Graham v R

[2008] NSWCCA 174

Appeal Outcome: Special leave dismissed by the High Court - 5 December 2008

New South Wales

Court of Criminal Appeal

CITATION:	Graham v R [2008] NSWCCA 174
HEARING DATE(S):	10 June 2008
JUDGMENT DATE:	28 July 2008
JUDGMENT OF:	Spigelman CJ at 1; Price J at 2; McCallum J at 55
DECISION:	(i) Leave to appeal be granted. (ii) The appeal against the convictions be dismissed. (iii) In relation to the sentence appeal, quash the sentence imposed by the Judge on count 6. (iv) Sentence the appellant on count 6 to imprisonment for a non-parole period of 6 years 5 months to date from 19 June 2006 and expire on 18 November 2012 and a balance of term of 3 years 1 month expiring on 18 December 2015. The earliest date on which the appellant will be eligible for release to parole is 18 November 2012.
CATCHWORDS:	Criminal law - conviction and sentence appeal - sexual crimes - different jury verdicts - jury verdicts not unreasonable - proper allowance not made for special circumstances
LEGISLATION CITED:	Crimes Act 1900 s 61I, s 61P Criminal Appeal Act 1912 s 6(1), s 6(3) Crimes (Sentencing Procedure) Act 1999 s 44(2)
CATEGORY:	Principal judgment
CASES CITED:	M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 Mulato v Regina [2006] NSWCCA 282 R v Isaacs (1997) 41 NSWLR 474 R v Johnson [2004] NSWCCA 140
PARTIES:	Graham Regina
FILE NUMBER(S):	CCA 2006/5186
COUNSEL:	T Game SC (Applicant) D Woodburne (Respondent)
SOLICITORS:	S O'Connor Legal Aid Commission S Kavanagh Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0274
LOWER COURT JUDICIAL OFFICER:	Armitage DCJ
LOWER COURT DATE OF DECISION:	24 October 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	R v Graham

2006/5186

SPIGELMAN CJ
PRICE J
McCALLUM J

28 June 2008

GRAHAM v R

Judgment

Non-publication order in relation to the name of the complainant and any matter that can identify the complainant.

1 SPIGELMAN CJ: I agree with Price J.

2 PRICE J: On 21 June 2006 the appellant was arraigned in the District Court on an indictment containing two counts of indecent assault contrary to s 61L of the Crimes Act 1900 (counts 1 and 11), eight counts of sexual intercourse without consent contrary to s 61I of the Crimes Act (counts 2-4, 6-8, 10 and 12) and two counts of attempt sexual intercourse without consent contrary to s 61P of the Crimes Act (counts 5 and 9). The alleged offences occurred on 16 December 2005 and involved a single complainant.

3 The appellant pleaded not guilty to each count and a jury was empanelled. On 3 July 2006, the jury returned verdicts of guilty to counts 6 and 9. Verdicts of not guilty were returned on all other counts.

4 On 24 October 2006, the appellant was sentenced on count 6 to a term of imprisonment for a non-parole period of 7 years to commence on 19 June 2006 and to expire on 18 June 2013 and to a parole period of 2 years 6 months to commence on 19 June 2013 and to expire on 18 December 2015. On count 9, the appellant was sentenced to a fixed term of imprisonment of 5 years to commence on 19 January 2006 and to expire on 18 January 2011.

5 The appellant now appeals against his convictions and the sentences imposed. The notice of appeal so far as the appellant’s convictions are concerned identifies one ground which is as follows:

“The verdicts on counts 6 and 9 cannot be supported having regard to the evidence.”

6 It is the appellant’s case that properly analysed there is no logical and reasonable basis for sustaining the differentiation that the jury drew between the counts upon which the appellant was acquitted by the jury and those upon which he was convicted. The appeal raises the issue of unreasonable verdicts and the ground of appeal is based on the first part of s 6(1) of the Criminal Appeal Act 1912 which relevantly provides:

“The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable…”

7 The test to be applied by this Court where the reasonableness of a verdict by the jury is challenged is that stated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 where their Honours said (at 493):

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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.”
See also MFA v The Queen (2002) 213 CLR 606 (at 614 to 615).

8 The issue is whether this Court finds that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of counts 6 and 9. As was pointed out in MFA (at 618) the test established by s 6(1) of the Criminal Appeal Act is unreasonableness, not inconsistency.

9 The approach to be taken by this Court when a jury returns verdicts of guilty and not guilty in relation to charges of sexual assault upon a single complainant by an accused was considered in the joint judgment of Gleeson CJ, Hayne and Callinan JJ in MFA.

10 Their Honours said: (at 617)

“ Since the ultimate question concerns the reasonableness of the jury’s decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie [(1996) 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 Kirkham [(1987) 44 SASR 591 at 593], and referred to in the 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.”

