Carlton v The Queen - [2008] NSWCCA 244

No judgment structure available for this case.

Reported Decision: 189 A Crim R 332

New South Wales

Court of Criminal Appeal

CITATION: CARLTON v THE QUEEN [2008] NSWCCA 244

HEARING DATE(S): 25 August 2008

JUDGMENT DATE:
16 October 2008

JUDGMENT OF: Basten JA at 1; Hislop J at 117; Price J at 118

DECISION:
(1) Grant leave to appeal in respect of convictions on 4 counts of aggravated sexual assault.
(2) Dismiss the appeal against the convictions.
(3) Grant leave to appeal against the sentences imposed in respect of each count.
(4) Dismiss the appeal against the sentences.

CATCHWORDS: CRIMINAL LAW – appeal against conviction – whether miscarriage of justice – construction of proviso – whether summing-up lacked balance and unfair – where trial judge omitted information from summing-up – whether trial judge erred in directions to jury – adequacy of correction of errors – whether directions confused jury – counsel objections to directions – corroboration of complainant’s evidence – Criminal Appeal Act 1912 (NSW) s 6(1) – Criminal Appeal Rules (NSW) r 4 - CRIMINAL LAW – jurisdiction, practice and procedure – appeal against conviction – not on question of law alone – leave required – Criminal Appeal Act 1912 (NSW) s 5 - SENTENCING – standard non-parole period – whether trial judge gave proper weight to offender’s mental illness – whether offence in the middle of the range of objective seriousness – where offender convicted of aggravated sexual intercourse – where complainant young child – harm to complainant – where offender segregated and schizophrenic – Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 54A, 54B - WORDS & PHRASES – “miscarriage of justice” – “question of law alone”

LEGISLATION CITED: Crimes Act 1900 (NSW), s 61J
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44, 54A, 54B; Div 1A, Pt 4
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Appeal Rules, r 4

CATEGORY: Principal judgment

CASES CITED: Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322
B v The Queen [1992] HCA 68; 175 CLR 599
Courtney v Regina [2007] NSWCCA 195; 172 A Crim R 371
Edwards v The Queen [1993] HCA 63; 178 CLR 193
Gassy v The Queen [2008] HCA 18; 82 ALJR 838
Green v The Queen [1971] HCA 55; 126 CLR 28
Hannes v Director of Public Prosecutions (Cth) (No. 2) [2006] NSWCCA 373; 60 ACSR 1; 165 A Crim R 151; 205 FLR 217
Hargan v The King [1919] HCA 45; 27 CLR 13
Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
The Queen v Verdins [2007] VSCA 182; 16 VR 269
R v Engert (1995) 84 A Crim R 67
R v Gallagher [1998] 2 VR 671
R v Hemsley [2004] NSWCCA 228
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Regina v Israil [2002] NSWCCA 255
Regina v Tomazos (unrep, NSWCCA, 6 August 1971)
Stokes v The Queen [1960] HCA 95; 105 CLR 279
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
Weiss v The Queen [2005] HCA 81; 224 CLR 300
Williams v The Queen [1986] HCA 88; 161 CLR 278

PARTIES: Adam Rawdon CARLTON - Appellant
The Queen - Respondent

FILE NUMBER(S): CCA 2007/2843

COUNSEL: A Haesler SC/H Cox - Appellant
L M B Lamprati SC - Respondent

SOLICITORS: Hal Ginges and Company - Appellant
S Kavanagh - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 06/61/001

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 23 February 2007

CCA 2007/2843
DC 06/61/0001

BASTEN JA
HISLOP J
PRICE J
16 October 2008

Adam Rawdon CARLTON v THE QUEEN

Headnote

On 3 August 2006, Mr Carlton (“the appellant”) was convicted of four counts of aggravated sexual intercourse without consent, involving a person under 16 years of age, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The offences took place on 20 August 2005 in a unit in Canowindra. On 23 February 2007, the appellant was sentenced on each count to a non-parole period of eight years, six months, with an additional period of four years, 10 months, giving a total term of 13 years, four months. The trial judge ordered that the sentences be served concurrently.

The appellant sought leave to appeal against his convictions and against the sentences passed on him on each conviction. The Court granted leave to appeal.

The issues for determination on appeal were:

(i) with respect to conviction:

(a) whether the trial judge made specific errors in his summing-up; and
(b) whether there was a miscarriage of justice because the summing-up lacked balance and was unfair; and

(ii) in relation to sentence: whether the trial judge failed to give proper weight to the appellant’s mental illness.

The Court held, dismissing the appeal:

In relation to (1)(a)

(per Basten JA, Hislop and Price JJA agreeing)

1. The trial judge gave misleading, confusing or prejudicial directions by:

(a) referring to the appellant as a drug dealer: [18], [117], [118];
(b) mischaracterising the appellant’s denials in relation to the dildo and vibrator: [32]–[33], [117], [118]; and
(c) directing that it was possible that the complainant’s DNA was on the vibrator: [40], [117], [118].

2. The trial judge sought to correct each error:

(a) He stated that he had misunderstood the evidence about drug dealing and directed the jury to disregard what he had said about it. Although the correction was inadequate, the error could not have caused a miscarriage of justice: [22], [117], [118].
(b) Despite the potential for confusion about the appellant’s denials, the trial judge’s direction about the appellant’s denials did not demonstrate a miscarriage of justice. The complainant’s accurate description was far more powerful evidence in support of her complaint, than disbelief of the appellant’s denials: [34], [117], [118].
(c) The trial judge’s error about the DNA evidence was troubling because his language departed from that of the forensic biologist, who gave evidence on DNA in response to a precisely formulated leading question from the prosecutor. The trial judge’s initial direction invited speculation as to how the error could have arisen and there was a risk that the jury might have speculated as to the source of his error: [42], [117], [118].

In relation to (1)(b)

(per Basten JA, Hislop and Price JJA agreeing)

3. Where a complaint is based upon a lack of “balance” or fairness in the summing-up, it is often necessary to evaluate the summing-up as a whole and in the context of the evidence and the addresses of counsel. The Court must be satisfied that there are irregularities which might constitute a miscarriage of justice, and to assess the materiality of those irregularities: [70], [117], [118].

4. “Miscarriage of justice” can have two points of reference: first, it may refer to the fairness of the process of a criminal trial; secondly, it may be directed to the soundness of the verdict: [71].

Nudd v The Queen [2006] HCA 9; 80 ALJR 614; Weiss v The Queen [2005] HCA 81; 224 CLR 300; Hannes v Director of Public Prosecutions (Cth) (No. 2) [2006] NSWCCA 373; 60 ACSR 1; 165 A Crim R 151; 205 FLR 217; R v Gallagher [1998] 2 VR 671, applied.

B v The Queen [1992] HCA 68; 175 CLR 599; Stokes v The Queen [1960] HCA 95; 105 CLR 279; TKWJ v The Queen [2002] HCA 46; 212 CLR 124; Regina v Tomazos (unrep, NSWCCA, 6 August 1971), considered.

Gassy v The Queen [2008] HCA 18; 82 ALJR 838; Hargan v The King [1919] HCA 45; 27 CLR 13, referred to.

5. Although there were aspects of the trial judge’s summing-up in the present case which revealed inadequacies or irregularities, they were not so material as to amount to a significant denial of procedural fairness. The jury’s rejection of some counts suggested that the jury was not prepared to rely upon the complainant’s evidence alone: [72]–[80], [117], [118].

6. So far as the question of balance was concerned, the challenge related to matters of omission, rather than commission. The irregularities in the trial judge’s summing-up were unlikely to have had any significant bearing on the outcome of the case. Moreover, their effect was to a significant extent ameliorated by the recent and comprehensive analysis of counsel for the accused: [83], [117], [118]. That the summing-up, taken as a whole, did not demonstrate glaring imbalance could be inferred from the failure of counsel to take any further objection when the opportunity arose: [61], [83], [117], [118]. Accordingly, no substantial miscarriage of justice actually occurred: [84], [117], [118].

Green v The Queen [1971] HCA 55; 126 CLR 28, referred to.

In relation to (ii)

(per Basten JA, Hislop and Price JJA agreeing)

7. The combination of limited association and schizophrenia were likely to render prison more onerous for the appellant than for a person to whom either of those conditions applied separately. The trial judge failed to take account of the combined effect of his mental illness and his segregation within the prison system: [112], [117], [118].

(per Price JA, Hislop JA agreeing)

8. However, the imposition of totally concurrent sentences failed to acknowledge the separate harm done to the complainant by the criminal acts of the appellant. A sentencing court should take care to ensure that consideration of an offender’s behaviour being closely related in time does not obscure the fact that different offences were committed. No lesser sentence was warranted: [117], [122].

