R v Diaz [2004] NSWCCA 251

New South Wales Court of Criminal Appeal

CITATION : R v Diaz [2004] NSWCCA 251 HEARING DATE(S) : 26/07/04 JUDGMENT DATE : 26 July 2004

JUDGMENT OF : Spigelman CJ at 26; Hidden J at 2; Buddin J at 29 DECISION : Appeal against conviction dismissed.; Leave to appeal against sentence granted; appeal dismissed.

CATCHWORDS : CRIMINAL LAW: Appeal against conviction - aggravated sexual assault - adequacy of directions about intoxication of complainant and appellant. - Application for leave to appeal against sentence - disparity from sentence passed on co-offender - whether special circumstances should have been found. LEGISLATION CITED : Evidence Act 1995 CASES CITED : R v Baartman [2000] NSWCCA 298 R v Harbulot [2003] NSWCCA 141 PARTIES : Salvador Alex Diaz - Appellant Regina - Respondent FILE NUMBER(S) : CCA 60378/03 COUNSEL : Ms S Kluss - Appellant Dr P Power SC - Crown SOLICITORS : Ross Hill & Associates - Appellant S Kavanagh - Crown

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/1021 FILE NUMBER(S) : LOWER COURT Shillington Acting DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60378/03

SPIGELMAN CJ HIDDEN J BUDDIN J

Monday, 26 July, 2004 REGINA V Salvador Alex DIAZ Judgment 1 SPIGELMAN CJ: Hidden J will deliver the first judgment. 2 HIDDEN J: After a trial in the District Court the appellant, Salvador Alex Diaz, was found guilty of sexual intercourse without consent in circumstances of aggravation. He was sentenced to a term of imprisonment to which I shall refer later. He appeals against his conviction and seeks leave to appeal against sentence. 3 He was tried jointly with a co-offender, JN, who also faced a second charge arising from the same incident. JN was found guilty of both charges and was also sentenced to a term of imprisonment. 4 It is unnecessary to refer to the evidence in any detail. On a night early in December 2000 the complainant, a 15-year-old girl, was with the appellant and JN at Darling Harbour. They were drinking cask wine and she became well intoxicated. That was not in contest at the trial and, indeed, there was abundant evidence to that effect in the Crown case. It was the case for the appellant and JN that they also were intoxicated. The complainant gave evidence that the appellant had forcible intercourse with her while JN held her down, over her screams of protest. She said that JN then had intercourse with her himself, in the teeth of her protests, giving rise to the second charge against him. The two men then left and she made prompt complaint to a security guard in the area and to a police officer who attended the scene. There was DNA evidence consistent with the appellant and JN having had sexual contact with her. 5 The appellant did not give evidence at the trial. However, in an electronically recorded interview with the police he said that he was drunk and that at one stage the complainant had behaved in a sexually provocative manner but that, because of his intoxication, he had no recollection of the period of time during which the sexual assaults were alleged to have been committed. Both his case and that of his co-offender were conducted on the basis that sexual intercourse had occurred, the only issues being whether the complainant had consented and, if she had not, whether they were aware that she was not consenting. 6 Two grounds of appeal against conviction have been argued. The first is that the trial judge failed adequately to direct the jury about the danger of unreliability in the evidence of the complainant because of her state of intoxication. The second is that his Honour also failed to direct the jury adequately about the intoxication of the appellant. 7 Neither the Crown in this court nor Miss Kluss, who represented the appellant, appeared at the trial. 8 As to the complainant's intoxication, his Honour gave no direction as such but he did refer to it in his brief summary of the Crown case. He also pointed out that the Crown case depended upon the reliability of the complainant's evidence, which was uncorroborated, and he added a warning about the danger of convicting in the absence of corroboration. 9 Both defence counsel asked his Honour to fashion a warning in accordance with s 165 of the Evidence Act about the bearing of the complainant's intoxication upon the reliability of her evidence, especially on the question of consent and the question of whether, if she were not consenting, she adequately conveyed that fact to the appellant and his co-offender. His Honour declined to do so and in this, Miss Kluss argues, he fell into error. 