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TDP v R; R v TDP

TDP v R; R v TDP

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Case Copied 3 December 2013 76 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: TDP v R; R v TDP [2013] NSWCCA 303
Hearing dates: 18/11/2013
Decision date: 03 December 2013
Before: Hoeben CJ at CL at [1]
Blanch J at [166]
R A Hulme J at [167]
Decision:
(1) In respect of the appeal against conviction, I would grant leave to appeal but dismiss the appeal.
(2) With respect to the Crown appeal against sentence, the orders which I propose are:
(a) The sentences in respect of counts 2, 3, 5 and 7 are quashed and in lieu thereof, the applicant is sentenced as follows:
Count 2 - A term of imprisonment with a non-parole period of 3 years commencing 15 May 2012 and expiring 14 May 2015, with a balance of term of 18 months expiring 14 November 2016.
Count 3 - A term of imprisonment with a non-parole period of 4 years commencing 15 May 2012 and expiring 14 May 2016, with a balance of term of 2 years expiring 14 May 2018.
Count 5 - A term of imprisonment with a non-parole period of 4 years commencing 15 May 2012 and expiring 14 May 2016, with a balance of term of 2 years expiring 14 May 2018.
Count 7 - A term of imprisonment with a non-parole period of 2 years and 6 months to date from 15 November 2015 and to expire on 14 May 2018, with a balance of term of 1 year and 6 months expiring 14 November 2019.
(b) The Crown appeal against sentence is otherwise dismissed.

Catchwords: CRIMINAL LAW - APPEAL AGAINST CONVICTION - nine counts of aggravated sexual intercourse without consent and two counts of aggravated indecent assault - offences occurring over 3Â½ years when complainant aged between 13 and 16 - applicant self-represented - alleged failure by Crown to place all relevant evidence before jury - relevance of toxicology report on complainant's hair - challenge to summing up by trial judge - alleged failure by trial judge to emphasise contradictions in complainant's evidence - alleged failure by trial judge to give a warning as to the unreliable nature of complainant's evidence - alleged failure by trial judge to adequately sum up as to corroboration of complainant's evidence - alleged miscarriage of justice due to incompetence of counsel - application of rule 4 of Criminal Appeal Rules - whether post-conviction admissions by applicant can be taken into account in a conviction appeal and if so in what way - conviction appeal dismissed - CROWN APPEAL AGAINST SENTENCE - failure by sentencing judge to impose non-parole periods, contrary to s 45(1) of Crimes (Sentencing Procedure) Act 1999 - whether applicant's mental health properly taken into account - whether sentences properly accumulated - whether sentences manifestly inadequate - Crown appeal against sentence substantially dismissed.
Legislation Cited: Crimes Act 1900 - s61J, s61M(1)
Crimes (Sentencing Procedure) Act 1999 - ss 44 and 45
Criminal Appeal Act 1912 - ss 6(1), 8
Evidence Act 1995 -…

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

Case: [2013] NSWCCA 303
Decision Date: 03 December 2013

CaseChat Overview and Summary

The appellant, TDP, appealed against his conviction on nine counts of aggravated sexual intercourse without consent and two counts of aggravated indecent assault. The crimes were committed over 3½ years against a complainant who was aged between 13 and 16 at the time of the offences. The Crown, in turn, appealed against the sentence imposed on the appellant. The appellant was self-represented in the Court of Appeal, while the Crown was represented by counsel. The appeal was heard by a Full Bench of the Court of Appeal in New South Wales.

The primary legal issues before the court were whether there was a failure by the Crown to place all relevant evidence before the jury, the relevance of a toxicology report on the complainant's hair, and whether the trial judge erred in their summing up. The appellant argued that the trial judge failed to emphasise contradictions in the complainant's evidence and did not give a warning as to the unreliable nature of her evidence. The appellant also claimed that the trial judge did not adequately sum up as to the corroboration of the complainant's evidence. Additionally, the appellant argued that there was a miscarriage of justice due to the incompetence of counsel. The Crown's appeal was focused on the sentence imposed by the sentencing judge, particularly the failure to impose non-parole periods, contrary to section 45(1) of the Crimes (Sentencing Procedure) Act 1999.

The court found that the Crown had not failed to place all relevant evidence before the jury, and that the toxicology report on the complainant's hair was not relevant to the case. The court held that the trial judge's summing up did not contain any significant errors and that the appellant's claims of incompetence of counsel did not amount to a miscarriage of justice. Consequently, the conviction appeal was dismissed. Regarding the Crown's appeal, the court found that the sentencing judge had failed to impose non-parole periods as required by statute, but the sentences were not manifestly inadequate when taking into account the appellant's mental health and the accumulation of sentences. The Crown's appeal against the sentence was substantially dismissed.

In conclusion, the Court of Appeal dismissed the appellant's conviction appeal and substantially dismissed the Crown's appeal against sentence. The appellant's convictions and sentences were affirmed, with the exception of the failure to impose non-parole periods. The court ordered that the non-parole periods be imposed in accordance with the relevant statutory provisions.

Orders