Background
CD and LM, a married couple, were convicted after trial of two counts of rape and two counts of indecent treatment of a child under 16 under care. CD was also convicted of three counts of supplying cannabis to a minor. The sexual offences involved a 15-year-old complainant at the couple’s home in December 2021 after she had consumed alcohol and cannabis.
CD received a seven-year head sentence and LM a six-year head sentence, with lesser concurrent terms for the remaining offences. More than a year after the time for appealing their convictions had expired, both sought extensions and argued that the trial judge should have directed the jury about its use of evidence concerning CD’s cannabis supplies and LM’s inappropriate personal questions to the complainant. The Attorney-General separately appealed both sentences as manifestly inadequate.
The Court’s Holding
The Court granted both extensions of time but dismissed the conviction appeals. The challenged evidence was relevant to the narrative of the evening, the assessment of the complainant’s account, and issues raised by the defence case. The prosecution had not invited the jury to infer that CD and LM formed an earlier plan to intoxicate and sexually exploit the complainant, and the absence of the proposed directions did not produce a miscarriage of justice.
The Court allowed the Attorney-General’s sentence appeals. It held that the original sentences were manifestly inadequate given the complainant’s age and intoxication, the offenders’ position of care, their concerted offending, the number and duration of the sexual acts, the absence of guilty pleas or remorse, and the unusually early parole eligibility dates. CD’s head sentence was increased to eight years with parole eligibility on 18 April 2028; LM’s was increased to seven years with parole eligibility on 18 April 2027. Their other concurrent sentences remained unchanged.
Key Takeaways
- Evidence forming part of the narrative of alleged offending may be admissible against a co-accused even when it also concerns conduct specifically attributed to the other accused.
- A limiting direction was not required where the prosecution did not advance the impermissible “plan” reasoning said to create the relevant risk of misuse.
- For serious sexual offending against a child, an unduly low head sentence combined with substantially advanced parole eligibility may establish manifest inadequacy and inferred error of principle.
Why It Matters
The decision illustrates the distinction between contextual evidence that helps a jury understand the alleged events and evidence used to prove an uncharged joint plan. It also confirms that an unexplained delay may not prevent an extension of time where an arguable conviction appeal should be determined to avoid a possible miscarriage of justice.
On sentencing, the Court emphasized denunciation, protection of children, deterrence, and recognition of harm. It cautioned against relying mechanically on numerical comparisons with older rape sentences, particularly given the increased understanding of the profound harm sexual offences cause child victims.