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Court of Criminal Appeal 21 June 2007

Thornton v R

[2007] NSWCCA 164

Sexual offencesAssault & violence
CRIMINAL LAW JURIES VERDICT SENTENCE "SPECIAL CRICUMSTANCES" PRINCIPLE OF TOTALITY

Citation: Thornton v R [2007] NSWCCA 164
Court: NSW Court of Criminal Appeal
Date: 21 June 2007
Judge(s): Tobias JA, Latham J, Fullerton J

Background

The appellant was convicted in the Campbelltown District Court following a jury trial before Goldring DCJ on charges arising from a serious sexual assault committed in the early hours of 11 January 2003. The charges included entering a dwelling with intent, multiple counts of sexual intercourse without consent (particularised as digital penetration of the vagina and anus, as well as cunnilingus and fellatio), attempt to choke with intent, attempted sexual intercourse without consent, and indecent assault.

The jury returned guilty verdicts on 14 of the 18 counts and acquitted the appellant on four counts, each particularised as digital penetration of the complainant's anus. Critically, those four acquittals corresponded to counts alleged to have occurred simultaneously with four guilty verdicts for digital penetration of the vagina.

The appellant was sentenced to an aggregate effective term of 12.5 years with a non-parole period of 10 years. He appealed against both his conviction and the severity of his sentence.

  • Whether the jury's guilty verdicts on the vaginal penetration counts were unreasonable or unsupportable, given the simultaneous acquittals on the anal penetration counts arising from the same incidents
  • Whether the verdicts were logically inconsistent and therefore could not stand
  • Whether the sentencing judge correctly applied the principle of special circumstances having regard to the totality principle, and whether the resulting aggregate non-parole period properly reflected that finding

Decision

Conviction appeal dismissed. The Court applied the test from M v The Queen (1994), as approved in MFA v The Queen (2002): the question is whether it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of guilt. Juries are entitled to separate consideration of each count, and not-guilty verdicts on some counts do not automatically render guilty verdicts on related counts unreasonable.

The Court drew on principles from MacKenzie v The Queen (1996), as endorsed in MFA, concerning factually inconsistent verdicts. The key consideration was whether there was "something additional" beyond the complainant's evidence that supported one count but not the other. The Court found that such additional material was available to support the guilty verdicts on the vaginal penetration counts, distinguishing those counts from the anal penetration counts on which the appellant was acquitted. In those circumstances, the split verdicts were not unreasonable or unsupportable, and the conviction appeal was dismissed.

Sentence appeal allowed in part. The Court accepted that the sentencing judge had identified special circumstances arising from the accumulation of sentences and the totality principle, intending to reduce the proportion of the non-parole period relative to the head sentence. However, when the individual sentences were aggregated, the overall non-parole period represented approximately 80 per cent of the aggregate head sentence, which did not reflect the stated finding of special circumstances. The Court held that some adjustment was warranted, concluding that an aggregate non-parole period of no less than 9 years remained appropriate given the gravity and sustained nature of the offending. To achieve the correct proportion, the sentence on Count 3 (attempt to choke) was quashed and replaced.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence allowed in part
  • Sentence on Count 3 quashed; substituted with a sentence of 10 years 6 months imprisonment commencing 14 March 2007, with a non-parole period of 7 years expiring 13 March 2014; the appellant is eligible for release to parole on 14 March 2014

Key Takeaways

  • Jury verdicts of guilty on some counts are not automatically rendered unreasonable by simultaneous acquittals on related counts arising from the same incident, provided there is "something additional" beyond the complainant's evidence to support the guilty findings.
  • A sentencing court's stated finding of special circumstances must be carried through into the actual arithmetic of the aggregated sentence: a stated intention to find special circumstances is insufficient if the resulting non-parole period does not reflect a reduced statutory proportion.
  • Under the totality principle, accumulation of sentences can itself constitute special circumstances justifying departure from the standard ratio of non-parole period to head sentence.
  • In dismissing the conviction appeal, the Court reaffirmed that appellate courts must pay full regard to the jury's primary role in assessing witness credibility and determining guilt, and must not simply substitute their own view of the evidence.
  • No error was established in the guilty verdicts themselves; the only successful ground of appeal concerned the mechanical application of the sentencing judge's own finding of special circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 37, 61I, 61L, 111(1), 344A
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v Romano [2004] NSWCCA 380