11 Different verdicts were also considered in the joint judgment of McHugh, Gummow and Kirby JJ in MFA. Their Honours adopted what was said in MacKenzie that “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 be generally accepted.” Their Honours recognised that juries will sometimes give effect to their innate sense of fairness and justice as well as to their sense of proportion and compassion. Their Honours stated (at 631):

“Nevertheless, cases do arise where different verdicts returned by a jury represent ‘an affront to logic and commonsense’ and suggest a compromise in the performance of the jury’s duty.”

12 In order to consider the first ground of appeal, it is necessary to refer to the trial and to the evidence in some detail.

The trial

13 The complainant’s evidence-in-chief may be summarised as follows: She and the appellant agreed to meet. They had not previously been out together. They went to a bar and grill and then to a club. Whilst at the club, the appellant drew a man playing a guitar and a woman beside him. The man had a largely exaggerated penis and the woman was performing oral sex and above the woman was the complainant’s name. The appellant pointed to the male playing the guitar and said “that’s me”. The complainant said “You’ve got a pretty vivid imagination” and he said “Yeah, the penis is pretty exaggerated isn’t it?” The complainant said “No, that is not going to happen, I am not going to do that.” The appellant replied “No, I don’t want to have sex either, you know I’ve had a great night, it’s been a great night, I can’t believe that you’re here and I’d just be happy with a little kiss you know. That’s all I need at the end of the night you know if you just gave me a kiss right now.” He leaned over to her and when she gave him a peck on the lips, he said “see I’m happy now”.

14 When they left the club, the appellant suggested they go to his house to listen to him play flamenco. She thought this was a good idea as she was concerned that if she was over the limit to drive she may be pulled over by police. She did not feel drunk at all but she wanted to be absolutely sure.

15 When she arrived at his unit, the complainant sat down on the lounge and asked for a cup of tea. As he came in, the appellant took his shirt off and then put the kettle on. She asked him to play some flamenco which he did. He then stopped and said “I’m too tweaked to play any more”. He then walked over to the complainant and kissed her on the mouth and then touched her crotch with his hand. The complainant got up and said “Whoa you move fast. How about that tea?” He said he would get it but then disappeared into a room and asked her to come in as he wanted to show her something.

The complainant’s evidence of the offence constituting count 1 (Indecent Assault )

The complainant walked to the room and saw that it was his bedroom. He grabbed her hand, pulled her forcefully onto the bed and straight away was on top of her. She said to him “I don’t want to have sex with you”. He said “Don’t worry, I don’t want to have sex either I just want to touch you”. He then put his hands all over her very quickly and pulled her shirtdress up to her armpits. He had his hands and mouth over her body. He grabbed her dress and pulled it off. She had a bra and three quarter pants and underpants on and she was struggling to keep them on.

He put his hands on her breasts and she said “Don’t touch me there” and she was guarding them with her hands. He tried to take down the straps of her bra from her shoulders and she grabbed there to guard that. He put his hands back on her breasts and she moved her hands back down. He said “Don’t worry I’m not interested in your titties”. Suddenly he pulled her hands away and ripped the middle of her bra in two and threw it away. He then immediately put his mouth and hands on her breasts.

The complainant’s evidence of the offence constituting count 2 (sexual intercourse without consent )

The complainant was completely shocked and she still tried to struggle. After that he took his shorts off so that he was naked. The complainant tried to sit up but he grabbed her by the ankles and pulled her across the bed. He pulled her three quarter pants off and undies off so that she was completely naked. He then started to perform oral sex on her. He put his tongue inside her vagina and his chin and lips. He frantically moved his face around so that in the end the complainant was very raw and scratched. She struggled and wriggled her hips to try and get away.

The appellant then turned around so that his anus was right next to her face and he said “Lick my arse”. His mouth was still on her vagina and then he started to bite and gnaw at her left thigh. She said “That really hurts” but he continued to do it and ultimately left a bruise on her leg. She was pinned down but was trying to keep her face away from his anus. During this he kept saying “God dammit you’re so hot. God dammit I love licking your pussy”.

The complainants evidence of the offence constituting count 3 (sexual intercourse without consent)

He then got off her, knelt down, grabbed her head and manoeuvred her so that she was facing him. His back was towards the bed head and he said “Suck my dick for me”. He grabbed her head then thrust his penis into her mouth causing her to gag and cough. He said “Look at me in the eyes as you’re doing this”. This was difficult because of the position she was in. She moved so that she was down further on the bed and she did try to look at him as she was afraid if she didn’t something worse would happen to her. When she was looking up he spat on her face and he did this a few times. Sometimes it would land on his penis and sometimes on her face but inevitably it would dribble down into her mouth and he said “I love it that you swallow my spit”.

The oral sex went on for a long time and at the end he let go of her head and she was exhausted. She said to the appellant “Could I have that tea now?” He said “Okay” and went off to the kitchen. The complainant got off the bed and scrambled to find her clothes. He came back in and said “What are you doing?” she replied “I’m trying to look for something. I want to get dressed now”. He said in a serious tone of voice “Oh no don’t get dressed”.

