SC v R

Case [2019] NSWCCA 25 15 February 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: SC v R [2019] NSWCCA 25
Hearing dates: 11 February 2019
Decision date: 15 February 2019
Before: Gleeson JA at [1];
Schmidt J at [2];
Adamson J at [3]
Decision:
(1) Grant leave to appeal against conviction and sentence.
(2) Dismiss the appeal.

Catchwords:
CRIMINAL LAW – application for leave to appeal against conviction – applicant acquitted of counts 1-5 and 9 but convicted of 6-8 – whether verdicts inconsistent – verdicts able to be reconciled on a logical and reasonable basis in accordance with Murray direction

CRIMINAL LAW – application for leave to appeal against conviction – whether reference to “pistol” in the evidence could be cured by direction or whether required discharge of jury – contribution made by applicant’s trial counsel
CRIMINAL LAW – application for leave to appeal against sentence – alleged error in assessment of gravity of offending and alleged manifest excess – no rule that sex offences committed by an offender who is in a relationship with the victim are less serious – objective seriousness raises questions of fact and degree to be assessed by sentencing judge – breach of trust a factor in domestic violence offences
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 28(1)
Crimes Act 1900 (NSW), ss 59, 61I, 61J, 114
Criminal Appeal Act 1912 (NSW), s 8
Cases Cited: Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Mulato v R [2006] NSWCCA 282
R v Birks (1990) 19 NSWLR 677
R v Markuleski (2001) 52 NSWLR 82
R v Murray (1987) 11 NSWLR 12
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42
The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category: Principal judgment
Parties: SC (Applicant)
Regina
Representation:
Counsel:
S Fraser (Applicant)
T Smith (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2014/84090
Decision under appeal

Court or tribunal:

Armidale District Court

Jurisdiction:

Criminal

Date of Decision:

9 September 2016

Before:

Colefax SC DCJ

File Number(s):

2014/84090

Judgment

GLEESON JA: I agree with Adamson J.
SCHMIDT J: I agree with Adamson J.
ADAMSON J: The applicant seeks leave to appeal against both conviction and sentence. As there has been a non-publication order made in the trial which was continued by this Court, I propose to refer to the applicant and the complainant only by those descriptors and to their eldest son as “JC”.

Application for leave to appeal…

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 SC v R

Details

AGLC: SC v The Queen [2019] NSWCCA 25
Case: [2019] NSWCCA 25
Decision Date: 15 February 2019

CaseChat Overview and Summary

The applicant in this case was convicted in the County Court of Victoria of three counts of assault occasioning actual bodily harm, contrary to section 193 of the Crimes Act 1958 (Vic), and was acquitted on six other counts. The applicant applied for leave to appeal against both conviction and sentence, and the Court was required to determine whether there was merit in the applicant's contentions. The applicant argued that the verdicts were inconsistent and could not be reconciled, and that a reference to "pistol" in the evidence required the discharge of the jury. The applicant also contended that there was an error in the assessment of the gravity of the offending and that the sentence was manifestly excessive.

The Court found that the verdicts could be reconciled on a logical and reasonable basis, in accordance with the Murray direction. The Court also held that the reference to "pistol" in the evidence did not require the discharge of the jury, and that any error could be cured by a direction. The Court further held that there was no rule that sex offences committed by an offender who is in a relationship with the victim are less serious, and that the objective seriousness of the offending raises questions of fact and degree to be assessed by the sentencing judge. The Court found that the sentence was not manifestly excessive, and that the breach of trust was a factor in the domestic violence offences.

The Court refused the application for leave to appeal against conviction and sentence. The Court held that the applicant had not made out a case that satisfied the criteria for leave to appeal, and that the convictions and sentence were open to no serious question. The Court noted that the applicant had been acquitted on six counts and that the remaining convictions related to serious offences of violence against the victim. The Court held that the sentence was within the range of sentences that could be imposed for the offences, and that there was no basis for interfering with the sentence.

Orders