Hogan v R - [2008] NSWCCA 150

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
HOGAN v Regina [2008] NSWCCA 150

FILE NUMBER(S):
2006/5089

HEARING DATE(S):
13 May 2008

JUDGMENT DATE:
2 July 2008

PARTIES:
John Barry Hogan (Appellant)
Regina (Respondent)

JUDGMENT OF:
Beazley JA Johnson J McCallum J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
05/31/0370

LOWER COURT JUDICIAL OFFICER:
Sweeney DCJ

LOWER COURT DATE OF DECISION:
23 August 2006

COUNSEL:
H Dhanji (Appellant)
N Noman (Respondent)

SOLICITORS:
Legal Aid Commission (Appellant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW – appeal against conviction of maliciously inflicting actual bodily harm with intent to have sexual intercourse – whether specification of a particular injury required – whether trial judge distinguished the need to find actual bodily harm inflicted maliciously as well as intent to have sexual intercourse
CRIMINAL LAW – appeal on directions to jury – requirement that actual bodily harm be inflicted maliciously – adequate directions given regarding the need to find malice – full definition of malice given to jury – whether error
CRIMINAL LAW – appeal against sentence – whether trial judge erred on principles stated in De Simoni
CRIMINAL LAW – appeal against sentence – special circumstances where accumulative effect of sentencing produces a non-parole period in excess of statutory ratio

LEGISLATION CITED:
Crimes Act 1900; ss 5, 61K, 66C
Crimes (Sentencing Procedure) Act 1999, s 44(2)
Criminal Appeal Act 1912, s 6
Criminal Appeal Rules, r 4

CATEGORY:
Principal judgment

CASES CITED:
Barca v R [1975] HCA 42; (1975) 133 CLR 82
Dunn v R [2007] NSWCCA 312
Kippist v Parnell (1988) 36 A Crim R 18
Knight v R [1992] HCA 56; (1992) 175 CLR 495
Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367
Peacock v The King [1911] HCA 56; (1911) 13 CLR 619
Pengilley v R [2006] NSWCCA 163
Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234
R v Bakewell (Court of Criminal Appeal, Gleeson CJ, McInerney and Studdert JJ, 27 June 1996, unreported)
R v Coleman (1990) 19 NSWLR 467
R v Cunningham (1957) 2 QB 396
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Fajka [2004] NSWCCA 166
R v Grant [2002] NSWCCA 243; (2002) 55 NSWLR 80
R v Micalizzi [2004] NSWCCA 406
R v Safwan (1986) 8 NSWLR 97
R v Smith (1982) 1 NSWLR 1
R v Stokes and Difford (1990) 51 A Crim R 25
R v Stones (1956) 56 SR (NSW) 25
Storey v R (1985) 19 A Crim R 275
Thomas v The Queen (1960) 102 CLR 584

TEXTS CITED:
C S Kenny, Outlines of Criminal Law, 19th ed (1966) Cambridge University Press, at 211

DECISION:
1. Appeal against conviction in respect of count 4, dismissed;
2. Application for leave to appeal against sentence granted;
3. Appeal against sentence in respect of count 4, allowed;
4. Set aside the trial judge’s sentence in respect of count 4 and in lieu therefore, impose a non-parole period of 4 years 3 months, commencing on 23 August 2007 and expiring on 22 November 2011 and a balance of term of 1 year 9 months expiring on 22 August 2013.

JUDGMENT:

- 33 -

IN THE COURT OF
CRIMINAL APPEAL

CCA 2006/5089
BEAZLEY JA
JOHNSON J
McCALLUM J
2 July 2008

John Barry HOGAN v Regina

Headnote

A jury found the appellant guilty of two offences under the Crimes Act 1900: ss 66C sexual intercourse with a person over the age of 10 years and under the age of 16 years; and 61K(a) maliciously inflicting actual bodily harm with the intent to have sexual intercourse. In respect of the s 66C offence, the appellant was sentenced to a non-parole period of 3 years with a balance of term of 1 year. In respect of the offence under s 61K(a) the trial judge imposed a non-parole period of 4 years 6 months with a balance of term of 1 year 6 months. The total effective sentence imposed was 7 years, with a total effective non-parole period of 5 years 6 months.

The relevant facts relied on by the Crown for the s 61K(a) offence were that the appellant and “TD” were alone in a caravan and the appellant attempted to have sexual intercourse with her. After the appellant left, TD noticed she had scratches on her back, a split lip and marks around her neck. Police photographed the scratches and TD’s mother gave evidence regarding the marks on her neck, scratches on her back and a bruise on her arm.

The appellant appealed against his conviction in respect of the s61K(a) on offence on the grounds that: i) the verdict was unreasonable and could not be supported on the evidence and ii) a miscarriage of justice occurred as a result of the trial judge’s directions regarding the requirement that the actual bodily harm be inflicted maliciously. The appellant also sought leave to appeal against sentence.

Held per Beazley JA (Johnson and McCallum JJ agreeing):

On the question of whether the verdict was unreasonable and could not be supported having regard to the evidence

Any one of the multiple injuries complained of, if accepted by the jury, was sufficient to establish actual bodily harm: [22].

As the injuries were clearly specified in the evidence and summing up, it cannot be said that the verdict of the jury was unreasonable on the basis that the Crown had failed to specify a particular injury upon which it relied: [22].

Where the evidence forms part of a circumstantial case, the bare possibility of innocence should not prevent a jury from a finding of guilt, if the inference of guilt is the only inference open to a reasonable jury upon a consideration of all the facts in evidence: [25] ff.
Barca v R [1975] HCA 42; (1975) 133 CLR 82 (considered), Knight v R [1992] HCA 56; (1992) 175 CLR 495 (considered); Plomp v The Queen (1963) 110 CLR 234 (considered), Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 (considered).
On the evidence, the only occasion where the appellant and TD had any physical contact was whilst he was attempting to have sexual intercourse. There was no basis to support a contention that the injury was inflicted in some other way: [28]-[29].

On the question of whether a miscarriage of justice occurred as a result of the trial judge’s directions regarding the requirement that the actual bodily harm be inflicted maliciously

The trial judge properly directed the jury that the actual bodily harm had to be maliciously inflicted and with the intention to have sexual intercourse, beyond the malice inherent in the offence: [40]-[46].

