The application for leave to appeal against conviction
[2]
Ground 1 - the trial judge erred in failing to discharge the jury
The Crown told the trial judge prior to jury empanelment that it would not seek to lead certain evidence relating to contact between the complainant and her friend Mr Frame which took place on 7 March 2011, the day after the acts the subject of counts 1-6. The evidence is contained in paragraph 11 of the complainant's statement dated 14 March 2011, which stated:
"On the 7th March 2011 I sent my friend from Parkes Ricky FRAME a text message about what Ken had done to me. The message said, 'I was raped again' and he said 'By who and how…..?' I messaged 'By my ex.'" (emphasis added)
The statement of Mr Frame dated 14 March 2011 provided:
"On Monday 7th of March about midday I received a text message on my phone from [the complainant]. I didn't keep the original message but it said something along the lines of that [the complainant] had been raped by her ex boyfriend. I sent a message back saying asking what had happened and she sent a message back at 12.11pm that read 'By my ex. And it's not that bad. Not like the last time and I wanted to try something for the first time with you but my ex rape in both this time'" (emphasis added)
This evidence could have suggested that the complainant had been sexually assaulted by another person. Accordingly it was inadmissible under s 293 of the Criminal Procedure Act 1900 (NSW). The Crown indicated to the trial judge that it did not propose to lead the word "again" from the complainant's statement or the words "not like the last time" from Mr Frame's statement.
On 13 October 2015, on day two of the trial, the trial judge made the following remarks:
"There will be no doubt that should not be adduced. I hadn't fully understood that was a reference even on your case to another person. Clearly, that being so, it shouldn't be led."
On 19 October 2015, during examination in chief of the complainant, the following exchange took place:
"…
Q. Now Ricky Frame was a friend of yours?
A. Yes, but I've never met him before.
Q. Was he someone that you chatted with on the Internet?
A. Yes.
Q. And you said you sent him a text?
A. I did.
Q. Did that text refer to what happened on 6 March?
A. It did.
Q. Do you recall what you said?
A. To the lines of, "I was raped again."
Q. And did you say who by?
A. No I didn't.
…"
Examination in chief of the complainant continued until the morning adjournment. After the adjournment, the applicant's counsel made an application to discharge the jury. The basis of the application was that the jury "…may well take that to be a reference, if left unexplained, to the prior occasions on which the complainant now says that the accused had sexual intercourse with her against her will, without her consent".
The trial judge suggested removing the word "again" from the evidence and directing the jury to disregard it. The applicant's counsel said this would not be sufficient. The Crown Prosecutor agreed, submitting that "[t]elling the jury to ignore it might in fact magnify it". The Crown Prosecutor supported the application for discharge of the jury made by the applicant.
The trial judge declined to discharge the jury. His Honour said:
"… I do not consider that the use of the word "again" in the context of this trial is such that it cannot be dealt with by way of appropriate directions. And when I say cannot be dealt with, I mean that any prejudice attaching to the accused by the use of that one word by the complainant, cannot be dealt with by appropriate directions.
The jury has been told, and will be continued to be told throughout the trial, that they must follow my directions. The whole jury system is predicated upon juries following the directions of trial judges. I propose to tell the jury that whatever the complainant was referring to when she used the word 'again' when she gave that evidence, it had nothing to do with the accused, it did not relate to any conduct by the accused, and had nothing to do with the issues in the trial.
For those reasons, the application is refused."
When the jury returned, the trial judge immediately gave the following direction:
"…Now there's something I just need to say to you about some evidence that [the complainant] gave a little while before the break. You may recall that she was asked about a text message that she had sent to a man called Mr Frame or Ricky Frame. She gave an answer to the Crown suggesting that she sent a text which referred to 6 March 2011, and that her evidence was it was along the lines of 'I was raped again.' Whatever [the complainant]…was referring to when she used the word 'again', it has nothing to do with the accused, it does not relate to any conduct by the accused, and has nothing to do with the issues in the trial.
Now, I will give you some further directions later during the summing-up about how you approach what is said to be evidence of complaint, and I will reinforce those directions then, but you must bear in mind what I have just directed you about in relation to the fact that the word 'again' was used. It has nothing to do with the issues in the trial. And you will remember I said in my opening remarks that my directions are the final word on any direction of law, and I give you that direction of law now."
