5. The aggregate sentence imposed at the Newcastle District Court on 11 December 2020 is quashed and, in its place, the Applicant is sentenced to a term of imprisonment for eight years and six months, comprising a non-parole period of five years commencing on 10 March 2020 and expiring on 9 March 2025 with a balance of term of three years and six months commencing on 10 March 2025 and expiring on 9 September 2028;
6. The earliest date upon which the Applicant will be eligible for release on parole is 10 March 2025.
Catchwords:
CRIMINAL LAW – appeal – appeal against conviction and sentence – aggravated indecent assault and sexual touching of a child between the age of 10 and 16 years – conviction ground asserted that a miscarriage of justice arose as trial Judge did not additionally remind and identify for the jury inconsistencies in the complainant’s evidence following the replay of JIRT interview during jury deliberations - no such application made at trial by defence counsel – consideration whether Court of Criminal Appeal should view pre-recorded evidence for the purpose of determining ground of appeal – no forensic purpose established for Court to view JIRT interview – leave to rely on ground refused – sentence ground asserted that aggregate sentence was manifestly excessive by reason of allegedly excessive indicative sentences – significance of “problematic” standard non-parole period for s.61M(2) Crimes Act 1900 offences – absence of standard non-parole period for s.66DB(a) Crimes Act 1900 offence – aspects of indicative sentences resulted in manifestly excessive aggregate sentence – Applicant resentenced
[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
Stevenson v R [2022] NSWCCA 133
Case
[2022] NSWCCA 133
Decision Date
CaseChat Overview and Summary
The applicant, Stevenson, appealed against his conviction and sentence for aggravated indecent assault and sexual touching of a child between the ages of 10 and 16 years. The appeal was heard in the Court of Criminal Appeal of the Supreme Court of New South Wales. The primary ground of appeal was that a miscarriage of justice occurred as the trial judge did not remind the jury of the inconsistencies in the complainant’s evidence following the replay of the JIRT interview during jury deliberations. This ground was not raised by defence counsel at the trial. Additionally, Stevenson appealed against the severity of his aggregate sentence, asserting that it was manifestly excessive due to allegedly excessive indicative sentences.
The Court of Criminal Appeal considered whether it should view the pre-recorded JIRT interview to determine the ground of appeal. The Court held that there was no forensic purpose for it to view the interview, as the ground of appeal related to the trial judge’s failure to remind the jury of inconsistencies, not the content of the interview itself. Consequently, the leave to rely on this ground was refused. Regarding the sentence, the Court acknowledged that aspects of the indicative sentences resulted in a manifestly excessive aggregate sentence. However, the Court found that the absence of a standard non-parole period for one of the offences did not render the aggregate sentence manifestly excessive. The applicant was resentenced by the Court of Criminal Appeal.
The Court of Criminal Appeal upheld the conviction but varied the sentence. The applicant's sentence was reduced, taking into account the manifestly excessive nature of the aggregate sentence. The Court did not find a miscarriage of justice in the trial judge’s conduct regarding the JIRT interview, and the sentence was adjusted to reflect the appropriate severity of the offences committed.