(per Basten JA, dissenting)

9. The need to stabilise the appellant on return to the community in terms of his mental condition and the removal from onerous conditions of non-association justified a longer than usual period on parole: [113].

R v Way [2004] NSWCCA 131; 60 NSWLR 168, applied.

Courtney v Regina [2007] NSWCCA 195; 172 A Crim R 371; R v Engert (1995) 84 A Crim R 67; R v Hemsley [2004] NSWCCA 228; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704; Regina v Israil [2002] NSWCCA 255; The Queen v Verdins [2007] VSCA 182; 16 VR 269, referred to.

10. A non-parole period of seven years, eight months with a further term of four years, four months, giving a sentence of 12 years, would have adequately reflected the offences, which fell in the middle of the range of objective seriousness: [115].

CCA 2007/2843
DC 06/61/0001

BASTEN JA
HISLOP J
PRICE J
16 October 2008

Adam Rawdon CARLTON v THE QUEEN

Judgment

1 BASTEN JA: On 3 August 2006 Mr Carlton was convicted of four counts of aggravated sexual intercourse without consent, involving a person under 16 years of age, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The offences took place in a unit in Gaskill Street, Canowindra on 20 August 2005. The complainant was at the time of the offences a 10-year-old girl.

2 The four offences involved three counts of anal penetration, the first being digital, the second penile and the third involving a blue-coloured vibrator. The fourth count involved penile penetration of the appellant’s genitalia, identified by the prosecution as vulval intercourse, the medical evidence not supporting the complaint of vaginal penetration.

3 Based on the complainant’s evidence, four other counts were laid, on which the appellant was found not guilty. These involved two counts of penetration or attempted penetration (one penile, the other involving the vibrator) of the complainant’s genitalia, one count of oral penile penetration and one involving the accused placing the complainant’s hand on his penis.

4 The primary evidence underlying each of the counts was the oral testimony of the complainant. The appellant did not give evidence, but participated in a lengthy recorded interview with police, in the course of which he denied the allegations of sexual misconduct. The record was tendered by the prosecution.

5 The trial undoubtedly turned upon the evidence of the complainant, the prosecution relying on the degree of consistency in her account as revealed to a number of third parties, including the police, and on objective evidence which tended to support her veracity. The defence sought to rely upon the fact that the full story had only come forward over time, a degree of inconsistency in aspects of her account, objective facts which were inconsistent with her account and matters which could have been known to the complainant, absent the sexual misconduct.

6 The differential treatment of the various counts in the indictment reveals that the jury did not accept everything related by the complainant as established beyond reasonable doubt. It will be necessary to address the apparent basis of distinction in considering the appeal against the convictions.

7 Each of the four counts upon which the appellant was convicted carried a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years, as specified in the table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”).

8 On 23 February 2007 the appellant was sentenced on each count to a non-parole period of 8 years 6 months, with an additional period of 4 years 10 months, giving a total term of 13 years 4 months. The sentences were ordered to be served concurrently and commenced on 21 August 2005.

Proceedings in this Court

9 The appellant seeks to appeal against his convictions and also seeks leave to appeal against the sentences passed upon him on each conviction.

10 This Court may set aside a conviction on the various grounds identified in s 6(1) of the Criminal Appeal Act 1912 (NSW), including any ground giving rise to a miscarriage of justice. That may involve a challenge to the procedures adopted at trial, an assessment of facts or an error of law. However, except in relation to a ground which involves “a question of law alone” the appellant is required to obtain leave: Criminal Appeal Act, s 5(1); Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 at [2]; Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 at [44] and at [68]-[71]. A ground which involves a mixed question of fact and law is not on a question of law alone: see Williams v The Queen [1986] HCA 88; 161 CLR 278 at 287 (Gibbs CJ, Wilson and Dawson JJ agreeing) and 301-302 (Mason and Brennan JJ).

11 As will be seen below, none of the grounds relied upon in relation to the appeal against conviction involved questions of law alone. Each was concerned with an alleged deficiency in the summing-up of the trial judge to the jury, being a particular exercise of a judicial function in the circumstances of the case.

12 Upon this issue being raised with senior counsel for the appellant, he applied orally for leave to appeal with respect to the convictions, senior counsel for the Director neither opposing that course, nor the substance of the application. As will be seen, there are issues of substance raised in relation to the summing-up, as identified in the grounds of appeal and it is, accordingly, appropriate to grant leave to appeal in relation to the convictions.

13 The sentencing exercise in the present case involved the inter-relationship of the obligation, in particular circumstances, to set the standard non-parole period and the power to vary the statutory relationship between the non-parole period and the term of the sentence, upon a finding of special circumstances under s 44(2) of the Sentencing Procedure Act. It is, accordingly, also appropriate to grant leave to appeal against sentence.

Appeal against the convictions

14 The appellant relied upon two grounds. The first ground alleged that his Honour’s summing-up lacked balance and was unfair. The second ground identified three specific errors in his Honour’s directions to the jury which, it was contended, were not adequately corrected when drawn to his Honour’s attention.

15 The first ground, and in part the second ground, gave rise to questions as to whether objection had been taken at the trial or whether the grounds required leave of the Court to be raised on appeal, pursuant to the Criminal Appeal Rules, r 4.

16 Ground 1 required an assessment to be made of the summing-up as a whole; ground 2 required attention to specific errors which, at least in two cases, were the subject of redirection. It is convenient to deal first with the specific errors, before addressing the overall effect of the summing-up.

17 The trial judge summed up the case to the jury on 1 August 2006. In accordance with routine practice, he commenced by explaining a number of general matters to the jury, including his functions and their functions in the trial. He explained that they must view the evidentiary material “coldly, clinically and dispassionately” and without emotion: at pp 6-7. In that context, he directed them to put to one side prejudicial matters of which they had become aware in the course of the evidence, including the fact that the accused was a drug user. His Honour stated:

“You must put aside the fact that he is a drug user and you must put aside what you think about drug users. Also, he said in the course of his being interviewed that he had dealt in drugs. You must put that aside. You must put aside what you may think of people who deal in drugs.”

18 This was an unfortunate statement: there was no evidence before the jury of any admission by the accused in relation to drug dealing. In seeking to minimise the prejudicial effect of irrelevant matters known to the jury, his Honour revealed prejudicial material of which they were not, at least directly, aware.

19 This was one of two errors raised by the prosecutor in the absence of the jury (Tcpt, p 34). It was common ground between counsel that the accused had made no such admission in the evidence, although his trial counsel suggested that it may be “in the unedited version” of the recorded interview (“the ERISP”): Tcpt, p 35. The trial judge indicated that he would retract the statement, but counsel for the accused made an immediate application for discharge of the jury on the basis that there were matters which could not be rectified, presumably including those which had been raised by the prosecutor. That application was rejected and upon the return of the jury the trial judge made a correction (Tcpt, p 38):

“Firstly, I said, in reference to the accused’s [sic] and his use of drugs that he had admitted dealing in drugs, I was incorrect in making that reference. I misunderstood the evidence. You must disregard what I have said about that.”

20 The application for discharge was a sufficient indication of objection to his Honour’s indication that he would “rectify” the error. Rule 4 was thus not engaged. Given that the nature of the error was to place before the jury prejudicial material which was not in evidence, the appellant’s complaint that some stronger direction was required to rectify the situation has force.

21 The appellant contended that the jury should have been told in unequivocal terms that there was no evidence of any admission of drug dealing, rather than that the trial judge had “misunderstood” the evidence. In the circumstances, it was open to the jury, the appellant argued, to infer that the trial judge had material which was not available to them. The further direction should have sought to address that inference. Finally, given that the context of the revelation was an attempt to ensure that the jury put prejudicial material to one side, it would have been desirable if that instruction had been repeated in the course of the correction.

22 Although the correction was in the respects noted inadequate, there was, nevertheless, a correction of the error. The factual error was itself not critical to the trial and, taken in isolation, could not be said to have caused a miscarriage. Whether it did so cumulatively with other errors, is a matter to which it will be necessary to return.

(b) Knowledge of the blue vibrator

23 The appellant complained separately of two aspects of the summing-up with respect to what was variously described as a “dildo” and as the “blue vibrator”. It is convenient to deal with these complaints together.

24 The existence of the blue vibrator was a matter of some importance as evidence potentially confirmatory of the complainant’s account of events. In the first interview with the complainant, conducted at Orange Base Hospital at 12.50am on the night following the afternoon on which the assaults took place, the complainant gave evidence of the appellant putting the vibrator up her bottom. She described it as a “purple man kind of thing and it looked like a dick, and had … a sharp bit there, like that coming out of it to stop it from going right in, and it was, like, round”: Tcpt of interview, answer to Q113.

