Dungay v R

[2010] NSWCCA 82

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) 54 NSWLR 300; R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168; TK v R [2009] NSWCCA 151; Vragovic v R [2007] NSWCCA 46.
PARTIES:	David Joseph Dungay - Appellant in matter No. 2008/8516 David Joseph Dungay - Respondent in matter No. 2008/8517 Crown - respondent in mattter No. 2008/8516 and appellant in matter No. 2008/8517
FILE NUMBER(S):	CCA 2008/8516; 2008/8517
COUNSEL:	J Girdham - Crown Appellant/Respondent C Davenport SC - Respondent/Appellant
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) - Crown/Appellant Steve O'Connor (Legal Aid Commission) - Respondent/Appellant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/8517
LOWER COURT JUDICIAL OFFICER:	Payne DCJ
LOWER COURT DATE OF DECISION:	26 June 2009 (Sentence)

CCA 2008/8516
CCA 2008/8517

GILES JA
RS HULME J
LATHAM J

Thursday 13 May 2010

DUNGAY, David v R

R v DUNGAY, David

Judgment

: In August 2008 Mr David Dungay stood trial before Payne DCJ and a jury at the Port Macquarie District Court on the charges -

Count 1 : that he on 20 January 2008 at South Kempsey in the State of New South Wales, did attempt to have sexual intercourse with AB without the consent of AB knowing she did not consent thereto, in circumstances of aggravation, namely, that he immediately before the attempt to have sexual intercourse maliciously inflicted actual bodily harm on AB.

Count 2 : that he on 20 January 2008 at South Kempsey in the State of New South Wales, did have sexual intercourse with AB without the consent of AB, knowing she did not consent thereto.

2 Mr Dungay was found guilty on count 1 and not guilty on count 2. He was sentenced to imprisonment for 3 years 6 months with a non-parole period of 10 months.

3 Mr Dungay pleaded guilty to two further offences. They were, in short form, robbery in company with wounding on 23 November 2007 and assault occasioning actual bodily harm on 21 January 2008. The victim of the assault was AB. He was sentenced for those offences at the same time as he was sentenced for the aggravated attempted sexual intercourse.

4 For the offence of assault occasioning actual bodily harm Mr Dungay was sentenced to imprisonment for 6 months, backdated to commence on 21 January 2008 when he was taken into custody. For the offence of robbery in company with wounding he was sentenced to imprisonment for 3 years 9 months with a non-parole period of 1 year 9 months, backdated to commence on 21 February 2008. The sentence for the offence of attempted sexual intercourse in circumstances of aggravation was ordered to commence on 21 November 2009, that is, on the expiry of the non-parole period for the offence of robbery in company with wounding. The overall sentence was imprisonment for 5 years 4 months from 21 January 2008 with a non-parole period of 2 years 7 months.

5 Mr Dungay appealed against his conviction for the offence of attempted sexual intercourse in circumstances of aggravation. The Crown appealed against the sentences.

6 For convenience, I will refer to Mr Dungay as the appellant and to the Crown as such.

A. THE CONVICTION APPEAL

7 The appellant appealed on the sole ground that “[t]he verdict on Count 1 is unreasonable in view of the acquittal on Count 2”. He submitted, in short, that the verdicts were inconsistent and there was therefore unreasonableness.

Some principles

8 The foundation for such a ground of appeal is s 6(1) of the Criminal Appeal Act 1912, whereby an appeal shall be allowed if the court is of the opinion that the verdict of the jury should be set aside “on the ground that it is unreasonable, or cannot be supported, having regard to the evidence … or that on any other ground whatsoever there was a miscarriage of justice”.

9 Gleeson CJ and Hayne and Callinan JJ said in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [34], in relation to asserted inconsistency of verdicts, that “[t]he ultimate question concerns the reasonableness of the jury’s decision”. Unreasonableness is determined according to the test in the joint judgment of Mason CJ and Deane, Dawson and Toohey JJ in M v The Queen (1997) 191 CLR 439 at 493, namely, whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Their Honours said in MFA v The Queen at [35] that this test “must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence”.

10 In TK v R [2009] NSWCCA 151 it was pointed out that M v The Queen also recognised that a verdict must be set aside if on any other ground there was a miscarriage of justice. It was suggested that where the unreasonableness is because of asserted inconsistency of verdicts there is a “new dimension added to the conventional M test”, going beyond the quality of the evidence and extending to the significance for the guilty verdict of the verdict of acquittal: see at [119]-[135] per Simpson J, Latham J agreeing at [204]. The wider inquiry “include[s] matters outside the evidence, such as the impact on the reasonableness of the verdict of guilty of what may be discerned to be the explanations for the acquittals”: at [128].

11 It is not necessary to explore whether there is truly an addendum to the test derived from M v The Queen, or only an additional dimension within that test. Consistency or inconsistency of verdicts will always come down to what was open to the jury upon the whole of the evidence. Examination of the evidence, with an appreciation of how it was presented and left to the jury, will reveal whether there is a rational explanation for a verdict of guilty on one count and a verdict of not guilty on another count. In MFA v The Queen, for example, it was held at [36] that there was an explanation in the evidence of the differences between the verdicts, and that it was therefore open to the jury to be satisfied beyond reasonable doubt of guilt on two counts notwithstanding unwillingness to convict on the other counts.

12 If a rational explanation can not be discerned, it can be said that it was not open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt in coming to the guilty verdict, or it can be said that there was otherwise a miscarriage of justice. The formulation will rarely be of moment, and is not in the present case. Ultimately, as Wood CJ at CL pointed out in R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 at [237], on reviewing the entirety of the case the court may maintain a comfortable satisfaction as to the guilty verdict upon the evidence separately considered concerning it.

13 Compromise verdicts are a different matter. As Simpson J said in TK v R -

“81 The proposition that the verdicts reflect compromise, and the proposition that verdicts are unreasonable are not identical, and are not two sides of the same coin. Not only do they involve different processes of analysis, and different principles of law; if made out, they have different consequences. A conclusion by an appellate court that verdicts of guilty are unreasonable has the inevitable consequence that verdicts of acquittal will be entered. A conclusion by an appellate court that verdicts of guilty are the result of compromise by a divided jury will properly result in orders for a new trial on those charges: see R v Crisologo (1997) 99 A Crim R 178.”

14 There is nonetheless a close connection between compromise verdicts and unreasonableness or other miscarriage of justice derived from inconsistency of verdicts. That the verdicts reflect compromise may be said to appear from their inconsistency, perhaps together with other matters. Compromise may be seen as the explanation for the inconsistency, although not a rational explanation. This is difficult territory: apart from the close connection abovementioned, while there is a conceptual distinction between compromise verdicts and the jury considering that “justice is met by convicting an accused of some [offences] only”, see MFA v The Queen at [34] later cited, factual distinction may be troublesome. It is not necessary to explore it.

15 In MFA v The Queen at [34] Gleeson CJ and Hayne and Callinan JJ referred to consideration of the significance for the guilty verdict of the not guilty verdict in the particular case, and said that the significance must be considered in the context of the system within which juries function and of their role in that system. Their Honours continued -

“ ... A number of features of that context were emphasised in MacKenzie [ MacKenzie v The Queen (1987) 190 CLR 348]. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman , and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.”

16 McHugh, Gummow and Kirby JJ delivered separate joint reasons, but said at [97] that they did not differ from the other members of the Court on, amongst other things, the operation of the principles in MacKenzie v The Queen.

17 In a sexual assault case the explanation for difference between verdicts may lie otherwise than in the complainant’s credibility. Of importance to the present case, even where the prosecution case rests substantially on the complainant’s credibility there can be an acquittal on a count without rejection of credibility. In MFA v The Queen Gleeson CJ and Hayne and Callinan JJ went on, at [35], to reject as erroneous the proposition -

“ … that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility”.

