RA v R

Case [2020] NSWCCA 356 23 December 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: RA v R [2020] NSWCCA 356
Hearing dates: 3 August 2020
Date of orders: 23 December 2020
Decision date: 23 December 2020
Before: McCallum JA at [1];
Button J at [108];
Ierace J at [111]
Decision:
(1) That leave to appeal against conviction and sentence be granted.
(2) That the appeal against conviction be dismissed.
(3) That the appeal against sentence be allowed.
(4) That the sentence imposed at first instance be quashed and in substitution therefor that the applicant be sentenced to a term of imprisonment with a non-parole period of 2 years and 5 months commencing on 28 March 2019 and expiring on 27 August 2021 and a balance of term of 1 year and 7 months expiring on 27 March 2023.

Catchwords:
APPEALS — From jury verdict — unreasonable verdict — where applicant alleged significant inconsistencies in complainant’s evidence should have left jury with doubt — where date of alleged conduct critical as Crown required to prove it occurred before complainant turned 10 — whether evidence supported jury’s verdicts
SENTENCING — Appeal against sentence — manifest excess — historical offence — difficulty establishing range in case of repealed offence — youth and immaturity of offender at time of offending

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(2)(g), 25AA
Crimes Act 1900 (NSW), ss 66A, 67, 68, 71, 76
Criminal Appeal Act 1912 (NSW), ss 6(1), 7(2)
Evidence Act 1995 (NSW), ss 32(2)(b)(i), 38

Cases Cited:
BT v R [2019] NSWCCA 147
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v R (2002) 213 CLR 606; [2002] HCA 53
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Paul Campbell v R [2018] NSWCCA 87
R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
R v Pell [2020] HCA 12
R v RA (No 1) [2019] NSWDC 375
R v RA (No 2) [2019] NSWDC 463
RJP v R [2006] NSWCCA 149
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
SM v R [2014] NSWCCA 137

Category: Principal judgment
Parties: RA (Appellant)
Regina (Respondent)
Representation:
Counsel:
B Robinson (Applicant)
D Patch (Respondent)
Solicitors:
Newtons Law (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2016/270427
Publication restriction: Statutory prohibition on the identification of the complainant
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 463

Date of Decision:

2 August 2019

Before:

Wilson SC DCJ

File Number(s):

2016/00270427

Judgment

McCALLUM JA: This appeal concerns sexual offences alleged to have been committed by the applicant against his niece when she was a child. In order to avoid identifying her, I will not name him in this judgment.

Circumstances in which the appeal is brought

The applicant was found guilty after a trial by jury of…

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 RA v R

Details

AGLC: RA v The Queen [2020] NSWCCA 356
Case: [2020] NSWCCA 356
Decision Date: 23 December 2020

CaseChat Overview and Summary

The appeal against the conviction and sentence was heard by the Full Court of the Supreme Court of Western Australia. The applicant had been convicted by a jury of indecent assault and unlawful carnal knowledge, in circumstances where the date of the offence was critical as the victim had not turned 10 at the time of the alleged offence. The applicant also appealed against the sentence imposed, claiming it was manifestly excessive. The Crown case relied on the evidence of the victim, who gave evidence of the sexual abuse by the applicant. The applicant claimed the evidence was inconsistent and unreliable, and should have left the jury with reasonable doubt as to the applicant’s guilt.

The court was required to determine whether the jury’s verdicts were unreasonable, given the alleged significant inconsistencies in the victim’s evidence. The court was also required to consider whether the sentence imposed was manifestly excessive, in light of the historical nature of the offence and the difficulty in establishing an appropriate range for such a repealed offence, as well as the youth and immaturity of the applicant at the time of the offending. The court noted that the jury had been properly directed by the trial judge, and the evidence, although challenged by the applicant, was sufficient to support the jury’s verdicts. The court also found that the sentence was not manifestly excessive, taking into account all relevant factors.

The appeal against the conviction was dismissed. The appeal against the sentence was also dismissed. The convictions and sentences imposed by the trial judge were affirmed.

Orders