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Pasoski v R

Pasoski v R

Case [2014] NSWCCA 309 15 December 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Pasoski v R [2014] NSWCCA 309
Hearing dates: 4 November 2014
Decision date: 15 December 2014
Before: Meagher JA at [1];
Hidden J at [65];
RS Hulme AJ at [66]
Decision:
1. Extend to 16 August 2014 the time for the giving of notice of appeal and notice of application for leave to appeal in respect of the convictions and sentence.
2. Grant leave to appeal in relation to conviction ground 1.
3. Quash the convictions on counts 7 and 8.
4. Direct a judgment and verdict of acquittal be entered on counts 7 and 8.
5. Leave to appeal refused in relation to conviction grounds 2 and 3.
6. Grant leave to appeal in relation to sentencing grounds 1 and 2.
7. Quash the aggregate sentence of imprisonment for five years and six months with a non-parole period of two years and nine months.
8. Sentence the applicant/appellant to an aggregate term of imprisonment for four years and eleven months with a non-parole period of two years and five and a half months ending on 18 October 2014 and to date from 4 May 2012.

Catchwords:
CRIMINAL LAW - application for extension of time to give notice of appeal against conviction and application for leave against sentence - where application for extension of time not opposed - where affidavit supporting extension of time unsatisfactory - discretionary power to extend time limit to be exercised having regard to the interests of justice in the case

CRIMINAL LAW - appeal against conviction - "context" evidence - where evidence admitted of poor relationship between applicant and complainant - where evidence not of prior sexual or other assaults against the complainant - whether trial judge erred in failing to give specific direction as to limited use to which evidence could be put - Evidence Act 1995 (NSW), ss 55, 97, 101, 135, 137

CRIMINAL LAW - appeal against conviction - where jury failed to reach unanimous decision on some charges - where trial judge gave majority verdict direction - where failure to examine juror on oath before giving direction - Jury Act 1977 (NSW), s 55F(2)(b)

CRIMINAL LAW - application for leave to appeal against sentence - whether fact that sexual assault occurred in home aggravating factor when applicant and complainant resided together at the relevant time - Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb)
CRIMINAL LAW - where aggregate sentence to be reassessed - Court to re-exercise discretion to form its own judgment as to appropriate aggregate sentence - Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(eb), 53A, 306I(5)
Crimes Act 1900 (NSW), ss 59, 61I
Criminal Appeal Act 1912 (NSW), ss 6(2), (3), 8, 10(1)(b)
Criminal Appeal Rules, rr 3B(2), 4
Criminal Procedure Act 1986 (NSW), s 306I
Evidence Act 1995 (NSW), ss 55, 95, 97, 101, 135, 137(2)
Jury Act 1977 (NSW), s 55F(2)(b)
Cases Cited: Andrews…

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.

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Details

AGLC: Pasoski v R [2014] NSWCCA 309
Case: [2014] NSWCCA 309
Decision Date: 15 December 2014

CaseChat Overview and Summary

The case of Pasoski v R was heard by the Court of Criminal Appeal in New South Wales. The applicant, having been convicted, sought an extension of time to give notice of appeal against his conviction and an application for leave to appeal against his sentence. The application for an extension of time was not opposed, but the sufficiency of the affidavit supporting the extension was questionable. The legal issues before the court included the admissibility of "context" evidence, the trial judge's direction to the jury, and the appropriate sentence for the sexual assault committed.

The court considered the discretionary power to extend the time limit for giving notice of appeal, exercising this power with a view to the interests of justice. Regarding the "context" evidence, the court noted that the evidence of a poor relationship between the applicant and the complainant was not of prior sexual or other assaults against the complainant. The court held that the trial judge did not err in failing to give a specific direction as to the limited use to which this evidence could be put. The court also addressed the issue of the jury's failure to reach a unanimous decision on some charges and the trial judge's direction to allow a majority verdict. The court found that the failure to examine a juror on oath before giving this direction was not a ground for allowing the appeal.

The court further assessed whether the fact that the sexual assault occurred in the home was an aggravating factor, given that the applicant and the complainant resided together at the relevant time. The court found that this was indeed an aggravating factor. Finally, the court re-exercised its discretion to form its own judgment as to the appropriate aggregate sentence for the applicant, reassessing the sentence in light of the relevant statutory provisions. The court varied the sentence and made orders for the applicant to be re-sentenced.

Orders