18 To similar effect had been judgments in R v Markuleski. Spigelman CJ, with whom Grove J and Carruthers AJ relevantly agreed, said at [125] that a reasonable jury is not obliged to have a doubt about the occurrence of some incidents about which it has only a complainant’s uncorroborated evidence if they have a doubt about other such incidents, when in the latter but not the former case there is evidence contradictory of or failing to support the evidence of the complainant. Wood CJ at CL referred at [218] to the importance of not assuming too readily that a difference between verdicts demonstrates inevitably a want of credibility in the complainant or central witness, and posed at [234]-[235] situations where different verdicts might be attributed to want of credibility on the one hand or a host of other reasons on the other hand. His Honour also referred at some length, at [227]-[238], to a jury returning a “merciful verdict”, see the reference in MFA v The Queen above to it appearing to a jury that justice is served by convicting on some counts only.

19 To the same effect is R v PMT [2003] VSCA 200; (2003) 8 VR 50 per Buchanan JA, Charles and Chernov JJA relevantly agreeing -

“[25] There is no general rule that in cases where several sexual offences depend upon the testimony of the complainant, acquittal on some counts compels the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was undermined in respect of the counts upon which they have convicted. The circumstances of a particular case may justify different verdicts. In MacKenzie v R Gaudron, Gummow and Kirby JJ said:

‘ … the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.’

In my opinion, there was evidence in the present case to support the verdicts said to be inconsistent.” (footnotes omitted)

20 McClellan CJ at CL said in TK v R -

“6 It seems to me that there are problems in an appellate court concluding that because a jury does not convict on one or more counts any conclusion as to the general creditworthiness of a complainant can be drawn. As the judgments in Markuleski point out there may be many reasons why a jury does not convict on a particular count. The High Court has been careful to emphasise that an appellate court must allow for the advantage of the jury when considering questions arising under s 6(1) of the Criminal Appeal Act . The most significant advantage is assumed to be that of observing the witness as they give their evidence. It is a very significant step to conclude that the reason for the jury’s decision to acquit on any count is that they were so unable to accept the complainant’s evidence on that count that her evidence was not capable of founding a conviction on another count. The consequence of such a decision by an appellate court is that the jury has not been faithful to the fundamental directions from the trial judge, namely that the Crown must prove its case beyond reasonable doubt on each count. As the law presumes that the jury has been faithful to a trial judge’s directions ( HML v R [2008] HCA 16; (2008) 245 ALR 204 per Kirby J at [52]; Gilbert v R (2000) 201 CLR 414 at 420 per Gleeson CJ and Gummow J), the starting point for any analysis must assume that this is so. The burden of satisfying the appellate court that there has been a miscarriage of justice rests upon the appellant.

7 It is important to remember when considering the problem of inconsistent verdicts that a jury does not have to be satisfied beyond reasonable doubt that all of a complainant’s evidence is an accurate or even truthful account of all of the facts relevant to all of the counts. It may be, and in fact may often be the case, that a complainant’s recollection of a sequence of events over time will contain inaccuracies, internal contradictions or other imperfections which leave a jury unsure about the Crown case on particular counts. As Wood CJ at CL pointed out in Markuleski , a complainant, concerned that she may not be believed, may exaggerate or embellish her account of particular events. It may be that, having been reminded of the problems of uncorroborated evidence by the trial judge, before a jury convicts on any count where the primary evidence is of the complainant, it will seek out matters in the surrounding evidence which are consistent with the complainant’s account. It may also be that where the jury finds amongst the surrounding evidence that there are some inconsistencies with the complainant’s evidence it will be unable to return a guilty verdict on a particular count.”

21 Simpson J also said in TK v R -

“143 It is necessary to bear in mind the observations of the High Court in MFA . Acquittals do not necessarily signify doubt about a complainant’s veracity. They may be attributable to a variety of other reasons – compliance with the direction to give separate consideration to each count, application of the standard of proof, a desire for corroborative evidence. In his final address, counsel for the appellant expressly appealed to the jury to consider each count separately, and:

‘ … not bundle them together’.”

22 As noted by McClellan CJ at CL above, the appellant bears the burden of establishing inconsistency of verdicts, and in MacKenzie v The Queen Gaudron, Gummow and Kirby JJ said that “[i]t is only where inconsistency rises to the point that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.”

The Crown case

23 Evidence was given in the Crown case by AB (“the complainant”), and by Constable O’Brien, Detective Senior Constable Rutledge and Dr Monk.

24 The complainant and appellant met some time in 2007. In December 2007 or January 2008 their relationship became a sexual one. At the time of the offence, the complainant was living with the appellant at his mother’s home in Kempsey and they were sharing a single bed in the appellant’s bedroom.

25 At about 9:30pm on Saturday 19 January 2008 the appellant left home to attend a party. The complainant stayed home before going on a walk where she met Mr Scott Ritchie. They attempted to find the appellant but were unsuccessful. The complainant returned home at about 4am.

26 The complainant was woken by a noise made by the appellant entering the house via the window of another room. She said that the appellant looked drunk.

27 They came to be in the appellant’s bedroom. The appellant asked the complainant for a “tear”, which she understood as sex. She said no. He “just kept asking”, and she kept saying no.

28 The appellant got angry, and grabbed a broom. By this time he was undressed. He said that if the complainant didn’t give him a tear he would “shove it up your arse”. He started punching the complainant, who was then on the bed, and hit her with the broom. He had made her take her clothes off. He told her to turn around, punching her to make her do so, so that she was lying with her stomach on the bed.

29 The complainant said that the appellant “tried to stick his penis in my bum”. She said that she “felt it go in a little bit”. She was crying and telling him to stop.

30 The complainant was “moving trying to get away” and “jumped up off the bed real quick”. She gave the evidence -

“Q. And then what happened?
A. And then he forced me back on to the bed.
Q. How did he force you back on to the bed?
A. He pushed me.
Q. Pardon?
A. He pushed me.
Q. How did he push you?
A. He just pushed me with his hands.
Q. Where on your body did he push?
A. In the chest.
Q. So he pushed you in the chest with his hands is that right?
A. Yep.
Q. And did that cause you to go on to the bed did it?
A. Yep.
Q. How on the bed were you lying after you’d been pushed?
A. On my back.
Q. Having been pushed onto your back on the bed, where was the accused, David?
A. He was on top of me.
Q. How did he get on top of you?
A. He jumped on top of me.
Q. When he was on top of you what position was his body in relation to your body?
A. Like in front of me.
Q. What was he doing with his hands if anything?
A. He was, I don’t know, he was just, he just put his penis into my vagina.
Q. What were you doing while you were lying on your back on the bed?
A. I was just laying there and I was looking away from him, I couldn’t look at him.
Q. Were you saying anything at that stage?
A. Whom me or him.
Q. Either of you?
A. Well first off he started to have sex with me, and I had, I was faced away from him, and he was saying ‘what’s wrong why can’t you feel anything’ and I said and like I just looked at him and I just looked straight away and he goes ‘have you been nicking on me you big old slut” and I said no-one Jun” and he goes “well how come you can’t feel anything’ and then that’s it.
Q. What happened after you and he said that?
A. He was still having sex with me. And then he jumped off me. Walked out into the bathroom.”

31 The complainant said that the appellant ejaculated inside her. She wiped her vagina on a red piece of clothing after the appellant stopped having intercourse with her. Semen was not found on the red clothing when it was later tested.

32 The anal intercourse was the subject of count 1, and the vaginal intercourse was the subject of count 2. It will be recalled that count 1 was a charge of attempted intercourse. An application for a directed verdict because the evidence showed anal intercourse, not attempted anal intercourse, was refused. The jury were instructed that they “cannot rely upon what the complainant said in respect of the penis going partially in”. Whether the ruling was correct, and whether this was the correct way of dealing with the evidence that the complainant “felt it go in a little bit”, were not part of the appeal.

33 The complainant said that she attempted to leave, but that the appellant threatened to kill her. She stayed at the house and slept in the bed with the appellant.

