MM v R

[2018] NSWCCA 158

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

MM v R [2018] NSWCCA 158

Hearing dates:

30 April 2018

Date of orders:

01 August 2018

Decision date:

01 August 2018

Before:

Hoeben CJ at CL at [1]
Walton J at [2]
R A Hulme J at [82]

Decision:

(1) Extension of time to appeal to 7 February 2018 is granted;

 

(2) Leave to appeal against conviction pursuant to r 4 of the Criminal Appeal Rules is granted;

 

(3) The appeal is upheld;

 

(4) Pursuant to s 7(2) of the Criminal Appeal Act 1912, instead of allowing the appeal, the verdict of the jury in District Court proceedings 2012/226372 of guilty to the offence contrary to s 61J of the Crimes Act 1900 is substituted by a verdict of guilty to an offence contrary to s 61I of the Crimes Act 1900;

 

(5) Pursuant to s 7(2) of the Criminal Appeal Act 1912, the applicant is sentenced to imprisonment comprising of a non-parole period of 3 years commencing 28 August 2013 and a balance of the term of sentence of 3 years; and

(6) Pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999, the commencement date of the sentence imposed in the District Court on 18 December 2014 is varied to 28 August 2016.

Catchwords:

CONVICTION APPEAL – conviction for aggravated sexual assault – leave sought pursuant to r 4 of the Criminal Appeal Rules (NSW) – element of aggravation – intentionally or recklessly inflicts actual bodily harm – error in indictment – indictment reflects offence known to law but did not reflect the terms of s 61J(2)(a) –misdirection of jury about aggravation – error of law –extension of time to appeal – whether the appeal should be dismissed under proviso in s 6(1) of the Criminal Appeal Act – whether substantial miscarriage of justice occurred – evidence at trial did not prove beyond reasonable doubt the applicant was guilty of aggravated sexual assault – misdirection apt to prevent the performance of jury of its function – proviso not applied – substituted verdict of sexual assault contrary to s 61I of the Crimes Act – resentencing – resentencing affected by change in maximum sentence – factual findings of trial judge may be adopted in resentencing subject to De Simoni principle – resentenced to total sentence 6 years – application to vary commencement of subsequent sentences pursuant to s 59 of the Crimes (Sentencing Procedure) Act – appeal granted

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)

Cases Cited:

Kalbasi v R (2018) 352 ALR 1; [2018] HCA 7
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
Krakouer v R (1998) 194 CLR 202; [1998] HCA 43
Lane v The Queen [2018] HCA 28
Obeid v R [2017] NSWCCA 221
R v De Simoni (1981) 147 CLR 383
R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338
Reeves v R (2013) 304 ALR 251; [2013] HCA 57
Sio v R (2016) 259 CLR 47; [2016] HCA 32
Spies v R (2000) 201 CLR 603; [2000] HCA 43
Tonari v The Queen (2013) 237 A Crim R 490; [2013] NSWCCA 232

Category:

Principal judgment

Parties:

MM (Applicant)
The Crown (Respondent)

Representation:

Counsel:
T Quilter SC (Applicant)
H Roberts (Crown)

  Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2012/226372

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

22 August 2013

Before:

Norrish QC DCJ

File Number(s):

2012/226372

Judgment

1. HOEBEN CJ AT CL: I agree with Walton J and the additional remarks of R A Hulme J.

2. WALTON J: On 22 August 2013, MM (“the applicant”) was found guilty by a jury of an offence of aggravated sexual assault contrary to s 61J of the Crimes Act 1900 (NSW). He also pleaded guilty to stealing the complainant’s property contrary to s 94 of the Crimes Act. The indictment had charged the offences as being committed on 6 March 2010 at Enmore.

3. On 13 December 2013, the applicant was sentenced by Norrish QC DCJ (“the trial judge”) in the Sydney District Court to a term of 7 years imprisonment with a non-parole period of 3 years and 6 months.

4. The sentence commenced on 28 August 2013 and the non-parole period expired on 27 February 2017. The applicant is still in custody serving a subsequent sentence imposed on him by Charteris DCJ for an offence of wounding with intent to cause grievous bodily harm committed whilst in custody (the sentencing judgment of Charteris DCJ was delivered on 18 December 2014).

THE GROUND OF APPEAL AND LEAVE

5. The applicant brought an appeal against his conviction for aggravated sexual assault pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) upon a single ground of appeal as follows:

As a result of a defect in the indictment, the learned trial judge misdirected the jury about an element of the offence.

6. The applicant sought leave to appeal as the provisions of r 4 of the Criminal Appeal Rules (NSW) applied in the circumstances of the matter and the appeal was bought substantially out of time.

MISDIRECTION OF THE JURY

7. The Crown conceded that the trial judge misdirected the jury as to what was required in order to establish the circumstances of aggravation. That concession was properly made for the following reasons:

1. Section 61I of the Crimes Act creates an offence of sexual assault in the following terms:

61I Sexual assault

Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.

2. Section 61J of the Crimes Act creates a more serious offence of aggravated sexual assault. The terms of that section are as follows:

61J Aggravated sexual assault

(1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.

(2) In this section, circumstances of aggravation means circumstances in which:

(a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or

(b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or

(c) the alleged offender is in the company of another person or persons, or

(d) the alleged victim is under the age of 16 years, or

(e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or

(f) the alleged victim has a serious physical disability, or

(g) the alleged victim has a cognitive impairment, or

(h) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or

(i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.

