inclusion in the one document.

The summing up. The Court confirmed that a trial judge is not obliged to comment on the facts beyond what other judicial functions require, consistently with section 99 of the Criminal Procedure Act. The adequacy of a summing up depends on context, including how the trial was run and whether counsel raised objections at its conclusion. Across multiple grounds, the Court declined to grant leave under rule 4 of the Criminal Appeal Rules, finding that counsel's failure to raise objections at trial was a reliable indicator of fairness and adequacy, and that no miscarriage of justice arose from any of the alleged deficiencies in the directions.

The "in company" verdict. The Court upheld the appeal in part on the verdict. It found that it was not open to the jury to conclude beyond reasonable doubt that the offence in count 1 was committed "in company." The aggravated verdict was set aside and a verdict of guilty of the lesser offence of sexual assault substituted.

Resentencing. Having set aside the aggravated conviction, the Court resentenced the appellant on count 1. Ipp JA noted the original sentence was lenient but maintained appropriate deference to it. The head sentence and non-parole period for count 1 were each reduced by six months. The head sentence for count 3 was also reduced by six months, with no change to its non-parole period, producing an aggregate sentence of seven years imprisonment with a non-parole period of four years and six months.

Orders Made

  • Grounds 1(A) and 5 dismissed.
  • Leave to appeal under rule 4 of the Criminal Appeal Rules refused in respect of grounds 1(B), 2, 3 and 4.
  • Ground 6 upheld in part.
  • Verdict of guilty of sexual assault with aggravating circumstances (count 1) set aside; verdict of guilty of sexual assault substituted.
  • Head sentence for count 1 reduced by six months to six years six months, commencing 8 October 2001 and expiring 7 April 2008; non-parole period reduced by six months to four years six months, commencing 8 October 2001 and expiring 7 April 2006.
  • Head sentence for count 3 reduced by six months to three years six months, commencing 8 April 2005 and expiring 7 October 2008; non-parole period of one year unchanged, commencing 8 April 2005 and expiring 7 April 2006.
  • Sentence for count 3 to remain cumulative on count 1 to the extent of six months.

Key Takeaways

  • A failure to object to an indictment under section 61(1) of the Criminal Procedure Act 1986 precludes a later challenge unless the form of the indictment caused a miscarriage of justice; no such miscarriage arose where the jointly charged offences were sufficiently related.
  • Under section 99 of the Criminal Procedure Act and rule 4 of the Criminal Appeal Rules, counsel carry a duty to raise objections to a trial judge's summing up at the time. Absent a good reason to the contrary, a deliberate decision not to object will be treated as a sound forensic choice, making it difficult to later obtain leave to run the point on appeal.
  • The Court of Criminal Appeal confirmed that the adequacy of a summing up is assessed in context: where issues are obvious, evidence is not complex, and counsel have fully addressed the jury, extensive judicial comment on the facts may not be required.
  • Substituting a lesser verdict is available on appeal where the evidence was insufficient to establish an aggravating element beyond reasonable doubt, even where the underlying offence was properly established.
  • In resentencing following the substitution of a lesser verdict, an appellate court will have regard to the leniency or otherwise of the original sentence; where the original sentence was already lenient, that consideration may moderate the extent of any reduction on resentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61Q, 405AA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Rules, r 4
- Criminal Procedure Act 1986 (NSW), ss 61(1), 99
- Evidence Act, s 66(2)

Cases:
- Annakin v R (1988) 17 NSWLR 202
- Condon v R (1995) 83 A Crim R 335
- Crane v Director of Public Prosecutions [1921] 2 AC 299
- Domican v The Queen (1992) 173 CLR 555
- Edwards v R (1993) 178 CLR 193
- Papakosmas v R (1999) 196 CLR 297
- R v Assim [1966] 2 QB 249
- R v Button (2002) 54 NSWLR 455
- R v Davis [1999] NSWCCA 15
- R v DH [2000] NSWCCA 360
- R v Fuge (2001) 123 A Crim R 310
- R v Giri (2001) 121 A Crim R 568
- R v Hokafonu [2002] NSWCCA 92
- R v Pearson [2002] NSWCCA 429
- R v Roberts (2001) 53 NSWLR 138
- R v Sanderson (unreported, NSWCCA, 18 July 1994)
- R v Williams (1999) 104 A Crim R 260
- Rex v Muir [1938] WN 163
- RPS v R (2000) 199 CLR 620
- Zoneff v R (2000) 200 CLR 234