Wan v R; R v Wan [2019] NSWCCA 86

Wan v R; R v Wan [2019] NSWCCA 86

The conviction appeal failed because, after independent review, the Court was not left in reasonable doubt: the Long Video made it open to the jury to find that the complainant did not consent and that Wan knew of the absence of consent, and the verdicts were not inconsistent because the acquittals on Counts 1 and 10 could be logically reconciled with the guilty verdicts. The Crown sentence appeal succeeded because the aggregate sentence and non-parole period were manifestly inadequate for the sustained sexual and indecent assaults on an elderly, incapacitated victim; the prior friendship or prior consensual sexual activity was not mitigating, the victim's old age should have been treated...

Jurisdiction
Australia
Judgment Date
29 April 2019
Procedural Posture
Criminal Appeal Against Conviction and Crown Appeal Against Sentence / Court of Criminal Appeal From Convictions and Sentence Imposed in the District Court
Outcome
Leave to appeal against conviction granted; conviction appeal dismissed; Crown sentence appeal allowed; District Court sentence quashed; Wan re-sentenced to an aggregate term of imprisonment of 8 years with a non-parole period of 5 years.
Legal Topics
['sexual Offences' 'indecent Assault' 'sexual Intercourse Without Consent' 'unreasonable Verdict' 'inconsistent Verdicts' 'crown Appeal Against Sentence' 'manifest Inadequacy' 'aggregate Sentence' 'vulnerable Victim' 'victim Impact Statement']
['criminal Law' 'criminal Appeals' 'sentencing'] ['sexual Offences' 'indecent Assault' 'sexual Intercourse Without Consent' 'unreasonable Verdict' 'inconsistent Verdicts' 'crown Appeal Against Sentence' 'manifest Inadequacy' 'aggregate Sentence' 'vulnerable Victim' 'victim Impact Statement']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Crown Appeal Against Sentence / Court of Criminal Appeal From Convictions and Sentence Imposed in the District Court

Legal Issues

  1. 1 ['Whether the convictions on Counts 2–9 and 11–15 were unreasonable or could not be supported having regard to the evidence.' 'Whether the guilty verdicts on Counts 2–9 and 11–15 were inconsistent with the acquittals on Counts 1 and 10.' 'Whether the District Court sentence was manifestly inadequate.' "Whether the sentencing judge erred in assessing objective seriousness, including by treating a prior relationship as mitigating and by not taking the complainant's old age into account as an aggravating factor." 'Whether the aggregate sentence and non-parole period appropriately reflected totality.']

Ratio Decidendi

The conviction appeal failed because, after independent review, the Court was not left in reasonable doubt: the Long Video made it open to the jury to find that the complainant did not consent and that Wan knew of the absence of consent, and the verdicts were not inconsistent because the acquittals on Counts 1 and 10 could be logically reconciled with the guilty verdicts. The Crown sentence appeal succeeded because the aggregate sentence and non-parole period were manifestly inadequate for the sustained sexual and indecent assaults on an elderly, incapacitated victim; the prior friendship or prior consensual sexual activity was not mitigating, the victim's old age should have been treated...

Court Disposition

Leave to appeal against conviction granted; conviction appeal dismissed; Crown sentence appeal allowed; District Court sentence quashed; Wan re-sentenced to an aggregate term of imprisonment of 8 years with a non-parole period of 5 years.

Orders

  • ["Grant leave to appeal in respect of the applicant's convictions." 'Dismiss the conviction appeal.' 'Sentence appeal allowed.' 'Sentence imposed in the District Court on 30 August 2018 quashed.' 'The respondent is sentenced to an aggregate term of imprisonment of 8 years with a non-parole period of 5 years. The...