The complainant’s evidence of the offence constituting count 4 (sexual intercourse without consent)

The complainant was standing at the foot of the bed and the appellant told her to bend over and he forced her upper back down so that she was face down on the bed. She felt a cold hard object enter her vagina and it was thrust in and out for about two minutes. She kept really still because it was big and hard and she thought that if she kept still it wouldn’t hurt so much. She thought that if she struggled he may do some serious damage.

The complainant’s evidence of the offence constituting count 5 (attempt sexual intercourse without consent)

After a while he removed the object from her vagina and she felt pressure on her anus and he was attempting to put it in. The complainant said “That really hurts”. The appellant could not push it in. He fumbled with it and then gave up. He said to her “Get back on the bed”. She heard a thud and as she got onto the bed she saw on the floor at the foot of the bed a blue glass bottle and she guessed that it was what he used.

The complainant’s evidence of the offence constituting count 6 (sexual intercourse without consent)

The appellant positioned her on the bed and forced her head and neck over to the end of the bed so that her shoulders and arms were down as well. The appellant was holding her hips up with his right hand and with his left hand held her head and hair. The appellant then penetrated her vagina with his penis. He was thrusting with his hips and this went on for about five minutes. The complainant said to him before he entered her vagina “I don’t want you to touch me. I don’t want you inside me. I don’t want your penis inside me”. He said “Don’t worry I don’t want to fuck you, I just want to touch you”. The complainant said that he was doing it anyway.

The complainant’s evidence of the offences constituting counts 7 and 8 (sexual intercourse without consent)

After five minutes of him penetrating her with his penis she felt the hard pressure of his fist against her vagina. She told him that it hurt her. This continued for 30 or 40 seconds. She couldn’t struggle because he was holding her head down but she did manage to get her hand between her legs to try and move his hand away. When he stopped with his fist he then thrust his fingers into her vagina (count 7) for a few moments and then he took his fingers out and put them into her anus (count 8). He did this for a few moments.

The complainant’s evidence of the offence constituting count 9 (attempt sexual intercourse without consent)

After that he turned her around so that she was on her back and he was on top of her. He tried to put his penis inside her. There was a struggle for a while and she said “I don’t want you to touch me, I don’t want you inside me. I don’t want your penis inside me”. He said “Don’t worry I’m not”. The complainant gave evidence that he said that he wasn’t doing it when he was. She said that this time he didn’t get his penis inside. She said they really struggled.

The complainants evidence of the offences constituting count 10 (sexual intercourse without consent) and count 11 (indecent assault)

After that he got on top of her. He was on his knees and he pinned her down so that his knees were on top of her forearms and under her armpits. He said “I want you to suck my dick for me”. He put his penis in her mouth for about 20 seconds and spat on her face (Count 10). He then took his penis out, started to masturbate himself with his right hand and said “I want to come on your face”. Sweat and spit fell on her face as he was doing this. He spat on his penis and on her face and it stung her eyes. He did this for about 10 minutes and said “Your pussy’s so hot, God damn it your arse is so hot I can’t believe it. I love licking your pussy”. Then he ejaculated onto her face (Count 11). It went into her left eye and in her hair. He lay down and looked exhausted.

The complainant got up and went to the bathroom. She washed the semen off her face and hair and then went back into the room to get dressed. The appellant said to her “What are you doing? Come and lie down next to me”. The complainant said “I don’t want to do that. I want to leave. I want to go home. Would you walk me to my car?”

The appellant said that he would walk her to the car in the little while. He said “Just lie down for a little while, just 10 minutes”. The complainant insisted that she wanted to go.

The appellant said “Okay I’ll take you in a little while”. The complainant went out to the lounge room and saw the time was 2.40am. She decided to leave herself. She went to the front door and tried to open it but the cover was missing from the deadlock and she could not work out how to turn the lock. She went back into the bedroom and waited for the appellant to wake up.
The complainant testified that it did not occur to her to call the Police. She said she was utterly tired, completely devastated and just wanted to get out of there. She waited in the bedroom until daylight which was about 5.30am. She went to the bathroom and when she came out she saw a male standing in the loungeroom. He had his back to her and she did not see his face.

The complainant’s evidence of the offence constituting count 12 (sexual intercourse without consent)

In the bedroom the appellant asked her to lie down next to him. She told him she wanted to go home. He grabbed her by the waist and said “Just stay here for a little while. I want to fuck you straight”. She said to him “I don’t want to. I don’t want to touch you. I want to go. I don’t want to be here. You’re not listening are you?” She moved away but he still had his hands on her waist. He said “I won’t fuck you I just want you to touch it and suck it, suck my dick for me”. She told him again that she did not want to and the appellant seemed edgy and very agitated and was stroking his penis with his hand. He said “I just want you to touch it. Just kiss it”. She thought he would not let her go so she gave his penis a peck and she said “Will you open the door now?” He asked her to close the bedroom door and he put his shorts on. Then he said “I love your pussy I want to fuck you” and he lifted her shirt dress and put his fingers down her pants and into her vagina. He thrust his fingers a few times and she was pinned against the wall.

