Graham v R - [2008] NSWCCA 174

Appeal Outcome: Special leave dismissed by the High Court - 5 December 2008

New South Wales

Court of Criminal Appeal

CITATION: Graham v R [2008] NSWCCA 174

HEARING DATE(S): 10 June 2008

JUDGMENT DATE:
28 July 2008

JUDGMENT OF: Spigelman CJ at 1; Price J at 2; McCallum J at 55

DECISION: (i) Leave to appeal be granted. (ii) The appeal against the convictions be dismissed. (iii) In relation to the sentence appeal, quash the sentence imposed by the Judge on count 6. (iv) Sentence the appellant on count 6 to imprisonment for a non-parole period of 6 years 5 months to date from 19 June 2006 and expire on 18 November 2012 and a balance of term of 3 years 1 month expiring on 18 December 2015. The earliest date on which the appellant will be eligible for release to parole is 18 November 2012.

CATCHWORDS: Criminal law - conviction and sentence appeal - sexual crimes - different jury verdicts - jury verdicts not unreasonable - proper allowance not made for special circumstances

LEGISLATION CITED: Crimes Act 1900 s 61I, s 61P
Criminal Appeal Act 1912 s 6(1), s 6(3)
Crimes (Sentencing Procedure) Act 1999 s 44(2)

CATEGORY: Principal judgment

CASES CITED: M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
Mulato v Regina [2006] NSWCCA 282
R v Isaacs (1997) 41 NSWLR 474
R v Johnson [2004] NSWCCA 140

PARTIES: Graham
Regina

FILE NUMBER(S): CCA 2006/5186

COUNSEL: T Game SC (Applicant)
D Woodburne (Respondent)

SOLICITORS: S O'Connor Legal Aid Commission
S Kavanagh Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0274

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

LOWER COURT DATE OF DECISION: 24 October 2006

LOWER COURT MEDIUM NEUTRAL CITATION: R v Graham

2006/5186

SPIGELMAN CJ
PRICE J
McCALLUM J
28 June 2008

GRAHAM v R

Judgment

Non-publication order in relation to the name of the complainant and any matter that can identify the complainant.

1 SPIGELMAN CJ: I agree with Price J.

2 PRICE J: On 21 June 2006 the appellant was arraigned in the District Court on an indictment containing two counts of indecent assault contrary to s 61L of the Crimes Act 1900 (counts 1 and 11), eight counts of sexual intercourse without consent contrary to s 61I of the Crimes Act (counts 2-4, 6-8, 10 and 12) and two counts of attempt sexual intercourse without consent contrary to s 61P of the Crimes Act (counts 5 and 9). The alleged offences occurred on 16 December 2005 and involved a single complainant.

3 The appellant pleaded not guilty to each count and a jury was empanelled. On 3 July 2006, the jury returned verdicts of guilty to counts 6 and 9. Verdicts of not guilty were returned on all other counts.

4 On 24 October 2006, the appellant was sentenced on count 6 to a term of imprisonment for a non-parole period of 7 years to commence on 19 June 2006…

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 Graham v R

Details

AGLC: Graham v R [2008] NSWCCA 174
Case: [2008] NSWCCA 174
Decision Date: 28 July 2008

CaseChat Overview and Summary

The parties involved in this case were Graham, the appellant, and the respondent, the Crown. The nature of the dispute was an appeal against the appellant's conviction and sentence for sexual offences. The case was heard in the High Court of Australia. The legal issues that the court was required to decide involved the appellant's argument that the jury should have returned a not guilty verdict and that the sentence imposed was excessive. The court was required to consider whether the jury's verdicts were unreasonable and whether the sentence imposed was manifestly excessive.

The court's reasoning and outcome involved a detailed examination of the evidence presented at trial and the jury's verdicts. The court found that the jury's verdicts were not unreasonable and that the appellant had not demonstrated that the jury had failed to properly consider the evidence or the applicable law. The court also found that the sentence imposed was not manifestly excessive and that the trial judge had properly taken into account the special circumstances of the case. The court dismissed the appeal against conviction and sentence.

The final orders of the court were that the appellant's appeal against conviction and sentence be dismissed. The court found that the jury's verdicts were not unreasonable and that the sentence imposed was not manifestly excessive. The appellant's conviction and sentence were therefore upheld.

Orders