(3) In this section, building has the same meaning as it does in Division 4 of Part 4.

3. To establish the aggravated offence, the Crown must, in effect, prove the elements of s 61I as well as one of the circumstances of aggravation listed in s 61J(2). The relevant circumstances of aggravation in the present matter are to be found in s 61J(2)(a) which is in the following terms:

(a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby…

4. The indictment presented with respect to the count 1 concerning aggravated sexual assault was in the following terms:

On 6 March 2010 at Enmore in the State of New South Wales did have sexual intercourse with [the complainant] without her consent, knowing that she was not consenting, in circumstances of aggravation, namely that at the time of the offence [the applicant] did occasion actual bodily harm to the said [the complainant].

Section 61J(1) Crimes Act, 1900

Law Part Code: 272

5. By using the word “occasion” rather than the words “intentionally or recklessly inflicts”, the indictment did not reflect the terms of s 61J(2)(a).

6. When the trial judge directed the jury about the element of aggravation, his Honour used the words of the indictment rather than s 61J(2)(a) and accordingly misdirected the jury. The jury was not directed that it was necessary for them to be satisfied that the accused “intentionally or recklessly inflicted actual bodily harm” upon the complainant. In fact, the trial judge stated that the “harm need not be occasioned intentionally”.

8. Mr T Quilter, counsel for the applicant, properly conceded that the District Court had jurisdiction to hear the trial because the indictment disclosed an offence known to law, namely, (non-aggravated) sexual assault contrary to s 61I: Tonari v The Queen (2013) 237 A Crim R 490; [2013] NSWCCA 232 (“Tonari”) at [85]-[96]. In the result, the District Court’s jurisdiction was properly invoked and the trial was not a nullity (see Tonari at [84] and [95]-[96]). The indictment did not, however, disclose the offence for which the applicant was convicted and punished and was, therefore, defective. In the result, the essential legal defect in the trial, resulting in conviction of the applicant for aggravated sexual assault, was the erroneous directions given by the trial judge: Tonari at [99].

9. That misdirection, so described, constituted an error of law: Lane v The Queen [2018] HCA 28 (“Lane”) at [39].

10. In the circumstances, the applicant sought that this Court substitute the jury’s verdict with a verdict for the lesser non-aggravated form of the offence, namely, an offence of sexual assault contrary to s 61I of the Crimes Act. That course is available pursuant to s 7(2) of the Criminal Appeal Act, upon the basis of the approach adopted in Spies v R (2000) 201 CLR 603; [2000] HCA 43 (“Spies”) at [43] (see Tonari at [213]-[220] and Sio v R (2016) 259 CLR 47; [2016] HCA 32 at [43]).

11. If this Court were to adopt the approach, the applicant sought the Court make the following orders:

1. Resentence the applicant on the lesser offence in accordance with the lower maximum penalty of 14 years rather than the maximum penalty taken into account by the trial judge pursuant to s 61J(1) of 20 years; and

2. if the applicant received a lesser sentence in this process, then this Court should vary the commencement date of his subsequent offence pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”).

12. The Crown submitted that, notwithstanding the misdirection, this Court should grant leave to appeal but nevertheless dismiss the appeal under the proviso in s 6(1) of the Criminal Appeal Act: Reeves v R (2013) 304 ALR 251; [2013] HCA 57 at [9]. In the event the Court did not apply the proviso, the Crown accepted that it was appropriate for the Court to substitute a verdict under s 61I.

13. The applicant accepted that the proviso can be applied in cases such as the present where the jury was misdirected about an essential element of the offence, referring, in that respect, to Krakouer v R (1998) 194 CLR 202; [1998] HCA 43 at [23]-[24] and R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338 at [186]. It was contended, however, that the proviso should not be applied in this case.

14. Before dealing with that issue it is necessary to deal with the question of leave.

15. At the trial, counsel for the applicant raised no issue with his Honour’s directions to the jury or with the indictment and, therefore, r 4 of the Criminal Appeal Rules (NSW) applies. However, having regard to the aforementioned conclusion as to the misdirection given to the jury, it is appropriate that leave to appeal be granted in that respect: Obeid v R [2017] NSWCCA 221 at [24]-[26]. Further, while the appeal was bought substantially out of time, the fact that the orders sought by the applicant do not include a re-trial, there is an appropriate basis for the Court to exercise its discretion to grant an extension of time to bring the appeal: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [32]-[33].

16. In that light, it is necessary then to first consider whether the appeal should be dismissed under the proviso in s 6(1) of the Criminal Appeal Act.

17. If that question is answered in the negative, it would follow, in my view, that the s 61J offence should be substituted with a verdict to a lesser charge under s 61I in lieu of the verdict for the s 61J offence. Offences under s 61I are wholly included by reference to s 61J and s 61Q: see Spies at [23]-[24] and Tonari at [214]. Further, I am satisfied the verdict of the jury demonstrated that the jury was affirmatively satisfied of the facts that constitute the s 61I offence having regard to the jury’s verdict under s 61J and the discussion of which follows in this judgment with respect to the proviso, and, taking into account the concessions of the Crown in that respect.