[3]
Applicant's submissions
The applicant submitted that the trial judge erred in failing to discharge the jury at this time. The applicant submitted that the trial judge failed properly to consider the prejudice occasioned to the applicant by telling the jury to ignore this evidence. The applicant argued that by telling the jury to ignore it, the trial judge effectively "magnif[ied]" the issue. Accordingly, the failure to discharge the jury occasioned the risk of a substantial miscarriage of justice, and the applicant had not been afforded a fair trial.
[4]
Crown submissions
The Crown submitted that the evidence given by the complainant in evidence in chief must be viewed in the context of the complainant giving evidence over a number of days. Further, it was followed by a clear and unambiguous direction by the trial judge which the Court should assume the jury acted upon: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15. In these circumstances, it was submitted that "it cannot be said that the word was vividly etched in the mind of the jury".
The Crown submitted that the word "again" was led in the context of the 6 March 2011 charges (counts 1 - 6), in relation to which the jury ultimately acquitted the applicant. It was submitted that the word "again" had "little if any" impact on the evidence pertaining to the 4 May 2011 charges. The Crown submitted that conviction for the 4 May 2011 offences was inevitable.
[5]
Consideration of ground 1
In Curran v R [2017] NSWCCA 123, this Court (Beazley P, R A Hulme and Fagan JJ) again stated the principles in relation to the discharge of a jury, at [28]-[31]:
"[28] The test for the discharge of a jury is well established. In Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Toohey, Gaudron, Gummow and Kirby JJ stated, at 440:
'No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.'
[29] This Court may only interfere if error is established in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40: see Barber v R; Zraika v R [2016] NSWCCA 125 at [24].
[30] In R v Bartle [2003] NSWCCA 329, Mason P and Barr J observed, at [80], citing Crofts, that '[t]he criterion for the exercise of the discretion [to discharge the jury] was the maintenance of the fairness of the trial' and that '[t]he test for the discharge of the jury was one of necessity'. In their Honours' view, at [82], the trial judge in that case had been 'correct in observing that a jury is generally likely to follow an instruction to ignore evidence which has been struck out', and they rejected the appellant's argument that the jury would have been unable to comply with a direction to put certain prejudicial material out of their mind.
[31] Likewise, in Qing An v R [2007] NSWCCA 53, Beazley JA (as her Honour then was) observed, at [51], that it is clear from the authorities 'that it is a matter for the discretion of the trial judge as to what course to take when an irregularity has occurred' and that 'appropriate directions may, in certain circumstances, be sufficient'".
The complainant was sworn in on day three of the trial. Cross-examination started on day six and re-examination began on day nine of the trial. In the context of her evidence the mention of the word "again" on one occasion in her evidence in chief was not significant. That evidence was followed by a clear and unambiguous direction by the trial judge which the Court should assume the jury acted upon: Gilbert v The Queen. No complaint was made by the applicant about the content of that direction.
Further, the evidence of the word "again" was led in the context of the 6 March 2011 event (counts 1 - 6), in relation to which the jury acquitted the applicant. The word "again" was not led as context evidence relating to the 4 May 2011 charges. The evidence in respect of those charges was supported by immediate complaint, medical evidence and a number of text messages which clearly implicated the applicant in those offences.
The essence of the applicant's complaint in this Court was not that the jury may have concluded that the applicant had raped the complainant on a previous occasion but that she had been sexually assaulted by somebody else in the past, thus engendering sympathy for her. As counsel for the applicant conceded:
"….if they were sympathetic, largely sympathetic to the complainant, there may have been a very good reason to find Mr Hughes guilty of all charges, but that is not to say that they would not have been sympathetic towards the complainant and we do not know the reasons behind or how that has affected the jury. Can I say that is probably not my strongest point on the appeal".
The Court is comfortably satisfied that the jury was capable of understanding the trial judge's direction to disregard the word "again". His Honour was correct not to discharge the jury.
Leave to appeal on ground 1 should be refused.
[6]
Ground 2 - there was a miscarriage of justice due to incompetent legal representation at the trial
[7]
Evidence on the appeal
The history of evidence relied upon in this appeal needs to be described in a little detail. Prior to the first day of the hearing, 13 November 2017, the applicant filed an affidavit sworn in July 2017. In response, the Crown filed affidavits by Mr Kenneth Averre, counsel for the applicant at the trial, sworn on 14 August 2017 and 30 October 2017.