On the question of whether the trial judge failed to direct the jury that to prove malicious infliction of grievous bodily harm, it was necessary to prove intent or recklessness

There was no miscarriage of justice in the trial judge reading the complete s 5 statutory definition of “maliciously” to the jury, namely, that an act was done (i) of malice; (ii) without malice but with indifference to human life or suffering (iii) with intent to injure and without lawful cause or excuse; or (iv) recklessly or wantonly: [50]-[56], [66], [70].
R vColeman (1990) 19 NSWLR 467 (considered); R v Safwan (1986) 8 NSWLR 97 (considered); R v Smith (1982) 1 NSWLR 1 (referred to).
To the extent that the facts of the case required, the trial judge directed the jury’s attention of the need to find malice and relevantly, to the meaning of recklessness: [66], [70].
Pengilly v R [2006] NSWCCA (considered); Stokes and Difford (considered); R v Grant [2002] NSWCCA 243 (considered); R v Stones (1956) 56 SR (NSW) 25 (considered), Storey v R (1985) 19 A Crim R 275 (not followed).
There was no appealable error in the trial judge’s direction, nor had a substantial miscarriage of justice occurred. Leave to appeal refused: [70].

On the appeal against sentence

A trial judge is entitled to consider all of the conduct of the accused, including conduct that would aggravate the offence, but cannot take into account circumstances of aggravation, which would have warranted a conviction for a more serious offence: [74].
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 (considered); R v Fajka [2004] NSWCCA 166 (referred to).
The trial judge did not offend the principle stated in De Simoni by referring to the victim’s lack of consent. That reference was made so as to gauge the relative seriousness of the offence: [77].
The accumulation of sentences may result in a finding of special circumstances, where cumulation produces a non-parole period in excess of the statutory ratio: [81]-[82].
Dunn v R [2007] NSWCCA 312 (applied).
The effect of the accumulation was to produce a non-parole period in excess of 80 per cent of the head sentence. Where the trial judge made no reference to this in her Remarks on Sentence, it was not clear that the trial judge appreciated the effect of the sentences she proposed to impose: [83]-]84].
The non-parole period is reduced to 5 years 3 months, so as to maintain the statutory proportion in respect of the total effective sentence: [84].

