TS v R [2022] NSWCCA 222

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: TS v R [2022] NSWCCA 222 Hearing dates: 29, 30 June 2022 Date of orders: 12 October 2022 Decision date: 12 October 2022 Before: Basten AJA at [1]; Fullerton and Garling JJ at [298] Decision: (1) Subject to order (2), refuse the applicant an extension of time within which to appeal from his convictions following verdicts of guilty returned on 18 July 2017. (2) With respect to grounds 1, 1A and 2(iv), (a) extend time to appeal from the convictions to 14 December 2020, (b) grant leave to appeal, and (c) dismiss the appeal. (3) With respect to the aggregate sentence imposed in the District Court on 22 November 2017: (a) grant the applicant leave to appeal, and (b) dismiss the appeal. Catchwords: CRIME – appeal against convictions and sentence for multiple sexual offences – extension of time in which to appeal – notice of appeal lodged more than three years after trial and sentencing – 35 proposed grounds of appeal – extension of time and leave granted for limited grounds as to convictions CRIME – appeal against convictions – miscarriage of justice – apprehension of bias of judge – trial by jury – judge's language or conduct only relevant if in presence of jury – reference to "grooming" – whether reasonable juror might have apprehended judge might have formed opinion as to guilt of accused – self-represented accused – judge not expressing fixed view that accused groomed complainant – judge's clarification and reformulation of accused's questions in cross-examination of complainant CRIME – appeal against convictions – miscarriage of justice – procedural unfairness – self-represented accused – duty of trial judge to ensure fair trial – refusal of adjournment – role of trial judge to inform but not advise accused – advice as to right to object to evidence not extended to legal advice as to basis of objection to particular evidence – judge not obliged to interfere with prosecution address unless risk of miscarriage CRIME – appeal against convictions – unreasonable verdicts – finding that victims were sedated – compelling video evidence of state of complainant during abusive conduct – expert evidence supporting inference of sedation – no basis to doubt truthfulness and reliability of witness – accused admitted to performing sexual acts on complainant CRIME – appeal against sentence – aggregate sentence – errors in indicating sentences for individual offences – error in considering inapplicable standard non-parole period – factual error affecting culpability of offender – re-sentencing discretion engaged CRIME – appeal against sentence – re-sentence – serious sexual abuse of stepdaughter – offending persistent and regular over four years – sedation of victim and victim's mother – offending video recorded for sexual gratification – late guilty pleas to video-recorded sexual assaults – convictions following trial on other offences – reflecting discounts for pleas in aggregate sentence – no arithmetical calculation for utilitarian discount – applicant's health conditions considered – lesser aggregate sentence not warranted Legislation Cited: Crimes Act 1900 (NSW), ss 38, 61J, 61M, 66C, 66EA, 66EB, 73 Criminal Appeal Act 1912 (NSW), ss 5, 6 Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW), Sch 2 [2], [3] Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 44, 53A, 54A, 54B, Sch 2 cl 68 Criminal Procedure Act 1986 (NSW), ss 141,142,149, 294, 306N, 306P Evidence Act 1995 (NSW), ss 66, 97, 99, 108, 136, 137, 165, 165B, 177, 192 Surveillance Devices Act 2007 (NSW), s 7 Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 Cases Cited: Bao v R [2016] NSWCCA 16 Concrete Pty Ltd v Parramatta Design & Crockford v R [2022] NSWCCA 115 Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Elsaj v R [2017] NSWCCA 124 Faraj v R [2022] NSWCCA 31 Glare v R [2015] NSWCCA 194 Glenn (a pseudonym) v R [2020] NSWCCA 308 Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61 Hofer v The Queen [2021] HCA 36; 95 ALJR 937 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46 Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68 MS v R [2017] NSWCCA 252 Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 PG v R [2017] NSWCCA 179 R v EJ Smith [1982] 2 NSWLR 608 R v Smith [2016] NSWDC 108 R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v XY (2010) 79 NSWLR 629; [2010] NSWCCA 181 R v Zorad (1990) 19 NSWLR 91 The Queen v Bauer (a pseudonym) (2018) 266 CLR 6; [2018] HCA 40 Varley v The Queen (1977) 51 ALJR 243 Category: Principal judgment Parties: TS (Applicant) (unrepresented) R (Respondent) Representation: Counsel: Mr E Balodis (Respondent)