Armstrong v R [2017] NSWCCA 323

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Armstrong v R [2017] NSWCCA 323 Hearing dates: 14 November 2017 Decision date: 15 December 2017 Before: Meagher JA at [1]; Rothman J at [38]; Button J at [39] Decision: 1. Extend the time for giving notice of intention to seek leave to appeal against conviction and sentence to 25 August 2017. 2. Grant leave to appeal against conviction on the grounds proposed. 3. Dismiss the appeal against conviction. 4. Refuse leave to appeal against sentence. Catchwords: EVIDENCE – tendency evidence – where accused assaulted his domestic partner on two separate and earlier occasions – whether evidence of assaults had significant probative value in relation to charges of sexual assault in circumstances of aggravation namely intentionally inflicted actual bodily harm immediately before the offence – whether probative value substantially outweighed prejudicial effect

CRIME – sentencing – sexual offences – objective seriousness – where non-consensual digital penetration degrading and demeaning towards complainant – whether short duration and absence of sexual gratification diminished objective seriousness Legislation Cited: Crimes Act 1900 (NSW), s 61, 61J Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Procedure Act 1986 (NSW), s 130A Evidence Act 1995 (NSW), ss 97(1), 101(2) Cases Cited: DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 House v The King (1936) 55 CLR 499 Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 187 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 RH v R [2014] NSWCCA 71 Simpson v R [2014] NSWCCA 23 Sokolowskyj v R [2014] NSWCCA 55; (2014) 239 A Crim R 528 Category: Principal judgment Parties: Mark Robert Armstrong (Applicant) The Crown (Respondent) Representation: Counsel: G Jauncey, P Lange and C Parkin (Applicant) M Cinque SC (Crown)