IN THE COURT OF
CRIMINAL APPEAL

CCA 2006/5089
BEAZLEY JA
JOHNSON J
McCALLUM J
2 July 2008

John Barry HOGAN v Regina

Judgment

BEAZLEY JA: On 14 August 2006, the appellant was found guilty by a jury of 12 of an offence under s 66C of the Crimes Act 1900 (count 2) and a further offence under s 61K(a) of the Crimes Act (count 4). The charge brought under s 66C was that the appellant had sexual intercourse with a person over the age of 10 years and under the age of 16 years, namely, 14 years, between 1 January 2001 and 31 January 2001. The maximum penalty for an offence under s 66C was imprisonment for 8 years. The offence charged under s 61K(a) of the Crimes Act was that the appellant, on or about 3 April 2002, maliciously inflicted actual bodily harm with the intent to have sexual intercourse. The maximum penalty for this offence was imprisonment for 20 years. The victim of each offence was TD.
The jury was unable to reach a verdict in respect of another two offences, one under s 66C (count 1) and one under s 61L of the Crimes Act (count 3).
In respect of the s 66C offence (count 2), the trial judge imposed a non-parole period of 3 years to commence on 23 August 2006 and to expire on 22 August 2009 with a balance of term of 1 year to expire on 22 August 2010. In respect of the offence under s 61K(a) (count 4), the trial judge imposed a non-parole period of 4 years 6 months to commence on 23 August 2007 and to expire on 22 February 2012 with a balance of term of 1 year 6 months to expire on 22 August 2013. The total effective sentence imposed by her Honour was a sentence of 7 years with a total effective non-parole period of 5 years 6 months.
The appellant appeals against his conviction in respect of the s 61K(a) offence on the following grounds:
“1.The verdict with respect to count 4 was unreasonable and cannot be supported having regard to the evidence.
2.A miscarriage of justice was occasioned as a consequence of the learned trial judge’s directions with respect to count 4, regarding the requirement that the actual bodily harm be inflicted maliciously.”
At the time of the commission of this offence, s 61K(a) provided:
“61K Assault with intent to have sexual intercourse
Any person who, with intent to have sexual intercourse with another person:
(a)maliciously inflicts actual bodily harm on the other person …
is liable to imprisonment for 20 years.”
The appellant also seeks leave to appeal against sentence.
Factual background
Although the appeal is only brought in respect of the s 61K(a) offence, it is useful to recount the facts in respect of both offences of which the appellant was convicted, as some of the evidence in respect of the s 66C offence explains some of the evidence in respect of the s 61K(a) offence. The facts in respect of the s 66C offence are also relevant should the Court grant leave to appeal against sentence.
Evidence in respect of the s 66C offence
In January 2001, during the Country Music Festival week in Tamworth, TD and two friends, KS and CG, went to a flat that was rented by JG. TD gave evidence that when she was alone with the appellant in a bedroom, he closed the door, took off TD’s underpants and had sexual intercourse with her. She told him to stop. Another person came into the room and then walked out. Immediately afterwards, TD went outside and told her friend, KS, what had happened. KS went back into the flat and later told TD that she, KS, had “abused” the appellant (presumably for what he had done to TD). TD said that she did not remember if she had drunk any alcohol that day and had a poor memory of the day. During the course of cross-examination, TD identified KS as being the person who had come into the room. In her evidence in chief, she had identified this person as JG.
KS recalled being at the flat with TD in January 2001 and thought that it was during the Country Music Festival week. She said that she and TD had had a few drinks and that TD was “very very intoxicated, she was slurring”. KS remembered that the appellant and JG were at the flat and she also thought that CG was there. She recalled that TD went into a bedroom and that at one stage, she, KS, went in the bedroom to find her. She saw the appellant on top of TD with his pants down, on a single bed. KS recalled screaming at the appellant and may have pulled him off TD. KS agreed that she was also intoxicated at this time.
JG gave evidence of having leased the flat and that whilst he lived there he met somebody called “Hoges”. He said that people used to come around to the flat all the time and that he remembered TD and KS doing so. He said that he didn’t know if they drank alcohol there and agreed that both the girls looked “about 12 or so … like kids”. In his statement to police, JG said the flat was like “a drop in centre where people would drink alcohol”.
Evidence in respect of the s 61K(a) offence
TD did not see the appellant after this incident until 3 April 2002, when she was living with KS in a caravan. On that date, a friend of KS’s, MR, visited the caravan. Around about lunchtime, JG and the appellant also arrived at the caravan. TD did not initially recognise the appellant because his appearance had changed from when she had seen him at the Tamworth flat, over a year previously. MR, JG and the appellant stayed at the caravan for a number of hours, playing cards and drinking alcohol. At some stage KS and MR left. JG also left and the appellant and TD were alone in the caravan.
The appellant tried to kiss TD and she pushed him away. The appellant then pulled his pants down and masturbated. The appellant tried to take TD’s clothes off and “tried to have sex with [her]”. The appellant said to TD that he was “going to fuck [her] right or wrong”. TD could not remember at what stage the appellant said this to her. TD said that whilst the appellant was trying to have sex with her, she scratched him on the arm.
TD did not recall how the incident stopped, but she did remember that the appellant rang a taxi and left. TD locked the door of the caravan. She said that she was scared and had scratches on her back, a split lip and marks around her neck. She remembered that it was about 2 or 3 am when the taxi arrived. KS returned at about 7 am the next morning. TD went home to her mother’s house that evening and her mother made her ring the police.
During the course of cross-examination in respect of this incident, it was suggested to TD that the scratches on her back had occurred because she had slipped and fallen on the steps of the caravan. TD denied this. The cross-examination was as follows:
“Q:Did you at some stage when you were in the van that night – I’m sorry, when you were at the van in the annexe did you slip and fall on the steps of the van?
A:           Me?
Q:           Yes?
A:           No, [the appellant] did.
Q:I’m suggesting you missed the step and fell on your left-hand side in the van. Do you agree or disagree with that?
A:           I disagree.
Q:And [the appellant] said to you, ‘Are you okay?’ and you said you were. Do you agree or disagree with that?
A:           I disagree.
Q:You say it was [the appellant] who fell on the steps of the van, is it?
A:           Yes.
Q:           Did you see how that happened?
A:On the one that didn’t have the steps coming down, I had a little footstool thing there and he went on it and it collapsed under him and he fell and injured himself.
Q:           So that was the back door, was it?
A:They both led into the annexe, but there was only one door to get in and out of the caravan that was in the annexe. It was like a sliding door.
Q:Is it possible that you did slip and fall near or on the step of the van and you just don’t remember it now?
A:           No, I did not slip and – trip or fall.
Q:You specifically remember you didn’t – that didn’t happen, do you?
A:           Yes.
Q:See, I’m suggesting to you that [the appellant] didn’t cause the scratches to your back that night, did he?
A:           He did.
Q:           He didn’t cause any injury to you that night?
A:           He did.” (Emphasis added)
KS gave evidence that during the afternoon of 3 April 2002, she was at the caravan with TD when her friend MR came to visit. Later, JG and the appellant arrived with a bottle of alcohol. KS said she had a glass and she also saw TD drinking. MR left. She said that the appellant, TD and JG were playing cards. At one stage when TD had left the caravan to go the toilet, KS was sitting away from the others, when the appellant came over and tried to kiss her and was pushing her. KS told the appellant to get off and pushed him away. He didn’t attempt to touch her again after that. KS decided to leave the caravan park, as she was concerned about the rowdy behaviour of JG and the appellant, who would not leave, despite her request that they do so. KS arranged for MR to come back and pick her up. KS said she returned to the caravan early the next morning and TD told her that “Hoges tried to rape me”. KS described TD as being “hysterical” as she was telling her this.
The complainant’s mother, RD, who was a registered nurse, gave evidence that she received a telephone call from her daughter, who was crying and sobbing. TD told her mother that the appellant had hurt her. RD went to the caravan park but “couldn’t get any sense out of [TD] [as she was] just sobbing. She had red marks on her neck, scratches on her back, bruise on her arm or something”. RD said that all that TD “wanted to do was cry, curl up in a little ball”. Eventually she persuaded TD to go home with her and they went to the police the following day. RD said that she couldn’t get her daughter home immediately because TD was too frightened and didn’t want to go outside: “She didn’t even want to go over to the toilet block”.
JG remembered being at the caravan park on 3 April 2002 and going to the caravan in which TD and KS were then living. He said there was a long-haired blonde man there already and that they had a few drinks and played cards. JG said that the blonde man left and that a short time afterwards, KS went out to ring him up. JG said that he went with KS and when he returned to the van, the appellant and TD were drinking and playing cards. JG told them he was leaving and the appellant responded, “Oh well I’ll have to ring me mum up”. This appears to have been a reference to how the appellant was to get home.
A taxi driver gave evidence that he responded to a job sometime between 12.30 am and 1 am to pick up a fare from the caravan park. He said that he could not find anybody there, but that he picked the appellant up as he headed back into town.
TD was spoken to by Detective Senior Constable David Coulton on the afternoon of 5 April 2002. TD mentioned that she had scratches on her back. Photographs were later taken of her back. The photographs taken reveal a number of separate scratches at about waist-height. The marks were located in the middle of the back, extending to both the left and right of the vertebral spine. There were no observable scratches or other marks on her sides. DSC Coulton said that he did not notice any other injuries and did not recall seeing a split lip. He said had he noticed any other injuries, he would have requested that they be photographed.