The essence of the applicant's evidence was that Mr Averre did not seek his instructions about relevant issues, in particular the nature of his sexual relationship with the complainant. The applicant said he would pretend to force the complainant to have sex with him, and that it was often the complainant who would suggest this conduct. The applicant said he was never asked to explain any of the text messages. The applicant said he was unhappy about the decision not to give evidence at the trial, but had followed the advice of his lawyers. In relation to the decision not to give evidence the applicant signed a document which stated:
"I have spoken to my legal advisors throughout the course of the trial and given instructions concerning various matters. In light of discussions and the evidence at trial, I can confirm that I do not wish to give evidence and I have made that decision of my own free will."
In cross-examination, the applicant accepted that he had an opportunity to speak to Mr Averre every day, and that he was present each day at the trial. He said he was happy with how the trial was progressing at the time, and just before the jury were due to retire to consider their verdict sent Mr Averre an email saying:
"Win or lose on Monday, I really want to say thank you so much for all your help and I really appreciate the amount of time and effort you have put in to defending me and I could not have asked for a better defence team. The work you done for me was amazing. Thanks mate."
The applicant agreed that he did have the opportunity to tell Mr Averre that there were text messages missing from the evidence. He said that he was present in court listening to the evidence of the complainant when she was being cross-examined by Mr Averre about her sexual relationship with the applicant, the use of sex toys, the fact that the applicant and complainant had sex in cars and parks and the sex was rough. The applicant insisted, however, that he did not instruct Mr Averre to cross-examine on those topics. The applicant said that Mr Averre "…brought them up from what was in the brief. Like I got to give certain instructions and a lot of the instructions that I give [sic] weren't brought up in questions to the complainant at all".
Mr Averre gave evidence that he spoke to the applicant about the sexual relationship with the complainant. There was considerable cross-examination of the complainant with regard to the sexual nature of the relationship. He cross-examined the complainant in accordance with the applicant's instructions. Mr Averre took instructions from the applicant in relation to all of the text messages which were sent. The text messages were of great concern to him. As a consequence, he took full instructions on them and spent considerable time analysing them. The applicant was never able to provide a satisfactory explanation for the text messages after the events described by the complainant on the afternoon of 4 May 2011.
That was the state of the evidence on the first day of the hearing of the appeal on 13 November 2017.
During the submissions made by the applicant's counsel following the close of evidence, the Court raised the absence of any explanation from the applicant about what he would have said about the text messages described at paragraphs [12]-[16] above if asked.
Counsel for the applicant sought leave to re-open the evidence. That leave was granted and the matter adjourned to 13 December 2017. The Court made orders for the applicant to file and serve additional evidence setting out what his instructions to trial counsel would have been with respect to the text messages referred to at paragraphs [12]-[16] above. The Court also made orders that the Crown file and serve any evidence and submissions in reply.
In an affidavit affirmed on 23 November 2017, the applicant gave evidence that after 4 May 2011 he realised he was in love with the complainant and wanted to be with her in the future. The applicant said that he had sex with the complainant again after 4 May 2011, but that he had not told anybody about that until this affidavit as he "…did not appreciate that it was significant enough to tell my lawyers". The affidavit contains no real explanation for the texts set out at paragraphs [12]-[16] above, beyond that the word "rape" was one of the terms used in a consensual dominant/subservient sexual relationship.
In oral submissions, counsel for the applicant accepted that this was the explanation the applicant would have proffered for the text massages. He also accepted that counsel for the applicant at trial had cross-examined the complaint to suggest that the word "rape" was used as part of a consensual dominant/subservient sexual relationship.
Mr Averre's affidavit sworn on 30 November 2017 stated that the applicant was unable to give any proper instructions in relation to the text message exchanges referred to at paragraphs [12]-[16] above. The applicant was not able to provide any details or specifics to put to the complainant in cross-examination. Mr Averre said that he took specific instructions about contact with the complainant after 4 May 2011. He said the applicant told him that other than the text messages, there was no contact with the complainant until later in 2011 when the complainant contacted him via Facebook.