The complainant said to him “Look if you want to see me again you will open the door and let me go now”. She gave evidence that she did not intend to see the appellant again. He asked when they would “hook up again”. The complainant said that she would ring him but said that she said this to him so that he would let her go. She then left and walked down the stairs. She quickly walked to her car and drove home.

She put her broken bra in the bin and had a shower. Her eight year old son was coming home from his father’s house and she had to work at midday that day. She tried to lie down to rest but not long afterwards she got a text message from the appellant. It said “I can’t wait to fuck you”. She was so disgusted to hear from him she deleted it straight away. She then received another text message that read “I love licking your arse”. She deleted that also. She then received another one that said “Are you feeling discombobulated?” She texted him back “I’m in an extreme state of discombobulation after last night” and then she deleted that as well.

The complainant gave evidence that soon afterwards her son came home and she tried to get on with the day as best she could and she tried to block out what had happened to her. She explained she felt she could not go to the police that day as she did not want to take her son and she did not want to explain to any of her family. She felt guilty, like it was her fault for going to his house. She just wanted to get through the day and she had Christmas coming up in a few days and family coming to her house.

16 On 22 December 2005 she met up with a friend, [JS]. She said she felt she had to tell someone so she told [JS] some of the things that happened on the date with the appellant. She told her that her bra was ripped and he groped her breast and that it was an awful night. She may have said other things but only parts of it. The complainant said she could not tell her the whole story as she still felt really humiliated.

On 27 December 2005 the complainant met up with a friend [MD] in Cronulla Mall. When she saw the appellant coming towards her, she got up and told her friend they had to leave. She then told her friend that he had molested her, ripped her bra but she did not tell her everything.

The complainant’s family left her house on 30 December 2005 and the following day she reported the offence to the police.

During cross-examination the complainant said that she did martial arts training. She had been training for the last 10 years and attended training 4 or 5 times a week. She was a black belt in Tae-Kwon-Do. She also did kick boxing and had participated in seven fights. She had won two state titles. She said she did not want to invite further assault on her by engaging the appellant in a violent way. She was closely cross-examined concerning her failure to leave the unit and to use her mobile phone to call police. She rejected the proposition that she did not do so because she was consenting to everything that happened that night. She denied that she consented to oral sex. She denied that the only issue she had with having penile/vaginal sex was her concern about the possibility of getting pregnant and the lack of a condom. She said that she was worried about getting a sexual disease or becoming pregnant but there was no consent on her part.

17 [JS] gave evidence that the complainant told her on 22 December 2005 that she had dinner with this man and had gone to his house to have a cup of tea and to listen to him play flamenco guitar. She told her that they got to his house, had a kiss and then he moved really fast. She said that he would do something to her, she struggled to get out of it, it would change and he would start all over again. He held her down a lot. At one point he got angry and ripped her bra. She kept struggling the whole night. Later that day, the complainant told her, [JS] said, that he pinned her down. She said no, then he would agree with her saying that he wasn’t going to do that but then he would keep doing it. The complainant said that it hurt and she asked him to stop but he would change to something else. He had used his fist and a bottle. She told [JS] that she wanted to get out of the unit but that it was deadlocked from the inside. In the morning, she said it started all over again. He put his hand inside her and she said no. The complainant said that she told the appellant that she would only see him again if he let her go and eventually he let her out. [JS] said that the complainant asked her if she thought that’s sexual assault to which she replied that what he had done was very, very wrong. The complainant told her that she had thought about ringing the Rape Crisis Centre and maybe she should go to the police.

18 [MD], who also gave evidence, said that she was sitting down with the complainant at the Cronulla mall on 27 December 2005 when the complainant said they had to get out of there straight away. After they moved from the mall, the complainant told her they had to leave as she had just seen the appellant. The complainant said that they had gone out for dinner and she had walked back to her car with the appellant. When she got to her car the appellant tried to grope her. She asked him to stop but he wouldn’t. The appellant said “don’t worry I’m not going to touch your titties”. He then got angry and ripped her bra but she kept telling him she didn’t want him. He didn’t seem to listen to her. The complainant told her she only got away because she bargained with the appellant and told him if he wanted to see her again he had to let her go.

19 [MD] saw the complainant in early January and they spoke further about what had happened. The complainant told her that she went back to his apartment for a cup of tea and once she got there she couldn’t get out because of the way the door lock worked. The complainant said that it was set up so that she couldn’t get out once she was in there and he sexually assaulted her.

