PARTIES: RWB (Appellant/Respondent) Regina (Respondent/Appellant)
JUDGMENT OF: Simpson J Johnson J McCallum J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 2009/7013
LOWER COURT JUDICIAL OFFICER: Madgwick ADCJ
LOWER COURT DATE OF DECISION: 4 December 2009
COUNSEL: J Dwyer (Appellant/Respondent) R J Button SC (Respondent/Appellant)
SOLICITORS: S O'Connor (Legal Aid Commission) (Appellant/Respondent) S Kavanagh (Solicitor for Public Prosecutions) (Respondent/Appellant)
CATCHWORDS: CRIMINAL LAW – particular offences – offences against the person – sexual offences – sexual intercourse with child under 10 years – inciting an act of indecency by person under 16 years – assault with act of indecency on person under 10 years CRIMINAL LAW – appeal against conviction – procedure – directions to jury – definition of “beyond reasonable doubt” – circumstances permitting expansion of “beyond reasonable doubt” direction do not arise – no miscarriage of justice – submission to jury by Crown prosecutor – Browne v Dunn – submission adopted by trial judge – caution should be exercised in directions to jury concerning failure of accused’s counsel to comply with rule in Browne v Dunn – practical effect of direction – no miscarriage of justice CRIMINAL LAW – procedure – r 4 Criminal Appeal Rules – directions the subject of the grounds of appeal not objected to at trial – grounds ought to be determined on their merits – grounds of appeal do not involve “question of law alone” – leave required – s 5(1)(b) Criminal Appeal Act – Rasic v R – leave granted – application of proviso – s 6 Criminal Appeal Act – assessment of evidence in accordance with Weiss v R – no substantial miscarriage of justice in conviction of appellant – errors established did not impact upon correct verdict – appeal against conviction dismissed CRIMINAL LAW – Crown appeal – error in failing to impose sentences in accordance with Pearce v The Queen – sentencing under past sentencing patterns – care must be taken not to evaluate sentences by reference to current expectations – some sentences imposed failed to reflect criminality and objective gravity of offences – error in taking into account circumstances of hardship in appellant’s custody – failure to accumulate – aggregate sentence also manifestly inadequate – sentences quashed, appellant re-sentenced
[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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AGLC
RWB v R [2010] NSWCCA 147
Case
[2010] NSWCCA 147
Decision Date
CaseChat Overview and Summary
In the case of RWB v R, the appellant was convicted of multiple serious sexual offences against a child under the age of 10, including sexual intercourse, inciting an act of indecency, and assault with an act of indecency. The case was heard in the court of appeal where the appellant contested the conviction and sentence. The appellant argued that the trial judge erred in the directions given to the jury and that the sentences imposed were manifestly inadequate. The Crown, on the other hand, argued that the appeal against conviction should be dismissed and that the sentences were not manifestly inadequate.
The primary legal issues before the court were whether the trial judge's directions to the jury were erroneous and whether the sentences imposed were manifestly inadequate. The court was required to determine if the directions given to the jury regarding the standard of proof and the failure of the appellant’s counsel to comply with the rule in Browne v Dunn amounted to a miscarriage of justice. Additionally, the court needed to assess whether the sentences imposed by the trial judge reflected the criminality and objective gravity of the offences and whether they were manifestly inadequate.
The court held that the directions given to the jury, although requiring caution, did not result in a miscarriage of justice. The practical effect of the directions did not undermine the verdict, and thus, the appeal against conviction was dismissed. The court further determined that the sentences imposed by the trial judge did not adequately reflect the seriousness of the offences and that some sentences failed to accumulate properly. The sentences were quashed, and the appellant was ordered to be re-sentenced.
The court concluded that the errors in sentencing did not result in a substantial miscarriage of justice but acknowledged that the sentences did not appropriately reflect the gravity of the offences. The appeal against conviction was dismissed, and the sentences were quashed. The appellant was ordered to be re-sentenced in accordance with the principles set out in Pearce v The Queen.