[8]
Applicant's submissions
The applicant submitted that a miscarriage of justice occurred by reason of incompetent legal representation at the trial. The particulars of trial counsel's incompetence, it was argued, were a failure:
1. properly to advise the applicant on his right to give evidence at trial;
2. to call the applicant to give evidence at the trial;
3. to take proper instructions from the applicant;
4. to cross-examine the complainant on the applicant's full instructions;
5. to cross-examine the complainant on matters relevant to the sexual relationship between the applicant and the complainant;
6. to consider the importance of the text messages sent between 6 May 2011 and 17 May 2011; and
7. to adduce evidence of good character.
At the hearing of the appeal, the failure to adduce evidence of good character was not pressed.
The applicant submitted that his trial counsel failed to take instructions throughout the trial in relation to, inter alia, the nature of the sexual relationship between the applicant and the complainant. It was submitted that "rape" was an expression used by the parties to describe the complainant's role in their sexual role playing games. It was submitted that, had he obtained proper and detailed instructions, trial counsel would have been in a position to cross-examine the complainant in relation to the various text messages that included the word "rape".
The applicant also submitted that trial counsel failed to advise the applicant about the relevance of the text messages.
In relation to failing to call the applicant to give evidence, the applicant submitted that a decision to call him would have outweighed the disadvantages that might be suffered by calling him. If the applicant had been called, it was submitted that the applicant could have responded to the allegations and allowed the jury to consider the allegations in the context of a deviant sexual relationship between the parties, to which the complainant consented.
The applicant submitted that it was incumbent upon Mr Averre to obtain instructions about the history of his relationship with the complainant and to have gone through each text message so as to distil the context in which each was sent. As a consequence, the applicant submitted that he was deprived of a real chance of acquittal by reason of trial counsel's incompetence and this Court should quash the conviction and order a new trial.
[9]
Crown submissions
The Crown submitted that the fact that counsel took proper instructions from the applicant was demonstrated in numerous ways. First, the fact that a s 293 application was made to cross-examine the complainant about the nature of the sexual relationship. Secondly, in his opening address to the jury, trial counsel told the jury that "what you might make of the evidence of the text messages" would be a live issue in the trial. Thirdly, prior to making an application to discharge the jury during the evidence in chief of the complainant, the transcript records trial counsel "having taken instructions from the accused". Fourthly, trial counsel cross-examined the complainant over approximately four days on topics that included rough sex, sex that took place in cars and parks, texts about "rape" between the complainant and applicant, anal sex and sex toys. Fifthly, trial counsel in his closing address spoke about the nature of the unconventional relationship between the applicant and complainant.
In relation to the submission that the applicant should have been called to give evidence, the Crown submitted that the applicant did not provide counsel with a credible or viable explanation for the text messages and that failing to call the applicant in those circumstances was justified.
[10]
Consideration
The seminal case with respect to incompetence of counsel is R v Birks (1990) 19 NSWLR 677 in which Gleeson CJ said at 685:
"As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."
In Alkhair v R [2016] NSWCCA 4, Macfarlan JA (Rothman J and Bellew J agreeing) comprehensively summarised the applicable principles with respect to incompetence of counsel. His Honour conducted an extensive review of the cases decided by the High Court and this Court since Birks at [17]-[30]. He distilled a number of principles (at [31]) which are italicised in the following consideration of their application in the present case.
[11]
"To the extent possible, an appellate court should determine an appeal involving complaints about a trial counsel's conduct of a case by examining the record of the trial to determine from the objective circumstances whether the accused has had a fair trial."
The Court has examined the record of the trial and determined from the objective circumstances that the accused has had a fair trial. This is essentially because the decisions of trial counsel, which may be discerned from an objective consideration of the record, are not only rational, but compelling. Rational forensic decisions or strategies of trial counsel, determined objectively, do not give rise to a miscarriage of justice: Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312 at [34] (per Basten JA) and [56] (per Adams J).
The record of the trial is replete with careful and rational choices made by the applicant's counsel. In this we include his lengthy cross-examination of the complainant, his s 293 application to cross-examine the complainant about the nature of the sexual relationship with the applicant, the opening and closing addresses to the jury, where he addressed the unconventional sexual relationship between the complainant and the applicant and the way he tried to address the highly damaging text messages set out at paragraphs [12]-[16] above. Counsel at the trial did this by seeking to elide those messages with the unconventional sexual relationship he had described. We also include the skilful way in which questions were asked of the complainant about topics that included rough sex, sex that took place in cars and parks, texts about "rape" between the complainant and applicant, anal sex and sex toys.