20 The appellant’s flatmate, gave evidence that he initially thought that he had not been home on 15 December 2005 and gave a statement to that effect to police. He thought that he got home about 6.30am and had a conversation with the appellant about the date he had. The appellant told him that the complainant stayed the night and they had a mad night of sex. He had her number and they were going to hook up again. Mr [DC] said that he subsequently realised that what he told police about not being home that night was wrong. He recalled waking up at about 1am and hearing them coming in the door. He heard the appellant playing guitar and singing. He heard laughter and thought they sounded a bit drunk. After that he fell asleep and didn’t hear anything until the morning when his alarm went off. He then had the conversation with the appellant about the date he had. The appellant seemed pretty happy about it.

21 A search warrant was executed by police on the unit occupied by the appellant on 17 January 2006. The police located a number of items thought to be potentially relevant including a large blue bottle found in the bathroom. The bottle was sent for fingerprints and DNA testing but no fingerprints or DNA were found.

22 The appellant entered into an electronically recorded interview with police on 18 January 2006 during which he said that the complainant was totally willing and the whole thing was consensual. In the bedroom, she performed oral sex on him and he on her. At one point she was bent over the bed and he used the blue bottle like a vibrator or dildo. She enjoyed it and commented in the morning that she liked it. He said it was a consensual act. He said that because of the drinking he did not have an erection and he tried to put it in but was unable to. There was more oral sex and more touching. When they were first in the bedroom he took his clothes off or undid her blouse and took her clothes off. He said he grabbed her bra and it broke. It was very intimate and intense. He ripped her bra and they had a giggle about it. They fell asleep for a few hours in each others arms. The following morning he had an erection. The complainant performed oral sex on him again and then said she had to go. He walked her to the door, they hugged and kissed. He asked when he could see her again to which she replied “two weeks”. He later lost her mobile number and she didn’t call him.

23 The appellant did not give evidence at trial nor were any witnesses called.

24 As the intention of the jury was directed during closing addresses to the appellant’s answers to questions 345 to 349, 584 and 588 in the record of interview it is necessary to set them out:

Q345 All right. Now you’ve said that you don’t, you didn’t actually have penis and vaginal sex. Is that right?

A Yeah, I, I, I do remember that I did have difficulty having a full erection to have sex.

Q346 Mmm.

A And there were times where I’d sort of try to insert it a bit and, you know, it was just, it, it, it wasn’t really happening, you know. So I’d stop or [C] would say, No, I, you know, we’re doing everything else but I don’t want to have sex tonight. She said, you know, I’ve got children, we’re not wearing protection, Guy. And I couldn’t sort of get an erection anyway, but the few different times during the night where I would rub, like, my penis, even not fully erect against her vagina and yeah, I would say that there was no, like, prolonged periods of sex with my penis in her vagina, if, if any. Like, I might’ve tried to put it in a bit. There was contact there but I do remember her stating, Guy, well, you’ve got no protection, I’ve got children, anything could happen. I don’t want to have another baby, she said. I remember that as also saying it’s not, it’s not safe sex. But then we’ve, she performed the oral and everything else after and during times of that, and - - -

Q347 Did you, did [C] say anything other than she was just a bit worried about falling pregnant?

A She just, I, I, if I can think of the two things. I do vividly remember her saying it because my first thought was she’d, when she said, No, it’s, it’s not right that, I even thought she meant she’s uncomfortable having sex on the first night or it’s not right that there’s no protection, she’s worried about possible disease. So it sort of shocked me when she said, I don’t want to fall pregnant.

Q348 Hmm

A I sort of thought, oh, you know, like, I thought it would be more, like, oh, it’s, I don’t’ want to have sex the first night but we’ll do the rest or, I don’t know, you don’t have a condom, it could, there could be possible disease.

Q349 Hmm

A But she said, I remember her saying and it rang a bell in my head ‘cause she has two children, she’s, like I don’t want to fall pregnant, Guy.
…………

Q584 Yeah

A And I said, I met [C]. She’s a top chick. We went to dinner. They go, Yeah, she’s cool. She’s got two children and her husband, so to me she was, like, a, a nice person. Whether you can say that when you have unprotected sex with someone, you just felt she was nice. And I was healthy, like - - -

- - - but there was a point when she actually did say, at those, those periods when we’re sort of nearly to have sex, that she’s like, Oh, God, I don’t think we should, I don’t want to fall pregnant. So - - -
…………….

Q588 OK.

A - - - we were aware of those things but we had, had the night that I described.

25 At the commencement of her closing address, the Crown focussed the attention of the jurors on the issue of consent. She submitted that it was impossible to reconcile what the appellant had said generally in his record of interview about an evening of intimate consensual sex and the answers which he gave when the allegations were put to him one by one. She asked the jurors to carefully consider the appellant’s answers and suggested that if they did so, they would actually find that there was some support for what the complainant said she told the accused in his own version of events. The Crown then took the jury to answers 346 - 349, 584 and 588. The Crown put to the jury that the appellant knew that the complainant did not want to have sex but he went ahead anyway because he didn’t care whether she wanted to have sex or not.