34 The complainant remained in the company of the appellant during Sunday 20 January. They went swimming at Kempsey pool. On Monday 21 January the appellant and the complainant went to the house of the appellant’s cousin, also David Dungay. The complainant said that she spoke to a lady there, Denise, about the appellant hitting her, but could not remember whether or not she told Denise that the appellant had raped her.

35 The complainant said that the appellant told her to come out to the front of the cousin’s home, where he “started to stress out” and “go mad”. He accused her of being with Mr Ritchie, and was “swearing and carrying on”. She said that the appellant started to chase her with a brick. She ran inside, where the appellant caught her and started punching her in the head. She ran outside and saw a police car. When she was outside the appellant hit her again. The police officers approached and tried to apprehend the appellant, but he decamped.

36 This was the subject of the charge of assault occasioning actual bodily harm.

37 Constable O’Brien was carrying out unrelated policing duties on 21 January when she and Constable Chapman came across the appellant and the complainant; it seems that the police officers were in the police car last mentioned. The complainant told Constable O’Brien that the appellant “is always hitting me and I want him charged and I want an AVO”. At some time the appellant returned and was arrested. Both the appellant and the complainant were taken to Kempsey Police Station.

38 At the police station Constable O’Brien observed what appeared to be bruises on the complainant’s forearms, biceps, shins and knees and a welt on her left shoulder. She said that the complainant told her that the appellant had hit her with a broom, and that he had raped her. The complainant gave an account to Constable O’Brien which included -

“I said no and he made me do it, I know it’s rape. He wanted to shove the broom into me and I didn’t want him to, that’s how it started. He hit me with the broom and tried to put it in my bum and then put it in my vagina”.

39 The complainant also told Constable O’Brien that she hadn’t had a shower today “so the DNA should still be there. I’ve been swimming but”.

40 At a later point at the police station, according to Constable O’Brien -

“Q. Did you accompany her outside while she had a cigarette?
A. Yep.
Q. While you were outside with her while she’s having a cigarette did she say to you ‘I couldn’t look at junior while he kept doing it after I said no’?
A. Yes she did.
Q. ‘I was crying the whole time’?
A. Yes she did.
Q. ‘In the end I just gave up and laid there looking away, I didn’t react at all’?
A. Yes.
Q. ‘So he started saying to me how come you can’t feel it, who you been nicking behind my back’?
A, Yes.
Q. Did you ask [the complainant] what nicking meant?
A. Yes I did.
Q. And did she tell you that meant sex?
A. Yes she did.
Q. Did she say ‘that’s what he was hitting me for again today because he thinks I was with someone else’?
A. Yes.”

41 Constable O’Brien notified Detective Senior Constable Rutledge. He noted injuries to the complainant. His description was consistent with the injuries described by Constable O’Brien.

42 The appellant was charged and a search warrant was executed at his mother’s home. During the search a green straw broom was located in the kitchen.

43 A number of photographs taken on 23 January were tendered at trial. Dr Monk gave evidence that he examined the complainant on 21 January 2008 for the purpose of documenting any external physical injuries. A doctor qualified for a sexual assault examination was not then available. He noted a number of discolorations on her body. These were consistent with observations made by the police officers.

44 Detective Senior Constable Rutledge made arrangements for the complainant to see a sexual assault counsellor, and for her to be examined by Dr Carol Booth at 2pm the following day. The complainant did not attend the appointment with the doctor, and did not attend a further appointment made for later in the day.

The Appellant’s Case

45 The appellant did not give evidence, and no witnesses were called on his behalf. His case was that no sexual activity took place in the bedroom, and that the complainant had exaggerated the physical violence to which she said she was there subjected. That there had been some physical violence was not in issue.

46 Particular matters in the cross-examination of the complainant were -

Some discrepancy was exposed between her oral evidence and a statement given to the police concerning who took her pants off in the bedroom and whether once or twice.
The complainant denied that she had told Constable O’Brien that the appellant had tried to put the broom in her bum and then put it in her vagina; the evidence of Constable O’Brien had been that this was said.
The complainant had not told anyone that she had been raped until she told Constable O’Brien at the police station; she had initially only complained to Constable O’Brien of assault. (The complainant’s response to this included, “Who’s going to believe me, his family?”)
When asked about not going to the medical appointments, the complainant variously said that she was ashamed, that her vagina was still hurting and that she was scared of being examined. She denied that she was worried that an examination “might not back up your story”.

The addresses

47 Early in the Crown Prosecutor’s address he said -

The only issue in the trial really for you to determine beyond reasonable doubt or having a doubt, is whether or not there was sexual contact as described by [AB], it’s the only issue. …
Therefore, the things that are in issue that you’re invited to consider whether or not you’re satisfied beyond reasonable doubt is, are you satisfied beyond reasonable doubt that the accused attempted to put his penis into her anus and are you satisfied beyond reasonable doubt that the accused put his penis in [AB’s] vagina, that’s the only dispute in the whole trial and it’s certainly not suggested in the trial that if it did not happen, she was agreeing to it, that’s not an issue that you need to concern yourself with. You have to be satisfied beyond reasonable doubt that there’s no contest in relation to that.
The first witness as you clearly remember, another obvious statement, was [AB] and she’s a very important Crown witness. Unless you accept her evidence beyond reasonable doubt then you can’t convict the accused or at least, unless you accept her evidence beyond reasonable doubt that he tried to put his penis in her anus, and that he did put his penis in her vagina, then you couldn’t convict the accused. In a moment I’m going to remind you of a goodly part of her evidence. I don’t apologise for that, it’s very important evidence and the Crown suggests to you that its important that you remember it.”

48 The Crown Prosecutor went through a deal of the complainant’s evidence, and of the evidence of the two police officers and Dr Monk. At the conclusion of his address the Crown Prosecutor said -

“The Crown invites you to find as I began this address that [AB] is an unsophisticated and fairly uncomplicated young lady who has come along here and in a fairly matter of fact way, told you what the accused did. The Crown suggests to you that all she’s done is tell you the truth as she recalls it at [sic] the Crown invites you in accordance with the oath you took at the beginning of the trial to return – actually or was it charged to return, I’m not sure which it is, in any event you promised to return a true verdict according to the evidence, the Crown suggests to you that verdict is one of guilty in relation to each of the charges, thank you.”

49 Early in his address counsel for the appellant said -

“One thing that is obvious to you by now is that there is only one witness on whom the Crown can rely to persuade you of their case and that is [AB]. The Crown Prosecutor referred to her on more than one occasion as an unsophisticated 16 year old and as I understand what the Crown was endeavouring to do, it was trying to persuade you to give her some latitude, some extra credit when it comes to some things that she did and said to find an explanation for those consistent with the Crown case but really, the case is not about whether she’s unsophisticated. The case is about whether her evidence is so reliable that persuades you beyond reasonable doubt that the accused is guilty. It follows from that that you would approach her evidence with some care, you’d scrutinise it, you wouldn’t just accept it at face value, you’d try to analyse the logic of it, see whether it fits in with other circumstances, bearing in mind of course that there is not one jot of support for anything she says about what went on in that bedroom of a sexual nature. There’s no physical evidence, there’s no scientific evidence that backs up her claim that there was an attempt at rape and an actual rape.”

50 Counsel then suggested “six reasons why you would have a doubt about whether she is so reliable as to bring in a verdict of guilty”. They were, in summary, that her physical condition as observed was “not entirely consistent with the ferocious assault that she described”; her normal conduct in the 36 hours after what happened in the bedroom; that she had initially told the police about an assault and only later about being raped; the denial of telling Constable O’Brien about being raped with the broom; the failure to attend the medical appointments; and that the red clothing did not have semen on it.

51 Counsel’s address concluded -

“The final thing I wish to say to you is this; you are not being asked by the accused through my address to you to come to a decision that [AB] is a liar. You don’t need to go so far. You are simply being asked to come [to] the conclusion that in the circumstances of this case, she is not so reliable, not so persuasive as to allow you to find the accused guilty. A verdict of not guilty in this case doesn’t mean that you’ve come to a firm conclusion that she’s a liar. You don’t need to examine that question. The question from start to finish is, is her evidence so reliable that you can conclude beyond reasonable doubt that the accused both attempted to rape her and actually raped her. I suggest to you that you would find she is not so reliable and you would enter verdicts of not guilty on both counts.”