Fundamentally, this trial was conducted carefully by experienced trial counsel. The outcome, where the applicant was acquitted of 6 counts of very serious sexual assault, in light of the evidence which was available against him, was a forensic triumph.
It bears repeating that after the harrowing incident described by the complainant which took place on 4 May, the applicant sent her the following text messages on 4 May 2011:
"[at 8:17pm] Look im sorry… Ive been in love with u since school and im sorry about breakn up with u all the time and im sorry about everything… Ive been heaps depressed lately and for sum reason u always make me feel better… Im so sorry plz forgive me im just fuckd up right now and my dads really sick that's 1 of the reasons why im moving back to tamworth… And i have no family down here im sorry :,,,-(
[at 8:22pm] And I have a kid to and that's stressing me out coz I cant efford to give money for her…Can we plz just move on… Im so sorry if we move on I promise I wont bother u again
[at 8:23pm] Can we meet sumwhere so we can talk plzz I really ned this… I just need help
[at 8:29pm] Can u plz ring
[at 8:39pm] Plz talk to me:,,,-(
[at 8:51pm] Plaz talk to me… Im so sorry… it wont ever happen again… im just lost and lonley and I duno im so sorry
[at 9:35pm] Im cumn to ur place can u cum out the front plz and talk
[at 11:54pm] Im just guna delete ur number okay and I wont bother u again"
These text messages are, on their face, devastating admissions by the applicant about the sexual assaults on the complainant earlier that day. The applicant was given every opportunity to say now what it is that he would have instructed Mr Averre to put about these text messages. His explanation was that the word "rape" was part of the terms used in a consensual dominant/subservient sexual relationship. Counsel for the applicant in this Court now accepts that this explanation was put by counsel at the trial to the complainant, and rejected. Further, that explanation provides no assistance in explaining the messages at paragraph [65] above in any exculpatory way.
The objective circumstances of the trial clearly indicate that the forensic choices of counsel for the applicant at the trial were not only open, they were compelling.
[12]
"Ordinarily, an affirmative answer to this question is required where the impugned conduct is capable of being rationally explained as a step taken, or not taken, in the interests of the accused. This is so even if the accused alleges on appeal that he or she did not authorise the conduct because the nature of the adversarial system means that the client is bound by the manner in which the trial is conducted on his or her behalf."
For the above reasons, the Court is comfortably satisfied that the applicant had a fair trial. All of the conduct about which complaint is made is capable of being rationally explained as a step taken, or not taken, in the interests of the applicant:
1. In the face of the complete absence of credible explanation for the text messages set out at paragraph [66] above, it was entirely proper to advise the applicant not to give evidence at trial. In any event, there is a document, signed by the applicant, which makes clear that extensive, and correct, advice was given.
2. In the face of the complete absence of credible explanation for the text messages set out at paragraph [66] above, the decision not to call the applicant to give evidence at the trial was not only rational but compelling.
3. The detailed and skilful cross-examination of the complainant about all of the issues allegedly not the subject of instructions, including matters relevant to the sexual relationship between the applicant and the complainant, leads the Court to reject the suggestion that trial counsel failed to take proper instructions from the applicant or failed properly to cross-examine the complainant.
The particular of alleged incompetence by trial counsel, that he failed "to consider the importance of the text messages sent between 6 May 2011 and 17 May 2011", is remarkable. It was, with respect to counsel who appeared in this Court, painfully obvious that those text messages were devastating for the applicant and that much of trial counsel's strategy can rationally be explained by his trying to conduct a defence case around those text messages. The Court is satisfied that what the applicant submits was the exculpatory explanation for those text messages, that the word "rape" was part of the terms used in a consensual dominant/subservient sexual relationship, was put by trial counsel to the complainant.
[13]
"Only in exceptional circumstances will an appellate court find it necessary to resort to subjective evidence concerning the applicant's legal representatives' reasoning at trial or to evidence as to communications between the applicant and those representatives."
This is not an exceptional case where it is necessary to resort to subjective evidence concerning the applicant's legal representatives' reasoning at trial or to evidence as to communications between the applicant and those representatives.