THE PROVISO UNDER s 6(1)

Principles

18. At the time of the hearing of this appeal attention focused, with respect to the proviso, on Kalbasi v R (2018) 352 ALR 1; [2018] HCA 7, both as to the majority judgment (at [12]-[13], [15]-[17] and [60]) and the judgment of Nettle J in dissent (at [113]). Since reserving judgment, there was a further judgment of the High Court, Lane, bearing upon the operation and application of the proviso which is applicable in this matter. Given the currency of that judgment and its instructiveness in the present case, it is appropriate to extract some passages.

19. The appeal was described by the majority (Kiefel CJ, Bell, Keane and Edelman JJ) as follows (at [1]-[2]):

[1] At the appellant's trial for murder, the Crown relied on two physical interactions between the appellant and the deceased, each of which was alleged to have involved a blow by the appellant capable of having caused the death of the deceased. The appellant was acquitted of murder but convicted of manslaughter.

[2] The Court of Criminal Appeal of the Supreme Court of New South Wales held that the trial judge erred in failing to direct the jury that it must be unanimous as to which actions on the part of the appellant caused the death of the deceased. Nevertheless, the Court of Criminal Appeal, by majority, dismissed the appeal on the basis that no substantial miscarriage of justice had actually occurred, as the jury could not have been satisfied beyond reasonable doubt that the first action of the appellant caused the death and it was not open to the jury to entertain a reasonable doubt of the appellant's guilt of manslaughter by the evidence of the second interaction.

20. Overall, the conclusion of the majority was as follows (at [4]):

[4] The appeal to this Court must be allowed. The proviso to the common form criminal appeal provision in s 6(1) of the Criminal Appeal Act 1912 (NSW), which authorises the Court of Criminal Appeal to dismiss an appeal against conviction if it considers that no substantial miscarriage of justice has actually occurred, could not be applied to cure the uncertainty as to whether the jury's verdict in this case was unanimous that resulted from the trial judge's failure to give the specific unanimity direction that was required.

21. As to the nature and effect of an error at trial, the majority made the following observations, applicable in the present case, as follows (at [38] and [39]):

[38] In Baiada Poultry Pty Ltd v The Queen, French CJ, Gummow, Hayne and Crennan JJ said that while, as the Court held in Weiss v The Queen, the proviso cannot be applied "unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty", this negative proposition "states a necessary but not sufficient condition for applying the proviso." The course of authority establishes that an error at trial may be such as to preclude the application of the proviso in the sense of precluding a conclusion that there was no substantial miscarriage of justice, irrespective of the appellate court's view as to whether the evidence properly admitted at trial proved the appellant's guilt beyond reasonable doubt. Put in a verbal formulation that amounts to the same assessment, some errors will establish a substantial miscarriage of justice even if the appellate court considers that conviction was inevitable.

[39] A misdirection by a trial judge always involves an error of law, but "sometimes [it] will prevent the application of the proviso; and sometimes it will not." It is necessary for the appellate court to consider the nature and effect of the error in every case.

[Footnotes omitted.]

22. The observations of the majority with respect to one aspect of the Crown’s submissions is also instructive (at [41]):

[41] Nor is it persuasive to argue, as the respondent does, that it may be assumed that the jury acted in accordance with the trial judge's directions to act upon the evidence and, in doing so, ignored the Crown's submissions. In deciding whether the trial process miscarried in a way that, without more, will result in a substantial miscarriage of justice, one cannot leap from the evidence to the verdict of the jury, ignoring the Crown's case and the directions of the trial judge. How the case is left to the jury is apt to have a critical bearing on the performance by the jury of its task; and as Gleeson CJ said in Doggett v The Queen:

"The manner in which a trial is conducted, and in which the issues are shaped, … has a major influence upon the way in which the case is ultimately left to the jury".

[Footnote omitted.]

23. Further, the majority found (at [44]-[46]):

[44] To say it was not open to the jury to convict on a particular basis when the Crown invited the jury to do just that, and the trial judge allowed the case to go to the jury on the basis that it was open to it to do so, would impermissibly diminish the role of the jury as "the constitutional tribunal for deciding issues of fact."

[45] The appellant could not have been lawfully convicted by the jury unless it was agreed upon the action by the appellant that caused the deceased's fatal injury. In the absence of a unanimity direction, the basis of the verdict is necessarily uncertain as to the act or acts of the appellant on which it was founded. The CCTV footage did not depict blows by the appellant connecting with the head of the deceased before either fall. An assessment of the reliability of the eyewitnesses was necessary. Further, there were live issues as to the dangerousness of the appellant's acts and as to self-defence raised in respect of the acts of the appellant leading up to the second fall. As Fagan J recognised, the jury was not directed as to the different circumstances bearing upon these issues that were relevant in relation to each of the potentially fatal interactions between the appellant and the deceased.

[46] It has been said that "it is neither possible nor useful" to consider application of the proviso "by reference to some supposed category of 'fundamental defects' in a trial", as doing so distracts attention from the statutory requirement of considering whether there has been a "substantial miscarriage of justice" in the particular case. While conclusionary labels such as "fundamental defect" may not be particularly useful as tools of analysis, to say that some errors at trial can be seen to breach the "presuppositions of the trial" so as to be beyond the reach of the proviso does serve to focus attention upon the effect of the error in question upon the trial in order to determine whether a substantial miscarriage of justice has actually occurred.

[Footnotes omitted.]