The summing-up

52 The judge identified the two counts, and directed the jury that they must determine -

“ … whether you are satisfied or not of the guilt of the accused beyond reasonable doubt in respect of each of the offences that you must consider separately. You must consider in relation to each of the offences only the evidence that relates to the particular offences.”

53 Shortly thereafter her Honour said -

“I repeat, you have two offences to consider and you must only consider the evidence referable to the particular count when you are considering that count. You will have to return two verdicts. As I have said you must consider each of the counts in the indictment separately and only by reference to the evidence which applies to it, that is, the count you are considering. Although if you have a reasonable doubt concerning the credibility of the complainant’s evidence on one or other of the counts you can take that into account when assessing her overall reliability on the other count.

I repeat ladies and gentlemen of the jury, you must consider each of the two counts separately and only by reference to the evidence which applies to it, that is, the count you are considering although if you have a reasonable doubt concerning the credibility of the complainant in respect of one count, or one or other of the counts, you can take that into account when assessing her reliability on the other count.”

54 Her Honour gave conventional general directions, including as to the Crown’s burden of proof and -

“It is for you to make your own assessment of the witnesses who have given evidence in this case. You have seen each of the witnesses as they have given their evidence. I have noted at all times, ladies and gentlemen of the jury, that you have attended extremely carefully to the evidence and observed the witnesses. It is for you the jury to determine whether those witnesses have been telling the truth. It is a matter for you entirely as to whether you accept the evidence which has been placed before you.
Your ultimate decision as to what evidence you accept, and what evidence you reject, may be based upon a number of things including what the witnesses have had to say, the manner in which they have said it, the way in which that evidence has fitted into the picture painted by the evidence as a whole and whether the evidence is consistent with previous statements or documents with which the witness has agreed were his or hers.
In relation to accepting the evidence of witnesses you are not obliged to accept the whole of the evidence of any one witness. You may accept part of a witness’ evidence and reject the remainder of the witness’ evidence. The fact that you do not accept part of a witness’ evidence does not mean you have to reject the whole of the witness’ evidence however if you come to the conclusion that a particular witness was trying to put one over you about a certain matter you may have some doubt as to whether you accept the remainder of the witness’ evidence. That is just a matter of commonsense. There is nothing as a matter of law though, that says because you reject part of a witness’ evidence you must reject the whole of it. You may accept the remainder of the witness’ evidence if you consider it is worthy of belief.”

55 Her Honour gave directions concerning the elements of each offence, with some reference to the evidence. In the course of this she said -

“Now ladies and gentlemen of the jury the complainant’s evidence in this case is critical. The Crown case stands or falls on the evidence of the complainant, [AB], and you could only bring in a verdict of guilty in relation to each of the counts you are considering in the indictment if you are satisfied of the truth and accuracy of her evidence beyond reasonable doubt. And accordingly I would direct you should scrutinise extremely carefully her evidence.”

56 In reminding the jury of “the key points from the addresses of each counsel”, her Honour identified the six reasons to which the appellant’s counsel had referred, and added -

“A conclusion that the complainant is lying is not necessary for a finding of not guilty. The question is not whether the complainant is lying it is whether the Crown has proven beyond reasonable doubt the perversion [sic: ? her version] of the offence is what actually happened.”

The jury’s deliberations

57 The jury retired at 3.01 pm on 20 August 2008. Within a short time a note was received, so far as presently relevant asking for a transcript of the complainant’s evidence. The jury returned briefly and was told that a transcript would be provided when copied. They retired again at 3.25 pm. It is not clear when a transcript was provided, but no doubt it was.

58 The jury departed at 4.16 pm, and resumed their deliberations at 10.00 am on 21 August.

59 Shortly before 3.12 pm a note was received -

“Your Honour we have come to a stalemate situation and have been for some hours. It is unlikely we are going to come to a unanimous decision,”

60 The jury returned to court, and were given a Black direction asking that they make a further attempt to reach unanimous verdicts. They retired again at 3.17 pm.

61 The jury departed at 4.02 pm, and resumed their deliberations at 10.00 am on 22 August. At 10.55 am they returned with the verdicts of guilty on count 1 and not guilty on count 2.

Unreasonableness because of inconsistent verdicts

62 The appellant submitted that there was no rational basis on which the jury could have rejected the complainant’s evidence in relation to count 2, but been satisfied beyond reasonable doubt in relation to count 1. He said that there was no corroboration; that it was a word against word case (this was not accurate – there was no opposing word, and the submission could have been that the case depended on the complainant’s word); and that there was “no apparent difference in the quality of the complainant’s evidence amongst the different incidents”.

63 The appellant submitted also that there was “significance” in the time taken by the jury to reach their verdicts “having indicated at an early stage that they were unable to reach unanimous verdicts”. For the significance, Gao v R [2006] NSWCCA 384 at [19] was cited. In that case there had also been initial inability to reach unanimity and a Black direction, and there were differential verdicts; it was held that there was a rational basis for the difference. It was said at [19] that there was “significance in the fact that the jury took a considerable period of time before reaching its verdict”.

64 The significance was not elaborated, and initial inability to reach unanimity with some time passing before unanimity is reached does not necessarily suggest an unreasonable verdict (let alone compromise verdicts, which I did not understand the appellant to submit). The significance may be that the jury have been attentive to their duties, and carefully deliberated and re-deliberated in accordance with a Black direction. It still comes down to whether on examination of the evidence in the circumstances of the particular case there is a rational explanation for the differing verdicts.

65 Although the burden of establishing inconsistency rested on the appellant, it is convenient to approach the matter through the Crown’s suggestions of reconciliation.

66 The Crown submitted that the explanation was to be found in the ingredients of the appellant knowing that the complainant did not consent to the respective sexual assaults. It was submitted that the jury could have been satisfied that the complainant did not consent to the attempted anal intercourse because she gave evidence that she was crying and telling the appellant to stop, but not satisfied that the complainant did not consent to the vaginal intercourse because her evidence of the latter was that she “was just lying there” and the conversation (if that is the right word) was about her lack of response.

67 The Crown referred to the judge’s observation in her remarks on sentence, in connection with her finding as to the extent of the physical assault on the complainant accompanying the anal intercourse -

“The court also had the benefit of being at the trial, observing the complainant and there were some other inconsistencies in her evidence on rather significant matters. Ultimately of course the jury did not accept her in respect of the second count. Having said that, there was clearly another basis for that. That is to say, the jury may not have accepted that the accused knew she was not consenting given that she had just decided to lay there. So that cannot be known.

In my view, there is no inconsistency or anything unreasonable in respect of the jury’s verdict, or the view they came to …”.

68 Appreciating the judge’s advantage of observing the complainant as the evidence unfolded, I do not find the Crown’s submission persuasive. Right from the appellant asking her for a tear the complainant said no, and kept saying it. She was physically assaulted, even if the extent of the assault was not accepted by the judge. There was no real break between the attempted anal intercourse and the vaginal intercourse; the complainant tried to get away and jumped off the bed, and was pushed back onto the bed and the appellant “jumped on top of me” and put his penis in her vagina. I do not think that the jury would reasonably have distinguished between the two events on the basis that, despite protests and crying which would have made plain to the appellant that the complainant did not consent to having a tear, the appellant might have thought she was consenting to the vaginal intercourse because she just lay there unresponsively.

69 The Crown submitted in the alternative that the explanation was that it was open on the evidence for the jury to be satisfied beyond reasonable doubt that the attempted anal intercourse occurred, notwithstanding that they were not satisfied as to the vaginal intercourse.

70 Although at the time not receptive to the submission, on further consideration of the evidence and the authorities abovementioned I have concluded that it is correct.