Having said that, all of that subjective evidence, which is set out at [41]-[51] above, points one way. Taking that information into account would only confirm our conclusion that trial counsel did a competent job of representing the applicant.
[14]
"The ultimate question for an appellate court is whether the applicant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the applicant lost a chance of acquittal that was fairly open."
The ultimate question is whether the applicant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the applicant lost a chance of acquittal that was fairly open. For the reasons given, the Court is satisfied that what occurred at the trial did not give rise to a miscarriage of justice. The applicant did not lose a chance of acquittal that was fairly open.
Before leaving this ground something needs to be said about this ground of appeal and the way in which the case ran in this Court. It was, with respect to counsel who appeared in this Court for the applicant, clear and obvious that the text messages sent on the evening of 4 May 2011 were potentially fatal for the applicant's case. It is clear on an objective consideration of the trial record that this was also obvious to trial counsel. The assertion that trial counsel was negligent was tenuous, at best, from the outset but after the applicant's affidavit of 23 November 2017 it was no longer arguable.
There was no negligence in advising the applicant not to give evidence at the trial in the face of the applicant's complete lack of explanation for the relevant text messages. Given the explanation now proffered, the applicant would obviously have been cross-examined to devastating effect. Any chance of acquittal on these charges, and likely the charges he was acquitted on, would have vanished.
Leave to appeal on this ground should be refused.
[15]
Ground 3 - the sentence imposed was manifestly excessive
[16]
Ground 4 - the sentencing judge erred by taking the complainant's victim impact statement into account to establish the s 21A(2)(g) aggravating factor
As the applicant dealt with these grounds together the Court will do the same.
The sentencing judge sentenced the applicant to an aggregate sentence of 8 years 6 months, with a non-parole period of 6 years.
In sentencing the applicant, the sentencing judge assessed the objective seriousness of all counts as just below mid-range. His Honour characterised the offences as "…the abusive rape and humiliation of a young woman". His Honour said:
"I do find it established beyond reasonable doubt as an aggravating factor that there has been substantial harm caused to the victim as referred to in s 21A subs (2)(g) of the Crimes Sentencing Procedure Act. In that regard I have had regard to the violent nature of the offending and the content of the Victim Impact Statement.
I have had regard to the maximum penalties and the standard non-parole periods as a legislative guide post in terms of the penalties to be imposed. Very significant gaol terms must be imposed on those who commit violent sexual offences against women in order to reflect the Courts' and the community's condemnation of such offences.
Given the Offender's age at the time of the offending and his age now and the fact that this will be his first period in custody, I do find special circumstances.
I have had regard to the objectives of sentencing contained in s 3A of the Crimes (Sentencing Procedure) Act. I consider that there should be some accumulation of the sentences given the individual acts involved.
I propose to give an aggregate sentence. I will first record the indicative sentences. As each offence has a standard non-parole period I am required to stipulate the non-parole period when recording the indicative sentences. To the extent that I have departed from the standard non-parole periods, I have done so because of my assessment of the objective seriousness, the offender's relative young age at the time of the offending and my finding of special circumstances. …"
[17]
Applicant's submissions
The applicant submitted that the sentencing judge failed to give sufficient weight to the applicant's limited criminal record and prospects for rehabilitation. It was submitted that the factors relevant to sentencing the applicant are that the applicant was aged 21 at the time of the offences, he had no criminal convictions at that time, prior to these offences the applicant was a person of good character, these offences were out of character and the applicant was assaulted in custody on 15 November 2015 and suffered a mild traumatic brain injury with ongoing hyper vigilance and nightmares.
The applicant submitted that the sentencing judge's reliance upon the unsworn victim impact statement of the complainant was an error. It was submitted that the sentencing judge erred in relying on the unsworn victim impact statement to be satisfied beyond reasonable doubt that the harm was substantial, which constituted an aggravating factor pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and thereby falling outside the range of harm which might ordinarily be expected from these type of offences.
Although no ground of appeal was addressed to this issue, it was also submitted that the sentencing judge made a finding of special circumstances, and reduced the usual ratio between the head sentence and non-parole period. The applicant argued that this reduction was minor and insufficient.
