Sharwood v Regina [2006] NSWCCA 157

Sharwood v Regina [2006] NSWCCA 157

The conviction appeal failed because the DNA objection at trial concerned continuity and alleged contamination after exhibits reached the laboratory, not the scientific processes used by analysts, and that issue was properly left to the jury; the witness's mistaken references to allegations involving young girls did not create a risk of substantial miscarriage of justice requiring discharge of the jury. The sentence appeal succeeded because the sentencing judge used an incorrect 10-year maximum penalty, imposed a sentence exceeding the true 7-year maximum, wrongly characterised the offences as at or above the middle range of objective seriousness, failed to give proper weight to...

Jurisdiction
Australia
Judgment Date
24 May 2006
Procedural Posture
Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / New South Wales Court of Criminal Appeal; Appeal Against Conviction Dismissed, Leave to Appeal Against Sentence Granted and Applicant Re Sentenced
Outcome
Appeal against conviction dismissed. Leave to appeal against sentence granted and appeal allowed. Sentences quashed and applicant re-sentenced to lesser terms with release on parole.
Legal Topics
['aggravated Indecent Assault' 'dna Evidence' 'failure to Call Analysts' 'rule 4 of Criminal Appeal Rules' 'application to Discharge Jury' 'complaint Evidence' 'standard Non Parole Period' 'objective Seriousness' 'extra Curial Punishment' 'totality and Proportionality' 'special Circumstances']
['criminal Law' 'criminal Procedure' 'sentencing' 'evidence'] ['aggravated Indecent Assault' 'dna Evidence' 'failure to Call Analysts' 'rule 4 of Criminal Appeal Rules' 'application to Discharge Jury' 'complaint Evidence' 'standard Non Parole Period' 'objective Seriousness' 'extra Curial Punishment' 'totality and Proportionality' 'special Circumstances']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / New South Wales Court of Criminal Appeal; Appeal Against Conviction Dismissed, Leave to Appeal Against Sentence Granted and Applicant Re Sentenced

Legal Issues

  1. 1 ['Whether the trial judge erred in admitting and failing to withdraw DNA evidence from an expert who relied on testing performed by other analysts who were not called.' 'Whether the trial judge erred in directing the jury about the DNA evidence and in leaving the defence case.' 'Whether the refusal to discharge the jury after a character witness referred to allegations involving young girls occasioned a risk of a substantial miscarriage of justice.' 'Whether evidence that the complainant told her mother that Wayne touched her was admissible as complaint evidence.' 'Whether the sentencing judge erred by applying an incorrect maximum penalty of 10 years instead of 7 years for offences contrary to s61M(1) Crimes Act 1900.' 'Whether the offences were in the middle range of objective seriousness for the purposes of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999.' 'Whether extra-curial punishment of the applicant should have been taken into account on sentence.' 'Whether the sentencing judge erred in applying totality, proportionality and special circumstances principles.']

Ratio Decidendi

The conviction appeal failed because the DNA objection at trial concerned continuity and alleged contamination after exhibits reached the laboratory, not the scientific processes used by analysts, and that issue was properly left to the jury; the witness's mistaken references to allegations involving young girls did not create a risk of substantial miscarriage of justice requiring discharge of the jury. The sentence appeal succeeded because the sentencing judge used an incorrect 10-year maximum penalty, imposed a sentence exceeding the true 7-year maximum, wrongly characterised the offences as at or above the middle range of objective seriousness, failed to give proper weight to...

Court Disposition

Appeal against conviction dismissed. Leave to appeal against sentence granted and appeal allowed. Sentences quashed and applicant re-sentenced to lesser terms with release on parole.

Orders

  • ['Appeal against conviction dismissed.' 'Leave to appeal against sentence granted and the appeal allowed.' 'Sentences imposed by Kinchington ADCJ on 17 December 2004 be quashed.' 'In lieu thereof, in relation to counts 1, 2, 3 and 5 the applicant is sentenced to fixed terms of imprisonment of 9 months to be served...