25 As explained in evidence by Sergeant Nicole Bruce, police executed a search, under warrant, at the Gaskill Street premises at about 8am the next morning: Tcpt, 26/07/06, pp 47-48. Following the search, Sergeant Bruce spoke to Ms Joanne Conroy, the occupier of the premises, by telephone. (The appellant had been staying at the premises while Ms Conroy was away, with the latter’s permission.) Sergeant Bruce then recovered from the front of a square cane basket, a dark blue vibrator which was described as having been “shoved down the front edge of the basket”: Tcpt, p 49. In cross-examination she agreed that Ms Conroy had told her that that was where “she usually keeps the vibrators”: Tcpt, p 51.

26 The police had discovered, on the initial search, what was described as a flesh-coloured dildo near the bed, in a plastic shopping bag: Tcpt, 27/07/05, p 75 (Sergeant Clarke).

27 Both devices were tested for identifiable DNA and the results were given in evidence by Ms Sharon Neville, a forensic biologist. She gave evidence that there was DNA on the flesh-coloured dildo attributable to Ms Conroy and the appellant. It would have been difficult for the appellant to have satisfactorily denied knowledge of the existence of the flesh-coloured dildo, not only because it was found in a plastic bag on the floor, but because of the DNA connection. However, the flesh-coloured dildo was not the subject of any charge and the picture of it taken by the officers conducting the search was apparently not originally included in the relevant exhibit.

28 DNA tests were also carried out on material recovered from the blue vibrator. Ms Neville gave the following evidence as to the results of her examination (Tcpt, 28/07/06, p 103):

29 During the evidence of Detective Senior Constable McKechnie a videotape of the search undertaken in the early hours of 21 August was played to the jury (Ex K; Tcpt 26/07/06, p 39). The tape recorded a conversation with the appellant which occurred during the search. The police, knowing of the allegations of the complainant, asked the appellant whether he knew of a vibrator. The appellant replied:

“No, not that I know of. Jo may have one, but I’m not going to go looking for it.”

30 As explained by the prosecutor to the jury there were two separate occasions on which he was asked whether there was a vibrator and on the first he said, “I wouldn’t know”: Tcpt, 31/07/06, p 128. The prosecutor then referred to the finding of the flesh-coloured vibrator with the appellant’s DNA on it and to Ms Conroy’s evidence as to where the two items might be located and that, according to her, they were both in the basket. The prosecutor continued:

“So the accused’s denied any knowledge of it and yet his DNA is found on it. Now that’s something that also corroborates what [the complainant] has told us. So he did have it. He did get it out of there and he placed it in that bag with the black wool … He was asked, ‘Is there a vibrator here?’ ‘Not that I know of. Jo might have one but I’m not looking for it.’”

31 In discussing the evidence of Ms Neville, the forensic biologist, his Honour said to the jury (Tcpt, 01/08/06, p 32):

“The flesh-coloured dildo was examined and found to have the DNA profile of at least two people. The DNA profiles were that of the accused, said to be the major contributor, and that of the owner Miss Conroy, said to be the minor contributor. The accused said that he did not know anything about a dildo, a vibrator, being in the premises. Yet his DNA profile was found on the flesh-coloured dildo. The learned Crown Prosecutor said that you would bear that in mind when you consider the accused’s denials when interviewed by police.”

32 Both the comment by the prosecutor in his address and the extract from the summing-up were capable of confusing and misleading. It is possible that the denial of knowledge of a vibrator was a lie, but it was a statement made at a time when the police did not know there were two objects of a similar kind, and when the terms “dildo” and “vibrator” had not attained the points of reference which appear to have arisen during the trial, namely that there was a “flesh-coloured dildo” and a “blue vibrator”.

33 Further, there was some difficulty in the suggestion by the prosecutor that the finding of DNA on the flesh-coloured dildo corroborated the complainant, it being no part of the prosecution case that that item had been used in the course of criminal activity. At the very least, there would have been merit in a clarification of the reasoning process, addressing the manner in which a false denial could properly be used. In the circumstances in which it occurred, it did not necessarily or directly demonstrate a guilty mind as to matters which had been the subject of complaint: see discussion in Edwards v The Queen [1993] HCA 63; 178 CLR 193. His Honour’s statement, in effect affirming the logic of the prosecutor’s submission, did nothing to ameliorate the risk of confusion.

34 Despite the potential for confusion, the direction discussed above does not demonstrate a real basis for finding a miscarriage of justice. That the complainant accurately described a specific vibrator, which was in the room, was far more powerful evidence in favour of the accuracy of her complaint than a denial by the appellant of the existence of a vibrator when there were two, one of which (though not that used in the offence) was clearly linked with the appellant and was lying on a bag on the floor beside the bed. To undermine the complaint in this respect, it was necessary to raise the possibility that the complainant had means of knowledge of the existence and appearance of the vibrator, independently of any alleged offence committed on her with it: see [54] below.

35 In respect of this ground, there is an additional problem in that it was not clearly the subject of any objection and hence required leave in order to be pursued. Matters which are not necessarily inaccurate, but merely confusing fall squarely within the area calling for strategic judgment on the part of trial counsel. It was a situation in which closer attention (by way of a further direction) to the way in which the denial could have been used against the appellant, combined with an assessment of the limited damage done by the confusing statements, may not have been thought to be in the appellant’s interests.

36 Immediately following the passage in the summing-up discussed above, the trial judge addressed the analysis of DNA found on the blue vibrator. He summarised the evidence in the following manner (Tcpt, 01/08/06, p 33):

“Ms Neville found that the DNA recovered from the blue vibrator had at least three DNA profiles and neither Miss Conroy, the complainant or the accused could be excluded as having contributed to the DNA on the blue dildo. That does not mean that they necessarily contributed to the DNA, only that they could not be excluded from contributing to the DNA. In other words the markers in the DNA profile of Miss Conroy, the complainant and the accused matched in some respects with the DNA found on the blue vibrator and could not be excluded as not matching. So it does not mean necessarily that the complainant’s DNA is on the blue dildo, only that it is possible that the complainant’s DNA is on the blue dildo.”

37 Very shortly thereafter, the jury was apparently asked to leave at the request of the prosecutor. The trial judge asked for the cause of concern and was told:

“CROWN PROSECUTOR: It’s the evidence … regarding the blue vibrator. Your Honour said that he was one of the major contributors that could not be excluded, that’s not the evidence. It was never led.

HIS HONOUR: One moment, I didn’t say that – in relation to the blue vibrator I said there are at least three people and neither Joanne Conroy or the complainant of the exclude …

CROWN PROSECUTOR: That’s not the evidence, this is in relation to the blue vibrator.

HIS HONOUR: Yes the blue vibrator.

CROWN PROSECUTOR: What the evidence was that there was a mixture of contributors and that because of that mixture it was too difficult to interpret. Nothing further was said in relation to the accused being …

HIS HONOUR: I thought Ms Neville said that neither could be excluded.

CROWN PROSECUTOR: No. I led that from her in those terms as I have said. …”

38 Later, Mr Walsh for the accused stated (Tcpt, p 36):

“Your Honour, in relation to the DNA your Honour has, as the learned Crown Prosecutor put it, has got it completely wrong, absolutely wrong. There is a report in the file, the Registry file, dated 21 April 2006 which is along the lines of what your Honour told the jury.”

39 There was then a debate as to whether it was possible effectively to correct the error, counsel for the appellant saying that it was not. His Honour did provide a correction in the following terms (Tcpt, p 38):

“In relation to the evidence of Miss Neville, I referred to the fact that she said that DNA was recovered from the blue-coloured dildo or vibrator from at least three people and I said that her evidence was that the DNA of Miss Conroy, the complainant and the accused could not be excluded from being on that object. Her evidence was, I am reminded, that, because of the complexity of the DNA recovered from the blue coloured dildo, no one could be identified as having the DNA profile. So I withdraw what I said about Ms Neville’s evidence in relation to the DNA recovered from the blue-coloured dildo.”

40 This error on the part of the trial judge is troubling. Factual errors are capable of correction, usually without undue prejudice, because they result from mistakes. Mistakes with respect to matters central to the prosecution or defence case differ from those with respect to matters which are peripheral (albeit prejudicial) as in the first mistake referred to above, relating to drug dealing. With the present error, the language used by the trial judge departed to such a degree from that employed by the witness, in response to a precisely formulated leading question from the prosecutor, that it invited speculation as to how the error could have arisen. Counsel, it appears, had no doubt that it had arisen from his Honour having reference to a second report, which was not in evidence. Indeed, an exchange with the Bench tended to confirm that reasoning: Tcpt, p 36. The appellant’s contention now is that there must be a real risk that the jury inferred that there was other evidence which, for reasons which had not been revealed to them, was not available to them. Such speculation was available because they were not given any reason for such a significant misstatement of the evidence.