71 The complainant’s account of the vaginal intercourse was open to doubt for at least two reasons which did not apply, or did not fully apply, to her account of the attempted anal intercourse. One was that semen was not found on the red clothing with which she said she had wiped her vagina. The other was that she had not attended the appointments for medical examination. As well, there was delay in complaining of rape, and the jury may have thought that the rape ultimately complained of was the vaginal intercourse rather than, as was told to the police, trying to put the broom in her bum.

72 Because of these matters, the jury may have felt that what was referred to in MFA v The Queen as the “supporting evidence” for the vaginal intercourse was not satisfactory, and not been prepared to find beyond reasonable doubt that the vaginal intercourse occurred.

73 That could of course reflect on the complainant’s credibility, but it did not mean that she should be disbelieved as to the attempted anal intercourse: see the cases earlier considered. The jury were conventionally directed as to the Crown’s burden of proof, and were directed that they should consider separately each count and the evidence referable to each count; they were directed that they could accept part of a witness’s evidence and reject the remainder, or reject part and accept the remainder. They were also directed that it was not necessary to conclude that the complainant was lying in order to return a verdict of not guilty, and that the question was whether the Crown had proved beyond reasonable doubt that her version of the offence was what had happened.

74 While at times the jury had been addressed as if it were an all or nothing case dependent on the complainant’s credibility, the Crown Prosecutor did pose separately whether the jury were satisfied beyond reasonable doubt as to the attempted anal intercourse and whether they were satisfied beyond reasonable doubt as to the vaginal intercourse; and the last of the six reasons suggested by counsel for the appellant in his address, at the least, was particularly referable to the vaginal intercourse rather than the attempted anal intercourse. Any all or nothing approach was gainsaid by the judge’s directions.

75 The conclusion of the address of counsel for the appellant could well have been recalled by the jury in connection with the direction that they did not have to find the complainant was lying in order to return a verdict of not guilty. Counsel had properly said the same, perhaps more elaborately, and had invited attention to reliability and persuasiveness of the complainant’s evidence and satisfaction beyond reasonable doubt. Within this was the possibility that, to return again to MFA v The Queen at [34], the jury were not sufficiently satisfied as to the complainant’s reliability in respects relating to the vaginal intercourse, although being satisfied in relation to the attempted anal intercourse, that they could reach a conclusion beyond reasonable doubt on count 2.

76 I have said that I do not understand the appellant to have submitted that there were compromise verdicts. In any event, I would not so conclude. Further, I would not attribute particular significance favourable to inconsistency of verdicts or compromise to the initial inability to reach unanimity or the time taken. As I have earlier indicated, that is consistent with faithfulness to the judge’s directions.

77 In my opinion, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty on count 1, although they were not so satisfied as to count 2. The appeal against conviction should be dismissed.

B. THE SENTENCE APPEAL

78 A table in connection with the respective offences is -

Offence	Maximum penalty	Standard non-parole period	Sentence
Assault occasioning actual bodily harm	5 Years	No	6 months, from 21 January 2008
Robbery in company with wounding	25 years	7 years	3 years 9 months with a non-parole period of 1 year 9 months, from 21 February 2008,
Aggravated attempted sexual intercourse	20 years	No	3 years 6 months with a non-parole period of 10 months, from 21 November 2009

79 The Crown formulated the grounds of appeal -

“1. The learned sentencing judge erred in point of principle by imposing sentences which were manifestly inadequate.

2. In relation to the offence of robbery in company with wounding the learned sentencing judge erred in failing to take into account the aggravating factors pursuant to s 21A(2) of the Crimes (sentencing Procedure) Act 1999 that the offence involved gratuitous cruelty and that the victim was vulnerable.

3. In relation to the offence of robbery in company with wounding the learned sentencing judge erred in that insufficient regard was paid to the standard non-parole period.

4. The learned sentencing judge erred in paying excess regard to the respondent’s youth.

5. The learned sentencing judge erred in failing to have regard to the respondent’s previous convictions.

6. The learned sentencing judge erred in the degree of accumulation between the sentence imposed for the offence of assault occasioning actual bodily harm and the offence of attempted aggravated sexual intercourse without consent.”

80 The Crown submitted overall that the sentences failed to mark the seriousness of the appellant’s offences, and were manifestly inadequate. It submitted that the judge’s sentencing discretion “fundamentally miscarried because her Honour in the ultimate result undervalued the seriousness of the offences for which [the appellant] stood to be sentenced and over-valued his subjective case”

The other offences

81 It is necessary to describe the offences to which the appellant pleaded guilty.

82 There was no agreed statement of facts for the offence of assault occasioning actual bodily harm. As I have indicated, that offence occurred when the appellant and the complainant were at the home of the appellant’s cousin, and the facts were to be found from the complainant’s evidence. The judge said in her remarks on sentence

“In terms of factual context of the offence assault occasioning actual bodily harm, this took place, as already noted, on 21 January 2008, and involved the prisoner chasing the victim around the car with a brick. He chased her inside and started punching her to the head. The complainant ran outside, saw the police and the accused hit her again. She suffered from bruising and a swollen lip. As distasteful as this is, this is an offence at the lower end of the range. Again, it has the element of domestic violence.”

83 The reference to the element of domestic violence was to her Honour’s earlier statement, in connection with the offence of aggravated attempted intercourse -

“This offence, of course, has an element of domestic violence and the Court of Criminal Appeal has stated the requirement for general deterrence in respect of all offences of this sort, but emphasis has frequently been given to offences of domestic violence. As the Crown has said, general deterrence is an important factor to indicate to the community that violence within relationships will not be tolerated.”

84 In the offence of robbery in company with wounding the appellant was in company with three juveniles, aged 14 or 15, MK, CD and GS. There was an agreed statement of facts. The offence was described by the judge -

“In a summary way only, the circumstances were the persons or the four males broke into the house of the victims. The victim noted in the indictment Mr Wilson, was aged sixty-two. He resided there with his partner aged sixty-one and his partner’s mother in law, an elderly woman aged ninety-one. They entered the house by smashing a glass window or smashing glass at the front of the house; that enabled them to unlock the front door. One was armed with a long instrument possibly a metal bar or pipe. The second male was armed with a ten to fifteen centimetre bladed knife and the third male was armed with a long stick or something similar. The Court of Criminal Appeal has repeatedly stated the seriousness with which the use of a knife is to be viewed.
He was not charged with being armed but the authorities are quite clear these arms aggravate the offence.
Demands were made, the victim was struck to the left wrist and an elbow causing lacerations. He was also menaced and struck by the male with the knife. The victim’s pockets were searched and a diamond ring forcibly removed from the victim’s right ring finger whilst he was being assaulted and threatened by the males. One of the males kept saying, “Kick him, kick him.” He was continually struck around the head. They also entered Ms Prokop’s bedroom where a jewellery box was opened and a quantity of jewellery stolen, a quantity of electronic equipment, camera equipment and tools were also stolen from the house. During the fracas the complainant’s ninety-one year [old] mother-in-law walked into the hallway where she too was confronted and menaced by the males as they struggled with the victim, Mr Wilson, who had almost lost consciousness.
As a result of the incident, the victim Peter Wilson, received about seven stitches to a wound above his left eye, thirteen stitches to a deep wound on his left wrist, seven stitches to a wound on his left elbow and soreness to his chest and right side. Mr Wilson has had further surgery on his elbow and shoulder as a result of the injury sustained during the attack.”

85 This omitted that when the police spoke to the appellant in March 2008, as a result of information provided by co-offenders, he denied any involvement in the robbery and said that he had five witnesses to prove it. He pleaded guilty on 5 June 2008. It also omitted the detail that the agreed facts included, as the “demands … made“ to which her Honour referred, that one of the men confronted Mr Wilson and struck him on the left side of the forehead, knocking him to the ground, and demanded money, saying “Where’s your money! Where’s your money!”; and that the other males struck him to the head and upper body, and he put up his right arm to protect himself.