24. Attention should also be given to [48]-[50] of the majority judgment. Those passaged are extracted below:

[48] A misdirection that is apt to prevent the performance by the jury of its function, without more, will result in a substantial miscarriage of justice. The proviso is cast in terms which permit the appellate court to dismiss an appeal from a judgment of the court which gives effect to the verdict of the jury: the proviso does not permit the appellate court to exercise the function of the jury. The language of the proviso cannot be understood as if it were to the effect that an appeal in which the possibility that the jury has not performed its function of reaching a unanimous verdict may be dismissed on the basis that the appellate court is satisfied of the guilt of the accused.

[49] On the approach of the majority in the Court of Criminal Appeal, the effect of the absence of a specific unanimity direction to the jury was disregarded notwithstanding that it might well be that the jury did not reach a unanimous conclusion as to the necessary basis of the appellant's guilt. As Barwick CJ said in Ryan v The Queen:

"the choice of the act causing death is not for the presiding judge or for the Court of Criminal Appeal: it is essentially a matter for the jury under proper direction."

[50] To dismiss the appeal as the majority did is to disregard the requirement of a unanimous verdict on the part of the jury and to "substitute trial by an appeal court for trial by jury." Such an error is apt to deny the application of the proviso because it means that it cannot be said that no substantial miscarriage of justice has actually occurred.

[Footnotes omitted.]

25. Reference may also be made to two passages in the judgment of Gageler J (at [53] and [55]-[56]):

[53] For the appellate court to conclude that no substantial miscarriage of justice "has actually occurred" is for the appellate court to conclude that, notwithstanding the error or other irregularity, no substantial miscarriage of justice "in fact" occurred. And for the appellate court to conclude that "no substantial miscarriage of justice" in fact occurred is for the appellate court to conclude that the error or irregularity affected neither: (1) the outcome of the trial, such as to have denied the appellant "a chance of acquittal which was fairly open to him or her"; nor (2) the process of the trial, to an extent sufficient to warrant the conclusion that a substantial miscarriage of justice occurred without need of inquiry into its effect on the outcome of the trial.

…

[55] Except where the appellate court concludes that the error or irregularity

led to a failure of process so serious as to have amounted without more to a substantial miscarriage of justice, "deciding whether there has been no substantial miscarriage of justice necessarily invites [the] attention [of the appellate court] to whether the jury's verdict might have been different if the identified error [or irregularity] had not occurred".

[56] The ultimate question for the appellate court in considering the application of the proviso is then whether the error or irregularity denied the appellant a real chance of acquittal or, to put the same question another way, whether the jury's verdict would inevitably have been the same if the identified error or irregularity had not occurred. Only if the appellate court after reviewing the record of the trial confidently answers that ultimate question in the affirmative can the appellate court conclude that no substantial miscarriage of justice has actually occurred.

[Footnotes omitted.]

Evidence at the Trial

26. At about 11pm on the evening of Friday 5 March 2010 the complainant, a woman aged in her forties, started drinking at her home. She drank six cans of pre-mixed bourbon and coke. She then went to the Sly Fox Hotel in Enmore. She arrived at about 1:00am. When she arrived at the hotel she continued to drink alcohol until about 6:00am.

27. At the hotel she met the applicant, who was then 17 years old, and some of his friends. CCTV footage from inside the hotel showed the two of them kissing and generally being affectionate towards each other.

28. At about 5:47am the two of them left the hotel together. CCTV footage showed them walking down the street holding hands. They walked a short distance to London Street where an eyewitness, Ms Tsavaridis, saw them kissing. Ms Tsavaridis then saw them walk to an area near the residential flats near 3 London Street.

29. The complainant said she and the applicant ended up in a car park area. The complainant realised that the applicant wanted to have sexual intercourse with her. She did not want to. He was insistent and he chased her around a motor vehicle. She pleaded with him “not to do anything silly” and told him her son “would kill him” if her son knew what the applicant was about to do to her.

30. The complainant gave evidence that before she went out that night she did not have any scratches or injuries or wounds. The complainant stated that she was punched in the face and was then thrown on the ground. Her evidence was:

Q Did the accused say anything to you?

A. No. I think, at that stage, that’s when he punched me in the face.

Q Do you know how he did that? Did you see what happened?

A No I just felt it. I felt being punched in the face and then thrown on the ground.

Q On how many occasions were you punched in the face?

A At least two or three times …

31. The complainant told the applicant to think about what he was going to do. She “possibly” mentioned that she was probably the same age as his mother, and also mentioned her son. She was fearful and speaking in an angry tone and raised her voice.

32. The applicant started to take off the complainant’s trousers, and pushed her legs up high near her shoulders. The applicant inserted his penis inside her vagina for “probably a minute or so”. The punch to the head made her feel “really dizzy”. She said he then stopped because she was “fighting him”. The applicant then pulled up his trousers and left. The complainant said she remained where she was for a short time because she was “still scared”.

33. Witnesses from nearby apartment buildings heard yelling. Mr Hoonans heard a woman yelling words similar to "my son will get you" or "my son saw you" in a "deeply emotional" voice. He got out of bed and saw people fitting the description of the complainant and the applicant, with the complainant walking towards the man and yelling. He said the man looked nervous and was backing away from her. He said she got within an arm’s reach but did not make contact with the man. Mr Brun was awoken to sounds of a woman yelling and swearing with an angry tone to her voice. Mr Jackson and Ms Cresswell also heard a woman yelling. Mr Knight and Ms Angelucci heard a woman yelling abusively and angrily.