41 In written submissions, the Director noted (pars 56-57):

“These corrections would have been clear to the jury having just heard the summing-up and the errors his Honour had made. His correction was clear and the jury could have been left in no doubt as to what the evidence was and how it could be used. …

Once the learned trial judge had corrected himself, there was no need for any further direction.”

42 This response does not fully answer the gravamen of the complaint. It might have been helpful if there had been further discussion of the difficulty in the course of the trial, but it appears that because of the trial judge’s firm insistence, without reasoned discussion, that the matter could be corrected, together with the absence of any discussion as to the form of the correction, that the real difficulties were not identified. If, as the Director asserted on the appeal, in arguing that the error carried little risk of miscarriage, the evidence actually given by Ms Neville would have been fresh in the jury’s minds during the summing-up, that fact would tend to accentuate the risk that the jury might have speculated as to the source of his Honour’s error.

43 Again, it is desirable to reserve consideration of the effect of the error until the other complaints have been addressed.

Lack of balance in summing-up

44 The issue raised by the first ground of appeal in relation to the conviction concerns the requirement for a proper balance to be maintained in the course of the summing-up. That such an obligation exists, as an element of procedural fairness, is not in dispute. However, the nature of the requirement may vary significantly depending on the circumstances of the particular case. As explained in Stokes v The Queen [1960] HCA 95; 105 CLR 279 at 284, by Dixon CJ, Fullagar and Kitto JJ, the trial judge should not sum up in a manner such as ‘“to deprive the jury of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence.”

45 Alternatively, as explained by Brennan J in B v The Queen [1992] HCA 68; 175 CLR 599 at 605-606, in language derived from earlier authorities, there may be “a danger of the jury being overawed by the judge’s views, where, even though the jury are told that the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge’s views”.

46 The most obvious circumstances in which a summing-up may be unfair is where the trial judge deems it appropriate to comment in a deprecating fashion upon aspects of the defence case. Such conduct may be justifiable, but it risks a demonstration of partiality in relation to matters which are to be determined by the jury alone and not by the judge.

47 In other cases there may be a misrepresentation as to the substance of the defence. In Regina v Tomazos (unrep, NSWCCA, 6 August 1971) a conviction for malicious wounding was set aside where the appellant’s defence, as explained by the trial judge to the jury, was one of self-defence, whereas he had denied involvement in the wounding.

48 The present case gives rise to neither a complaint that the judge usurped the jury’s function, nor to a complaint that the defence case was misrepresented. Rather, the complaint is that it simply was not put, thereby allowing the jury to infer that the trial judge placed no weight upon it.

49 In substance, the defence case had four limbs. The first was that the account told by the complainant included inconsistencies and falsities which demonstrated that the jury could not rely upon her evidence to satisfy them beyond reasonable doubt of her complaints. The second limb was that, once the jury was satisfied that it should seek independent corroboration of her account, there was little by way of independent corroboration which was not capable of alternative explanation. Thirdly, because her account of events expanded upon each retelling, it became impossible to say what if any was the truth, and what was exaggeration or the product of imagination. Fourthly, emphasis was placed upon the absence of any evidence of semen or DNA material from the appellant on the complainant or her clothing and the absence of any of the complainant’s DNA on the blue vibrator.

50 In the course of his Honour’s general explanation to the jury of the criminal process, he sought to explain the elements of the charges and to distinguish them from other factual matters. The elements were to be proved by the prosecution beyond reasonable doubt, but there was no obligation “to, as it were, chase every rabbit down every burrow”: p 16. His Honour gave three examples of factual matters in dispute, as to which a jury might not be able to determine the truth. The first was whether, as the complainant had alleged, the accused locked the door to the unit. Her evidence was that she saw the accused lock the door and hide the key: p 17. On the other hand, both the appellant, in his recorded interview, and the occupant of the premises, Ms Conroy, asserted that the door could not be locked from the inside. His Honour said:

“Does that mean that the complainant is lying? Or does it mean the complainant believed that the door was locked but is mistaken in her belief? That is a question that you might ponder long and hard and not answer or resolve.”

51 In putting the matter in this way, and not otherwise addressing it, the trial judge failed to identify the significance of this issue for the defence case, as opposed to its irrelevance for the prosecution case. Of course, it was no element of the charge which the prosecution needed to prove, but for the defence, it may have been significant if the complainant could be shown to have either made up this aspect of her story, or imagined that something had happened which could not have happened.

52 Although giving evidence of being a virtual prisoner, held under lock and key, the complainant eventually conceded in cross-examination, inconsistently with the tenor of that evidence, that she had gone to the shops during the course of the afternoon and had visited two friends. Further, she accepted that the appellant had left her alone in the house for a period.

53 There was evidence said to be inconsistent with her allegations of traumatic sexual misconduct in that, when visiting friends with the appellant in the course of the afternoon she had apparently played happily with their dog. Further, before going home, she had accepted the appellant’s offer to make custard for her and had eaten it. Shortly after 5pm, she had called her father by telephone without seeking help or expressing fear of the appellant.

54 The second dispute referred to by his Honour was closer to the core of the prosecution case. Thus, the complainant had given evidence that the blue vibrator in fact vibrated when it had batteries in it, whereas its owner, Ms Conroy, stated that it was broken and would not vibrate: Tcpt, 27/07/06, p 84. This was a not insignificant detail for the defence. The complainant had accepted in her evidence that she had been to Ms Conroy’s premises before. Although she denied the suggestion that she had found the blue vibrator on an earlier occasion, the accuracy of the detailed description of the vibrator and the opportunity to have found it on another occasion could have given rise to some doubt in the minds of the jury in relation to an aspect of the case which would otherwise have been damning to the accused.

55 The third example of a rabbit which did not need to be chased down a burrow was the reason why the accused gave the complainant $10. He said that it was something of a fine payable because she had caught him swearing and that it came from what was known as “the swear jar”. In his interview with police, the appellant said that he had proffered $5 and had capitulated to her demand for $10.

56 That example was more nearly neutral than the other examples. The real complaint was that the trial judge failed to explain to the jury the significance of the first two matters to the defence, as going to establish inaccuracies in the complainant’s account.

57 There were two other matters of some significance in assessing the veracity of the complainant which were not addressed in the summing-up. The first was that, although the complainant alleged penetration of her vagina, the medical evidence did not support that complaint and indeed the erythema of the vulva, although consistent with attempted penetration, may also have resulted from a genital infection, for which the complainant had been treated both shortly before and shortly after the events of 20 August.

58 Secondly, the first action of the appellant of which she complained was that he “stuck his finger up my bottom”: police interview, Q32 and answer. She later stated that “he kept pushing it up and down” and “[k]ept scratching my bottom and it hurt”: Q95. She also said that it hurt because “his nail stuck into my bottom”: Q88. The defence case noted that, despite this evidence, there was no medical evidence of laceration, tearing, abrasion or bleeding.

59 There is substance in these complaints and, in presenting the case to the jury, it would have been desirable if the trial judge had identified for the jury the potential weaknesses in the prosecution case relied on by the defence. This did not happen.

60 The Director contends that whatever the strength of these complaints, they were not raised with the trial judge and hence there was no opportunity for the trial judge to give further directions in a form requested by the accused.

61 As with the earlier complaint of lack of objection at the trial, this Court must be conscious of the possibility that no further directions were sought at the end of the summing-up for the strategic reason that counsel was content to rely upon the message conveyed by his own address, rather than risk the repetition of the strong points for the defence, possibly in more muted terms, from the trial judge.

62 On the other hand, as counsel for the appellant noted, when the two corrections had been sought by the prosecutor, counsel for the accused had immediately applied for the jury to be discharged: Tcpt, 01/08/06, p 35. He had stated:

“There are so many matters with respect that your Honour’s said that can’t be rectified and the flavour of what your Honour’s said creates problems.”

63 Counsel then complained that the jury had been told at the outset that there was a possibility of a majority verdict, of the error in relation to the DNA evidence and of the confusion said to have arisen as to the accused’s denial during the search with respect to knowledge of the vibrator. What exactly counsel meant by his reference to “the flavour” of what had been said is not entirely clear.

64 No further redirection was sought at the end of the summing-up, although counsel asked his Honour to explain to the jury that in participating in an interview at the police station, he had deliberately elected not to exercise his right to silence and had told his story voluntarily. His Honour concluded (p 50):

“So, members of the jury, he was told about the rights that he had and he did not exercise them. It is not something to be taken in account in his favour. The Crown relies upon some of the answers that he gave when he was interviewed.”

65 The correct approach to assessing the matters of concern raised above is not without difficulty. Section 6(1) of the Criminal Appeal Act provides that the Court shall allow the appeal if it falls into one of three categories: see Hargan v The King [1919] HCA 45; 27 CLR 13 at 23. The first is that the verdict is unreasonable or cannot be supported having regard to the evidence. That ground is not relied upon in the present case. Secondly, an appeal shall be allowed where there has been a wrong decision on any question of law. That category of error is not relied upon. Thirdly, an appeal shall be allowed if “on any other ground whatsoever” there was a miscarriage of justice. The present case must be considered by reference to the third category. As noted by Gleeson CJ in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [7]:

“The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error.”

