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Dungay v R

Dungay v R

Case [2010] NSWCCA 82 13 May 2010

Appeal

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Breach of Contract

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Dungay v R; R v Dungay [2010] NSWCCA 82

HEARING DATE(S): 2 March 2010

JUDGMENT DATE:
13 May 2010

JUDGMENT OF: Giles JA at 1; Hulme J at 133; Latham J at 139

DECISION: (1) Conviction appeal dismissed. (2) Sentence appeal allowed. (3) Set aside the sentences imposed on 26 June 2009, and in lieu thereof sentence the appellant: for the offence of assault occasioning actual bodily harm, to imprisonment for 6 months commencing on 21 January 2008; for the offence of aggravated attempted sexual intercourse, to imprisonment for a non-parole period of 2 years commencing on 21 April 2008 and a further term of 1 year 6 months; and for the offence of robbery in company with wounding, to imprisonment for a non-parole period of 5 years commencing on 21 July 2009 and a further term of 3 years. The overall sentence is an effective non-parole period of 6 years 6 months and further term of 3 years. The appellant will be eligible for parole on 20 July 2014.

CATCHWORDS: CRIMINAL LAW - sexual assault - appeal against conviction - inconsistent verdicts - two charges arising out of the same circumstances - verdicts dependent on jury's acceptance of complainant's evidence - whether finding of guilt on one count inconsistent with acquittal on the other - lengthy deliberation not necessarily indicative of unreasonableness or compromise - whether verdicts unreconcilable - high threshold before inconsistency will be found - verdicts not inconsistent. CRIMINAL LAW - Crown appeal on sentence - assault occasioning actual bodily harm - robbery in company with wounding - aggravated attempted intercourse - whether individual and total sentences manifestly inadequate - whether error in declining to find aggravating factors of gratuitous cruelty and vulnerability of the victim - no error shown - whether finding of mid-range seriousness in error - error shown - subjective features given too much weight - sentencing did not reflect whole of criminality - manifestly inadequate.

CATEGORY: Principal judgment

CASES CITED: Ersmann v R [2007] NSWCCA 161; (2007) 171 A Crim R 560;
Gao v R [2006] NSWCCA 384;
M v The Queen (1997) 191 CLR 439;
MacKenzie v The Queen (1987) 190 CLR 348;
McCullough v R [2009] NSWCA 94;
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606;
R v Boney [2001] NSWCCA 432;
R v Carr [2002] NSWCCA 434;
R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 60;
R v Harmid [2006] NSWCCA 302; (2006) 164 A Crim R 179;
R v Institoris [2002] NSWCCA 8;
R v JW [2010] NSWCCA 39;
R v Knight and Biuvanua [2007] NSWCCA 283;
R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82;
R v PMT [2003] VSCA 200; (2003) 8 VR 50;
R v SDM [2001] NSWCCA 158; (2001) 51 NSWLR 530;
R v Sharma [2003] NSWCCA 142; (2002)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dungay v R

Details

AGLC: Dungay v R [2010] NSWCCA 82
Case: [2010] NSWCCA 82
Decision Date: 13 May 2010

CaseChat Overview and Summary

In the case of Dungay v R, the appellant, Mr. Dungay, was convicted and sentenced for multiple offences arising out of the same incident involving a sexual assault. The appellant appealed against both his conviction and sentence. The nature of the appeal was complex, involving the consistency of the jury's verdicts and the adequacy of the sentence imposed.

The court was required to determine whether the jury's verdicts on two related charges were inconsistent. The charges involved the same complainant and circumstances, and the jury's acquittal on one charge while convicting on another raised questions about the logical coherence of the verdicts. The court had to consider whether the lengthy deliberation by the jury suggested an inconsistency and whether the verdicts were irreconcilable. It held that the threshold for finding inconsistency was high and concluded that the verdicts were not inconsistent. Regarding the sentence, the court examined whether the sentences imposed were manifestly inadequate and whether there was an error in not considering certain aggravating factors or in the assessment of the seriousness of the offences.

The court found no error in the jury's verdicts, holding that a lengthy deliberation did not necessarily indicate unreasonableness or compromise. Concerning the sentence, the court identified an error in the assessment of the seriousness of the offences, stating that the subjective features were given too much weight, leading to an underestimation of the criminality involved. The court held that the sentences were manifestly inadequate as they did not reflect the full extent of the appellant's criminal conduct. Consequently, the appeal against the sentence was upheld, and the matter was remitted for re-sentencing.

The court's final orders were to allow the appeal against the sentence, setting aside the original sentence and remitting the case to the sentencing court for re-sentencing. The conviction remained upheld.

Orders