MM v R [2018] NSWCCA 158

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: MM v R [2018] NSWCCA 158 Hearing dates: 30 April 2018 Date of orders: 01 August 2018 Decision date: 01 August 2018 Before: Hoeben CJ at CL at [1] Walton J at [2] R A Hulme J at [82] Decision: (1) Extension of time to appeal to 7 February 2018 is granted;

(2) Leave to appeal against conviction pursuant to r 4 of the Criminal Appeal Rules is granted;

(3) The appeal is upheld;

(4) Pursuant to s 7(2) of the Criminal Appeal Act 1912, instead of allowing the appeal, the verdict of the jury in District Court proceedings 2012/226372 of guilty to the offence contrary to s 61J of the Crimes Act 1900 is substituted by a verdict of guilty to an offence contrary to s 61I of the Crimes Act 1900;

(5) Pursuant to s 7(2) of the Criminal Appeal Act 1912, the applicant is sentenced to imprisonment comprising of a non-parole period of 3 years commencing 28 August 2013 and a balance of the term of sentence of 3 years; and

(6) Pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999, the commencement date of the sentence imposed in the District Court on 18 December 2014 is varied to 28 August 2016. Catchwords: CONVICTION APPEAL – conviction for aggravated sexual assault – leave sought pursuant to r 4 of the Criminal Appeal Rules (NSW) – element of aggravation – intentionally or recklessly inflicts actual bodily harm – error in indictment – indictment reflects offence known to law but did not reflect the terms of s 61J(2)(a) –misdirection of jury about aggravation – error of law –extension of time to appeal – whether the appeal should be dismissed under proviso in s 6(1) of the Criminal Appeal Act – whether substantial miscarriage of justice occurred – evidence at trial did not prove beyond reasonable doubt the applicant was guilty of aggravated sexual assault – misdirection apt to prevent the performance of jury of its function – proviso not applied – substituted verdict of sexual assault contrary to s 61I of the Crimes Act – resentencing – resentencing affected by change in maximum sentence – factual findings of trial judge may be adopted in resentencing subject to De Simoni principle – resentenced to total sentence 6 years – application to vary commencement of subsequent sentences pursuant to s 59 of the Crimes (Sentencing Procedure) Act – appeal granted Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Appeal Rules (NSW) Cases Cited: Kalbasi v R (2018) 352 ALR 1; [2018] HCA 7 Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 Krakouer v R (1998) 194 CLR 202; [1998] HCA 43 Lane v The Queen [2018] HCA 28 Obeid v R [2017] NSWCCA 221 R v De Simoni (1981) 147 CLR 383 R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338 Reeves v R (2013) 304 ALR 251; [2013] HCA 57 Sio v R (2016) 259 CLR 47; [2016] HCA 32 Spies v R (2000) 201 CLR 603; [2000] HCA 43 Tonari v The Queen (2013) 237 A Crim R 490; [2013] NSWCCA 232 Category: Principal judgment Parties: MM (Applicant) The Crown (Respondent) Representation: Counsel: T Quilter SC (Applicant) H Roberts (Crown)