[18]
Crown submissions
The Crown relied on the decision of Simpson J (with whom Ward JA and Wilson J agreed) in R v Tuala [2015] NSWCCA 8 at [77]-[81]:
"By s 28 of the Sentencing Procedure Act, victim impact statements are part of the landscape in the sentencing process. That is not in issue. What is here in issue is the extent to which a victim impact statement can be used to prove an aggravating factor of the kind specified in s 21A(2). Almost invariably the aggravating factor in question is that specified in s 21A(2)(g). It is to be remembered that such aggravating factors must be proved beyond reasonable doubt.
In some of the cases considered above, considerable weight was attached to the manner in which the sentencing process was conducted. Where no objection was taken to the victim impact statement, no question raised as to the weight to be attributed to it, and no attempt made to limit its use, the case for its acceptance as evidence of substantial harm has been considered to be strengthened. (It is, perhaps, a little unfair to take into account that no objection to the admission of the statement was taken, given that such statements are admissible by statute, but that does not preclude argument as to the weight to be attributed to them.)
Further, where the statement tends to be confirmatory of other evidence (either in a trial, or in the sentencing proceedings) or where it attests to harm of the kind that might be expected of the offence in question, there is little difficulty with acceptance of its contents.
Difficulties can arise, for example, where:
the facts to which the victim impact statement attests are in question; or
the credibility of the victim is in question; or
the harm which the statement asserts goes well beyond that which might ordinarily be expected of that particular offence; or
the content of the victim impact statement is the only evidence of harm.
RP is an example of the third of these.
In these cases, considerable caution must be exercised before the victim impact statement can be used to establish an aggravating factor to the requisite standard."
The Crown submitted that the sentencing judge was entitled to consider the victim impact statement. The harm outlined within it was consistent with the evidence led at trial. Finally, the Crown submitted that the weight to be accorded to the victim impact statement was a matter for the sentencing judge. It was therefore open to his Honour to be satisfied beyond reasonable doubt that the harm suffered by the complainant was greater than would ordinarily be expected to be suffered by a victim of sexual assault.
In relation to the purported manifest excess in sentence, the Crown submitted that all of the matters the applicant agitates before this Court were specifically considered by the sentencing judge, and no error has been established with the sentencing judge's approach to the applicant's subjective circumstances.
In relation to the reduction of the statutory ratio between head sentence and non-parole period, the Crown submitted that this is a matter for the sentencing judge's discretion.
[19]
Consideration of sentence appeal
When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:
1. appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;
2. intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;
3. it is not to the point that this Court might have exercised the sentencing discretion differently;
4. there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and
5. it is for the applicant to establish that the sentence was unreasonable or plainly unjust.
See Obeid v R [2017] NSWCCA 221 (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443].
There is no doubt that the sentencing judge was correct to describe this sexual assault as the abusive rape and humiliation of a young woman. The offending conduct was serious, and correctly recognised as such by the sentencing judge.
Matters of weight are very much in the province of the sentencing judge and the circumstances in which matters of weight will justify appellate intervention are narrowly confined: Yang v R [2012] NSWCCA 49 at [25]. Further, as Button J observed in Hanania v R [2012] NSWCCA 220 at [33], the only way that one can test whether a factor (to which regard or weight has indeed been given) was considered sufficiently, is by examining the sentence ultimately imposed.
The essence of the applicant's complaint that the sentence was manifestly excessive was the submission that the sentencing judge failed to give sufficient weight to the applicant's limited criminal record and prospects for rehabilitation.
This complaint should be rejected. The sentencing judge took into account the age of the applicant at the time of the offence, the fact that he had no criminal convictions at that time and that prior to these offences the applicant was a person of good character. His Honour also took into account the assault in custody suffered by the applicant on 15 November 2015.
All of these matters were specifically considered by the sentencing judge, and no error has been established with the sentencing judge's approach to the applicant's subjective circumstances. The weight his Honour gave to these matters was appropriate. In examining the sentence ultimately imposed it is clear that the sentencing judge gave appropriate weight to these matters.
In the complainant's victim impact statement dated 29 January 2016, she outlined the types of serious physical, psychological and emotional harm suffered as a result of the sexual assaults inflicted upon her. The statement included "yes I survived, yes I am alive, I just don't live, I'm existing, I am empty".
