DF v R

Case [2012] NSWCCA 171

Court of Criminal Appeal

New South Wales
Case Title: DF v R
Medium Neutral Citation: [2012] NSWCCA 171
Hearing Date(s): 1 August 2012
Decision Date: 17 August 2012
Jurisdiction:
Before: HOEBEN JA; at [1]
JOHNSON J; at [81]
BUTTON J; at [82]
Decision:

Conviction Appeal

(a) In respect of the conviction appeal, leave refused pursuant to r 4 of the Criminal Appeal Rules.

Sentence Appeal

(b) Appeal allowed.

(c) The sentences imposed by his Honour on 25 February 2011 are quashed.

(d) In lieu thereof, the appellant is sentenced as follows:

(i) Count 1 - A fixed term of imprisonment of 1 year commencing 22 January 2010 and expiring 21 January 2011.

(ii) Count 2 - A fixed term of imprisonment of 1 year and 6 months commencing 22 July 2010 and expiring 21 January 2012.

(iii) Count 4 - A fixed term of imprisonment of 1 year and 6 months commencing 22 July 2011 and expiring 21 January 2013.

(iv) Count 5 - A fixed term of imprisonment of 1 year and 6 months commencing 22 July 2011 and expiring 21 January 2013.

(v) Count 6 - A fixed term of imprisonment of 1 year and 6 months commencing 22 January 2011 and expiring 21 July 2012.

(vi) Count 7 - Imprisonment with a non-parole period of 3 years commencing 22 January 2012 and expiring 21 January 2015 with a balance of term of 3 years expiring 21 January 2018.

(e) The earliest date upon which the appellant will be eligible for parole is 21 January 2015.
Catchwords:

CRIMINAL LAW - conviction appeal - trial for seven alleged sexual offences committed in 1978-1979 - verdict by direction on one count - appellant convicted on remaining six counts - whether Markuleski direction should have been given arising from acquittal by direction- no such direction sought at trial - no miscarriage of justice - leave refused under rule 4 Criminal Appeal Rules

CRIMINAL LAW - sentence appeal - whether sentences imposed failed to reflect sentencing practices in 1978-1979 - whether error in approach to appellant's good conduct since commission of offences - whether sentences manifestly excessive - error established - appellant resentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: AJB v R [2007] NSWCCA 51; 169 A Crim R 32
Cao v R [2010] NSWCCA 109
Dousha v R [2008] NSWCCA 263
Mottram v Regina [2009] NSWCCA 210 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
Previtera v R (1997) 94 A Crim R 76
PWB v R [2011] NSWCCA 84
R v Abusafiah [1991] 24 NSWLR 531/ 56 A Crim R 424
R v Baker [2000] NSWCCA 85
Regina v Holyoak [1995] 82 A Crim R 502
R v Humphries [2004] NSWCCA 370
R v Wilson [2005] NSWCCA 20; 62 NSWLR 346
Regina v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
Rosenstrauss v R [2012] NSWCCA 25
SKA v The Queen [2011] HCA 13; 243 CLR 400
Ryan v R

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DF v R [2012] NSWCCA 171
Case
[2012] NSWCCA 171
Decision Date

CaseChat Overview and Summary

In the matter of DF v R, the appellant sought leave to appeal against both his conviction and sentence. The appeal pertained to a series of sexual offences committed against a complainant over a period spanning from 1978 to 1979. The appellant was convicted on six counts but acquitted on one count by a directed verdict. The conviction appeal focused on whether the trial judge should have provided a direction in line with the principles established in Regina v Markuleski, given the acquittal by direction on one count, while the sentence appeal argued that the sentences imposed did not reflect the sentencing practices of the time and that the appellant's good conduct since the commission of the offences was not properly considered. The court had to decide whether the trial judge's failure to give a Markuleski direction resulted in a miscarriage of justice and whether the sentences imposed were appropriate.