The appellant gave evidence. He said that he was at the caravan park together with JG and there was a time when he and TD were alone together in the van. He said that TD was “flirty” and tried to touch him and that they had consensual sex in the annex to the caravan, which he believed was “her part of the caravan”. He said that they were interrupted by a “bash on the door”. He said that:
“[TD] quickly jumped up and you know, like we were both startled, you know, thinking it might have been [JG] going to walk in or something like that. And so [TD] jumped up and raced up the couple of stairs to get in the caravan as she was getting dressed and slipped over on the top step sort of thing, and done a little roll and I jumped up and I said, ‘You right [TD]?’, she said, ‘Yeah. Yeah I’m all right’. She was a bit, you know, a bit upset. I could see and [JG’s] going, ‘What are you doing Hoges? You going to go home or not?’, you know, ‘You’ve got to go home’, you know. Mum was expecting me to go home. I said, ‘Yeah all right mate. I’ll just go and ring a cab’, you know, and checked on [TD].”
The appellant said that JG left immediately after this conversation.
Ground 1: The verdict with respect to the s 61K(a) offence was unreasonable and cannot be supported having regard to the evidence
The appellant submitted that in circumstances where TD had not given evidence as to when or how the appellant scratched her, and where the Crown had failed to particularise at any stage of the proceedings what injuries it relied upon in support of “actual bodily harm” that was alleged to have been inflicted, the verdict of the jury was unreasonable.
TD complained of three injuries: the scratches on her back, marks to her neck and a split lip. Any one or more of those injuries, if accepted by the jury, was sufficient to establish actual bodily harm. There was a body of evidence additional to that of TD, that she had scratches on her back. There was evidence from both TD and her mother that she had marks on her neck. There was TD’s evidence of the split lip. The trial judge referred to each of the injuries in her summing up. In circumstances where the injuries were clearly specified in the evidence and in the summing up, it cannot be said that the verdict of the jury was unreasonable for failing to specify a particular injury. The Crown relied on each injury, but only needed to establish one injury.
I would reject this submission.
Alternatively, the appellant submitted that, accepting TD’s evidence that the appellant was responsible for the scratches on her back, there were a number of possible inferences as to when that injury was inflicted. The appellant concedes that it was possible that the injury was inflicted whilst he was attempting sexual intercourse with TD. On that basis, the elements of the offence under s 61K(a) would be made out. The appellant submitted, however, that this was not the only available inference that could be drawn from the evidence and it was possible that the injury was inflicted after the appellant had given up on his intention to have sexual intercourse with TD. It was submitted that another possibility was that the appellant injured her in retaliation after she scratched him on the arm. In either of these two circumstances, the offence would not have been proved. The appellant pointed out that he bore no onus to establish either possibility, or point to evidence that established any such alternative hypothesis and that it was sufficient if the alternative was open on the evidence: Barca v R [1975] HCA 42; (1975) 133 CLR 82.
In Barca at 104, Gibbs, Stephen and Mason JJ stated:
“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King (1911) 13 CLR 619 at 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’; Plomp v The Queen (1963) 110 CLR 234 at 252; see also Thomas v The Queen (1960) 102 CLR 584 at 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.’ (Peacock v The King (1911) 13 CLR 619, at 661). These principles are well settled in Australia.” (Emphasis added)
Rather, as their Honours Mason CJ, Dawson and Toohey JJ observed in Knight v R [1992] HCA 56; (1992) 175 CLR 495, at 503:
“… if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance.” (Emphasis added)
The reference in the above passage to Plomp is a reference to the judgment of Menzies J in that case. In the same case, Dixon CJ, at 243, after referring to the rule that a jury “cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances”, commented that “much difficulty is found in stating the rule”.His Honour then restated what he had said in Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375, namely :
“If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.” (Emphasis added)
I have already set out the evidence upon which the Crown relied. If that evidence was accepted by the jury, the injury or injuries to TD could only have occurred whilst the appellant was attempting to have intercourse with her. As the Crown submitted, on TD’s evidence, the only occasion when the appellant had any physical contact with her was whilst he was attempting to have sexual intercourse, when he said he was going to “fuck [her] right or wrong” and there was then a struggle between them. It was after the appellant gave up on his attempt to have sexual intercourse that TD noticed that she had scratches on her back, and also that she had injuries to her neck and lip. There was no evidence of touching at any other time. There was, therefore, no occasion when the injuries would have been sustained other than in the attempt to have intercourse.
Further, even on the appellant’s case (leaving aside the appellant’s assertion that the injuries may have occurred as a result of TD slipping on the steps of the caravan, which was not relied upon by the appellant on this submission), there was no occasion of touching other than whilst the appellant was attempting sexual intercourse with TD. Accordingly, there is no basis to support the appellant’s submission that it was possible for injury to have been inflicted after he gave up on the attempt to have intercourse, or that he injured TD in retaliation for scratching him on the arm.
The appellant further submitted that even if it is accepted that the injury was inflicted by him at a time at which he attempted to have intercourse with TD, there was no evidence that he inflicted the injury “maliciously”. It was submitted that although the appellant may have acted “maliciously” in his attempt to have sexual intercourse with TD against her will, such malice was not sufficient to prove malicious infliction of actual bodily harm: see Kippist v Parnell (1988) 36 A Crim R 18. In Kippist, Roden J referred to his decision in Storey v R (1985) 19 A Crim R 275 in which his Honour had also relied upon a passage of C S Kenny, Outlines of Criminal Law, 19th ed (1966) Cambridge University Press, at 211. In my opinion, this submission is merely a variation of the submission raised under ground 2 of the appeal, which I deal with below.
Having regard to the conclusion I have reached in respect of ground 2, ground 1 should be rejected.
Ground 2: error in trial judge’s directions to the jury in respect of count 4 regarding the requirement that actual bodily harm be inflicted maliciously
“Maliciously” was defined in s 5 of the Crimes Act (in the form it was in at the date of the offence) to mean:
“Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime.”
The appellant referred the Court to the following directions to the jury in respect of count 4:
“Turning then to count 4, which charges that the accused maliciously inflicted actual bodily harm on [TD] with intent to have sexual intercourse. I will turn to the first element, maliciously. The Crown must prove beyond reasonable doubt one of the forms of malice, because maliciously is defined to have four definitions and the Crown must prove one of those. The first definition of maliciously, means with malice. The second is, with the intention to physically injure some person without lawful cause or excuse. The third meaning of maliciously, is without malice, but with indifference to human suffering and without lawful cause or excuse. And the fourth meaning maliciously can have, is recklessly or wantonly, which means the accused realised that some physical harm may possibly be inflicted by his acts, but went ahead and acted. It must be proved, if the Crown is to prove recklessly and if you were to find that the accused acted recklessly, it must be proved that the accused applied his mind to the consequences of his act, though it does not have to be proved that the accused had in mind the precise type of injury which occurred.
…
Now, as I said, the Crown relies on the words spoken by the accused, according to [TD], ‘I’m going to fuck you right or wrong,’ as indicating the intent to have sexual intercourse, and it asks you to draw the inference that, in the course of the accused trying to remove [TD’s] clothes and have sex with her, which she said happened, which she resisted, that the accused maliciously inflicted those injuries, either deliberately or recklessly, or without malice but with indifference to human suffering. You have to find one of those types of malice proved.” (Summing up, 7, 22-23)