34. When the applicant left he took the complainant's handbag. As he walked away from the scene he looked through it for cash before dropping the handbag on the ground and hailing a taxi. The complainant did not notice that he took her bag at the time. (The applicant pleaded guilty to an offence of “steal from person” in relation to the handbag).

35. The complainant returned to the Sly Fox Hotel and the police were called. Senior Constable Oregan arrived in response to a radio broadcast at 7am. The complainant was not wearing any shoes and had a 2 cm cut which was bleeding on the top of her right foot. Her whole long sleeve top was quite dirty. The Senior Constable observed that the complainant was “quite hysterical and distressed”. The complainant told her that the applicant had hit her around the head ‘a couple of times’, that he wouldn’t stop, and that she had made reference to her son.

36. A statement of Ms Fiona Thompson from the NSW Ambulance Service dated 22 March 2013 was admitted and read to the jury. Ms Thompson attended the Sly Fox Hotel at 7:21am. The complainant told her she had been sexually assaulted but Ms Thompson could not remember exactly what the complainant said. At para 7, Ms Thompson said:

1. the complainant “told us she had been hit to the right side of the face with a closed fist and that she had been hit about five times”;

2. the complainant had an abrasion to her left foot; and

3. she could not see any other injuries.

37. Photographs of the complainant taken by police on 6 March 2010, including a close up photograph of her left cheek. Detective Ross noticed that the complainant “appeared to have swelling and some slight bruising to her left cheek” as well as a generally dishevelled appearance. Detective Ross was not cross examined.

38. The complainant was medically examined by Dr Moynham on 6 March 2010. She complained to the doctor of being hit to the head in the course of the sexual assault incident. Dr Moynham observed and noted on the body map diagrams, a “slight red bruise about 2cm diameter” on the right upper side of the complainant’s face/head.

39. Dr Moynham also described a scratch of approximately 2 centimetres long on the right inner aspect of the instep and a small abrasion above the knuckle of the index finger on the left hand. Dr Moynham also observed abrasions to parts of the complainant’s genitalia which could be consistent with either consensual or non-consensual intercourse. Dr Moynham agreed in cross-examination that he did not notice any other swelling or bruising to the complainant’s face and, if he had done so, he would have noted it. He said that both of the complainant’s eyes were “puffy” because she had been crying. He said a non-expert may mistake that for bruising or swelling.

40. A blood sample was taken from the complainant between 11:00 and 11:15 am. It revealed her blood alcohol level was 0.164 grams of alcohol per 100mL of blood. Swabs were also taken from the complainant which later revealed the applicant’s DNA on the complainant’s vulva, underpants and belt.

41. On 20 July 2012 the applicant was interviewed by the police. In response to the sexual assault allegation he said he had never done anything like that and he “one hundred per cent” did not do it. He did not give an alternative version of the events. He was informed of the allegation about stealing the handbag and when asked what he could say about that he said “I’ve no idea”.

The Course of the Trial

42. In his opening address the Crown Prosecutor told the jury the offence had four elements. After explaining the first three elements, the Crown Prosecutor said:

…the fourth element is that the accused occasioned bodily harm to her. In this case the evidence will be that she was punched by the accused and you’ll see some evidence that will show some injury to her.

43. He then gave a short summary of the anticipated evidence. That summary suggested that the punching occurred “immediately before” the sexual intercourse.

44. The applicant’s counsel then addressed the jury. He indicated that consent was the critical issue. He did not specifically address the fourth element.

45. The complainant gave evidence followed by the remainder of evidence described above. The applicant did not give evidence.

46. In his closing address, the Crown Prosecutor said:

[The complainant] says she suffered her injuries as a result of what happened with the accused either being struck by the accused, sexually assaulted by the accused or otherwise being knocked to the ground which accounts for her other injuries.

From what I gather the defence may be suggesting to you that the reason for her injuries around her head and her hands and her face and her feet was because she must have been drunk and fell down in some sort of drunken stupor. But there's no evidence of that whatsoever from the CCTV footage and it was put to her that none of her injuries were as a result of what the accused did to her and I would submit to you that if you take away the fact, a possibility of her falling down because of being drunk, in my submission, it only leaves her explanation for how the injuries, themselves, happened.

47. In his closing address, the applicant's counsel said:

In relation to what was described by the Crown as injuries in relation to [the complainant] I'll say a few things about that. You heard from the doctor that made observations. The injuries to the vagina area, the small abrasions say nothing about whether the sexual intercourse was consensual, nothing about that stands out. Injuries such as those can be caused by consensual sex… I’d suggest to you that the other injuries on her body were of no particular moment, the doctor observed slight bruise about 2 centimetres in diameter on her head, a slight bruise. [The complainant] said she’d been punched in the face two or three times. You might well think that if that was the case then there would have been noticeable injuries to the face and significant. The doctor didn’t notice anything on the face. You would expect that if this male accused had punched her as alleged then only hours later when observed closely by a doctor, that’s his very task, there would have been noticeable injuries to the face, more than a small bruise on the head…

48. During his summing up the trial judge stated:

She had a number of injuries; a slight red bruise about two centimetres in diameter on the right upper part of the forehead; a scratch approximately two and a half centimetres long on the right inner aspect of the instep, that is the instep of the foot; a small abrasion approximately above the metacarpal phalangeal joint of the index finger of the left hand - he was referring to this finger here next to the thumb, on the left hand…

[Dr Moynham] agreed in cross-examination that he had done a thorough physical examination, and made notes about bruises, and the like. He said he noticed the injury on the head. Did not notice anything on her left cheek – he would have made a note of that if he had. He was asked this question:

Q. Swelling and bruising is something you noticed, wouldn’t you?

A. I would have noticed, you know. I think at the time both her eyes were puffy because she’s been crying. That’s not – I wouldn’t say it was the same swelling though, but it could possibly by some people to be thought of as swelling.