The remarks on sentence - general

86 The judge accepted that the appellant was entitled to a 25 per cent reduction in respect of each of the offences of assault occasioning actual harm and robbery in company with wounding, for the utilitarian value of his early pleas of guilty. The Crown did not challenge this on appeal.

87 Her Honour said of those offences that it was “extremely difficult to say” whether the appellant was contrite and remorseful. She observed that “[s]ome of the material points to a lack of those feelings”, but that “he is only a young man and he clearly lacks maturity”. She concluded that “it is fair to say the pleas of guilty themselves are some indication of contrition and remorse”. The same could not be said, of course, in relation to the offence of aggravated attempted intercourse.

88 Her Honour identified “significant subjective features” in relation to all the offences. One was the appellant’s youth. He was born on 2 October 1989, and was aged 18 years and 3 weeks at the time of the earliest of the offences, the robbery in company with wounding on 23 November 2007. The others, it seems in part taken from pre-sentence reports dated 30 July 2008 and 21 January 2009 and a Justice Health psychiatric report dated 19 January 2009, were -

“This is the first time he has been in adult custody. He has an unfortunate health condition in that he was diagnosed at an early age, that is to say when he was six, with diabetes coupled with ongoing inability to adequately comply with treatment. He was targeted by his peers because of his condition.
As defence counsel noted, this factor along with an unfortunate childhood and adolescent environment marred with violence, abuse of drugs and alcohol have underscored his offending behaviour. Indeed Ms Lewin [the author of a pre-sentence report] describes a clear link between his violent outbursts, agitation and impulsivity during periods of non-compliance with prescribed treatment. I take into account defence counsel’s careful submission in this connection.
Additionally, it was submitted and I accept that the well-known principles of R v Fernando (1992) 76 A Crim R 58 are of relevance in this case. There has also been a lengthy delay in the matter coming on for sentencing and I take that delay into account and I will also take into account he has been using his time in custody as productively as possible. He has undertaken courses and I accept in recent conferences with his lawyers has shown a growing maturation bearing in mind the reports now are – each of them are in the order of six or seven months old and he has shown an understanding that certainly he has to stop smoking marijuana and needs to obtain work.
Physically he appears much improved from when he was at Port Macquarie District Court last year and apparently because of the regimented environment, he has been attending to his medication.”

89 Her Honour later said, apparently in explanation of an observation that it was “not an easy sentencing exercise” -

“It is fair to say that the prisoner comes from a very underprivileged and dysfunctional community where unfortunately he and others end up in custody and in juvenile institutions from a young age. He has not had the benefit of role models and he has had a very significant health condition which not only has affected his ability to think clearly but has made him a victim within his own community and amongst others.”

90 The judge said -

“General deterrence is a significant feature in respect of all of the offences but as the Crown correctly says it is of less weight with a person of his youth and there should be a greater emphasis on rehabilitation. Having said that, of course, ultimately the role of the court is to protect the community.”

There was no other reference to personal or general deterrence.

91 Her Honour said, immediately before pronouncing the sentences -

“It remains the position that nothing other than full-time custodial sentences should be imposed in respect of each of the individual offences. Totality is certainly of significance in this case. There are special circumstances and such was conceded by the Crown and submitted by defence counsel. Special circumstances relied upon are his age, the first time in an adult prison, the accumulation of the sentences and the need for an extensive period of supervision taking into account that he has already served approximately eighteen months in custody. In this regard the comments of Danielle Lewin in her report at p 4 are relevant. A minimum supervision order period of two years is required to accommodate a community-based treatment of his sex offending and alcohol and other drug-related behaviour.”


The remarks on sentence – the individual offences

(a) Assault occasioning actual bodily harm

92 Other than the description of the offence and the reference to domestic violence offences earlier set out, there was no particular discussion of the sentence for this offence.

(b) Robbery in company with wounding

93 After describing the offence, her Honour noted that counsel for the appellant conceded that the offence fell within the mid-range of seriousness. She noted that the aggravating factors that weapons were used and that the offence was committed in the victims’ home were conceded, whilst observing that “these weapons were, at least, not firearms”. She declined to accept the Crown submission that there was present the aggravating factor of substantial injury and emotional harm to the victim Mr Wilson. She did not accept the submission that there was present the aggravating factor of gratuitous cruelty, while saying that it was not submitted on the appellant’s behalf that the behaviour towards Mr Wilson was other than serious and “[i]n respect of the gratuitous cruelty it is just that it is said it is not elevated to that degree of aggravation”. She did not consider that the “complainant” was a vulnerable person whereby that aggravating factor was present, while saying that it was “obviously a serious feature of this offence that the victims were the age they were”. (There is some lack of clarity in whether her Honour was referring only to Mr Wilson.)

94 The judge found the mitigating factors that there was no or limited planning and “it was not professional”; that a fairly small amount was taken; that no firearms were used; and that there were no life threatening injuries. She said, without elaborating -

“Of course, attention must be given to the guideline judgment of R v Henry & Ors [1999] 46 NSWLR 346. The guideline judgment related to a s 97 offence and this is the more serious s 98 offence.”

95 Her Honour regarded as significant the sentencing of the co-offenders MK, CD and GS. They were respectively aged 14 years and 1 day, 15 years 10 months and 3 days, and 15 years 2 months and 18 days at the time of the offence. They had been sentenced in the District Court. MK and GS had no relevant record and received discounts of 35 per cent. The judge appears to have seen the significance particularly in the sentencing of CD, who had “quite a lengthy juvenile history” and was on parole for an offence of assault with intent to rob; he was sentenced, after a discount of 25 per cent, to imprisonment in juvenile detention for a non-parole period of 1 year 6 months and a further term of 1 year 6 months.

96 Having observed that the appellant had been subject to a control order for two offences of robbery being armed with an offensive weapon and stealing a motor vehicle, but was not on parole in November 2007, her Honour said -

“Firstly, the Crown is correct that there is quite a difference in the ages between CD, GS and certainly MK. However the record of CD is significant, and the court is looking at a three-week period between which it would have been the position that the prisoner would have dealt with as a juvenile rather than an adult. There are a number of cases which have dealt with the issue of or the concern of the court when a sentencer deals with an adult and there has been a co-accused who are juveniles, those cases are Govinden [1999] 106 A Crim R 341, JNN [2004] NSWCCA 35 and a more recent case of Ersman v The Queen [2007] NSWCCA 161. What is clear from those cases is that while there are different sentencing objectives and considerations applicable in the Children’s Court which limit the worth of any comparison, it is appropriate to pay some regard to the sentences imposed in the Children’s Court. Of course here though it was a matter where the juveniles were actually dealt with in the District Court. The difference was but three weeks for this young man. The ages, I accept, were reasonably significant, but the record of CD was considerable and he had the aggravating feature of being on parole. And I repeat, this is not a case where some were dealt with in the Children’s Court. It is just that three of them had the benefit of being dealt with as juveniles, even though according to law, and one did not. At the time Blackmore J sentenced them, those three young persons – it was certainly still relevant to the sentencing exercise the standard non-parole period which applied. Accordingly, in my view that is certainly a feature of relevance in this case.”

97 Her Honour said of this offence -

The reasons for departing from the standard non-parole period are as follows: this was a plea of guilty, the issue of parity that has been addressed in some detail in the remarks on sentence. There are also significant subjective features, one being that already addressed, namely the youth of the prisoner. Other subjective features will appropriately be dealt with later in these remarks as they impact upon the sentencing in respect of the three separate offences.”

(c) The aggravated attempted intercourse

98 The judge noted that the complainant was sixteen years old at the time of the offence. She accepted the submission of counsel for the appellant that the offence “is at the lower end of the range”, the reasons for that apparently being that -

“ ... the injuries to the complainant were at the lower end of the scale; there was only one attempt at the act of anal intercourse and it was very short in duration. He voluntarily desisted from continuing with anal intercourse once the complainant turned around real quick, and subsequent to the offence the complainant chose to stay with the prisoner the following day and night. She was with him despite there being abundant opportunity to separate herself from him and to complain, she did not do so. In fact, she complained after he further assaulted her, and that is the behaviour that founds the assault occasioning the actual bodily harm offence.”