26 Defence counsel addressed the Crown’s argument about the record of interview in his closing remarks. He suggested that when the answers were considered in the context of the record of interview, the appellant did not agree that he was told that she did not want to have sex. The appellant agreed that the complainant said that she did not want to fall pregnant and nothing more than that. She expressed concern about pregnancy, but it did not go anywhere near to amount to an absence of consent or a withdrawal of consent. He put to the jury that the complainant consented to everything.

27 The Judge, in his summing-up, instructed the members of the jury that they must consider each charge separately. He directed the jury that they were not obliged to accept the evidence of any one witness and may, if they thought fit, accept part and reject part of the same witness’s evidence. The jurors were further instructed that if they held a reasonable doubt concerning the reliability of the complainant’s evidence on one or more counts, they must then take that into account in assessing the reliability of her evidence in relation to other counts. The Judge warned the jury that the complainant’s evidence must be scrutinised with great care. The jury was instructed that the complainant’s evidence must be accepted beyond reasonable doubt before a verdict of guilty could be returned on any of the charges.

28 The Judge carefully directed the jury on consent. The jury was instructed that the Crown must prove beyond reasonable doubt that the complainant did not consent and that the appellant knew that she was not consenting. He pointed out that it was not a guilty state of mind that the appellant honestly, though wrongly, believed that the complainant was consenting. The jury was directed that if the Crown had failed to prove that at the time of his acts the appellant did not honestly believe that the complainant was consenting the offence had not been made out. The Judge provided directions on recklessness as to consent and emphasised as to counts 5 and 9 which were charges of attempting to have sexual intercourse, it was not sufficient for the Crown to prove merely that the appellant was reckless as to whether the intended crime would take place.

29 The principal matters for the jury’s determination were the issue of consent and if an absence of consent was found, the appellant’s knowledge of that lack of consent.

Decision

30 The appellant submits in this Court that the prosecution case relied almost entirely upon the evidence of the complainant. All of the counts upon which the appellant was indicted alleged a series of offences which were part of a single ongoing course of criminal conduct committed over a number of hours. The appellant argues that on the complainant’s account of the incident and the circumstances surrounding it there could be no room for ambiguity. According to the complainant, the entire incident from beginning to end was marked by force, the threat of very rough treatment from the appellant and the unambiguous rebuffing by the complainant of the appellant’s desires. There is, the appellant argues, no room for the drawing of a distinction between counts 6 and 9 and the other counts. The jury was not satisfied to the requisite standard about the complainant’s account and there is no logic in the jury’s approach. The argument of inconsistency, the appellant contends, is strengthened when the trial judge left recklessness with the jury. Whilst the appellant’s answers at 346 - 349 in the record of interview might have lent some general support for the complainant’s credibility, the appellant submits they could not corroborate counts 6 and 9 in the manner contended by the prosecution at trial. The appellant contends that the context of the account in the record of interview is entirely foreign to the account given by the complainant and there are real dangers in using it to support a conclusion that offences 6 and 9 were more likely, on that account, to have occurred. In the context of the very limited level of penile intercourse deposed to in answers 346-349, the highest that these answers could go is to show recklessness. The acquittals on counts 1, 4 and 5, the appellant says, are of particular significance not just because of the apparently more extreme nature of the allegations but also because in relation to those acts there was alleged support. There were many matters which emerged during cross-examination, it is said, which explain why the jury was unable to accept beyond reasonable doubt the substance of the complainant’s evidence.

31 The complainant was the only witness in the Crown case who gave evidence of the actual incidents alleged. The jury’s assessment of her evidence and of the appellant’s account to police was vital. The jury had the opportunity to carefully assess the complainant’s evidence by seeing and hearing that evidence given. The jury also had the advantage of viewing and hearing the appellant’s account of events when the record of interview was played. It is clear from the verdicts on counts 6 and 9 that the jury rejected the appellant’s account that all of the sexual activity was consensual.

32 The trial was conducted by the Crown upon the basis that the complainant had not consented to any of the acts alleged and the appellant’s case was that all acts were consensual. The sexual activity with the exception of count 12 followed in succession during the night. As it was open to the jury to accept the whole of the complainant’s evidence, the verdicts of guilty on counts 6 and 9 can only have two explanations. One is that the jury was not satisfied that the complainant did not consent to the sexual acts other than those two counts. The other is that the jury was satisfied that the complainant did not consent to all of the sexual acts but was not satisfied that the Crown had established that the appellant had a guilty state of mind.

33 There was, in my view, no rational basis upon which the jury could have been satisfied that the complainant did not consent in counts 6 and 9 whereas a reasonable doubt was entertained about her evidence on the issue of consent on all other counts. The question is whether a rational basis for the different verdicts may properly be found on the issue of the appellant’s state of mind.