66 The potential scope of the ground was summarised by Brooking JA in R v Gallagher [1998] 2 VR 671 at 677-678:

R v Cutter

McInnis v R

67 The obligation of the Court to allow the appeal when of the opinion that one of the conditions identified in s 6(1) is satisfied, is not absolute; it is subject to the proviso that the Court may dismiss the appeal if affirmatively satisfied that “no substantial miscarriage of justice has actually occurred”. In Weiss v The Queen [2005] HCA 81; 224 CLR 300 at [36] the High Court noted that “[b]y hypothesis, when the proviso falls for consideration, the appellate court has decided that there was some irregularity at trial”. However, where the verdict was neither unreasonable nor unsupportable and where there was no error of law in the course of the trial, there is some awkwardness in treating s 6(1) as involving a rigid two-stage process whereby the Court must determine that there has been “a miscarriage of justice”, before considering whether the miscarriage was not substantial.

68 The problem was referred to by McHugh J in TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [63] in the following terms:

“When miscarriage of justice is a ground of appeal, the burden of proof and the nature of the issues determined are different from those issues in a case where the proviso is being considered. Cases on the proviso operate on the hypothesis that there has been a legal error that prima facie requires the conviction to be set aside. The issue then becomes whether the Crown has shown that no substantial miscarriage of justice occurred because the error could not have affected the result of the trial. When the appellant seeks to make miscarriage of justice a ground of appeal, however, he or she has the burden of proving that there has been a miscarriage of justice. But does miscarriage of justice have the same meaning in the miscarriage of justice ground in s 6(1) as it does in the proviso? Is there a difference between a miscarriage of justice and a substantial miscarriage of justice? Does the proviso have any application to a case falling within the miscarriage of justice ground in s 6(1)?”

69 The problem of the inter-relationship between the proviso and the various bases upon which a conviction may be set aside exists with respect to each category, but appears to be most acute in respect of the third miscarriage of justice category. That is because there is a degree of artificiality in saying that there has been a miscarriage, in the sense of an irregularity which may have affected the verdict, but saying that it was not a substantial miscarriage. With respect to an error of law in the direction to the jury, it would be surprising if the section required the Court to allow the appeal on such a ground unless the error were material, because it might have affected the outcome; however, that would be sufficient to satisfy the proviso. As noted by McHugh J in the passage set out above from TKWJ, the burden will shift from the appellant, who must establish a ground of appeal, to the prosecution, which must establish that the proviso is engaged. However, to speak about a burden on one party or the other is unlikely to have practical consequences. What the appellant must prove is the error or irregularity; the assessment of that error or irregularity as material or as not giving rise to a substantial miscarriage, is an evaluative judgment about which the Court must reach a view, one way or the other. It is likely to be a relatively rare case in which the Court is unable to reach a view and the burden becomes decisive. As McHugh J stated in TKWJ at [72], “[i]f the appellant must show that the irregularity affected the result, there can be no onus on the prosecution to show that it did not”: at p 72.

70 Where the complaint is based upon a lack of “balance” or fairness in the summing-up, it will often be necessary to evaluate the summing-up as a whole and in the context of the evidence and the addresses of counsel. No different exercise will be required in applying the proviso. Even though it may be possible to identify specific aspects of the defence case which were not adequately put to the jury by the trial judge, there is nevertheless an air of artificiality in adopting a two-stage analysis. Nor does the section appear to require it: it does not envisage that the obligation to allow the appeal must be engaged before the proviso is considered. Rather the power to dismiss the appeal, by applying the proviso, is said to arise if the Court is of opinion that “the point or points raised by the appeal might be decided in favour of the appellant”. No doubt it is necessary for the Court to be satisfied that there are irregularities which might constitute a miscarriage of justice, and to assess the materiality of those irregularities. The Court is not required, however, to reach a firm conclusion that there has been a miscarriage of justice, before considering whether it is also satisfied that no substantial miscarriage has actually occurred.

71 As was explained in Hannes v Director of Public Prosecutions (Cth) (No. 2) [2006] NSWCCA 373; 60 ACSR 1; 165 A Crim R 151; 205 FLR 217 at [56], the phrase used in the provision can have two points of reference: first, it may refer to the fairness of the process of a criminal trial; secondly, it may be directed to the soundness of the verdict. The High Court explained in Weiss at [45]:

“What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.”

72 Although there were aspects of the trial judge’s summing-up in the present case which revealed inadequacies or irregularities, they were not so material as to amount to a significant denial of procedural fairness. Accordingly, adopting the approach required by Weiss, it is necessary for this Court to decide whether a substantial miscarriage of justice has actually occurred: Weiss at [35] and [39]-[41]; Gassy v The Queen [2008] HCA 18; 82 ALJR 838 at [18] (Gummow and Hayne JJ); [60]-[61] (Kirby J).

73 In order to undertake that assessment, it is helpful to identify the manner in which the jury discriminated between the counts on which it convicted the appellant and those on which it acquitted him. First, the jury rejected those counts which involved genital penetration going beyond the vulva, but did accept count 4, dealing with penile penetration of the vulva itself. This discrimination suggests that the jury was not prepared to rely upon the complainant’s evidence alone, unsupported by corroboration. The jury was not prepared to accept her complaint of vaginal penetration, which was not supported by medical testimony. On the other hand, it was prepared to accept her complaint of vulval penetration and did not accept the suggestion that the erythema of the vulva was, contrary to the primary position of the examining doctor, a result of infection rather than assault. Further, the jury was not persuaded beyond reasonable doubt of oral penetration or that the appellant took the complainant’s hand and placed it on his penis. These were matters which had no element of corroboration; they only surfaced in the complainant’s second police interview.

74 The elements of the story which the jury accepted were recounted by the complainant to her father on arriving home (a complaint of anal digital penetration) and to her next door neighbour, Ms Jones, immediately thereafter (both digital and penile anal penetration, together with reference to self-injection with drugs, watching a pornographic movie and ejaculating over the pillow).

75 There were two elements of her story which were objectively corroborated by material obtained on search of the premises. The first was the identification of semen on the appellant’s pillow. That could, of course, have resulted from sexual activity having nothing to do with the complainant, but there was no plausible explanation as to why, in that event, the complainant would have known of it. This constituted persuasive objective evidence supportive of sexual activity involving the complainant.

76 Secondly, there was her description of the blue vibrator, which was indisputably accurate. If she had not seen it in the course of sexual activity on the afternoon in question, as she claimed, she must have seen it on a different occasion. While it was established that the complainant had been to Ms Conroy’s premises on more than one occasion, the complainant had not slept in her bedroom and Ms Conroy was adamant that she did not leave the vibrator lying around the bedroom: Tcpt, 27/07/06, pp 87-88. In re-examination she was asked whether she had shown the complainant the vibrators and answered: “Absolutely not”: Tcpt, p 88.

77 The possibility that the complainant had seen the blue vibrator on some other occasion rose no higher than speculation, and speculation which she denied. The blue vibrator was not clearly visible in the bedroom and was not found by police on the first search, although they asked the appellant about a vibrator on three occasions. His denial of knowledge of a vibrator was at least inconsistent with the possibility that the vibrator had been clearly visible and might have been seen by the complainant on the previous afternoon. In fact, the objective evidence was persuasive and supportive of the view that there had been sexual activity on the previous afternoon involving the complainant and involving a blue vibrator.

78 Further, the evidence given by Dr Mulcahy, of erythema around the anus, on examination of the complainant at Orange Base Hospital on the following morning, was described by him as “consistent with her history of digital penile and penetration by a vibrator”: Tcpt, 26/07/06, p 55.

79 Finally, the fact that the appellant had pornographic videos portraying anal sex was supportive of the complainant’s evidence that he had been watching a “crude video” during the course of the sexual activity which she had described.

80 Other aspects of the complainant’s account were also in conformity with independently established facts. The complainant gave evidence that the accused had injected himself with “speed” in the course of the afternoon. Whilst he admitted that he was a drug user, as indicated by the syringes found by the police on the bedroom floor, he denied injecting in the presence of the complainant. Nevertheless, it was open to the jury to accept the evidence of drug use as providing some support for her description of that part of the events of the afternoon. The defence noted that there was no attempt by the police to identify a recent puncture mark on his left arm, as described by the complainant. On the other hand, there was no evidence to suggest that such an examination would have provided relevant evidence, given his own admission of addiction.