99 After the reference to the offence having an element of domestic violence, see earlier in these reasons, the judge said that without elevating it to a factor of aggravation the complainant should have been able to feel safe as she had been living at the appellant’s mother’s house at his request for about 7 weeks. She said that there was “the aggravating feature of the use of the broom handle”.

100 Her Honour then said -

“It is accepted, as I understand it, he was intoxicated and he is young. He has certainly had a long history of abusing marijuana.”

It does not appear how the intoxication and history of abuse of marijuana were taken into account, save in relation to special circumstances, see below.

101 The judge found special circumstances, saying that it was conceded by the Crown and -

“Special circumstances relied upon are his age, the first time in an adult prison, the accumulation of the sentences and the need for an extensive period of supervision taking into account that he has already served approximately eighteen months in custody. In this regard the comments of Danielle Lewin in her report at p 4 are relevant. A minimum supervision order period of two years is required to accommodate a community-based treatment of his sex offending and alcohol and other drug-related behaviour.”

The sentencing remarks - totality

102 The extent of accumulation of the sentences was not explained in the remarks on sentence, beyond the observation in the passage earlier set out, “Totality is certainly of significance in this case”.

Consideration of the grounds of appeal

103 I go first to the particular grounds involving the offence of robbery in company with wounding, namely, that the judge was in error in declining to find the two aggravating factors of gratuitous cruelty and vulnerability of the victim.

104 As to the former factor, the Crown accepted that gratuitous cruelty was “needless yet intentional violence committed simply to make the victim suffer”: McCullough v R [2009] NSWCA 94 at [30]. It was accepted that it was a matter of degree. But it was submitted that the attack upon the victim Mr Wilson was sustained, involved menace and continued after he fell to the floor, and involved violence beyond that needed to obtain property. (It was said also that the attack was carried out in the presence of the mother-in-law, although I am unable to see how that contributed to gratuitous cruelty.)

105 As to the latter factor, it was submitted that, as a person in a home shared with an ill wife and an elderly mother-in-law, Mr Wilson fell within a class of persons who needed particular protection, and so was vulnerable.

106 I am not persuaded that the judge was in error in relation to these two factors.

107 Use of violence was an element of the offence, and the violence was used to make Mr Wilson tell where his money was. As was said in R v McCullough at [30], for an offence in its nature violent “there needs to be something more for the factor to be present than merely that the offender had no justification for causing the victim pain”. There is no bright-line division between violence intended to make a victim compliant with demands and violence simply to make the victim suffer, and in my opinion it was open to her Honour to consider that the violence was not of the latter kind.

108 Nor in my view was Mr Wilson in a class of vulnerable persons delineated by reason of age and the presence in a house of persons such as an ill wife and a mother-in-law. His age did not make him a vulnerable person. The submission created too particular a class of vulnerable persons.

109 That is not to say that the extent of violence used, and the age of Mr Wilson and the presence of his ill wife and mother-in-law, were not circumstances relevant to the seriousness of the offence. It is a mistake to regard finding aggravating and mitigating factors in s 21A(2) and (3) of the Crimes (Sentencing Procedure) Act 1999 as the only measure of seriousness of an offence, and circumstances not constituting such factors remain relevant considerations: see for example R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [107]. The judge correctly saw the age of the victims and the behaviour towards Mr Wilson as serious, but (specifically as to gratuitous cruelty) accepted that it was “not elevated to that degree of aggravation”. In my opinion, these matters were taken into account in an appropriate way.

110 The Crown submitted that the guide of the standard non-parole period of seven years imprisonment had not been appropriately followed. It was accepted that her Honour had referred to the standard non-parole period, and had given reasons for departing from it. But it was submitted that the characterisation of the offence as one within the mid range of seriousness was generous (which the appellant appeared to accept), and that in any event the imposition of a non-parole period of one quarter of the standard non-parole period resulted in failure of “an appropriate relationship between the standard non-parole period and the objective criminality of the offence regardless of the other matters that may be taken into account by way of mitigation”: R v Knight and Biuvanua [2007] NSWCCA 283 at [47].

111 In my view the characterisation of the offence was indeed generous. The maximum penalty for the offence was 25 years imprisonment, and the seriousness of the offence was such that, before the discount and subjective matters, the judge should have begun with at least something like 12 years imprisonment in mind. The guidance of the standard non-parole period should have begun with, at the least, the seven years imprisonment or something more. In my view, excessive leniency is here demonstrated.

112 Even on the judge’s assessment, the appropriateness of her Honour’s course (after allowing for the plea of guilty), turned on her reasons of parity, youth and other subjective features. I will return to it after consideration of the particular grounds of appeal, put forward in relation to all the offences, in connection with paying excess regard to the appellant’s youth and failing to have regard to his previous convictions.

113 The Crown did not submit that the judge was in error in paying regard to sentences imposed on MK, CD and GS. Although these offenders fell to be sentenced subject to the special principles applicable to juveniles, in accordance with the Children (Criminal Proceedings) Act 1987 (R v SDM [2001] NSWCCA 158; (2001) 51 NSWLR 530), regard could be had to parity with their sentences: see for example Ersmann v R [2007] NSWCCA 161; (2007) 171 A Crim R 560 at [60]-[74]. As was said in that case, with reference to R v Boney [2001] NSWCCA 432 -

“74. Wood CJ at CL, with whom Grove J agreed, held:

(a) There is no longer an inflexible rule that there is no utility in comparing sentences upon co-offenders who are separately dealt with — one in the Children’s Court and the other as an adult.

(b) While there are different sentencing objectives and considerations applicable in the Children’s Court which limit the worth of any such comparison it is appropriate to pay some regard to the sentence imposed in the Children’s Court.

(c) Where there is a degree of disparity as to invite a reduction in the sentence imposed, the Court does not do so if the result would produce a sentence disproportionate to the objective and subjective criminality involved.

(d) A stage can be reached at which the inadequacy of the sentence imposed upon the co-offender is so great that the sense of grievance engendered can no longer be regarded as a legitimate one.

(e) As a corollary to (d), where a co-offender has received a comparatively more lenient sentence then the co-offender whose case is before the Court, the Court may exercise its discretion by declining to interfere because it does not wish to duplicate a gross error in the sentencing of the applicant’s co-offender.

(f) If this Court does intervene, whatever sentence is imposed must significantly reflect the objective and subjective criminality involved. Thus the sentence imposed by this Court may not be comparable to that imposed upon the co-offender.”

114 It was submitted that, although his age was a significant feature in the appellant’s subjective case, it was given too much regard in relation to parity and otherwise. The appellant was only a little over 18 years old, but the age difference between the appellant and the 14 or 15 year old co-offenders was significant and his claim to leniency was diminished as he approached maturity; moreover, as was said by Spigelman CJ in R v Sharma [2003] NSWCCA 142; (2002) 54 NSWLR 300 at [74] -

“Armed robberies of the character involved in the present proceedings, committed by young persons, generally with an addiction problem, are so prevalent that the objective of general deterrence is entitled to significant weight in the process of sentencing for this offence, notwithstanding the use of the typical offender: see Pham (1991) 55 A Crim R 128 at 135; Tran [1999] NSWCCA 109 at [9]-[11]; AEM Senior [2002] NSWCCA 58 at [96]-[102].”

115 The Crown submitted that the appellant’s age was given undue dominance in the sentencing, including in giving less weight to general deterrence.

116 In my opinion, there is force in these submissions. The sentence given to CD was remarkably lenient. His youth must have greatly contributed to the leniency. The appellant was a little over two years older, a material period in teenage maturity and accountability, and was to be sentenced as an adult because he was over 18. Personal and general deterrence were entitled to significant weight in his sentencing.

117 Consideration of parity was in my view greatly diminished, and any allowance for the appellant’s youth (particularly given the nature of the offence) was not to be given significant weight in his sentencing. Whether via parity or as a subjective feature, the contribution to departure from the guide of the standard non-parole period should not have been significant.