34 The jury’s attention was directed to the appellant’s answers, in particular at 346-349, during final addresses which were also referred to by the Judge in his summing-up. It was not suggested by the Crown that the answers corroborated counts 6 and 9 or that they were admissions. Although it is true that in the context of the record of interview, these answers were different from the complainant’s evidence, they were relevant to the assessment by the jury of the honesty and reliability of her account and to the appellant’s state of mind. It was open to the jury to consider that they provided some support for her evidence that she told the appellant she did not want his penis inside her and further that the appellant actually knew that she did not consent to penile vaginal intercourse. These answers, in my opinion, were not confined to the issue of recklessness.

35 During the proceedings on sentence, the Crown’s submission was that the not guilty verdicts indicated that the jury was not satisfied beyond reasonable doubt that the appellant knew the complainant was not consenting to the sexual acts the subject of those verdicts. Furthermore, the guilty verdicts indicated that the jury was satisfied beyond reasonable doubt that the complainant did not consent to the acts the subject of counts 6 and 9 and that the appellant knew the complainant was not consenting.

36 A useful consideration is the Judge’s observation in his remarks on sentence that the only factual basis for the verdict on count 9 was the jury found beyond reasonable doubt that the appellant had actual knowledge of the complainant’s lack of consent to the acts forming the subject of that count. This was plainly correct. The Judge accepted the Crown submission in respect to count 6 that there was clear evidence by the complainant that she expressed her lack of consent to the act committed by the appellant and that he went on and performed it anyway. He concluded that the acts the subject of the counts on which the appellant was found guilty were committed by him with actual knowledge on his part of her lack of consent.

37 In my opinion, there is a proper way by which this Court may reconcile the verdicts of guilty on counts 6 and 9 with the verdicts of not guilty on the other 10 counts. It is to be found in a combination of the following circumstances:

(i) There were directions to the members of the jury by the Judge that they must consider each charge separately and before they could return a verdict of guilty on any of the charges, they must accept the complainant’s evidence beyond reasonable doubt. They were given a specific direction that the evidence of a witness may be accepted in whole or in part and a warning that the complainant’s evidence must be scrutinised with great care.
(ii) As the sole Judges of the facts, the members of the jury were entitled to accept beyond reasonable doubt the complainant’s account of counts 6 and 9. These were the only offences on the indictment which involved penile/vaginal intercourse. It was open to the jury to find that the complainant had, in plain terms, made it clear to the appellant that she did not consent to penile/vaginal intercourse.
(iii) In making that finding, it was open to the jury to conclude that support for the complainant’s evidence of what she said and of the appellant’s actual knowledge of the absence of consent to penile/vaginal intercourse was to be found at Q 345- 349, 584, 865 and 869 of the record of interview. The jury was entitled to conclude in respect of counts 6 and 9 that there was no reasonable possibility that the appellant did not know that the complainant was not consenting.
(iv) In following the Judge’s direction to consider each count separately, the jury may not have been satisfied, other than for counts 1, 6 and 9, that the complainant had made it clear that she did not consent. The jury, acting reasonably, may not have been satisfied beyond reasonable doubt that at the time of his acts the subject of those counts the appellant did not honestly believe that the complainant was consenting. The support to be found in the record of interview of the appellant’s knowledge of lack of consent was confined to counts 6 and 9.
(v) So far as count 1 was concerned, it was open to the jury to find that the complainant had made it plain to the appellant that she did not consent to being touched on the breasts and that her evidence was supported by his admission in the record of interview of tearing her bra. The jury was, however, required to consider Ms [MD’s] account of what she had been told by the complainant. The inconsistency between the complainant’s evidence and Ms [MD’s] account might have caused the jury to step back from reaching a conclusion beyond reasonable doubt of guilt on that count. This does not mean that the complainant was disbelieved but reflects the diligence with which the jury approached its task.

38 These matters considered in combination could rationally have led the members of the jury to conclude that in all the circumstances the Crown had satisfied them beyond reasonable doubt that counts 6 and 9 had been established, whereas at the same time they entertained a reasonable doubt about the appellant’s guilt on all other counts. In my opinion, upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of counts 6 and 9.

39 Ground 1 of the appeal has not been established.

Sentence appeal

40 The notice of appeal identifies three grounds, namely:

1. The sentencing judge did not give proper regard to the limited basis on which the verdicts on counts 6 and 9 can be reconciled with the acquittals on the remaining 10 counts.

2. The sentencing judge erred in applying the standard non-parole period to count 6.

3. The trial judge failed to give proper effect to his stated intention of finding special circumstances (beyond any necessary adjustment in relation to accumulation).

41 Count 4 is an offence of sexual intercourse without consent contrary to s 61I of the Crimes Act. Offences contrary to s 61I are punishable by a maximum penalty of 14 years imprisonment. A standard non-parole period of 7 years applies: Pt 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999.

42 Count 9 is an offence of attempt sexual intercourse without consent contrary to s 61L of the Crimes Act. Offences contrary to s 61L are punishable by a maximum penalty of 14 years imprisonment. The standard non-parole provisions do not apply to this offence.

