NM v R [2012] NSWCCA 215

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: NM v R [2012] NSWCCA 215 Hearing dates: 31 August 2012 Decision date: 08 October 2012 Before: Macfarlan JA at [1]; McCallum J at [73]; Grove AJ at [74] Decision: (1) Dismiss the appeal against conviction. (2) Grant leave to appeal against sentence. (3) Quash the sentences imposed in the District Court on 23 August 2010. (4) In substitution for the sentences imposed on 23 August 2010, sentence the appellant as follows: Counts 1 and 3: concurrent terms of imprisonment of 4 years with non-parole periods of 3 years each to date from 19 May 2010. Counts 2, 4 and 5: concurrent terms of imprisonment of 5 years with non-parole periods of 3 years and 6 months each to date from 19 May 2010. Overall sentence: imprisonment for 5 years with a non-parole period of 3 years and 6 months to date from 19 May 2010. The earliest date upon which the appellant is eligible for release on parole is 19 November 2013. Catchwords: CRIMINAL LAW - APPEALS - conviction appeal - sexual intercourse without consent - whether verdict unreasonable, or cannot be supported having regard to the evidence - whether complainant's evidence credible despite inconsistencies - whether trial judge gave erroneous directions to jury - whether judicial bias shown

CRIMINAL LAW - APPEALS - sentence appeal - sexual intercourse without consent - aggregate term of imprisonment of nine and a half years with six and a half years non-parole period - whether sentence manifestly excessive - whether objective seriousness of offences to be assessed having regard to previous relationship between offender and complainant and their ongoing intermittent sexual relationship - whether sentencing failed to conform with principles in Muldrock v R Legislation Cited: Crimes Act 1900 Criminal Appeal Rules Evidence Act 1995 Cases Cited: Bellchambers v R [2011] NSWCCA 131 M v R [1994] HCA 63; 181 CLR 487 Markarian v R [2005] HCA 25; 228 CLR 357 Mohamed v R [2008] NSWCCA 45 Muldrock v R [2011] HCA 39; 85 ALJR 1154 R v Hendricks [2011] NSWCCA 203 R v Koloamatangi [2011] NSWCCA 288 R v Mason [2001] VSCA 62 R v XX [2009] NSWCCA 115; 195 A Crim R 38 SKA v R [2011] HCA 13; 243 CLR 400 Wiren v R (1996) 89 A Crim R 356 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: NM (Appellant) Regina (Respondent) Representation: Counsel: Appellant in person N Noman (Respondent) Solicitors: Appellant in person Solicitor for Public Prosecutions File Number(s): 2009/154165 Decision under appeal Citation: R v NM Date of Decision: 2010-08-23 00:00:00 Before: Ellis DCJ File Number(s): 2009/154165