Citation: Regina v Chonka [2000] NSWCCA 466
Court: Court of Criminal Appeal, New South Wales
Date: 7 November 2000
Judge(s): Fitzgerald JA, Smart AJ, Ireland AJ
Background
The appellant was convicted in the Sydney District Court on eight counts of inciting acts of indecency, following a jury trial before Twigg DCJ. The offences involved a series of telephone calls made in June and July 1997 to children and a young adult. In each call, the appellant posed as a doctor or education official and offered fictitious scholarships before directing the recipients to perform or incite sexual acts.
The complainants included several children aged between six and ten years old, as well as one eighteen-year-old. The appellant used deception and manipulation to induce the complainants to engage in, or encourage others to engage in, acts of indecency. Many of the calls were recorded and formed the central evidence at trial.
Following conviction, the appellant was sentenced to a minimum term of two years and six months imprisonment, with an additional term of a further two and a half years, on six of the counts. He appealed against both conviction and sentence.
Legal Issues
- Whether the trial judge had properly directed the jury on the elements of the offences charged under sections 61O(2), 61N(1) and 61N(2) of the Crimes Act 1900 (NSW)
- Whether the convictions on certain counts were unreasonable or unsupported by the evidence
- Whether, on any counts where convictions were quashed, directed verdicts of acquittal or orders for new trials were the appropriate remedy
- Whether the sentences imposed were manifestly excessive
Decision
The Court of Criminal Appeal allowed the appeal in part. On counts 1, 4 and 8, the Court quashed the convictions and entered verdicts of acquittal, finding that those convictions were not supported by the evidence or were otherwise untenable. On counts 2, 3, 5, 6 and 9, the Court quashed the convictions but ordered new trials rather than acquittals, concluding that the interests of justice did not favour a permanent bar to prosecution on those more serious charges.
The majority (Fitzgerald JA and Ireland AJ) ordered acquittals on counts 1, 4 and 8 and new trials on the remaining counts. Smart AJ dissented in part, taking the view that the evidence on several counts was sufficient to sustain the convictions and that any misdirection did not warrant quashing. His Honour would have allowed only the appeal on count 8 and dismissed the remainder, while agreeing that a new trial (rather than an acquittal) was the appropriate remedy if the other convictions were to be disturbed.
On sentence, the Court agreed that the head sentence and minimum term imposed on counts 1, 4, 5, 6 and 9 were manifestly excessive. The sentences on those counts were reduced. The Court declined to disturb the sentences on counts 2 and 3. Special circumstances were found to exist, justifying an extended additional term relative to the minimum term.
Orders Made
- Appeal against conviction allowed; convictions on counts 1, 4 and 8 quashed and verdicts of acquittal entered
- New trial directed on counts 2, 3, 5, 6 and 9
- Leave to appeal against sentence granted
- Appeals against sentence on counts 2 and 3 dismissed
- Appeals against sentence on counts 1, 4, 5, 6 and 9 allowed
- In lieu of the sentence on count 1: fixed term of 18 months imprisonment commencing 5 August 1999
- In lieu of sentences on counts 4, 5, 6 and 9: 4 years imprisonment commencing 5 August 1999, with a non-parole period of 2 years expiring 4 August 2001
Key Takeaways
- Acquittals rather than retrials are appropriate only where the evidence is plainly insufficient to sustain a conviction; where serious charges remain live and retrials are feasible, the Court of Criminal Appeal will direct a new trial instead.
- A conviction for inciting a person under ten years to an act of indecency requires careful jury direction on each element of the offence under section 61O(2) of the Crimes Act 1900 (NSW); deficiencies in those directions can vitiate a verdict even where the underlying conduct is serious.
- The Court of Criminal Appeal confirmed that the seriousness of offending against young children, and the need for general and personal deterrence, are significant factors in sentencing for these offences, but a head sentence must remain proportionate to the totality of the conduct.
- In cases involving child complainants, the Court noted that the wishes of the children and their families are a relevant consideration for the Director of Public Prosecutions when deciding whether to proceed with a retrial.
- Where some counts in a multi-count indictment survive appeal and others are quashed, sentences on the surviving counts may be adjusted to reflect the overall sentencing structure and the presence of special circumstances.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), sections 61N(1), 61N(2), 61O(2)
Cases cited: No cases were cited in the provided text or metadata.