R v CCT

The appellant was convicted after trial of sexual offences against his biological daughter, including maintaining a sexual relationship with her while she was a child. The appellant was sentenced to a head sentence of 17 years, to be served concurrently with an existing sentence of eight years of which the appellant had served around six years. The appellant appealed against the convictions and sentence on several grounds (only Ground 2 of the appeal and appeal against sentence are the subject of this note). Ground 2 of the appeal was made on the basis that a miscarriage of justice had occurred because the interpreter for the appellant, whose first language was Thai, did not translate all of the proceedings to him. The Court of Appeal held a complete translation of the proceedings was not required in circumstances where the appellant had some understanding of English and was able to, and did, request assistance for parts of the proceedings he did not understand. This ground of appeal was therefore dismissed. In respect of the sentence, the appellant argued the judge had erred in applying the totality principle and the effective head sentence of 23-and-a-half years was manifestly excessive. The Court of Appeal found no error had occurred. The moderation to be applied to a sentence under the totality principle will be less in cases like the appellant’s, where the offending involved different complainants during incidents decades apart, than in cases where the offending is related or part of the course of the subject offending.

Sofronoff P and McMurdo JA and Applegarth J

14 December 2021

Background

The appellant was convicted by a jury of sexual offences against his biological daughter, including maintaining a sexual relationship with her while she was between the ages of three and 14-years-old. [3], [5]. The appellant was sentenced to a head sentence of 17 years’ imprisonment. [211]. This sentence was ordered to be served from the date of sentence, concurrently, with a previous term of imprisonment of eight years in respect of a different complainant. [211]. The effective term of imprisonment, after time served, was 23-and-a-half years. [212].

The appellant raised multiple grounds of appeal against the convictions, including Ground 2 – that there was a miscarriage of justice because the interpreter had not translated all of the proceedings to the appellant, who was Thai. [148]. The appellant also appealed against his sentence on the basis the totality principle was not properly applied to moderate his sentence. [213]. The appellant contended that had he been dealt with for all offences at the same time, including those against a different complainant, the head sentence would have been a term of imprisonment of around 20 years. [213].

Although the appellant had some command of English, having lived in Australia for around 30 years, it was determined a Thai interpreter was necessary to assist him. [148].

In the appellant’s affidavit in relation to the interpreter issue, he stated he understood only around 25 per cent of what was being said at trial, and the interpreter stopped interpreting when she got into “trouble”, and he could not understand what was happening. [158]–[159]. The appellant also stated in his affidavit that he told his lawyers he could not understand everything in court. [160]. This was contrary to the evidence of the appellant’s legal representatives at trial, who gave oral evidence before the Court of Appeal. [161]–[163].

The ultimate question on appeal was “whether the interpretation provided to [the appellant] at the trial allowed him to sufficiently understand the proceedings and the nature of the evidence against him so as to decide whether to give or call evidence and, if so, upon what matters evidence would be given.” [168].

Decision of the Court of Appeal

The Court of Appeal rejected Ground 2 of the appeal and dismissed the appeal against conviction. [209]. Firstly, “a complete translation of the evidence was not required in the circumstances” to enable the appellant to sufficiently understand the proceedings [201]. The appellant likely understood “a substantial part of [the complainant’s] evidence without requiring interpretation” as he was familiar with what she was expected to say due to reviewing and giving instructions on the contents of her police statement prior to the trial. [196], [202]. The Court found the appellant also likely raised with his lawyers things he did not understand and that these were explained to him during the breaks and adjournments. [198], [202].

Their Honours rejected the appellant’s evidence that he had not been able to understand the trial. [194], [206]. “The appellant did not complain to his lawyers at the trial, despite many opportunities to do so directly to them, that the process of interpretation did not allow him to sufficiently understand the evidence of the complainant.” [204]. Ultimately, the appellant failed to “establish that the interpretation provided to him at the trial did not allow him to sufficiently understand the proceeding and the nature of the evidence against him so as to decide whether to give or call evidence and, if so, upon what matters evidence would be given”. [208].

The Court of Appeal also refused leave to appeal against sentence. [272]. The totality principle is reflected in s 9(2)(l) Penalties and Sentences Act 1992, which “requires a court sentencing an offender to have regard to ‘sentences already imposed on the offender that have not been served’”. [216]. Their Honours emphasised that the task of the second judge is not to re-open the first judge’s sentence, but simply to “ensure that the aggregate sentence reflects the total criminality of the offender’s conduct.” [218], [221].

The Court distinguished the appellant’s case from the High Court’s approach in Mill v The Queen. In that case, the High Court identified the effective head sentence that would likely have been imposed had that offender been sentenced at the same time for offences committed within a short space of time in different jurisdictions. [223]–[224]. However, in the appellant’s case, he “was not apprehended in respect of his offending against his daughter until he had begun to serve his sentence for offences committed against a different victim”, which occurred 20 years after his offending against his daughter began and 10 years after he desisted from that offending. [225], [260]–[264].

The moderation to be applied to a sentence under the totality principle will be less in cases like the appellant’s, where the offending involved different complainants during incidents decades apart, than in cases where the offending is related or part of the course of the subject offending. [230]–[235]. In light of the very young age and vulnerability of the complainant at the time of the offending, the significant breach of trust involved, the lengthy period of abuse, the fact another complainant had been abused in a different course of offending, and the lack of “substantial matters in mitigation” including the appellant showing “no remorse”, the sentence was not excessive when juxtaposed with comparable cases. [237]–[255], [267]. No error in in the sentencing discretion was demonstrated; leave to appeal the sentence was therefore refused.

A Hughes of Counsel