Perez v Regina [2008] NSWCCA 46

Perez v Regina [2008] NSWCCA 46

The appeal against conviction failed because no miscarriage of justice was shown from the alleged prosecutorial misstatement, the Longman and Markuleski directions were not erroneous in the circumstances, and the verdicts were capable of rational reconciliation. The sentencing discretion miscarried because the judge wrongly assumed that a standard non-parole period applied to counts 1 and 2; however, no lesser effective total term than 7 years was warranted, though the sentence was restructured and the statutory ratio restored.

Jurisdiction
Australia
Judgment Date
06 March 2008
Procedural Posture
Criminal Appeal Against Conviction and Sentence / Court of Criminal Appeal Judgment
Outcome
Appeal against conviction dismissed; leave to appeal against sentence granted; appeal against sentence allowed; sentence imposed on 5 December 2006 quashed and appellant resentenced.
Legal Topics
['sexual Offences Against Children' 'longman Direction' 'markuleski Direction' 'inconsistent Verdicts' 'rule 4' 'standard Non Parole Period' 'manifest Excess']
['criminal Law' 'criminal Procedure' 'sentencing'] ['sexual Offences Against Children' 'longman Direction' 'markuleski Direction' 'inconsistent Verdicts' 'rule 4' 'standard Non Parole Period' 'manifest Excess']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Sentence / Court of Criminal Appeal Judgment

Legal Issues

  1. 1 ["Whether the Crown prosecutor's alleged misstatement of evidence about the appellant's employment caused a miscarriage of justice." "Whether the trial judge's Longman warning concerning delay was necessary and adequate." "Whether the trial judge's Markuleski direction concerning the complainant's credibility was wrong or misleading." 'Whether the guilty verdicts on counts 1, 2, 3A and 4A were unreasonable or inconsistent with acquittals on other counts.' 'Whether the sentencing judge erred by assuming a standard non-parole period applied to counts 1 and 2.' 'Whether the sentence was manifestly excessive or a lesser sentence was warranted.']

Ratio Decidendi

The appeal against conviction failed because no miscarriage of justice was shown from the alleged prosecutorial misstatement, the Longman and Markuleski directions were not erroneous in the circumstances, and the verdicts were capable of rational reconciliation. The sentencing discretion miscarried because the judge wrongly assumed that a standard non-parole period applied to counts 1 and 2; however, no lesser effective total term than 7 years was warranted, though the sentence was restructured and the statutory ratio restored.

Court Disposition

Appeal against conviction dismissed; leave to appeal against sentence granted; appeal against sentence allowed; sentence imposed on 5 December 2006 quashed and appellant resentenced.

Orders

  • ['Appeal against conviction dismissed.' 'Leave to appeal against sentence granted.' 'Appeal allowed and sentence imposed on 5 December 2006 quashed.' 'On counts 1 and 2: imprisonment for 4 years commencing on 26.6.06 and expiring on 25.6.10, with a non-parole period of 3 years commencing on 26.6.06 and expiring on...