81 The evidence of digital penetration given by the complainant was unequivocal and consistent, from her first complaint to her father on the afternoon in question. The evidence of penetration with a vibrator was supported by the location of the vibrator which she had described. Penile penetration was also consistent with her story from her complaint to Ms Jones on the evening in question.

82 The objective evidence of vulval penetration did not distinguish between possible use of a vibrator and penis. However, there was no description of him using the vibrator in the complainant’s first interview and the discrimination between the two counts appears to be explicable on that basis.

83 It may be seen from this analysis of the evidence that any failure to correct the prejudicial statement about drug dealing is unlikely to have had any significant bearing on the outcome of the case. Similarly, the possible confusion as to the use which might be made of the appellant’s denial during the search of knowing of the presence of a vibrator was unlikely to have been critical in the circumstances, because the use of the vibrator was otherwise supported by the complainant’s description and absence of alternative explanation as to how she could have described the vibrator accurately and in detail. For the same reason, any possible confusion in relation to the DNA analysis of material on the vibrator, was unlikely, as a practical matter, to have affected the jury’s consideration of the counts. So far as the question of balance was concerned, the challenge related to matters of omission, rather than commission. This was not a case in which the trial judge sought to comment on the evidence or spoke deprecatingly or dismissively of the accused’s case: cf Green v The Queen [1971] HCA 55; 126 CLR 28 at 34 (Barwick CJ, McTiernan and Owen JJ). The effect of the omissions was to a significant extent ameliorated by the recent and comprehensive address of counsel for the accused. That the summing-up, taken as a whole, did not demonstrate glaring imbalance may also be inferred from the failure of counsel to take any further objection when the opportunity arose.

84 Accordingly, while it was appropriate to grant leave to appeal to consider the various challenges raised by the appellant, I am affirmatively satisfied that no substantial miscarriage of justice actually occurred in the present case. The appeal against conviction should be dismissed.

Appeal against sentence

85 As noted above, the appellant was sentenced to a period of imprisonment of 8 years 6 months and an additional term of 4 years 10 months. The sentence term of 13 years 4 months was achieved by adding to the standard non-parole period of 10 years a further period of one-third of 10 years, in accordance with the statutory formula in s 44(2) of the Sentencing Procedure Act. The appellant’s complaints are two-fold: first, it is contended that his Honour failed to consider relevant factors which might have led him not to apply the standard non-parole period and, secondly, that his Honour failed to give proper weight to the appellant’s mental illness.

86 Section 54B of the Sentencing Procedure Act relevantly provides :

54B Sentencing procedure

(1) This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division.

(2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.”

87 The Sentencing Procedure Act further provides that “the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table”: s 54A(2).

88 The obligation to set the standard non-parole in a particular case will operate unless the Court determines there are reasons for setting a different period. In order to identify proper reasons, it is necessary to understand what is conveyed by the concept of a “standard” non-parole period. The standard is said to “represent” the non-parole for an offence in the middle of the range of objective seriousness for offences which fall within the specific class to which the particular standard applies. That, in the present case, is the class of offences identified by reference to s 61J(1) of the Crimes Act. The term “represents” is a curious one in this context. Section 54A(2) does not say that the standard non-parole period is that which “should be” set for an offence in the middle of the range of objective seriousness. That the legislature eschewed such language may reflect the fact that a non-parole period is not determined solely by reference to an assessment of the objective seriousness of the offence; the exercise also takes into account subjective factors specific to the offender, but not relevant to the seriousness of the offence.

89 In R v Way [2004] NSWCCA 131; 60 NSWLR 168, in a passage relied upon by the appellant in the present case, this Court (Spigelman CJ, Wood CJ at CL and Simpson J) held that in relation to an offence for which a standard non-parole period was fixed, the sentencing judge was required to ask and answer the question “are there reasons for not imposing the standard non-parole period?”: at [117]. The Court held that an answer to that question must commence with consideration of the objective seriousness of the offence, in order to conclude whether or not it “falls into the mid range of seriousness for an offence of the relevant kind”: [118(i)]. In considering factors relevant to determining objective seriousness, the Court identified “the relevant circumstances which can be said ‘objectively’ to affect the ‘seriousness’ of the offence” as including matters personal to the offender, such as motivation, mental state, mental illness, intellectual disability and other factors going to moral culpability: at [86]. Such matters were to be distinguished from other factors personal to the offender, which did not have a “causal connection” with the commission of the offence.

90 Section 54A adopts a concept of “the range” of objective seriousness: whether that is the whole range or the range of seriousness with respect to those circumstances which require the imposition of a sentence of imprisonment is not clear, although the latter is probably the correct construction, because s 54B only applies when a court is imposing a sentence of imprisonment. The statutory language does not require the determination of a low range, a middle range and a high range of seriousness: it envisages a single range and an offence in the middle of the range. I do not understand the reference in Way to “the mid range of seriousness” to involve any departure from that statutory language. As a practical matter, it must be accepted that the middle of a range of seriousness is not a precise point, nor is there any paradigm by which it can be identified. This follows almost inevitably from the scope and variety of circumstances which can be relevant to considering seriousness.

91 Nor do I understand the Court’s reference to “objective” facts and matters which may affect the judgment of seriousness as rejecting matters which have a subjective quality in relation to the particular individual. That must follow from the Court’s acceptance that some such factors will be personal to the offender: at [86]. The language of the section rather invokes the concept of an objective assessment of the seriousness of the offence, which, while it may be affected by circumstances personal to the offender or the victim, is not to be judged from the perspective of either.

92 On the approach approved in Way, even if a particular offence does fall within the middle of the range of objective seriousness, it does not follow that the standard non-parole period will be set for that offence. If there are subjective factors relevant to the offender (but not the offence) which militate in favour of a shorter period, those will provide reasons for not imposing the standard non-parole period. Those factors must be aggravating or mitigating circumstances identified in s 21A, according to the terms of s 54B(3), but, as the Court noted in Way, s 21A(1) refers not merely to the specific factors identified in sub-s (2) and (3) but to any other objective or subjective factor that affects the relative seriousness of the offence. Accordingly, s 54B requires no departure from the application of s 44, including the determination of whether there are “special circumstances” for the purpose of considering whether to depart from the statutory proportion as between the non-parole period and the balance of the term, as defined by that section: see Way at [108]-[113].

93 There are puzzling aspects of the approach adopted in Division 1A with respect to standard non-parole periods. For example, was it intended by the Parliament that an assessment of the “objective seriousness of an offence” should take into account each of the conduct in question, other objective factors affecting culpability and the subjective features of the offender? There are two reasons for thinking that Parliament did so intend, although by somewhat inapt language. First, in s 21A, after requiring the court to take into account aggravating factors referred to in sub-s (2), and mitigating factors referred to in sub-s (3), the court is required to take into account “any other objective or subjective factor that affects the relative seriousness of the offence”: s 21A(1)(c). Specified mitigating factors include many factors concerning the offender which would generally be considered as subjective considerations undoubtedly relevant to sentence, but not relevant to defining the seriousness of the offence. Secondly, it would be curious to define a standard non-parole period as that which is to be set for the offence, without allowance for subjective features of the offender, where those subjective features will undoubtedly be relevant in the sentencing process at some stage.

94 On the other hand, that approach would have odd consequences. It would require that the objective seriousness of the offence be determined, at least in part, by reference to subjective features of the offender. Secondly, it would tend to diminish the individualized exercise of sentencing and promote a far more mechanistic approach. This Court held in Way that these (and other considerations) militated against the construction outlined above. The preferred construction requires that, even in circumstances where an offence does fall within the middle range of objective seriousness, factors personal to the offender must still be addressed before determining that the standard non-parole period is appropriate.

95 In the present case, the appellant contended that there were reasons for not imposing the standard non-parole period, including the appellant’s significant mental illness and his good prospects for rehabilitation. More generally, he contended that the trial judge had not properly taken into account his mental illness in setting the sentence.

96 The trial judge sentenced the appellant on 23 February 2007. In the course of sentencing, he considered a number of factors identified as aggravating factors in s 21A(2) of the Sentencing Procedure Act, which were relevant to the objective seriousness of the offence. In particular, he referred to the following considerations:

(a) there was a degree of planning accompanying the offence, albeit without much sophistication;

(b) although there was no actual violence, there was a threat of violence if the complainant were to reveal what had happened and because she believed she was not able to leave the premises;

(c) the complainant was vulnerable because of her age, being only 10 years and 6 months at the time of the offence;

(d) the offender had assumed responsibility for the complainant while in his care, and

97 It does not appear that his Honour took into account the appellant’s mental illness in considering the objective seriousness of the offence, a matter which will be addressed separately below.

