Regina v ITA [2003] NSWCCA 174

Reported Decision : 139 A Crim R 340

New South Wales Court of Criminal Appeal

CITATION : Regina v ITA [2003] NSWCCA 174 revised - 11/07/2003 HEARING DATE(S) : 27/06/03 JUDGMENT DATE : 10 July 2003

JUDGMENT OF : Ipp JA at 1; Buddin J at 187; Shaw J at 188 DECISION : (1) Dismiss grounds 1(A) and 5. (2) Refuse leave to appeal under r 4 of the Criminal Appeal Rules in respect of grounds 1(B), 2, 3 and 4. (3) Uphold ground 6 in part. (4) Set aside the verdict of guilty in respect of the charge of sexual assault with aggravating circumstances and substitute a verdict of guilty of sexual assault. (5) Reduce the head sentence imposed by Moore ADCJ in respect of count 1 by six months and reduce the non-parole period by six months. The sentence in respect of count 1 will therefore be six years six months imprisonment commencing on 8 October 2001 and expiring on 7 April 2008 with a non-parole period of four years six months commencing on 8 October 2001 and expiring on 7 April 2006. (6) In respect of count 3, uphold the appeal against sentence to the extent that the head sentence is reduced by six months. No change to be made to the non-parole period. The head sentence will therefore be three years six months imprisonment commencing on 8 April 2005 and expiring on 7 October 2008, with a non-parole period of one year commencing on 8 April 2005 and expiring on 7 April 2006 (7) The sentence in respect of count 3 should be cumulative to the extent of the six months.

CATCHWORDS : CRIMINAL LAW - Whether the indictment was defective and bad in law because it contained charges against two persons - Nature of the trial judge's task when summing up - Failure by counsel to raise objections to the trial judge's directions or omissions to direct - Criminal Procedure Act 1986, s 99 - Whether to grant leave under r 4 of the Criminal Appeal Rules to raise certain directions, or omissions to direct, as grounds of appeal - Whether a miscarriage of justice arose with respect to the trial judge's directions or omissions to direct - Whether it was open to the jury to conclude beyond reasonable doubt that the offence was committed in company - Factors for consideration when re-sentencing. Crimes Act 1900, s 61I, 61Q, 405AA Crimes (Sentencing Procedure) Act 1999, s 21A LEGISLATION CITED : Criminal Appeal Rules, r 4 Criminal Procedure Act 1986, ss 61(1), 99 Evidence Act, s 66(2) Annakin v R (1988) 17 NSWLR 202 Condon v R (1995) 83 A Crim R 335 Crane v The Director of Public Prosecutions [1921] 2 AC 299 Domican v The Queen (1992) 173 CLR 555 Edwards v R (1993) 178 CLR 193 Papakosmas v R (1999) 196 CLR 297 R v Assim [1966] 2 QB 249 R v Button (2002) 54 NSWLR 455 R v Davis [1999] NSWCCA 15 CASES CITED : R v DH [2000] NSWCCA 360 R v Fuge (2001) 123 A Crim R 310 R v Giri (2001) 121 A Crim R 568 R v Hokafonu [2002] NSWCCA 92 R v Pearson [2002] NSWCCA 429 R v Roberts (2001) 53 NSWLR 138 R v Sanderson (unreported, NSWCCA, 18 July 1994) R v Williams (1999) 104 A Crim R 260 Rex v Muir [1938] WN 163 RPS v R (2000) 199 CLR 620 Zoneff v R (2000) 200 CLR 234 Regina PARTIES : v ITA FILE NUMBER(S) : CCA 60087/03 COUNSEL : Appellant: J C Papayanni Crown: M C Grogan SOLICITORS : Appellant: Jeffreys & Associates Crown: S E O'Connor