TDP v R; R v TDP [2013] NSWCCA 303

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: TDP v R; R v TDP [2013] NSWCCA 303 Hearing dates: 18/11/2013 Decision date: 03 December 2013 Before: Hoeben CJ at CL at [1] Blanch J at [166] R A Hulme J at [167] Decision: (1) In respect of the appeal against conviction, I would grant leave to appeal but dismiss the appeal. (2) With respect to the Crown appeal against sentence, the orders which I propose are: (a) The sentences in respect of counts 2, 3, 5 and 7 are quashed and in lieu thereof, the applicant is sentenced as follows: Count 2 - A term of imprisonment with a non-parole period of 3 years commencing 15 May 2012 and expiring 14 May 2015, with a balance of term of 18 months expiring 14 November 2016. Count 3 - A term of imprisonment with a non-parole period of 4 years commencing 15 May 2012 and expiring 14 May 2016, with a balance of term of 2 years expiring 14 May 2018. Count 5 - A term of imprisonment with a non-parole period of 4 years commencing 15 May 2012 and expiring 14 May 2016, with a balance of term of 2 years expiring 14 May 2018. Count 7 - A term of imprisonment with a non-parole period of 2 years and 6 months to date from 15 November 2015 and to expire on 14 May 2018, with a balance of term of 1 year and 6 months expiring 14 November 2019. (b) The Crown appeal against sentence is otherwise dismissed. Catchwords: CRIMINAL LAW - APPEAL AGAINST CONVICTION - nine counts of aggravated sexual intercourse without consent and two counts of aggravated indecent assault - offences occurring over 3½ years when complainant aged between 13 and 16 - applicant self-represented - alleged failure by Crown to place all relevant evidence before jury - relevance of toxicology report on complainant's hair - challenge to summing up by trial judge - alleged failure by trial judge to emphasise contradictions in complainant's evidence - alleged failure by trial judge to give a warning as to the unreliable nature of complainant's evidence - alleged failure by trial judge to adequately sum up as to corroboration of complainant's evidence - alleged miscarriage of justice due to incompetence of counsel - application of rule 4 of Criminal Appeal Rules - whether post-conviction admissions by applicant can be taken into account in a conviction appeal and if so in what way - conviction appeal dismissed - CROWN APPEAL AGAINST SENTENCE - failure by sentencing judge to impose non-parole periods, contrary to s 45(1) of Crimes (Sentencing Procedure) Act 1999 - whether applicant's mental health properly taken into account - whether sentences properly accumulated - whether sentences manifestly inadequate - Crown appeal against sentence substantially dismissed. Legislation Cited: Crimes Act 1900 - s61J, s61M(1) Crimes (Sentencing Procedure) Act 1999 - ss 44 and 45 Criminal Appeal Act 1912 - ss 6(1), 8 Evidence Act 1995 - s165(1)(c) Cases Cited: AP v R [2013] NSWCCA 189 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52; 236 CLR 358 Collier v R [2012] NSWCCA 213 Dinsdale v The Queen [2000] HCA 54; 202 CLR 231 Everett v The Queen [1994] HCA 49; 181 CLR 295 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Grey v R [2001] HCA 65; 184 ALR 593 Ignjatic v R (1993) 68 A Crim R 333 Lipchin v R [2013] NSWCCA 77 M v The Queen [1994] HCA 63; 181 CLR 487 at 534 Monteiro v R [2011] NSWCCA 113 Muldrock [2011] HCA 39; 244 CLR 120 Nguyen v R [2007] NSWCCA 14 Papakosmas v R [1999] HCA 37; 196 CLR 297 R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 R v Bikic [2001] NSWCCA 537 R v Birks [1990] 19 NSWLR 677 at 685 R v De-Cressac [1985] 1 NSWLR 381 R v Gudgeon (1995) 83 A Crim R 228 R v McCarthy and Ryan (1993) 71 A Crim R 395 R v Reid (NSWCCA 13 September 1993, unreported) R v Williams [1999] NSWCCA 9; 104 A Crim R 260 Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326 Reeves v R; R v Reeves [2013] NSWCCA 34 Regina v XX [2009] NSWCCA 115; 195 A Crim R 38 Salmon v R [2012] NSWCCA 119 SGJ v R [2008] NSWCCA 258 TKWJ v The Queen [2002] HCA 46; 212 CLR 124 Category: Principal judgment Parties: Crown Appeal against Sentence: Regina - Appellant Crown TDP - Respondent Appeal against Conviction: TDP - Applicant Regina - Respondent Crown Representation: Counsel: Crown Appeal against Sentence: Ms V Lydiard - Appellant Crown Mr H Dhanji SC - Respondent Appeal against Conviction: Applicant in person Ms V Lydiard - Respondent Crown Solicitors: Crown Appeal against Sentence: S Kavanagh, Solicitor for Public Prosecutions - Appellant Crown SE O'Connor, Legal Aid NSW - Respondent Appeal against Conviction: SE O'Connor, Legal Aid NSW - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2011/90599 Decision under appeal Before: Toner DCJ File Number(s): 2011/90599