98 His Honour concluded that each offence was in the middle of the range of seriousness and that “the standard non-parole period of 10 years is the appropriate starting point for the sentences, so that the appropriate sentence for each offence is imprisonment for 13 years four months”: Judgment, p 13. It is clear that, in calculating the term of each sentence, his Honour commenced with the standard non-parole period and added one-third to achieve the statutory minimum proportion specified in s 44(2). He concluded that the sentences should be served concurrently.

99 His Honour then considered whether there were “special circumstances” warranting a variation of the statutory proportion. He concluded that the need for treatment for mental illness was not a special circumstance, but that his classification as a “non-association” prisoner would make prison life more onerous and should be considered a special circumstance. It was accommodated by reducing the non-parole period by 18 months, without affecting the term of the sentence.

100 Subject to a question as to whether his Honour properly addressed the question of mental illness in determining the objective seriousness of the offence, there was no challenge to the conclusion that the offences fell within the middle range of objective seriousness. Indeed, there was some lack of clarity as to whether the assessment of mental illness affected that issue, or went rather to of the basis for departure from the standard non-parole period and the assessment of the proper length of the sentence.

101 In The Queen v Verdins [2007] VSCA 182; 16 VR 269 the Victorian Court of Appeal (Maxwell P, Buchanan and Vincent JJA) discussed the different ways in which impaired mental functioning, whether temporary or permanent, may affect the sentencing of an offender. Similar principles have been identified from time to time in this Court: see, eg, R v Engert (1995) 84 A Crim R 67; Regina v Israil [2002] NSWCCA 255 at [21]-[26] (Spigelman CJ, Simpson and Blanch JJ agreeing); R v Hemsley [2004] NSWCCA 228 at [33]-[35] (Sperling J); Courtney v Regina [2007] NSWCCA 195; 172 A Crim R 371 at [14]-[18] (Basten JA), [57]-[59] (Grove J) and [82]-[86] (Howie J). In substance, these factors operate at one or both of two levels. First, a mental impairment may be relevant to the commission of the offence, by reducing the moral culpability of the offending conduct, and thus the relevance of general deterrence and, if the condition is likely to continue, individual deterrence. Secondly, it may affect the appropriate sentence either because imprisonment may adversely affect the condition, or because the condition may affect the severity of the punishment.

102 In the present case, the severity of the punishment was likely to be affected by an additional factor, namely that the appellant had been, prior to conviction, and was likely in the future to be, subject to a level of isolation because of risks to himself which might eventuate from association with other prisoners. This Court has warned in particular cases against a too ready assumption that a person convicted of offences with young children will necessarily suffer from harsher prison conditions than those applicable more generally. Nevertheless, in the present case there was unchallenged evidence that such a consequence had flowed and was likely to continue, a factor which his Honour took into account in varying the relationship between the non-parole period and the term of the sentence, so as to reduce the non-parole period. There is no challenge to the appropriateness of that step, nor that it properly constituted a finding of “special circumstances” for the purpose of s 44(2). Rather, the appellant seeks to challenge his Honour’s refusal to include in the assessment of special circumstances the effect of his mental illness, which was properly to be taken in combination with his isolation within the prison environment. Further, it was submitted that the onerous conditions of imprisonment should properly have been reflected in a reduction of the term of the sentence and not merely the period of mandatory incarceration.

Evidence of mental illness and circumstances of imprisonment

103 The appellant commenced drug use in his later school years, which appear to have complicated his mental health assessment. In 2002 he saw Dr Robert Tym, a psychiatrist in Canberra, who diagnosed him as suffering from paranoid schizophrenia. That diagnosis was confirmed by Dr William E Lucas in 2003. On 18 January 2007, Dr Lucas reported in some detail on his current situation and the circumstances he faced while in prison awaiting trial, having interviewed him in the Metropolitan Reception and Remand Centre (“the MRRC”) in mid-January 2007. He recounted visual, auditory and olfactory hallucinations. After reviewing the records of Justice Health, Dr Lucas noted that the appellant “has remained psychotic during his imprisonment with some improvement noted during 2006 despite continuing symptoms”: Report, p 10. He noted that he had read a report of Professor David Greenberg querying whether he suffered from a drug-induced psychosis or underlying schizophrenia but noting “the consensus” that he was suffering from chronic paranoid schizophrenia and not a drug-induced psychosis: p 11.

104 Dr Lucas noted that since his trial the appellant had been moved to Bathurst Correctional Centre. Whilst at the MRRC, Long Bay, he had been in the “mental health wing, 16 POD” most of the time, but had not been in the psychiatric wards at Long Bay Hospital. In relation to his period at Bathurst, Dr Lucas stated (Report, p 9):

“Activity was very limited in Bathurst as he was on non-association and had half an hour a day out of his cell. He was in segregation in the MRRC.”

105 In relation to his future, Dr Lucas stated (p 12):

“His psychiatric management will be difficult in prison. Although he is on medication it is unlikely he will spend a substantial period, if any, in a psychiatric unit and will be classified to a prison where he will be on protection and in segregation probably for the duration [of] his sentence. These circumstances will not be conducive to the psychiatric treatment and rehabilitation he requires. Unfortunately the main effort to provide for his psychiatric and other needs will be after he is released when a lengthy period of supervision in the community will be essential, combined with psychiatric treatment and drug and social rehabilitation.”

Error in sentencing

106 It is clear that, having determined that the offence fell within the middle range of objective seriousness, the trial judge determined the sentence period by applying the statutory formula for the relationship between the non-parole period and the term of the sentence to the standard non-parole period. There may be a certain logic to that mechanistic approach, if the standard non-parole period is likely to be the non-parole period required to be set. However, once it is accepted that subjective features of the offender may result in the standard period not being set, even though the sole precondition to its operation is satisfied, the justification for that approach is significantly reduced. Further, it means that circumstances relevant to the offender, which do not characterise the seriousness of the offence, will not be addressed in fixing the term of the sentence. Such an approach is inconsistent with the requirement for individualized justice in sentencing, affirmed in Way at, eg, [86], [126] and [127].

107 That there were relevant factors, subjective to the offender, affecting the term of his non-parole period, suggests that the fixing of the sentence by reference to the standard non-parole period, which was not in fact imposed, was potentially erroneous. That potential was realised because the factors which properly led to a reduction of the standard non-parole period were also relevant to the sentence.

108 Further, a mechanistic approach to determining the term of the sentence by reference to the standard non-parole period is likely to give rise to anomalous results. The standard non-parole periods fixed by the Table to Division 1A demonstrate widely disparate proportions of the maximum penalties for those offences. Yet, Parliament not having varied the maximum penalties, those penalties remain a reference point which must be taken into account in the sentencing process. That the sentences imposed in the present case, for offences in the middle of the range of objective seriousness where there were features of the offender which ultimately were found to warrant departure from the standard non-parole period, should be two-thirds of the maximum penalty, did not necessarily demonstrate error, but should have given the sentencing judge cause to reconsider whether they were appropriate sentences. The mere fact that, in relation to this offence, the standard non-parole period is 50% of the maximum penalty, suggests the need for caution in adoption of the arithmetical process noted above.

109 Although, largely because sentencing is an individualized exercise, statistics are of limited assistance to the sentencing Court, they do, , provide a guide for assessing where a proposed sentence stands in respect of the sentencing profile for that offence.

110 Material before the sentencing judge indicated that over the period from February 2003 to December 2005, 96% of all offenders sentenced under s 61J received sentences of 12 years or less. For non-consecutive terms only, 95% received sentences of 10 years or less. The usual cautions should be borne in mind in having reference to these statistics. In particular, the two categories involve 28 and 20 cases respectively, being relatively small numbers. On the other hand, they provide some broad indication of judicial experience in sentencing for such offences.

111 For the reasons noted by his Honour and recounted above, the offences committed by the appellant were undoubtedly serious. Each offence carried a maximum penalty of 20 years. However, they were committed as part of an on-going course of conduct and were directed to be served concurrently, a course which was not challenged by the Director.

112 There is no doubt that prison conditions are onerous for many members of the community. Imprisonment constitutes punishment, but the punishment should not be the imposition of unduly onerous conditions. If the conditions are likely to be more onerous for one class of prisoner, that should be taken into account on sentencing. It appears that the appellant’s psychotic condition is kept in control by medication. Nevertheless, it is apparent that the combination of isolation, or limited association, together with the evident symptoms of schizophrenia are likely to render a prison environment more onerous for the appellant than for a person to whom either of those conditions applies separately. The fact that his Honour failed to take account of the effect of his mental illness in respect of the circumstances of his imprisonment and the combined effect of his mental illness and his segregation within the prison system, constituted a failure to take account of relevant circumstances.