10 However, the relevance of intoxication to reliability of a witness' evidence is a matter well within the experience of juries and, in the particular circumstances of this case, the relevance of intoxication to this complainant's reliability is also such a matter well within the experience of jurors. Neither at common law nor under s 165 would it normally require a warning by the trial judge based upon the experience of the courts. 11 On this aspect it is instructive to turn to the judgment of Kirby J, with whom the Chief Justice and Smart AJ agreed, in R v Baartman [2000] NSWCCA 298 at [61] ff. At [62] his Honour said: "In the nature of things, evidence given by all witnesses may be unreliable. Evidence is necessarily dependent upon observation and recollection. Both are fallible. However, s165 is not dealing with unreliability in this sense. Rather, the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts in dealing with certain types of evidence or because there is a danger that the jury may overestimate the probative value of certain evidence…" 12 Whether in the present case it could be said that s 165 did not require any warning at all, or whether it might be said that there were good reasons within the meaning of subs (3) of that section not to provide a warning, is not currently to the point and need not be determined. 13 The complainant's intoxication had been dealt with in the addresses of all three counsel. As I have said, his Honour made it abundantly clear that the Crown case turned upon the reliability of her evidence and gave a warning about the danger of convicting in the absence of corroboration, even though no such warning was required: see s164 of the Evidence Act. The interests of justice did not call for any further direction about this aspect of the case. 14 As to the evidence of the appellant's own intoxication, his Honour did give a direction as follows: "Members of the jury, intoxication is clearly a matter which you have to consider in this trial. It is relevant as to whether the accused that you are considering knew, for example, that the party that you were considering was consenting. That, of course, that his state of intoxication would be a matter which you would take into account. It is not a question, of course, of looking back afterwards to decide whether at some later stage he had had a belief that she was consenting to what happened. It is a question of you looking at the situation as it was at the time these events occurred." 15 That direction was undoubtedly brief, but in the circumstances of the case it appears to me that it was adequate. The Crown prosecutor raised rule 4 in opposition to this ground of appeal but the point was taken by counsel for the co-offender at trial, whose interest was the same as that of the appellant and, in any event, I am prepared to deal with this ground of appeal on its merits. 16 Apart from that brief direction his Honour did, of course, refer to the competing submissions of counsel about this aspect of the evidence, that is, the intoxication of the appellant and of his co-accused. It must be said that what his Honour said about all aspects of intoxication, that of the complainant, the appellant and the co-accused, was rather spare and more might have been said about it. Nevertheless, it appears to me that what was said was adequate to give the jury such guidance as they needed to understand the resolution of that issue and adequately put the defence case: cf R v Wilson & Ors (1986) 22 A Crim R 131, per King CJ at 134-5. 17 Accordingly, in my view, neither ground of appeal has been made out and I would dismiss the appeal against conviction. 18 Let me turn, then, to the application for leave to appeal against sentence. The offence of which the appellant was found guilty carries a maximum sentence of 20 years imprisonment: see s 61J of the Crimes Act. The circumstance of aggravation alleged was his being in company with JN at the time of the offence. The appellant was sentenced to imprisonment for 8 years with a non-parole period of 5 years, 11 months. It is clear that his Honour intended an effective non-parole period of 6 years but reduced that period so as to take account of a discrete period of pre-sentence custody. 19 Two matters have been argued in the application. Miss Kluss complains of excessive disparity between the sentence passed upon the appellant and the effective sentence passed upon the co-offender, JN. On the joint count, JN was sentenced to imprisonment for 5 years with a non-parole period of 3 years. On the second count, against JN only, he was sentenced to a concurrent term of 6 years imprisonment with a non-parole period of 3 years. For both offences, then, he was sentenced effectively to 6 years with a non-parole period of 3 years. 