Sexual Assault Trials Handbook Update 38 published

Update 38, November 2022

[6-000] Recent sexual assault law on JIRS

The following recent cases have been added:

Evidence

  • Vella v R [2022] NSWCCA 204 — Jury Act 1977, ss 68A, 68B, 73A — jury deliberations — Sheriff’s investigations — historical child sex offences — Sheriff’s report under s 73A regarding alleged bias and consideration of irrelevant material inadmissible due to “exclusionary rule” in Smith v Western Australia (2014) 250 CLR 473 — no evidence to support grounds of appeal.

Sentencing

  • GL v R [2022] NSWCCA 202 — Crimes (Sentencing Procedure) Act 1999, s 25AA — sentencing for child sex offences under current practices — standard non-parole period (SNPP) at time of offence applies (s 25AA(2)) — SNPP for s 61M(2) Crimes Act 1900 (rep) (aggravated indecent assault) increased after offence committed and had retrospective operation — judge erred by applying higher SNPP — more appropriate to apply clear words of s 25AA than transitional provisions.
  • Baker v R [2022] NSWCCA 195 — sentencing — aggravating factors — “threat” — sexual assault — applicant and complainant strangers — applicant told complainant not to inform anyone of assaults — judge did not err in finding statement to be a threat and therefore an aggravating factor — not necessary for precise consequences to be spelled out — statement carried implication of adverse consequences due to criminal nature of conduct.
  • Stephens v The Queen [2022] HCA 31 — Crimes Act 1900, s 80AF — historic child sex offences — uncertainty about offence date — majority of NSW Court of Criminal Appeal erred by finding s 80AF was “procedural” only and operated retrospectively — s 80AF changed the law concerning elements of offence itself — provision can only be invoked at commencement of trial — no application to trials already commenced — acquittal on relevant counts.
  • Madden v R [2022] NSWCCA 196 — Crimes Act 1900, ss 78, 78T (both rep), Sch 11, cl 82 — sexual offences — repeal of historic sexual offence limitation periods — s 66C(1) prosecutions not statute-barred under s 78 because words of Sch 11, cl 82 make clear s 78 repealed retrospectively — however s 78K (rep) prosecutions statute-barred under s 78T — miscarriage of justice occasioned by incompetence of trial counsel — verdict for some offences unreasonable and not supported by evidence.
  • R v Lau [2022] NSWCCA 131 — sentencing — Crown appeal — child sexual offences — sentence manifestly inadequate — observations providing guidance for sentencing judges — summary of facts must be accurate and include material facts bearing upon objective seriousness — where Form 1, sentence should be longer than for primary offence alone if appropriate — special circumstances must be sufficiently “special” to justify variation of statutory ratio.
  • DR v R [2022] NSWCCA 151 — sentencing — child sexual offences — applicant had deprived background but no evidence of causal link to offending — judge did not err by not reducing applicant’s moral culpability — full weight otherwise given to deprived upbringing in instinctive synthesis, notwithstanding no causal link to offending — Bugmy v The Queen (2013) 249 CLR 571 and Dungay v R [2020] NSWCCA 209 applied.
  • Ragg v R [2022] NSWCCA 150 — sentencing — Crimes Act 1900, s 61J — aggravated sexual assault — multiple counts — no error in finding objective seriousness of each sexual assault affected by proximate commission of other sexual assaults — course of conduct relevant to applicant’s state of mind and victim’s vulnerability.

Appeals

  • Harper v R [2022] NSWCCA 211 — conviction appeal — Crimes Act 1900, s 61I — sexual assault — unreasonable verdict ground — appeal dismissed — intermediate appellate courts must avoid rigid stereotypical expectations in sexual assault matters as to how complainants should behave — court not assisted by reliance upon such arguments when contending unreasonable conviction ground — verdicts not unreasonable or unsupported by evidence.
  • DPP (NSW) v Presnell [2022] NSWCCA 146 — Crimes Act 1900, s 66DC(a) — sexual act “with or towards” a child — Crown appeal — stay of proceedings — phrase “with or towards” in s 66DC(a) creates two separate offences — ‘towards’ requires intention to engage with another — no error in judge’s finding mere presence of complainant insufficient.

Recent sexual assault legislation

  • Crimes (Sentencing Procedure) Amendment Act 2022 — amends Crimes (Sentencing Procedure) Act 1999 — replaces s 25AA(1) with new s 21B(1) — court must sentence (or resentence) in accordance with practices at time of sentencing — court may sentence according to practices at time of offending if offence not a child sexual offence and exceptional circumstances exist — inserts new s 67(2)(h) — expands definition of prescribed sexual offences so that ICOs cannot be made for certain sexual offences regardless of when committed or which provision is charged — commenced on assent on 18 October 2022 (s 2).