113 It was as much the need to stabilize the appellant on return to the community in terms of his mental condition, as the removal from onerous conditions of non-association, which justified a longer than usual period on parole. Further, to the extent that each factor rendered his imprisonment more onerous, they should both, separately or in combination, have been taken into account in relation to the setting of the term of imprisonment. Throughout the term of his sentence, even if released into the community, an offender remains liable to be returned to custody, with the consequence that the onerous nature of the custody should be taken into account in relation to the sentence and not merely the non-parole period. This is not taking into account a factor which has been taken into account in reducing an otherwise appropriate “head sentence” with the result that, according to the statutory formula, the non-parole period is reduced, thus rendering it double-counting to reduce the non-parole period further on account of that factor: cf R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [67] (Spigelman CJ, Mason P, Grove J and Newman AJ agreeing).

114 It appears that the conditions of segregation are likely to continue. In an affidavit filed on 22 August 2008 in these proceedings and available for the purpose of re-sentencing, the appellant stated that he was now at John Morony Correctional Centre at Berkshire Park. He stated that he had been there since he was sentenced. The affidavit continued:

“I requested that I be kept apart from other prisoners. That was because I was fearful what might happen to me if other prisoners knew why I was in custody. I was a non-association prisoner for fourteen months. Over that time I had a small yard two metres by two metres attached to my cell. I was allowed to be in the yard for six hours a day. I suffer from schizophrenia. Over that time I also became depressed. I have been medicated for my schizophrenia. I receive zyprexol and respirodone.

I am now a limited association prisoner. This means that I am in a POD with a small number of other prisoners. There are seven of us together. I am the wing sweeper. The other prisoners are also classified as ‘sex offenders’. I am cautious about having too much to do with most of them.

Because I have been a non-association prisoner and a limited association prisoner there have not been any courses or educational facilities available for me. My part of the prison has a small library. There is, however, nothing to help me educate myself for when I am released.”

115 In the circumstances, and taking into account the factors noted above, a sentence of 12 years imprisonment would, in my view, have adequately reflected offences which, according to his Honour’s judgment, fell in the middle of the range of objective seriousness. Maintaining, as the appellant submitted was appropriate, the proportion adopted by the trial judge, a non-parole period of 7 years 8 months should be set, with a further 4 years and 4 months, giving a sentence of 12 years.

116 I propose the following orders:

(1) Grant leave to appeal in respect of convictions on 4 counts of aggravated sexual assault.

(2) Dismiss the appeal against the convictions.

(3) Grant leave to appeal against the sentences imposed in respect of each count.

(a) Set a non-parole period of 7 years 8 months, with a further period of 4 years 4 months, giving a term of sentence of 12 years.

(b) Order that each of the sentences be served concurrently.

(d) Direct that the further period commence on 21 April 2013 and expire on 20 August 2017.

(c) The appellant is to be subject to supervision by the New South Wales Parole Service whilst on parole.

117 HISLOP J: I agree with Orders 1 and 2 proposed by Basten JA and his Honour’s reasons for those orders. I agree with the orders proposed by Price J as to sentence and with his Honour’s reasons for those orders.

118 PRICE J: I have had the opportunity of reading the draft of the judgment prepared by Basten JA. I agree that the conviction appeal be dismissed. I also agree as Basten JA identifies at [112] that the sentencing Judge failed to take into account the combined effect of the appellant’s mental illness and his segregation within the prison system. This is a matter which might be considered to make the appellant’s prison sentence more onerous than others in the general prison population.

119 Although error has been identified, the question remains whether the Court should form as required by s 6(3) of the Criminal Appeal Act 1912 an opinion that “some other sentence … is warranted in law and should have been passed”. As Basten JA recounts at [2] the four offences of which the appellant was convicted by the jury involved three counts of anal penetration and one count of penile penetration of the genitalia. The sentencing Judge determined that the offences were committed as part of an ongoing course of conduct by the appellant and concurrent sentences were imposed consisting of a non-parole period of 8 years 6 months with an additional term of 4 years 10 months.

120 The Crown contended that it was open to His Honour to partially accumulate the sentences for the four offences despite the fact that they occurred as part of the one episode. Given that his Honour determined that all the offences were to be served concurrently, it could not be said, the Crown argued, that the overall result was so severe as to require a reduction in sentence given the principle of totality. No other sentence was warranted in law. I agree with this submission.

121 For his own sexual gratification, the appellant inflicted four different acts of gross indecency on a 10 year old child. Three of those acts involved the penetration of the child’s anus; the first by his finger, the second by his penis and the third by the insertion of the blue-coloured vibrator. Each act by itself occasioned harm to the complainant. The fourth offence concerned penile penetration of the child’s genitalia which involved separate harm to her.

122 The purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 include a recognition of the harm done to the victim and the community. The imposition of totally concurrent sentences, to my mind, fails to acknowledge the separate harm done to the child by the different criminal acts of the appellant. In my view, there are occasions when a sentencing Court should take care to ensure that consideration of an offender’s behaviour being closely related in time does not obscure the fact that different offences were committed. This was, it seems to me, such an occasion. There should have at least been partial accumulation of some of the sentences. Total concurrency of the sentences was generous to the applicant.

123 I am not of the opinion that some other lesser sentence is warranted.

124 I agree with orders (1) and (2) proposed by Basten JA. I, however, propose that leave to appeal against the sentences imposed in respect of each count be granted, but the appeals be dismissed.

**********

Citations

Carlton v The Queen [2008] NSWCCA 244

Most Recent Citation

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26

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Patsalis v Local Court of NSW [2022] NSWSC 159

Cases Cited

19

Statutory Material Cited

4

Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318

Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322

Williams v The Queen [1986] HCA 88

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CITATION:	CARLTON v THE QUEEN [2008] NSWCCA 244
HEARING DATE(S):	25 August 2008
JUDGMENT DATE:	16 October 2008
JUDGMENT OF:	Basten JA at 1; Hislop J at 117; Price J at 118
DECISION:	(1) Grant leave to appeal in respect of convictions on 4 counts of aggravated sexual assault. (2) Dismiss the appeal against the convictions. (3) Grant leave to appeal against the sentences imposed in respect of each count. (4) Dismiss the appeal against the sentences.

CATCHWORDS:	CRIMINAL LAW – appeal against conviction – whether miscarriage of justice – construction of proviso – whether summing-up lacked balance and unfair – where trial judge omitted information from summing-up – whether trial judge erred in directions to jury – adequacy of correction of errors – whether directions confused jury – counsel objections to directions – corroboration of complainant’s evidence – Criminal Appeal Act 1912 (NSW) s 6(1) – Criminal Appeal Rules (NSW) r 4 - CRIMINAL LAW – jurisdiction, practice and procedure – appeal against conviction – not on question of law alone – leave required – Criminal Appeal Act 1912 (NSW) s 5 - SENTENCING – standard non-parole period – whether trial judge gave proper weight to offender’s mental illness – whether offence in the middle of the range of objective seriousness – where offender convicted of aggravated sexual intercourse – where complainant young child – harm to complainant – where offender segregated and schizophrenic – Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 54A, 54B - WORDS & PHRASES – “miscarriage of justice” – “question of law alone”
LEGISLATION CITED:	Crimes Act 1900 (NSW), s 61J Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44, 54A, 54B; Div 1A, Pt 4 Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Appeal Rules, r 4
CATEGORY:	Principal judgment
CASES CITED:	Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 B v The Queen [1992] HCA 68; 175 CLR 599 Courtney v Regina [2007] NSWCCA 195; 172 A Crim R 371 Edwards v The Queen [1993] HCA 63; 178 CLR 193 Gassy v The Queen [2008] HCA 18; 82 ALJR 838 Green v The Queen [1971] HCA 55; 126 CLR 28 Hannes v Director of Public Prosecutions (Cth) (No. 2) [2006] NSWCCA 373; 60 ACSR 1; 165 A Crim R 151; 205 FLR 217 Hargan v The King [1919] HCA 45; 27 CLR 13 Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 The Queen v Verdins [2007] VSCA 182; 16 VR 269 R v Engert (1995) 84 A Crim R 67 R v Gallagher [1998] 2 VR 671 R v Hemsley [2004] NSWCCA 228 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Regina v Israil [2002] NSWCCA 255 Regina v Tomazos (unrep, NSWCCA, 6 August 1971) Stokes v The Queen [1960] HCA 95; 105 CLR 279 TKWJ v The Queen [2002] HCA 46; 212 CLR 124 Weiss v The Queen [2005] HCA 81; 224 CLR 300 Williams v The Queen [1986] HCA 88; 161 CLR 278
PARTIES:	Adam Rawdon CARLTON - Appellant The Queen - Respondent
FILE NUMBER(S):	CCA 2007/2843
COUNSEL:	A Haesler SC/H Cox - Appellant L M B Lamprati SC - Respondent
SOLICITORS:	Hal Ginges and Company - Appellant S Kavanagh - Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 06/61/001
LOWER COURT JUDICIAL OFFICER:	Nield DCJ
LOWER COURT DATE OF DECISION:	23 February 2007