The appellant makes two complaints about this direction.
First, he submitted that the jury was not directed that the malice inherent in the appellant’s attempt to have sexual intercourse with the complainant, whether or not she consented, was not malice for the purposes of the element of the offence of malicious infliction of actual bodily harm.
Secondly, he submitted that the jury was not directed that in order to prove the malicious infliction of actual bodily harm, it was necessary to prove that the appellant either intended to inflict some injury, or that he was reckless as to the causing of some injury, proof of which required that the appellant foresaw at least the possibility that he would occasion some injury.
The appellant was represented by counsel at trial and did not seek a redirection. Accordingly, the leave of the Court is required before this ground of appeal may be raised: r 4, Criminal Appeal Rules. There is affidavit evidence from counsel who appeared at trial, which was not the subject of cross-examination, that he did not apply for any redirection, in relation to either: the meaning of “maliciously”, or to the requirement that the jury be satisfied the appellant acted maliciously with respect to the infliction of actual bodily harm, rather than that he was acting maliciously in a more general sense. Counsel stated that his failure to ask for a redirection was not for any tactical reason. He said that he has now read the written submissions filed on behalf of the appellant for the purposes of the appeal and he believes his failure to ask for a redirection was an oversight.
Leave will not be granted under r 4 unless the error is such that the proviso to s 6 of the Criminal Appeal Act 1912 would otherwise not have been applied: R v Stokes and Difford (1990) 51 A Crim R 25. That determination is best made after a consideration of the bases upon which the appellant alleges error.
Failure to direct that malice for the purposes of having sexual intercourse was not malice for the purposes of establishing the malicious infliction of actual bodily harm
The directions that the appellant says are relevant to this ground are set out in the second passage in [33] above. The Crown submits that these passages do not fully represent the trial judge’s summing up as to the meaning of “malicious infliction of bodily harm”. The Crown referred the Court’s attention to the paragraph that immediately preceded the second of the paragraphs relied upon by the appellant, which it submits, is relevant to the central complaint made by the appellant, namely, that the direction did not adequately address the fact that there was a requirement for malice beyond the malice inherent in the offence. The additional direction was as follows:
“Now, the Crown is required to prove not just that [TD] had actual bodily harm, and it is a matter for you to decide if you accept [TD’s] evidence about those injuries and whether you find they satisfy the legal definition of actual bodily harm, but the Crown also has to prove that the [appellant] maliciously inflicted actual bodily harm on [TD] with intent to have sexual intercourse with her.” (Summing up, 22)
The Crown submits that it is apparent from this passage that the trial judge referred to the requirement that the actual bodily harm had to be maliciously inflicted and with the intention to have sexual intercourse, and that this correctly stated the requirement that as an element of the offence under s 61K(a), there was a requirement for malice, beyond the malice inherent in the offence.
I agree with this submission, which is clearly made out when the relevant direction to the jury is read in its entirety. The full direction was:
“Now, the Crown is required to prove not just that [TD] had actual bodily harm, and it is a matter for you to decide if you accept [TD’s] evidence about those injuries and whether you find they satisfy the legal definition of actual bodily harm, but the Crown also has to prove that the [appellant] maliciously inflicted actual bodily harm on [TD] with intent to have sexual intercourse with her.
Now, as I said, the Crown relies on the words spoken by the [appellant], according to [TD], ‘I’m going to fuck you right or wrong,’ as indicating the intent to have sexual intercourse, and it asks you to draw the inference that, in the course of the [appellant] trying to remove [TD’s] clothes and have sex with her, which she said happened, which she resisted, that the [appellant] maliciously inflicted those injuries, either deliberately or recklessly, or without malice but with indifference to human suffering. You have to find one of those types of malice proved.” (Summing up, 22-23) (Emphasis added)
In the first passage, her Honour stated the requirement that the Crown had to establish not only actual bodily harm, but the malicious infliction of actual bodily harm with a particular intent, namely, to have sexual intercourse. In the next paragraph, her Honour explained that the Crown relied upon the evidence that the appellant had said to TD that he was “going to fuck [her] …” as indicating the intent to have sexual intercourse. Her Honour continued, by the use of the conjunction “and” that in the course of trying to remove TD’s clothes, and in her resistance to that, the appellant maliciously inflicted injury.
The Crown also drew attention to her Honour’s earlier directions as to the elements of the offence: (summing up, 7-8). Her Honour first gave the jury a direction as to the meaning of “maliciously”. (This is the direction set out in the first paragraph at [33] above). She then explained the meaning of “inflict” and “actual bodily harm”. Her Honour then dealt with the element of “with intent to have sexual intercourse with another person”. She reminded the jury that she had already defined “sexual intercourse” for them and continued:
“The Crown must prove that the [appellant] did the act of maliciously inflicting actual bodily harm on [TD] and at the same time had the intent to have sexual intercourse with [TD].” (Summing up, 8)
Her Honour explained that a person’s intentions could be inferred from acts or words and pointed out that the Crown was relying on the words “I’m going to fuck you right or wrong”. Her Honour reiterated this portion of the summing up later in the passages to which I have also referred.
The jury were thus directed that there were two distinct elements of the offence and were also directed as to the evidence that the Crown relied upon to establish each element. It was also made clear in the direction that the Crown relied upon different aspects of the evidence in support of the two elements.
In my opinion, the appellant has not established error as alleged under this heading.
Failure to direct the jury that to prove malicious infliction of grievous bodily harm, it was necessary to prove intent or recklessness
The definition of “maliciously” has been set out above. It contains four separate notions, namely, that an act was done (i) of malice; (ii) without malice but with indifference to human life or suffering; (iii) with intent to injure and without lawful cause or excuse; or (iv) recklessly or wantonly.
The appellant made a hybrid complaint in respect of the manner in which the trial judge left the meaning of “maliciously” to the jury. First, he submitted that her Honour failed to give the jury any direction or assistance as to the meaning of ‘malice’, but had merely read to the jury the statutory definition. He said that this itself was an error. He also submitted that one of the problems that arose from her Honour having done so, was that the jury was thus left to determine for itself the meaning of “every act done of malice”, being the first of the definitions of “maliciously”. Next, he submitted that her Honour left it to the jury to find malice in the third sense, that is, the intentional infliction of injury in circumstances where there was no evidence that the appellant intended or foresaw the possibility of injury. It was submitted, in effect by way of summary, that the direction given in this case was unsatisfactory, as became apparent when the directions in other cases were examined.
There has been judicial comment as to the unsatisfactory drafting of the definition of “maliciously” in s 5: see R vColeman (1990) 19 NSWLR 467 per Hunt J (as his Honour then was) at 472. The problem arises because of the multiple meanings contained in the definition, which do not necessarily sit comfortably together. This has lead to judicial statements that a jury should only be directed in respect of that part, or parts, of the definition that apply to the facts of the case. Thus in Coleman Hunt J stated, at 472, that if one of the elements of the definition was not relevant to the matter before the Court, it was not necessary for the jury to be directed in relation to that matter.