20 There were obvious differences in the subjective circumstances of both men, which Miss Kluss acknowledges. Her argument is that, even allowing for those differences, the disparity is such as to engender in the appellant a justifiable sense of grievance. Miss Kluss points in written submissions to the fact that JN stood for sentence for two offences, but it must be said that both offences clearly arose out of the same incident and it is a situation in which concurrent sentences were entirely appropriate. 21 It is the other subjective features which are more important. JN was but 17 years old at the time of the offence; the appellant was 25. That is a significant difference in age, even allowing for evidence in the appellant's case that he is immature and of very low intelligence. The appellant had an unfavourable criminal record, including a sentence of imprisonment for a charge of robbery in company. JN had, effectively, no criminal record at all. There were apparently a couple of minor entries in the Children's Court which his Honour saw as of no significance. Importantly, the appellant was on bail in respect of that offence of robbery in company at the time this offence was committed. The combination of those subjective backgrounds and the fact that JN was entitled to the special considerations governing the sentence of juveniles, leads me to the conclusion that the disparity, albeit marked, is not such as to engender in the appellant a justifiable sense of grievance. 22 Finally, Miss Kluss argues that his Honour erred in failing to find special circumstances warranting a departure from the usual proportion between head sentence and non-parole period. I put to one side his Honour's small adjustment to the non-parole period to take account of pre-sentence custody. There certainly was evidence from which special circumstances might have been found. There was evidence, by way of a psychological report and oral evidence, that the appellant had a very difficult upbringing, including a very traumatic period in his native El Salvador before he migrated with his family to this country. He suffers from epilepsy. He had an on-going alcohol problem and, as I have said, his intellectual capacity was assessed as low and his personality as immature. 23 That said, whether his subjective case might amount to special circumstances warranting departure from the usual proportion is very much a matter of judgment in the instant case. The proper approach to a non-parole period and to special circumstances has been considered authoritatively by the Chief Justice in R v Simpson (2001) 53 NSWLR 704 and was revisited by his Honour in R v Fidow [2004] NSWCCA 172. 24 The judgment of a trial judge that subjective circumstances do not warrant a departure from the usual proportion between head sentence and non-parole period is one with which this court will not lightly interfere. No doubt this appellant will need considerable assistance to readjust to society should he be released to parole but the sentence which his Honour has structured is such as to leave him with two years of parole eligibility. In any event, it was necessary for the non-parole period appropriately to reflect considerations of retribution and deterrence in a case as serious as this. 25 In all those circumstances, I am not satisfied that his Honour erred in his approach to the assessment of the non-parole period. It does not appear to me that either of the complaints in relation to the sentence have been made out. The case was certainly worthy of argument and I would grant leave to appeal against sentence but would dismiss that appeal also. 26 SPIGELMAN CJ: Subject to one matter, I agree with the reasons of Hidden J. His Honour, at the outset of his reasons, indicated that the appellant and his co-offender left the presence of the victim after the act of sexual intercourse by the co-offender. As I understand the evidence, in fact the appellant left after his act of sexual intercourse and before the act of sexual intercourse by the co-offender. This is reflected in the charges. The circumstance of aggravation, in the case of the appellant, was that the act occurred in company, whereas the circumstance of aggravation in the case of the co-offender, was the fact that the victim was less than 16 years. 27 I don't believe this factual difference makes any difference to his Honour's reasons. It can go only to the question of sentence and the issue of parity that has arisen. It is not such as to give me any cause to doubt his Honour's reasons on the question of sentence, particularly the issue of parity, with which I fully agree. 28 I agree with the order proposed by Hidden J. 29 BUDDIN J: I agree with the order proposed by Hidden J and the reasons that his Honour has provided. I also agree with the additional remarks by the Chief Justice. 30 SPIGELMAN CJ: The order is as Hidden J proposes. **********