Stevenson v R [2022] NSWCCA 133

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Stevenson v R [2022] NSWCCA 133 Hearing dates: 4 February 2022 Date of orders: 22 June 2022 Decision date: 22 June 2022 Before: Johnson J at [1]; Davies J at [137]; Bellew J at [138]. Decision: 1. The Applicant is refused leave under Rule 4.15 Supreme Court (Criminal Appeal) Rules 2021 to rely upon Ground 1. 2. Refuse leave to appeal against conviction. 3. Leave is granted to appeal against sentence. 4. The appeal against sentence is allowed. 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 Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Criminal Appeal Act 1912 Criminal Appeal Rules Criminal Procedure Act 1986 Supreme Court (Criminal Appeal) Rules 2021 Cases Cited: AZ v R [2018] NSWCCA 294 Bray v R [2018] NSWCCA 301 Burke v R [2022] NSWCCA 6 CLC v R [2015] NSWCCA 248 Corby v R [2010] NSWCCA 146 EJDG v R [2012] NSWCCA 251 Evans v R [2017] NSWCCA 281 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Gassy v The Queen (2008) 236 CLR 293; [2008] HCA 18 Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55 Haidari v R (2015) A Crim R 422; [2015] NSWCCA 126 He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140 JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 JT v R (2021) 291 A Crim R 47; [2021] NSWCCA 223 Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59 Lang (a pseudonym) v R [2021] NSWCCA 212 Lee v R [2020] NSWCCA 244 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Noonan v R [2021] NSWCCA 35 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 R v CTG [2017] NSWCCA 163 R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 R v Moussa (2001) 125 A Crim R 505; [2001] NSWCCA 427 R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278 R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 Roach v R (2019) 344 FLR 429; [2019] NSWCCA 160 Scaysbrook v R [2022] NSWCCA 69 Scott v R [2020] NSWCCA 81 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Vaughan v R [2020] NSWCCA 3 Xie v R (2021) ALR 371; [2021] NSWCCA 1 Texts Cited: --- Category: Principal judgment Parties: Owen Stevenson (a pseudonym) (Applicant) Regina (Respondent) Representation: Counsel: Mr GD Wendler (Applicant) Ms C Curtis (Respondent)