43 Grounds 1 and 2 of the sentence appeal are related and may be dealt with together. The appellant complains that the finding made by the Judge involved an unqualified acceptance of what the complainant had to say in evidence-in-chief on the subject of counts 6 and 9 and in doing so he ignored the acquittals on all other counts which was inappropriate. The appellant submits that if his Honour had sentenced on the correct basis then the offences and sentences would have been at the absolute bottom of the appropriate range.

44 During the sentencing proceedings, various submissions were made by the appellant’s counsel as to the facts that should be found on sentence. The Judge was invited to find that for the balance of the offences of which the appellant was acquitted, the complainant did in fact consent or that the appellant actually believed that she was consenting to those acts. Either finding would, it was said, lessen the seriousness or mitigate the gravity of the acts for which he was convicted. The appellant’s counsel argued that if his Honour found that the appellant honestly though erroneously believed she was consenting there was a “blurry line” which he had crossed which was very different from a mid-range seriousness for the offence. It was further contended that the Judge should find in respect of count 6 that the appellant was reckless as to consent and should not find that he had actual knowledge.

45 The Judge was satisfied beyond reasonable doubt that the acts the subject of the counts on which the appellant was found guilty were committed by him with actual knowledge on his part of the lack of consent of the complainant, as opposed to recklessness. His Honour referred to the complainant’s account of those offences at page 81 of the trial transcript and regarded all of those matters as proven beyond reasonable doubt “firstly because the jury must have so found in order to convict on count six and nine and also because, as I recall it, the complainant struck me as a truthful witness in relation to those matters and I accept the truth of what she said beyond reasonable doubt”.

46 The submission that he should find that the complainant consented to the acts which were the subject of the remaining charges upon which the appellant was found not guilty was rejected by the Judge as were the submissions that there was a “blurry line” as to consent from the appellant’s point of view and the verdicts of acquittal made the offences of which he was convicted less serious. His Honour found that the appellant was faced with a very clear situation in which the complainant indicated in the plainest of terms that she did not consent to what the appellant was about to do and yet he went ahead and did it. Both offences fell, in the Judges’ view, at the mid-range of seriousness.

47 The Judge did not ignore the verdicts of not guilty on the other counts. The facts that he found against the appellant were arrived at beyond reasonable doubt and consistent with the jury’s verdicts on counts 6 and 9. He was not obliged to sentence the appellant upon the basis of a view of the facts, consistent with the verdicts, which was most favourable to the appellant: R v Isaacs (1997) 41 NSWLR 474, nor was he obliged to find that the appellant actually believed that the complainant was consenting to the sexual activity the subject of the not guilty counts.

48 His Honour’s finding that the offences fell in the middle of the range of objective seriousness was essentially one of fact. I am not persuaded that the Judge overlooked a relevant consideration or that wrong principle was applied or that the finding was not open on the evidence: R v Johnson [2004] NSWCCA 140, Mulato v Regina [2006] NSWCCA 282. In my opinion, his Honour’s characterisation of the degree of objective seriousness of the offences was open to him.

49 Grounds 1 and 2 of the appeal on sentence have not been established.

50 Ground 3 of the appeal raises the issue of the non-parole period. Due to partial accumulation, the total effective sentence was a non-parole period of 7 years 5 months with a balance of term of 2 years 6 months. The appellant’s complaint is the Judge failed to give proper effect to his stated intention of finding special circumstances.

51 At the time of sentencing, there was a deal of discussion between the Judge and both counsel about special circumstances and the overall ratio between the non-parole and parole periods. His Honour found “special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act on the basis of the principle of totality, the need to retain proportion between the sentences and the need of the offender for a greater than unusual [sic] degree of supervision during his parole period having regard to his criminogenic issues…” The balance of the term of the sentence imposed, however, slightly exceeds one third of the non-parole period. It is 33.7 % (round figures) of the non-parole period. His Honour, it is evident, inadvertently failed to adjust the statutory ratio to make proper allowance for the special circumstances which were found. This ground of appeal has been established.

52 The Court, in my opinion, should form as required by s 6(3) Criminal Appeal Act 1912 an opinion that “some other sentence …is warranted in law and should have been passed” and proceed to give effect to the Judge’s finding of special circumstances which appears to me to be well founded.

53 The orders I propose are:

(i) Leave to appeal be granted

(ii) The appeal against the convictions be dismissed

(iii) In relation to the sentence appeal, quash the sentence imposed by the Judge on count 6.

(iv) Sentence the appellant on count 6 to imprisonment for a non-parole period of 6 years 5 months to date from 19 June 2006 and expire on 18 November 2012 and a balance of term of 3 years 1 month expiring on 18 December 2015.

54 As a result of the sentence I propose for count 6, the overall effective sentence will be a non-parole period of 6 years 10 months to date from 19 January 2006 and expire on 18 November 2012 and a balance of term of 3 years 1 month expiring on 18 December 2015.

The earliest date on which the appellant will be eligible for release to parole is 18 November 2012.

55 McCALLUM J: I agree with Price J.

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