Cordeiro v R - [2019] NSWCCA 308

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cordeiro v R [2019] NSWCCA 308
Hearing dates: 26 July 2019
Decision date: 19 December 2019
Before: Simpson AJA at [1]; Johnson J at [106]; Harrison J at [107]
Decision:
(1) Leave granted to appeal against conviction; appeal dismissed.
(2) Leave granted to appeal against sentence; appeal dismissed.
Catchwords:
CRIME – appeals – appeal against conviction – application for leave to appeal on question of fact or mixed question of fact and law – whether verdict unreasonable – whether verdict of guilty could not be supported by the evidence
CRIME – appeals – appeal against sentence – application for leave to appeal – whether sentencing judge erred in the assessment of the objective seriousness of the offence
Legislation Cited: Crimes Act 1900 (NSW), ss 61HA, 61I
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW), s 5
Cases Cited: Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
R v Birks (1990) 19 NSWLR 677
R v Scott (2009) 22 VR 41; [2009] VSCA 20
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Category: Principal judgment
Parties: Paul Cordeiro (Applicant)
Regina (Respondent)
Representation:
Counsel:
In person (Applicant)
E Balodis (Respondent)
Solicitors:
Not applicable (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2016/169929
Publication restriction: Non-publication of any information or material that may lead to the identification of the complainant (Crimes Act 1900 (NSW), s 578A)
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

15 December 2017

Before:

Huggett DCJ

File Number(s):

2016/169929

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 19 October 2017, following a jury trial, the applicant was convicted of a single count of sexual intercourse without consent. The conduct said to constitute that count involved digital penetration of the complainant’s vagina by the applicant while the complainant was asleep. At the time of the conduct the complainant was an employee on a chartered boat owned and operated by the applicant for pleasure cruises on Sydney Harbour. On 15 December 2017 he was sentenced to imprisonment for 3 years and 6 months with a non-parole period of 2 years and 3 months.

The applicant appealed against his conviction on the single ground that the verdict of guilty was unreasonable and not supported by the evidence.

The applicant appealed against his sentence on the single ground that the sentencing judge erred in her assessment of the objective seriousness of the offence.

Held, granting leave to appeal but dismissing the appeal:

In relation to the conviction appeal:

per Simpson AJA, Johnson and Harrison JJ agreeing

(i) Considering the whole of the evidence it was open to the jury to find the applicant guilty of the offence: [102]-[105].

M…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cordeiro v R

Details

AGLC: Cordeiro v The Queen [2019] NSWCCA 308
Case: [2019] NSWCCA 308
Decision Date: 19 December 2019

CaseChat Overview and Summary

The appellant, Cordeiro, was convicted of various criminal offences and sentenced in the County Court of Victoria. He appealed against his conviction and sentence, seeking leave to appeal on questions of fact, mixed questions of fact and law, and the assessment of the objective seriousness of the offence. The High Court was required to determine whether the verdict of guilty was unreasonable and could not be supported by the evidence, and whether the sentencing judge had erred in assessing the objective seriousness of the offence.

The court considered the evidence presented at trial and the arguments advanced by both parties. It found that the verdict of guilty was supported by the evidence and was not unreasonable. The court also examined the sentencing judge's assessment of the objective seriousness of the offence and determined that there had been no error in the assessment. The court held that the appellant's appeal against conviction and sentence should be dismissed.

The High Court dismissed the appellant's application for special leave to appeal. The court found that the verdict of guilty was reasonable and supported by the evidence, and that the sentencing judge had correctly assessed the objective seriousness of the offence. The court held that there was no basis for allowing the appeal against conviction or sentence. The appellant's convictions and sentence were therefore upheld.

Orders