Kramer v R; R v Kramer [2023] NSWCCA 152

Kramer v R; R v Kramer [2023] NSWCCA 152

The verdict was not unreasonable given the evidence was open for the jury to convict; strategic choices by defence counsel negated the need for an 'admissions' direction and no miscarriage of justice occurred; the sentencing judge erred in considering mental health and lack of physical injury in assessing objective seriousness; the sentence was manifestly inadequate, but the court declined to intervene due to completed community service and effects of re-sentencing.

Jurisdiction
Australia
Judgment Date
28 June 2023
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence; Supreme Court (nsw) – Court of Criminal Appeal
Outcome
Appeal against conviction dismissed; leave to appeal granted. Crown's appeal against sentence upheld on grounds 2 and 3 but dismissed in exercise of residual discretion.
Legal Topics
['appeals Against Conviction' 'appeals Against Sentence' 'sexual Offences' 'unreasonable Verdict' 'admissions Directions' 'consciousness of Guilt' 'objective Seriousness' 'consent in Sexual Offences']
['criminal Law'] ['appeals Against Conviction' 'appeals Against Sentence' 'sexual Offences' 'unreasonable Verdict' 'admissions Directions' 'consciousness of Guilt' 'objective Seriousness' 'consent in Sexual Offences']

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Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence; Supreme Court (nsw) – Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the jury's verdict of guilty for sexual intercourse without consent was unreasonable or unsupported by evidence" "Whether failure to give 'admissions' direction occasioned miscarriage of justice" "Whether Crown's address invited impermissible consciousness of guilt reasoning" 'Whether sentencing judge erred in assessing objective seriousness of the offence and applied incorrect legal considerations' 'Whether sentence imposed was manifestly inadequate']

Ratio Decidendi

The verdict was not unreasonable given the evidence was open for the jury to convict; strategic choices by defence counsel negated the need for an 'admissions' direction and no miscarriage of justice occurred; the sentencing judge erred in considering mental health and lack of physical injury in assessing objective seriousness; the sentence was manifestly inadequate, but the court declined to intervene due to completed community service and effects of re-sentencing.

Court Disposition

Appeal against conviction dismissed; leave to appeal granted. Crown's appeal against sentence upheld on grounds 2 and 3 but dismissed in exercise of residual discretion.

Orders

  • ['With respect to ground 1: grant leave to appeal; dismiss the appeal.' 'With respect to ground 2, refuse leave to appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).' 'Crown appeal against sentence dismissed.']