In that regard I am not criticising the detective, she made certain observations, but they are no substitute for what we would call the expert opinion of the doctor…

Conclusion regarding proviso under s 6(1)

49. Under s 6(1) of the Criminal Appeal Act, this Court is required to allow an appeal against conviction if the Court "is of opinion … that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law", "provided that the court may … dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred": see Lane at [25].

50. There are two reasons for this Court not applying the proviso in the present case.

51. First, I am not persuaded that the evidence, properly admitted at the trial, proved beyond reasonable doubt the accused was guilty of the offence of aggravated sexual assault upon the basis, as argued, that the aggravation consisted of the applicant punching the complainant in the face or head.

52. It is true that the complainant gave a consistent account of being punched by the applicant. The applicant stated that she had been punched multiple times. However, the account was affected by contrary contemporaneous evidence, inconsistencies in her evidence, and, in one additional respect, the reliability of her account given the amount of alcohol consumed by the complainant.

53. The complainant’s evidence that she was punched in the face by the applicant was significantly undermined by the evidence of Dr Moynham; both as to his observations of the complainant soon after the sexual assault and his opinion that Detective Ross’s account of “swelling and slight bruising” to the complainant’s left cheek represented a misunderstanding by a lay witness; the complainant’s eyes were puffy due to crying.

54. Notwithstanding the complainant’s account she was punched two to five times to the face (depending upon which account was accepted), Dr Moynham, after careful observation, observed no injuries other than a single bruise to her forehead (a slight red bruise about 2 centimetres in diameter on the right upper part of her forehead). There is reasonable doubt as to whether the bruise to the forehead was sustained by the physical encounter between the applicant and the complainant in the car park rather than as a result of being punched.

55. There were clearly significant issues with the complainant’s evidence. It must also be borne in mind that the complainant was highly intoxicated (her blood alcohol level at about 11 am was 0.164 grams of alcohol per 100mL of blood), she was unable to remember certain events on the night such as kissing and cuddling the applicant (notwithstanding such acts were recorded on CCTV), and she gave inconsistent accounts of her being punched (between being hit two to three times on the face and five times with a closed fist in her account to the ambulance officer on the day of the assault). Further, whilst the complainant’s evidence was that she did not initially leave the car park because she was “scared”, she soon after the sexual assault forcefully confronted the applicant in view of a number of witnesses.

56. I consider that the applicant is correct to submit that the evidence admitted at trial did not establish beyond reasonable doubt that the applicant punched the complainant in the face or head or caused the bruise observed by Dr Moynham.

57. Secondly, it is arguable the misdirection at first instance was apt to prevent the performance of the jury of its function. The jury was directed not to have regard to whether any harm was occasioned intentionally. The issue of recklessness was not raised with them. Notwithstanding its opening submission, the Crown did not specifically direct attention to a punch. Nor did the trial judge address those matters in summing up.

58. In any event, I accept the submission of the applicant that a series of injuries were left open to the jury other than harm caused by punching. It is conceivable that the jury may have convicted upon the basis of these other injuries, without any instruction, to consider whether the injuries were inflicted “intentionally” or “recklessly”. Further there is significant doubt, on the evidence, as to whether they were, in fact, inflicted intentionally or recklessly.

SUBSTITUTED VERDICT

59. In the light of these conclusions (and consistently with earlier discussion in this judgment), it is appropriate that the Court substitute the verdict below with a verdict of guilty to sexual assault contrary to s 61I of the Crimes Act and resentence the applicant accordingly.

RESENTENCING

Introduction

60. The sentence imposed at first instance was made wholly cumulative on earlier sentences.

61. The applicant was charged on 28 July 2010 with an offence of aggravated robbery with wounding. He was sentenced with respect of this offence on 10 December 2010 to a term of 4 years imprisonment with a non-parole period of 2 years. The sentenced commenced on 28 August 2011 and the non-parole period expired on 27 August 2013.

62. After coming into custody for the above offence, the applicant was charged with aggravated robbery and inflicting actual bodily harm. He was sentenced in the Children’s Court (the previous offence having been dealt with in the Sydney District Court) on 1 November 2010. He received a control order of 18 months commencing on 29 November 2010 and concluding on 28 August 2011.

63. Overall, earlier sentences imposed upon the applicant involved a total sentence of 5 years and 1 month with a total non-parole period of 3 years and 1 month. Those sentences were imposed in the Children's Court and the District Court for a ten offences including assault, robbery in company, aggravated robbery, aggravated robbery with wounding and aggravated break, enter and commit serious indictable offence.

60. As earlier mentioned, a subsequent offence of wounding with intent to commit grievous bodily harm resulted in the applicant being sentenced to an additional term of 4 years and 3 months imprisonment with a non-parole period of 12 months. This was accumulated on the sentence for aggravated sexual assault imposed after the conviction for the same, which is the subject of this appeal.