118 The other subjective features identified by the judge could also contribute to departure. But the Crown submitted that the judge failed in this connection to have regard to the appellant’s previous convictions. The appellant had twice been convicted in the Children’s Court of robbery while armed with an offensive weapon. The judge referred to this in considering parity with CD, but not otherwise. He had also been convicted of a number of offences of stealing, shoplifting, breaking and entry, damaging property and car stealing. He had a very poor record, which disentitled him to any leniency.

119 The Crown submitted that the record was not taken into account in this manner; rather, the appellant’s record was used to his benefit in the comparison with CD, and again as an occasion for leniency because he “came from an underprivileged and dysfunctional community where unfortunately he and others end up in custody”. It was submitted that the previous offending was very relevant to the sentencing, in particular when the offence of robbery in company with wounding was of the same nature as the robbery while armed with an offensive weapon, and that there was shown a continuing attitude of disobedience to the law. It was said that the absence of other reference to the previous convictions disclosed failure by the judge properly to take them into account.

120 In my opinion, there is also force in these submissions. In particular, when the judge said that general deterrence was of less weight in the appellant’s case and “there should be a greater emphasis on rehabilitation”, one would have expected reference to the prior offending – especially when a very qualified finding of contrition and remorse had been made. If the prior offending was taken into account, it was not given the weight it deserved.

121 Bearing this in mind also, in my opinion the extent of departure from the guide of the standard non-parole period in the case of the offence of robbery in company with wounding was not warranted. More widely, the sentence for that offence failed to reflect the objective criminality even with regard to the appellant’s subjective circumstances. A reduction of 25 per cent for the plea of guilty would bring the 12 years to which I earlier referred down to 9 years. The favourable subjective circumstances could not have warranted a significantly lesser sentence, and reduction of the non-parole period to 1 year 9 months could not be justified.

122 Errors abovementioned also, in my view, materially affected the sentence for the offence of aggravated attempted intercourse. The Crown did not challenge the judge’s assessment that the offence was at the lower end of the scale (although it is not an assessment which I would have made). But the maximum penalty of 20 years imprisonment must be borne firmly in mind as the legislature’s indication of the gravity of such offending, and a non-parole period of 10 months does not in my opinion adequately reflect the seriousness of the offence in this case.

123 In particular is that so when, as her Honour acknowledged, there was “an element of domestic violence” and importance in general deterrence. Even if, as appears to have influenced the judge, the complainant remained with the appellant after the offence and during the next day, that non-parole period does not adequately mark the seriousness of him forcing himself upon her in demanding a tear, with punches and hitting with a broom. The demands of personal and general deterrence were high, see for example R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at [67]-[68] and Vragovic v R [2007] NSWCCA 46 at [33].

124 As to the sentence for the offence of assault occasioning actual bodily harm, again the Crown did not challenge the judge’s assessment that the offence was at the lower end of the range. However, the same considerations of personal and general deterrence were important. The occasioning of harm was accompanied by being chased with a brick, in what was not an isolated occurrence but one which followed the use of force on the previous day and appears to have been on conjecture of misbehaviour with Mr Ritchie. The sentence of imprisonment for 6 months may have been available, but custody for only 1 month referable to this offence because of the accumulation in my opinion was wholly inadequate recognition of the gravity of the offence.

125 That takes me to the extent of accumulation of the sentences, which as I have said was not explained beyond the observation that totality was of significance.

126 The judge was exercising a discretion, with which this Court will not lightly interfere: R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 60 at [7]; R v Institoris [2002] NSWCCA 8 at [95]; R v Carr [2002] NSWCCA 434 at [32]. But it is necessary that the concurrency or accumulation be such that the whole of the criminality be reflected in the sentencing. At least as to the sentence for the offence of assault occasioning actual bodily harm, in my opinion it was not. However, assuming adequacy in the sentences for the other offences, in my opinion the extent of accumulation between them was open to her Honour.

127 With respect to the judge, in the result I have concluded that there was manifest inadequacy. There was inadequacy in the sentencing for the robbery in company with wounding and for the aggravated attempted intercourse. Notwithstanding significant favourable subjective circumstances (and accepting that there were special circumstances), in my opinion the sentences for the two offences should have carried, in the case of the robbery in company with wounding, no less than imprisonment for 8 years with a non-parole period of 5 years and, in the case of the aggravated attempted intercourse, no less than a non-parole period of 2 years within the 3 years 6 months sentence imposed by the judge. There was also inadequacy in the accumulation whereby there would be only one month of custody referable to the offence of assault occasioning actual bodily harm.

Re-sentencing

128 The resentencing is subject to s 68A of the Crimes (Appeal and Review) Act 2001. It provides that in a prosecution appeal against sentence a court must not dismiss the appeal, or impose a less severe sentence than the court would otherwise consider appropriate, “because of any element of double jeopardy involved in the respondent being sentenced again”.

129 Section 68A removes from consideration the distress and anxiety which a respondent suffers from being exposed to the risk of a more severe sentence. The Court’s discretion to dismiss a Crown appeal otherwise remains. But the sentence imposed on resentencing can not be reduced, on the ground of the distress and anxiety, from that which the Court believes is otherwise appropriate: R v JW [2010] NSWCCA 39 at [141], [205], [209].

130 We have no evidence of the appellant’s circumstances since his original sentencing. He was sentenced on 26 June 2009. The Crown appeal was signed on 27 July 2009 and served on 29 July 2009. The two appeals were listed for 2 December 2009, but were adjourned because of pending appeals in which the effect of s 68A was to be considered and were heard on 2 March 2010. The appellant had himself appealed, and has been serving the sentences originally imposed. It was not submitted that delay called for leniency in resentencing, and I do not think it did.

131 In my opinion, sentences in accordance with those earlier described should be imposed. There should be accumulation such that 3 months of custody are referable to the offence of assault occasioning actual bodily harm (which might be thought lenient), and on further regard to totality on the balance between marking their separate criminality and avoiding an unduly heavy overall sentence the sentences for the other two offences should be accumulated for 15 months.

132 I propose the orders -

(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.

133 RS HULME J: I agree with the orders proposed by Giles JA and with his Honour’s Reasons.

134 I wish, however, to add the following. My concurrence in the substantial increase in the sentence which was imposed by Payne DCJ is much influenced by the violence which Mr Dungay’s offences exhibited. No society, black or white, can tolerate such conduct.

135 No woman should be subjected to the attempted rape of which the Jury found Mr Dungay guilty and his conduct in the robbery to which he pleaded guilty was worse.

136 There is no excuse for the intrusion of four thugs into the house of his victims, none for the threats to “Kick him! Kick him!”, none for the striking of one victim around the head with a weapon similar to a metal bar or pipe, none for threatening and striking with a knife, and none for menacing a 90 year old woman also in the house. Mr Wilson, the principal victim, received some 7 stiches to a wound above his left eye, seven stiches to a wound on his right elbow and 13 stiches to a deep wound on his left wrist. He is likely to have been left with some permanent incapacity.

137 Whatever disadvantages Mr Dungay may have suffered in his upbringing, he has had plenty of opportunity to learn that such violence is not acceptable. In January 2005 he was convicted of a number of offences including robbery. On two occasions in September 2005 he was convicted of a number of offences, on each occasion including an offence of being more than one of three people using violence or causing fear and in August 2006 he was convicted of two counts of robbery whilst armed with an offensive weapon. The inference is inevitable that on each of these occasions the court and/or the Juvenile Justice or Probation and Parole authorities brought to Mr Dungay’s attention the unacceptability of his conduct. It was while he was still on parole in respect of the August 2006 offences that he committed the attempted sexual assault.

138 Mr Dungay should appreciate that if he exhibits again the sort of violence that the offences to which I have referred involve, he is likely to receive yet heavier and heavier sentences.

139

LATHAM J: I agree with Giles JA and I agree with the further comments by Hulme J.

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