In the earlier case of R v Safwan (1986) 8 NSWLR 97, Street CJ, at 101, rejected an argument on behalf of the accused that it would be preferable for a jury to have been given no direction as to the element “maliciously” in the charge of malicious wounding with intent to do grievous bodily harm. His Honour stated:
“Section 33 [of the CrimesAct] specifically includes ‘maliciously’ as an ingredient and it seems to me that this imports the necessity of at least some formal reference to it in the summing-up. It may be that in many cases the directions already given on intent will inevitably cover the same matters that must be established in order to prove the element of ‘maliciously’. In such cases there is no reason why the trial judge should not simply say just exactly that and leave the matter without further examination. I hesitate, however, to go to the length of assenting to the proposition that this specific reference in the section to ‘maliciously’ can be properly disregarded in its entirety in the terms of the summing-up.
Alternatively, if the trial judge thinks it appropriate, reference could be made in the summing-up to the statutory definition. In so doing it will be necessary to exercise caution to ensure that only so much of the definition is quoted or paraphrased to the jury as will avoid introducing any uncertainty into the separate element of intent. If, for example, the quotation by [the trial judge] in this case had been edited by excluding the words ‘or done without malice but with indifference to human life’ and the words ‘or done recklessly or wantonly’ then there could be no reason whatever for suggesting that the jury may have been confused. The quotation would then have read ‘every act done of malice; that is, with evil intent, or with intent to injure some person or persons, and in such case without lawful cause or excuse, shall be taken to have been done maliciously within the meaning of the Act’.”
Lee J, with whom McInerney J agreed on this point, preferred to leave open the question whether a direction as to the meaning of “maliciously” was needed in every case.
The extent of the direction that should be given where “maliciously” is an ingredient of the offence was raised again in Pengilley v R [2006] NSWCCA 163. The appellant in that case had been convicted of malicious wounding by smashing a beer glass into the victim’s face. McColl JA (Adams and Latham JJ agreeing) stated at [34]:
“Crimes of malice require either intention or recklessness, each of which calls for a foresight of the consequences, in addition to the mental element required for basic intent: R v Grant [2002] NSWCCA 243; (2002) 55 NSWLR 80 at [60] per Wood CJ at CL, Spigelman CJ and Kirby J agreeing.”
In Pengilley, the appellant’s case was that he had put out his arm “reflexively, not being aware or conscious of the glass, or taking it into account or having any intent with it” (at [21]). That argument was advanced in respect of the defence of self defence. However, it was recognised that the same argument raised the issue as to whether the appellant had “the intent, let alone foresight of the consequences, essential to a finding he had acted recklessly” (at [39]).
McColl JA stated that, having regard to the issues in the case, it was essential for the trial judge to explain what was needed to establish that the appellant had acted recklessly. On the facts of that case, her Honour considered that the Crown “had to prove [the appellant] acted as he did, realising the possibility that some injury might result from his action” (at [40]). Her Honour continued at [41]:
“It was not sufficient for the trial judge to read the s 5 definition of ‘maliciously’ to the jury, nor to give the jury a copy of the definition. In R v Safwan, (1986) 8 NSWLR 97 Street CJ (with whom Lee and McInerney JJ agreed, subject to a qualification not presently relevant) said, in substance, (at 102) that, in some circumstances, quoting a section of a statute may mislead a jury. More recently in R v Micalizzi [2004] NSWCCA 406 at [36] Simpson J (with whom Hulme and Howie JJ relevantly agreed) expressed the opinion that ‘it is not good practice to read legislation to a jury’ and that ‘were it necessary to refer to a legal principle derived from a statute, it is the effect of the provision, so far as it is relevant to the issues before the jury, and not its precise terms, that should be conveyed’.”
Returning to the present appeal, the Crown submitted that there is no error in the complete statutory definition of the word “maliciously” being stated to the jury and referred the Court to R v Smith (1982) 1 NSWLR 1, where Street CJ, Reynolds JA and Maxwell J agreeing, stated at 4:
“… a judge cannot be said to have erred by following faithfully the words of the section which created the offence and by construing those words for the jury's assistance with specific reference to the all-embracing statutory definition.”
The Crown contends that her Honour’s direction was no more or less than a restatement, correct in its terms, of the statutory definition and therefore was not erroneous. The Crown acknowledged that where the case against the appellant was that the injuries were inflicted recklessly, it was unnecessary for the jury to be informed of each of the four components of the definition of “maliciously”. The Crown contends, however, that it is apparent that when the totality of the directions are considered, the focus was upon the question as to whether the injury or injuries had been inflicted deliberately or recklessly, as was submitted was the most likely scenario, or without malice but with indifference to human suffering. It was submitted, therefore, that the jury would not have been misled.
The appellant submitted that Smith must now be considered ‘old law’ and that the correct principle to apply was that stated in Coleman, Stokes and Difford, Safwan and Pengilley. This effect of this submission is that it is an error for a trial judge to direct a jury in terms of the definition and that a jury may only be directed in respect of that part of the definition applicable to the facts. I do not agree that the law can be stated as starkly as that: rather, as McColl JA stated in Pengilley “it was not sufficient for the trial judge to read the s 5 definition to the jury” (emphasis added). In this case, the trial judge did not only or merely read the definition of “maliciously” to the jury. She explained the meaning of “recklessly” and gave directions as to the elements of the offence that had to be established for the appellant to be found guilty. The appellant submitted, however, that an examination of the caselaw reveals that such directions as were given were inadequate. In particular, the appellant submitted that when regard was had to the direction that Hunt J formulated in Stokes and Difford, the direction in this case was inadequate.
In Stokes and Difford, Stokes had been found guilty of the offence of maliciously inflicting grievous bodily harm with intent. Difford had been found guilty of the lesser charge of maliciously inflicting grievous bodily harm (without the specific intent). The charge against Difford was accessorial to the charge against Stokes. Both appealed against their convictions. One of the questions that arose on the appeal was as to the meaning of “maliciously” for the purposes of each offence.
Hunt J, at 40, identified those parts of the definition of “maliciously” that were relevant to the offences charged, namely:
"… [e]very act ... done without malice but ... with intent to injure some person ... , and in any such case without lawful cause or excuse, or done recklessly ..."
His Honour stated that, in respect of both offences, the word “maliciously” had no stronger meaning “than an intention to cause some physical injury” (emphasis added). His Honour then referred to CS Kenny, Outlines of Criminal Law, where the author stated at p 211:
"The principle is that in any statutory definition of a crime ‘malice’ must be taken not in the old vague sense of wickedness in general, but as requiring either (1) an actual intention to do the particular kind of harm that in fact was done, or (2) recklessness as to whether such harm should occur or not (that is, the accused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it)."
This statement was also approved in, inter alia, Coleman.
Hunt J then, at 41, stated precisely what the Crown had to establish in respect of Difford’s state of mind as an accessory:
“(1)        that Difford knew (or was aware):
(a)          of the intention of Stokes to hit [the victim], and
(b)          that Stokes:
(i)intended thereby to inflict some physical injury upon [the victim], or
(ii)realised the possibility that some such injury might result but he nevertheless intended to go ahead and hit [the victim]; and
(2)that, with that knowledge, Difford intentionally assisted or encouraged Stokes to commit the crime of maliciously inflicting grievous bodily harm upon [the victim].”
Paragraph (b) restates what Hunt J had earlier said as to the meaning of “maliciously”.
Stokes and Difford is consistent with a long line of authority in this Court as to the meaning of “maliciously”: see Coleman; R v Stones (1956) 56 SR (NSW) 25 at 34; Storey; and Kippist. In Stones, the Court (Street CJ, Roper CJ in Eq and Herron J) said, at 34, in relation to “maliciously”:
“The important thing is not the desire of consequence, i.e. motive or intent, but merely foresight of consequence which is the common factor to intention and recklessness. Every crime involving mens rea requires one or other factor, so that if it does not positively require intention, it requires either intention or recklessness; and particularly is this so in crimes involving malice.”
This statement was approved in R v Grant [2002] NSWCCA 243; (2002) 55 NSWLR 80 where Wood CJ at CL (Spigelman CJ and Kirby J agreeing) stated at [60]:
“As was made clear in R v Stones (1956) 56 SR (NSW) 25 and R v Cunningham (1957) 2 QB 396, and, as s 5 of the Crimes Act also makes clear, crimes of malice require either intention or recklessness, each of which calls for a foresight of the consequences, in addition to the mental element required for basic intent.”
(Grant was applied by McColl JA in Pengilley: see [51] above).
The appellant submitted that when that approach was applied to the facts of this case, the jury would need to be directed that the appellant either intended to cause some form of injury to the complainant or was at least reckless in the sense that he foresaw the possibility of some injury and went ahead anyway. It was submitted that the trial judge’s directions were not sufficient to direct the jury on these matters.
As I have already indicated, the Crown acknowledged that it was unnecessary of her Honour to give the appellant the full definition of “maliciously”, but submitted that her directions were sufficient to focus the jury’s attention upon the necessary parts of the definition that were relevant, having regard to the Crown case that the injuries were inflicted at some stage during the attempt to have sexual intercourse, and that they must have been inflicted recklessly. TD’s evidence was specific to the extent that she said that the marks on her back were caused by being scratched by the appellant. She was also specific in her denial of falling down the stairs of the caravan. However, other than being able to identify the scratches as having occurred at that time, TD was not able to give any evidence as to how or precisely when the injuries were inflicted.
On the appeal, the Crown conceded that this evidence was insufficient to establish that the infliction of the injuries was intentional and that the case was one of recklessness, although that does not seem to be the position taken at trial. As I understand the way that the trial proceeded, the Crown case was not confined to recklessness. Nonetheless, it was submitted that the trial judge appreciated the need to stress to the jury the necessity to find malice and that malice had to be found in accordance with the definition. In summing up to the jury, her Honour correctly directed them as to recklessness (which I set out again for convenience) when she stated:
“And the fourth meaning that maliciously can have, is recklessly or wantonly, which means the [appellant] realised that some physical harm may possibly be inflicted by his acts, but went ahead and acted. It must be proved, if the Crown is to prove recklessly and if you were to find that the [appellant] acted recklessly, it must be proved that the [appellant] applied his mind to the consequences of his act, though it does not have to be proved that the [appellant] had in mind the precise type of injury which occurred.” (Summing up, 7)
Her Honour also correctly put the second and third meanings of “maliciously” to the jury, which in varying degrees of relevance, were open on the way the case was conducted, not only by the Crown but also by the defence.
Whilst it would have been preferable for her Honour not to have stated the full definition to the jury, I do not consider that the trial miscarried as a result. To the extent that the jury should have been directed as to the meaning of recklessness, her Honour gave an appropriate direction. To the extent that the facts of the case called for a direction as to the need to find malice, the trial judge directed the jury’s attention of the need to make that finding. Her Honour also directed the jury that the necessary finding had to be based on the second, third or fourth alternative meaning of “maliciously” as defined. Clearly the facts called for a reference to the fourth meaning, recklessness. The facts could also have fallen into the second meaning, indifference to human suffering. As I have said, the Crown now concedes that the evidence did not support a case of intention to injure. The question which arises is therefore, whether a reference to that meaning in the directions given would have misled the jury.
The appellant submitted that the observations of Priestley JA in Storey assisted in understanding why the direction was likely to have misled the jury. In that case, the accused lit two fires in the Goulburn Training Centre and was charged with the offence of “maliciously set fire to a building”. One fire was lit in the library, where books and papers had been stacked some seven to eight feet high and which were set alight. Another fire was lit in the activities room. The only evidence as to how that fire started was that some papers, perhaps in a box, had been set alight.
The trial judge gave a single direction covering both fires. This direction was challenged on appeal, on the basis that the trial judge failed to adequately differentiate between the two fires, both in respect of the acts of the appellant and the intention with which the fires were lit. Priestley JA considered that the trial judge should have differentiated between the two charges, as it was open to the jury to find that in respect of the fire in the activities room there was no intention to set fire to the building, but only to the contents of the room. Roden J was of the same opinion.
There is nothing, in my opinion, in the judgment of Priestley JA which assists in this case. In Storey there were two separate acts, either of which, if accepted, could have been sufficient to establish the offence. However, as Priestley JA explained, the intention in respect of each could have been different. A single direction covering both fires was therefore inadequate. If the jury did not accept that the accused had lit the fire in the library with the relevant intent to set fire to the building, they then had to consider whether the accused had lit the fire in the activities room with intent to set fire to the building. As that was not the only possible intent in respect of that fire (there could have been an intent to damage the room only) the jury should have been so directed.
This case is different. There is only one act that is subject of the charge. I do not consider that the jury would have been confused or misled by the reference to intention. It is probable that the jury would have quickly discarded the notion that the injuries were inflicted intentionally. The jury then had available to it appropriate directions as to recklessness or could also have found that the injuries had been inflicted without intent but with indifference. Accordingly, I am of the opinion that there is no appealable error in her Honour’s direction. But in any event, for the same reasons, no substantial miscarriage of justice has actually occurred: Criminal Appeal Act s 6. I would not, therefore, grant leave for this ground of appeal to be raised.
Appeal against sentence
The appellant raised two grounds of appeal on this application. The first ground was that the trial judge erred in sentencing the appellant on count 2 by taking into account TD’s lack of consent as being relevant to sentencing, in circumstances that by doing so, that factor would have rendered the appellant liable for a more serious offence contrary to the principles in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383.
The error, according to the appellant, occurred in her Honour’s Remarks on Sentence at 2. Her Honour said:
“On the day that [TD] went there both [JG] and [the appellant] were present. [TD] drank alcohol during the day. [KS] … gave evidence that [TD] was very, very intoxicated. When everyone but [TD] and [the appellant] were out of the flat, [the appellant] had sexual intercourse with [TD] in the bedroom in the flat which was identified as his, against her will.
A submission was made by Mr Hancock, [the appellant’s] counsel, that I ought not take into account in considering the factual circumstances and the objective seriousness of this offence because consent is not an element of this offence. But I think that the factual circumstances of the offence, particularly given the range of offences which can be covered by this offence can be taken into account. For example this offence could cover a situation where two teenagers close in age had consensual sexual intercourse. And I think that that situation is to be distinguished from the situation here which was that [TD] was fourteen years old, [the appellant] was, at that stage, twenty-nine years old, she was affected by alcohol and she was not a willing participant in the act which occurred.”
The appellant contends that by taking TD’s lack of consent into account, the Court was in effect sentencing him for an offence against s 61J, namely, aggravated sexual intercourse without consent, which carried with it a maximum penalty of 20 years imprisonment.
In De Simoni, Gibbs J stated at 389:
“… the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.”
In R v Fajka [2004] NSWCCA 166, Howie J (Hulme and Simpson JJ agreeing), at [24], expressed considerable doubt as to whether a sentencing judge was entitled to take into account an allegation of a serious criminal offence that the Crown had not charged and which was denied by the offender, when sentencing the offender for an offence of a completely different nature to that alleged. The offence in that case was the offence of affray contrary to s 93C of the Crimes Act, which carried a maximum penalty of 5 years imprisonment. The affray had occurred at a tavern and there was an allegation that the accused’s brother had obtained the security surveillance tape of the melee. The sentencing judge referred to this in the course of his Remarks on Sentence, expressing a conclusion that the offender had acted jointly with his brother in removing the surveillance tape in an attempt to destroy evidence useful to the prosecution. Such conduct constituted an offence which carried a maximum penalty of 10 years imprisonment. Howie J concluded, at [24], that if his Honour was using that as an aggravating feature of the offence, then he considered that the principle in De Simoni, or indeed, principles of common fairness, would be offended.

