SM v R [2016] NSWCCA 171 | Case summary

Judgment

BATHURST CJ: I agree with Basten JA.
BASTEN JA: The applicant, SM, was found guilty by a jury on one count of assault with an act of indecency, on a child under the age of 16 years. [1] At the time of the alleged offence, the applicant was living with the complainant and was in a relationship with her mother. The charge alleged that the applicant came into the complainant's bedroom on Christmas Eve, 2011, lay down beside her on the bed and held her breasts. He seeks leave to appeal from the conviction.
The applicant was also charged and tried at the same time, on a second count of indecent assault which occurred some weeks later in March/April 2012. The allegation was that, after rubbing ointment into an area of eczema on the back of her leg, he reached his hand up under her shorts and touched her on the vagina. He was acquitted of that charge.
The applicant was sentenced to a non-parole period of 1 year and 3 months imprisonment, with an additional term of 1 year 3 months. The non-parole period was fixed to commence from the date of sentencing, being 31 July 2015 and is due to expire on 30 October 2016. The sentence being for a period of less than 3 years, the applicant is entitled to be released to parole at the expiration of the non-parole period. In addition to the appeal against conviction, there is an appeal against sentence.

Appeal against sentence

The application for leave to appeal against the sentence relied upon a single ground, namely that the sentence imposed "did not reflect the sentencing judge's findings that the offence could be dealt with in the Local Court."
The formulation of the ground was obscure. However, it reflected the fact that the trial judge had stated, in accordance with authority: [10] "The fact that this matter could, theoretically, have been dealt with in front of a magistrate, with relatively lesser maximum penalty than otherwise might apply at a higher court, is something which I note and take into account."
In written submissions, the applicant's counsel submitted that the statement was "at odds with" the imposition of a sentence of 2 years and 6 months imprisonment, being greater than the 2 year jurisdictional limit in the Local Court. [11]
The matter was not dealt with before the Local Court because there were two charges, to each of which the applicant pleaded not guilty. The Director conceded that, had the only charge been that in count 1, it could properly have been dealt with in the Local Court. However, there was no concession that the District Court was limited to the 2 year jurisdictional limit in the Local Court, indeed the contrary was accepted. The correctness of that proposition is beyond doubt, it having been reiterated in a number of cases, referred to by Hall J in R v Palmer. [12]
Nor was the judge bound to accept the concession made by the prosecutor that it would have been appropriate for the matter to proceed in the Local Court; indeed, his acceptance was guarded, referring to it as a "theoretical" possibility. In imposing a sentence which exceeded the jurisdictional limit of the Local Court, at least by inference, the judge did not accept the full extent of the concession. There was also a degree of ambiguity as to what was meant by the concession: if the applicant had required a jury trial, that could not have happened in the Local Court. If the assumption was that it could have proceeded in the Local Court had there been a plea of guilty, that would have involved an additional counterfactual consideration.
As explained in Baines v R, [13] there has been little explanation in the caselaw as to precisely how the possibility that the matter could have been dealt with in the Local Court should be taken into account. If, as in the present case, the sentencing judge is satisfied that a term of imprisonment exceeding 2 years is required, the fact that the prosecutor might have taken a different view would not appear to be a relevant consideration.
There is no reason to suppose that the judge did not take that factor into account as he expressly stated that he did; there was no obligation (nor would it have been appropriate) to indicate in any arithmetical sense how it affected the sentence imposed. In the absence of a principle that a District Court judge should not impose a sentence in excess of the jurisdictional limit of the Local Court, and in the absence of a ground alleging that the sentence in fact imposed was manifestly excessive, there is no scope for this Court to intervene. Accordingly, although the applicant should have leave to appeal against sentence, the appeal should be dismissed.
The Court should make the following orders: 1. To the extent necessary, grant the applicant leave to appeal against his conviction. 2. Dismiss the appeal against conviction. 3. Grant the applicant leave to appeal against sentence. 4. Dismiss the appeal against sentence.
SIMPSON JA: Section 5(1)(a) of the Criminal Appeal Act 1912 (NSW) permits an appeal against conviction as of right on any ground that involves a question of law alone; s 5(1)(b) relevantly permits such an appeal, by leave, on any ground that involves a question of fact alone, or a question of mixed law and fact.
Ground 1 of the present appeal against conviction asserts error, in a specific respect, in the directions given by the trial judge to the jury. In my opinion, that is a ground that involves a question of law alone. Leave is not required.
Ground 2 is more difficult to characterise, but, since in my view the appellant is entitled to an appeal as of right on Ground 1, it is unnecessary to decide into which of the three categories envisaged by s 5 it fits.
I agree, for the reasons given by Basten JA, that both grounds ought to be rejected, and the appeal against conviction dismissed. I would so order.
I agree with Basten JA that the sole proposed ground of appeal against sentence should fail. I would grant leave to appeal against sentence but dismiss the appeal.

SM v R

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