It was not controversial before the sentencing judge that his Honour was entitled to take the victim impact statement into account in addressing this aggravating factor. In the applicant's written submissions before the sentencing judge, however, counsel then appearing for the applicant submitted that:
"Notwithstanding that which is contained in the victim impact statement it is submitted that the weight to be given to it in terms of the level of emotional harm is not such as to satisfy the court beyond reasonable doubt as to the presence of this aggravating factor. That which is contained in the victim impact statement is untested and there is not further expert or other evidence in that regard. There is also a significant issue as regards the nature of the relationship between the offender and the complainant prior to this and (as was clear on voir dire[s]) issues surrounding prior sexual assault.
Further, the psychological harm to which the Victim Impact Statement is something which, unfortunately, is all too common in the context of sexual assault offences."
This is a case where the victim impact statement confirms other evidence in a trial about the nature of the assault (including the contemporaneous text messages at paragraphs [12]-[16] above) which the sentencing judge expressly referred to in his finding under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act. Having taken into account the violent nature of the offending and having seen the complainant give evidence over many days, the sentencing judge was well placed to make an assessment of harm in these circumstances. The victim impact statement simply confirmed that substantial harm, and more than normally would be expected, was suffered by the victim in this case.
The use made by the sentencing judge of the victim impact statement in this case was comfortably within the category of permissible use described in Tuala. Trial counsel made appropriate submissions about the weight to be afforded to the victim impact statement. Its weight, however, was a matter for the sentencing judge. The sentencing judge did not err in the way he took the victim impact statement into account.
In relation to the reduction of the statutory ratio between head sentence and non-parole period, this is a matter for the sentencing judge's discretion. The sentencing judge made a finding of special circumstances, and reduced the usual ratio between the head sentence and non-parole period, albeit by a period of slightly less than four months. In the circumstances of this case that finding was open to the sentencing judge.
Leave to appeal on sentence should be granted but the appeal on sentence dismissed.
[20]
Conclusion and orders
The Court makes the following orders:
1. Leave to appeal refused on grounds 1 and 2 (conviction).
2. Leave to appeal granted on grounds 3 and 4 (sentence).
3. Appeal dismissed.
[21]
Amendments
30 January 2018 - Typographical error in paragraph [66].
12 February 2018 - Details of legal representative amended.
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Decision last updated: 12 February 2018
headnote
[This headnote is not to be read as part of the judgment]
The applicant was charged with ten counts of sexual assault without consent against the complainant. He was acquitted by a jury of six counts, and convicted of four counts.
The primary judge imposed an aggregate sentence of 8 years 6 months, with a non-parole period of 6 years.
The issues on appeal were:
(i) whether the primary judge erred in failing to discharge the jury after the complainant gave evidence that she had been sexually assaulted on an occasion prior to the two the subject of the indictment;
(ii) whether there was a miscarriage of justice due to the incompetence of trial counsel; and
(iii) whether the sentence imposed was manifestly excessive.
Per the Court, dismissing the appeal:
In relation to issue (i), at [37]:
The primary judge's direction to the jury to disregard the complainant's evidence was sufficient. The jury was capable of understanding the trial judge's direction to disregard the word "again". His Honour was correct not to discharge the jury.
Curran v R [2017] NSWCCA 123; Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 applied;
In relation to issue (ii), at [74], [75]:
What occurred at the trial did not give rise to a miscarriage of justice. The applicant did not lose a chance of acquittal that was fairly open.
There was no negligence in advising the applicant not to give evidence at the trial in the face of the applicant's lack of explanation for the relevant text messages. Any chance of acquittal on these charges, and likely the charges he was acquitted on, would have vanished.
R v Birks (1990) 19 NSWLR 677; Alkhair v R [2016] NSWCCA 4 applied;
In relation to issue (iii), at [92]-[93] and [96]:
No error has been established with the sentencing judge's approach to the applicant's subjective circumstances. The weight his Honour gave to the age of the applicant at the time of the offence, the fact that he had no criminal convictions at that time and that prior to these offences the applicant was a person of good character, was appropriate. In examining the sentence ultimately imposed it is clear that the sentencing judge gave appropriate weight to these matters.
The weight to afford the victim impact statement was a matter for the sentencing judge. The sentencing judge did not err in the way he took the victim impact statement into account.
R v Tuala [2015] NSWCCA 8; Hanania v R [2012] NSWCCA 220 considered.