The Crown submits that her Honour did not breach the principles in De Simoni. It points out that the offence of aggravated sexual intercourse without consent contains four elements: sexual intercourse; without the consent of the complainant; the applicant knowing there was no consent; and in circumstances of aggravation. The Crown drew attention to the fact that her Honour did not make any finding that the appellant was aware of the absence of consent and, that absent such a finding, the appellant could not be exposed to this offence. It was submitted that this case was unlike R v Bakewell (Court of Criminal Appeal, Gleeson CJ, McInerney and Studdert JJ, 27 June 1996, unreported), where all the elements of the more serious offence had been raised.
In my opinion, her Honour has not offended the principle stated in De Simoni. In the first place, she was conscious that consent was not an element of the offence. Indeed, that had been a matter of submission to her Honour. Rather, it is apparent that her Honour considered the question of whether or not TD was a willing participant was relevant, having regard to the wide range of offences that may be covered by the section. It is also apparent that her Honour’s reference to TD not being a “willing participant” was made so as to gauge the relative seriousness of the offence in this case, as against other offences which might be charged under the section.
The second ground related to the manner in which her Honour dealt with accumulation. Her Honour imposed, in respect of the s 66C offence, a non-parole period of 3 years to commence on 23 August 2006 and to expire on 22 August 2009, with a balance of term of 1 year to expire on 22 August 2010. Her Honour imposed in respect of the s 61K(a) offence a non-parole period of 4 years 6 months commencing on 23 August 2007, expiring on 22 February 2012, with a balance of term of 1 year 6 months to expire on 22 August 2013.
Her Honour declined to find special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. Her Honour’s reasons for finding that there were no special circumstances was that the appellant had not taken responsibility for his offences, so that it was difficult to see how his offending conduct could be addressed by rehabilitation, when he did not have any insight into the issues.
The effect of her Honour’s sentencing was that each individual sentence reflected the statutory ratio, but that the effect of accumulation was to impose an overall non-parole period of 78.5 per cent, thus exceeding the normal statutory proportion of 75 per cent.
This Court has consistently held that the accumulation of sentences may result in a finding of special circumstances. It is sufficient to refer to Dunn v R [2007] NSWCCA 312, where Hoeben J (Handley AJA and Smart AJ agreeing) observed, at [40], that a finding of special circumstances was only required where the proportion of the non-parole period as against the total term of the sentence was to be less than 3/4. His Honour added:
“Nevertheless general sentencing principles suggest that where there is a departure from the statutory ratio there should be some reason provided.”
His Honour then observed, at [41], that it has been held that where sentences are cumulative, so as to produce a non-parole period which is in excess of the statutory ratio, that of itself may amount to special circumstances.
In that case, the effect of accumulation was to produce a non-parole period in excess of 80 per cent of the head sentence. In circumstances where the trial judge made no reference to this in his Remarks on Sentence, the Court was of the opinion that it was not clear that his Honour appreciated that this was the effect of the sentences he proposed to impose. In the circumstances, having regard to the facts of that case and in the absence of an explanation as to why the non-parole period had been increased beyond the statutory ratio, the Court considered it an appropriate case in which to intervene.
Almost identical remarks can be made in this case. Her Honour maintained the statutory proportion as between non-parole period and the total term of the sentence in respect of each offence and appears to have overlooked the effect of the accumulation that she determined was appropriate. If the statutory proportion was maintained in respect of the total effective sentence, then the non-parole period would be 5 years 3 months. In my opinion, the appellant should have the benefit of that reduction. Accordingly, the orders which I propose are as follows:
1.            Appeal against conviction in respect of count 4 dismissed;
2.            Application for leave to appeal against sentence granted;
3.            Appeal against sentence in respect of count 4 allowed;
4.Set aside the trial judge’s sentence in respect of count 4 and in lieu therefore, impose a non-parole period of 4 years 3 months, commencing on 23 August 2007 and expiring on 22 November 2011 and a balance of term of 1 year 9 months expiring on 22 August 2013.
JOHNSON J: I agree with Beazley JA.
McCALLUM J: I agree with Beazley JA.

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LAST UPDATED:
2 July 2008