61. Having regard to the findings earlier made in this judgment, the resentencing exercise must be affected by the fact that the relevant maximum penalty for the sexual assault offence is 14 years imprisonment rather than the previously applicable 20 years imprisonment. Aside from this consideration, the applicant accepted, subject to De Simoni considerations (R v De Simoni (1981) 147 CLR 383 (“De Simoni”)) concerning some aggravating features, that the factual findings of the trial judge may be adopted for the purposes of resentencing. It was submitted that, upon the substituted verdict and lower maximum penalty, the Court should impose a lesser sentence than originally imposed by the trial judge. In that light, I will return to the relevant findings of the trial judge.

Remarks on sentence

66. After setting out the offences (including reference to the wrong maximum penalty for the s 61J offence), the trial judge allowed a discount of 10% for the utilitarian value of plea with respect to the stealing offence. His Honour then made a number of findings which, without repeating the earlier summary of the factual background, were as follows:

1. The complainant, by the time she left the hotel, was intoxicated “to a degree” from the alcohol that she had consumed the previous night and the morning of the day of the offence committed. The applicant “did not appear anywhere near as intoxicated” as the complainant.

2. At the hotel, the applicant and complainant engaged in “some kissing and holding”. They left the hotel walking in company “hand-in-hand along Enmore Road”. There was further kissing and “petting”.

3. The applicant left the hotel proposing to have sex with the complainant which he ultimately did, albeit without her consent.

4. Once in the car park of a garage, the complainant made it clear that she did not wish to have sex with the applicant and tried to get away from him. He chased her around a vehicle. She thought she got away from him “but he merely doubled back and suddenly appeared in front of her”. He was able to outwit her and subsequently overpower her. She pleaded with him not to do anything “silly” and told him that “her son would kill him if he knew what the applicant was about to do with her because she clearly understood what was happening”. The trial judge then made findings as to punching which have been earlier dealt with in this judgment.

5. The complainant was pushed to the ground. She tried to push the applicant off her. She was fighting him and continued to do so until he stopped having sexual intercourse.

6. The applicant had the “presence of mind not only to pick up the handbag but as he walked away to search through it, take what he wanted, which was cash, and dumped the handbag and the rest of the contents which were no good to him somewhere further down another laneway”.

7. The complainant was clearly distressed immediately after the assault occurred. The trial judge found that “there can be no doubt that this was a terrifying experience for the [complainant]… in circumstances where the applicant failed to heed her pleas for mercy”.

8. The applicant perpetrated a “violent rape upon the victim who could not defend herself, absent the aggravation of being a planned affair”. I accept the submission of the Crown that it is not a breach of the principle in De Simoni to have regard to that finding, as there is ample evidence to sustain a finding that the complainant verbally and physically attempted to stop the applicant having sexual intercourse with her but was unable to do so because he persisted until he physically overpowered her without the need for recourse to the act of punching.

67. Before turning to some observations made by the trial judge as to accumulation, I will examine his findings as to deterrence and subjective features.

68. His Honour considered that the sentences ultimately imposed on the applicant may have a salutary effect bearing in mind the proper need to have regard to personal deterrence. However, as the applicant was under the age of 18 years when he offended, his Honour had regard to the promotion of the applicant’s rehabilitation and attached less weight to general deterrence. His Honour placed greater weight on personal or specific deterrence because the applicant had, to some extent, shown a complete disregard for acceptable behaviour and the rights and dignity of others. His Honour found that the applicant “raped a mature woman in circumstances where he well knew that she was not consenting and where she had appealed to him in very unequivocal terms to be merciful…”. The trial judge did not accept the applicant had no memory of the offending conduct.

69. As to the subjective features of the matter, his Honour made the following findings:

1. The applicant was 17 years and 8 months of age at the time of the offences.

2. The trial judge accepted that the applicant was, to some extent, immature and that may have had a part to play in the offending conduct but found “on the other hand, the penetration of a woman’s vagina with an erect penis also reflects a degree of deliberation which does not speak of immaturity”.

3. The applicant was of Tongan ancestry and came to Australia in 2002. His brother was killed during a brawl in 2008, a tragic event which precipitated the applicant’s involvement in the use of drugs and criminal activity.

4. As to mitigation, his Honour found “there is very little however that arises by way of mitigating factors under [s 21A(3) of the Sentencing Act]. The applicant did have a record of previous findings of guilt, albeit in the Children’s Court, he was not a person of good character. I cannot conclude even now, 3 years on, that he is unlikely to re-offend or he had good prospects of rehabilitation. He has shown no remorse”.

5. The plea of guilty is “a mitigating matter for the stealing offence”.

70. The above summary of the considerations by the trial judge were not traversed by the applicant, do not offend against the principle in De Simoni and, in my view, were available on the evidence. I propose to adopt them for the purposes of sentencing the applicant under the substituted verdict.

71. Those features, when translated to the s 61I offence, place this matter in the more serious range of such offences. The applicant sexually assaulted a mature woman in circumstances where he knew she was strenuously resisting that assault and had appealed to him in very unequivocal terms to be merciful. He prevailed over her in a violent encounter. The complainant was unsurprisingly traumatised by the sexual assault.