The court found that the appellant did not seek a Markuleski direction at trial and did not argue that the guilty verdicts were unreasonable or unsupported by the evidence. The court concluded that no miscarriage of justice occurred because the appellant did not challenge the reliability of the complainant's evidence on the remaining counts. As for the sentence appeal, the court acknowledged an error in the approach to the appellant's good conduct and sentencing practices of the period. It was determined that the sentences imposed were excessively harsh compared to the sentencing norms of 1978-1979 and did not adequately account for the appellant's conduct since the offences.

The appeal was allowed in part concerning the sentence, but leave to appeal the conviction was refused. The sentences originally imposed were quashed, and new sentences were handed down, reflecting the appropriate sentencing practices of the time. The new sentences comprised fixed terms of imprisonment for various counts, with the earliest parole eligibility date set for 21 January 2015. The judges concurred with the findings and orders as presented.

Orders

Orders of the court

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Background

Background to the litigation

That the trial miscarried as the trial judge erred by failing to give an appropriate direction in accordance with the principles set out in Regina v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at 132-135 regarding the effect on the complainant's credibility of the directed verdict of not guilty in respect of count 3 on the indictment.Factual background The complainant was a woman aged 43 at the time she gave her evidence. At the time the offences occurred she was aged between 10 and 11. She had moved to the town of Bowraville with her parents, who had acquired a local mixed business. She was something of an outsider and experienced episodes of bullying and was lonely. She ultimately came to know the appellant, who befriended her and offered her companionship and safety against the threat of bullying from other young people in the town. In the years that followed, the appellant groomed the complainant and awakened her sexually, beginning with touching and extending to cunnilingus, attempted penile penetration and ultimately penetration of her vagina with his penis in circumstances that caused her pain and consequent bleeding. Counts 1 and 2 were based on evidence that the appellant would meet the complainant at an area in Bowraville called "The Junction", a place where two rivers met in the town area. From there the complainant said that he led her to some underbrush and it is there that the appellant placed her on the ground, took off her underwear and commenced rubbing her vagina. The complainant said that the appellant then performed cunnilingus on her. Count 3 was based on evidence from the complainant that she and the appellant met at The Junction, where they proceeded to the same spot in the underbrush. She stated that he engaged in the same conduct as in counts 1 and 2, but that this time he pulled his penis out and rubbed it across her mouth and then pushed his penis into her mouth. Counts 4 and 5 related to two separate attempts at penetration by the appellant on the complainant. The complainant said that these attempts occurred at the same place at The Junction and that on both occasions, the appellant attempted to gently penetrate her. Upon being asked to stop, the appellant did so. In count 5 she said that the appellant attempted to utilise Vaseline to effect penetration. Counts 6 and 7 were based on evidence from the complainant that in the warmer months when The Junction was over-populated, the two met at a toilet block at the complainant's school after school hours. She said that the appellant put his jacket on the ground and then pulled down her underwear and performed cunnilingus on her. The appellant then attempted to penetrate her and did in fact achieve some degree of penetration but stopped upon her wriggling away from him and asking him not to proceed any more. In a detailed statement and in her evidence at trial, the complainant described the events which constituted count 3. Part of that evidence was that the appellant was uncircumcised. The important features of that evidence were:"(a) That they met at the same place being The Junction where counts 1, 2, 3, 4 and 5 took place.(b) That in relation to count 3, the same thing happened. It was very similar to other instances, following the same pattern.(c) That the complainant described seeing the appellant's penis stating that it was uncircumcised and that she thought this was odd because she had seen her father and brother's penises which were circumcised.(d) That the appellant asked her to come closer and motioned for her to lean down towards his exposed penis.(e) That the complainant observed that his penis was soft and that he rubbed it across her mouth and pushed it into her mouth.(f) That the complainant said that his foreskin felt soft and that his penis felt dry in her mouth.(g) That the complainant said that his penis and crotch smelt like urine.(h) The complainant thought that the entire situation was odd and wondered why anyone would engage in that behaviour."

