RWB v R; R v RWB [2010] NSWCCA 147

Reported Decision: 202 A Crim R 209

New South Wales Court of Criminal Appeal

CITATION: RWB v R; R v RWB [2010] NSWCCA 147

HEARING DATE(S): 31 May 2010

JUDGMENT DATE: 12 July 2010

JUDGMENT OF: Simpson J at 1; Johnson J at 213; McCallum J at 215

DECISION: (i) Pursuant to s 5(1)(b) of the Criminal Appeal Act 1912, leave be granted to appeal against each conviction; (ii) Appeal against conviction dismissed; (iii) Crown appeal allowed, sentences quashed; (iv) Appellant re-sentenced.

CATCHWORDS: CRIMINAL LAW – particular offences – offences against the person – sexual offences – sexual intercourse with child under 10 years – inciting an act of indecency by person under 16 years – assault with act of indecency on person under 10 years - CRIMINAL LAW – appeal against conviction – procedure – directions to jury – definition of "beyond reasonable doubt" – circumstances permitting expansion of "beyond reasonable doubt" direction do not arise – no miscarriage of justice – submission to jury by Crown prosecutor – Browne v Dunn – submission adopted by trial judge – caution should be exercised in directions to jury concerning failure of accused's counsel to comply with rule in Browne v Dunn – practical effect of direction – no miscarriage of justice - CRIMINAL LAW – procedure – r 4 Criminal Appeal Rules – directions the subject of the grounds of appeal not objected to at trial – grounds ought to be determined on their merits – grounds of appeal do not involve "question of law alone" – leave required – s 5(1)(b) Criminal Appeal Act – Rasic v R – leave granted – application of proviso – s 6 Criminal Appeal Act – assessment of evidence in accordance with Weiss v R – no substantial miscarriage of justice in conviction of appellant – errors established did not impact upon correct verdict – appeal against conviction dismissed - CRIMINAL LAW – Crown appeal – error in failing to impose sentences in accordance with Pearce v The Queen – sentencing under past sentencing patterns – care must be taken not to evaluate sentences by reference to current expectations – some sentences imposed failed to reflect criminality and objective gravity of offences – error in taking into account circumstances of hardship in appellant's custody – failure to accumulate – aggregate sentence also manifestly inadequate – sentences quashed, appellant re-sentenced