72. To this may be added the offence of stealing from the complainant showed a complete disrespect for the complainant. The applicant took advantage of her when she was vulnerable. There is no challenge to the sentence for that offence but it may be noted that the applicant received the benefit of having his sentence for stealing from the complainant served wholly concurrently with the sentence for aggravated sexual assault.

73. Due regard needs to be had to the fact that the offence did not involve planning and that, at the time of the offence, the offender was a young person. In the result, there is no standard non-parole period for the offence with respect to the applicant and general deterrence should not attract significant weight (the focus being upon the need for rehabilitation). However, specific deterrence must feature in this matter given the applicant’s wanton disregard for the rights and dignity of the complainant in circumstances where the reference by her to her age and circumstances were ignored by the applicant and he took advantage of her state of intoxication.

74. Regard also needs to be had to his lack of remorse and the low prospect of not re-offending together with a very poor criminal record, noting that the applicant was a juvenile for all offences (and sentencing principally occurred in the Children’s Court).

75. I note before passing upon the sentences that should be imposed, the following passages from the remarks of the trial judge which should be taken into account in resentencing:

The sentence imposed in the District Court for the robbery with wounding obviously took into account at that time existing control orders. In submissions not much concentration was had upon this aspect of the matter because the prisoner has been in custody now since 28 July 2010 up until the present time, serving various sentences of detention in respect to the matters I have identified. Having regard to the sentence of imprisonment with a non-parole period, the Crimes (Sentencing Procedure) Act and general principles relating to totality of sentence suggest that I am obliged to impose sentences that commence at least at the expiry of the non-parole period previously fixed by the District Court.

This was, as I understood it, accepted from the bar table although no specific comment was made about. I do not have a transcript however of all the submissions. Thus in accumulating any sentences I impose upon that non-parole period, that by itself is a 'special circumstance'. I am not only imposing a sentence accumulative upon that non-parole period, I am also sentencing the offender to a term of imprisonment which will be required to take into account a further period of 13 months in custody that existed before the commencement of the non-parole period recently expired. Thus the sentence I will impose will commence three years and one month after the offender came into custody, at a time when he was, as I would understand it, barely 18 years of age.

76. Based on those considerations, I would impose the following sentence for the first count of sexual assault contrary to s 61I of the Crimes Act:

1. a total sentence of 6 years;

2. a non-parole period of 3 years commencing 28 August 2013 and expiring on 27 August 2016.

Application pursuant to s 59 of the Sentencing Act

77. The applicant submitted that, if he “succeeds”, this Court should grant an application pursuant to s 59 of the Sentencing Act, namely, if he received a lesser sentence then the Court should vary the commencement date of his subsequent sentence. It was submitted that the subsequent sentence should commence no later than the expiration of any new non-parole period on the sexual assault offence.

78. The non-parole period of the sentence imposed upon the applicant by the trial judge expired on 27 February 2017. On 18 December 2014, Charteris DCJ sentenced the applicant for an offence of wounding with intent to cause grievous bodily harm to which the applicant pleaded guilty. The offence occurred in prison. Charteris DCJ considered the applicant’s history and determined, in the exercise of his sentencing discretion, that he would commence the period of imprisonment from the expiration of the non-parole period for the aggravated sexual assault offence.

79. The Crown submitted there was no appeal ground with respect to this sentence imposed by Charteris DCJ. In those circumstances should this Court determine to exercise its power under s 59 of the Sentencing Act, the variation must be restricted to an adjustment to the commencement date. This adjustment should be limited to the subsequent sentence commencing upon the expiration of the non-parole period of the sentence imposed by this Court upon the applicant for the sexual offence.

80. In my view, given the history of the respective sentences imposed, the applicant’s application pursuant to s 59 should be granted.

ORDERS

81. I propose the following orders be made:

1. Extension of time to appeal to 7 February 2018 is granted;

2. Leave to appeal against conviction pursuant to r 4 of the Criminal Appeal Rules is granted;

3. The appeal is upheld;

4. Pursuant to s 7(2) of the Criminal Appeal Act 1912, instead of allowing the appeal, the verdict of the jury in District Court proceedings 2012/226372 of guilty to the offence contrary to s 61J of the Crimes Act 1900 is substituted by a verdict of guilty to an offence contrary to s 61I of the Crimes Act 1900;

5. Pursuant to s 7(2) of the Criminal Appeal Act 1912, the applicant is sentenced to imprisonment comprising of a non-parole period of 3 years commencing 28 August 2013 and a balance of the term of sentence of 3 years; and

6. Pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999, the commencement date of the sentence imposed in the District Court on 18 December 2014 is varied to 28 August 2016.

82. R A HULME J: I agree with Walton J, for the reasons he has provided, that the conviction for the offence contrary to s 61J cannot be sustained in the light of the jury having been misdirected as to the element of aggravation. The error in the indictment which lead to the misdirection underscores an elementary aspect of practice in criminal law: that one should always have recourse to the terms of the statutory provision no matter how experienced a prosecutor or defence counsel one might be.

83. I also agree with Walton J that it cannot be concluded that the evidence established the element of aggravation beyond reasonable doubt; the necessary precondition to the application of the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW): Lane v The Queen [2018] HCA 28 at [38].

84. I agree with the orders proposed by Walton J.

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Amendments

06 August 2018 - cover sheet: "Norrish DCJ" to "Norrish QC DCJ"

Decision last updated: 06 August 2018