CARLTON v THE QUEEN [2008] NSWCCA 244

Reported Decision: 189 A Crim R 332

New South Wales Court of Criminal Appeal

CITATION: CARLTON v THE QUEEN [2008] NSWCCA 244

HEARING DATE(S): 25 August 2008

JUDGMENT DATE: 16 October 2008

JUDGMENT OF: Basten JA at 1; Hislop J at 117; Price J at 118

(1) Grant leave to appeal in respect of convictions on 4 counts of aggravated sexual assault.

(2) Dismiss the appeal against the convictions. DECISION: (3) Grant leave to appeal against the sentences imposed in respect of each count.

(4) Dismiss the appeal against the sentences.

CATCHWORDS: CRIMINAL LAW – appeal against conviction – whether miscarriage of justice – construction of proviso – whether summing-up lacked balance and unfair – where trial judge omitted information from summing-up – whether trial judge erred in directions to jury – adequacy of correction of errors – whether directions confused jury – counsel objections to directions – corroboration of complainant's evidence – Criminal Appeal Act 1912 (NSW) s 6(1) – Criminal Appeal Rules (NSW) r 4 - CRIMINAL LAW – jurisdiction, practice and procedure – appeal against conviction – not on question of law alone – leave required – Criminal Appeal Act 1912 (NSW) s 5 - SENTENCING – standard non-parole period – whether trial judge gave proper weight to offender's mental illness – whether offence in the middle of the range of objective seriousness – where offender convicted of aggravated sexual intercourse – where complainant young child – harm to complainant – where offender segregated and schizophrenic – Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 54A, 54B - WORDS & PHRASES – "miscarriage of justice" – "question of law alone"

Crimes Act 1900 (NSW), s 61J LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44, 54A, 54B; Div 1A, Pt 4 Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Appeal Rules, r 4