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is clear that his Honour was aware of the appellant's health issues and of his good character and stable family life because he specifically referred to all these matters. In relation to the health issues, no medical evidence was placed before the court. The only information concerning them was in the Pre-sentence Report. Accordingly, other than ground 3(a), I am not satisfied that the other grounds of appeal have been made out.Conclusion For the reasons set out above, it is necessary to re-sentence the appellant. The individual sentences and the overall sentence need to be significantly reduced to reflect sentencing practices at the time of the offending. The aggregate head sentence will involve imprisonment for 8 years with a non-parole period of 5 years. I propose the following orders:Conviction Appeal(a) In respect of the conviction appeal, leave refused pursuant to r 4 of the Criminal Appeal Rules.Sentence Appeal(b) Appeal allowed.(c) The sentences imposed by his Honour on 25 February 2011 are quashed.(d) In lieu thereof, the appellant is sentenced as follows:(i) Count 1 - A fixed term of imprisonment of 1 year commencing 22 January 2010 and expiring 21 January 2011.(ii) Count 2 - A fixed term of imprisonment of 1 year and 6 months commencing 22 July 2010 and expiring 21 January 2012.(iii) Count 4 - A fixed term of imprisonment of 1 year and 6 months commencing 22 July 2011 and expiring 21 January 2013.(iv) Count 5 - A fixed term of imprisonment of 1 year and 6 months commencing 22 July 2011 and expiring 21 January 2013.(v) Count 6 - A fixed term of imprisonment of 1 year and 6 months commencing 22 January 2011 and expiring 21 July 2012.(vi) Count 7 - Imprisonment with a non-parole period of 3 years commencing 22 January 2012 and expiring 21 January 2015 with a balance of term of 3 years expiring 21 January 2018.(e) The earliest date upon which the appellant will be eligible for parole is 21 January 2015. JOHNSON J: I agree with Hoeben JA. BUTTON J: I agree with Hoeben JA.**********

Ratio Decidendi

Legal Principle Established

The appellant submitted that in those circumstances it was fundamental to the fairness of the trial that the jury be properly directed by the court and that their attention be drawn to the potential use of the directed verdict in assessing the complainant's evidence on the remaining counts.Consideration The only matter complained of is a failure to give a direction in accordance with the judgment in Markuleski v R. Importantly, the appellant did not assert that the guilty verdicts were unreasonable or not supported by the evidence. The appellant did not submit that the verdicts were inconsistent in circumstances where there was no logical and reasonable basis for the inconsistency. Markuleski was an appeal concerning inconsistent verdicts. It involved multiple counts that were alleged to have occurred over a period of 12 months. Each offence concerned a different event, and the Crown case relied entirely on the uncorroborated evidence of the complainant. A verdict of not guilty on one count necessarily involved a rejection of the complainant's credibility. When considering the directions required in that case, Spigelman CJ said:"185 Nevertheless, the case law on inconsistent verdicts, particularly in the context of sexual assault cases but not limited to that context, indicates that there is a recurring difficulty in this respect. It may appear to be obvious that a reasonable doubt about one aspect of a complainant's evidence ought to be taken into account when assessing that witness's evidence on other matters. However, there have been a significant number of cases in which courts of criminal appeal have acted on the basis that the jury may have failed to do so.186 In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count." In R v Ford [2006] QCA 142 at [124] Keane JA outlined the circumstances in which the giving of a Markuleski direction might be appropriate:" 124 ... In summary, the risk of unfairness which creates the occasion for the giving of the direction is the risk that the accused will be denied the chance of acquittal on all counts if, given the state of the evidence, such a result ought reasonably to follow if the jury were to reject as unreliable any part of the complainant's account of what occurred. 125 It is the risk of this particular kind of unfairness to the accused which requires a trial judge to refer "to the effect upon the assessment of the credibility of the complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count." (Markuleski at [121]). The purpose of such a reference is to ensure fairness to the accused "in a word against word case" (Markuleski at [121]) by supplementing the traditional direction that the jury should consider the evidence, as well as the question of guilt, separately in relation to each count."