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6
Court of Criminal Appeal 2 July 2008

HOGAN v Regina

[2008] NSWCCA 150

Also reported as (2008) 186 A Crim R 52
Sexual offencesAssault & violence
CRIMINAL LAW CRIMINAL LAW APPEAL ON DIRECTIONS TO JURY FULL DEFINITION OF MALICE GIVEN TO JURY WHETHER ERROR CRIMINAL LAW

Citation: HOGAN v Regina [2008] NSWCCA 150
Court: NSW Court of Criminal Appeal
Date: 2 July 2008
Judge(s): Beazley JA; Johnson J; McCallum J

Background

A jury in the District Court convicted the appellant of two offences under the Crimes Act 1900: sexual intercourse with a person aged between 10 and 16 years (s 66C), and maliciously inflicting actual bodily harm with intent to have sexual intercourse (s 61K(a)). The s 61K(a) conviction arose from an incident in which the appellant and the complainant, referred to as TD, were alone in a caravan. After the appellant left, TD discovered scratches on her back, a split lip, and marks around her neck. Police photographed the injuries and TD's mother gave evidence about the scratches, neck marks, and a bruise on TD's arm.

The trial judge (Sweeney DCJ) sentenced the appellant to a non-parole period of 3 years with a 1-year balance of term for the s 66C offence, and a non-parole period of 4 years 6 months with a balance of 1 year 6 months for the s 61K(a) offence. The sentences were cumulative, producing a total effective sentence of 7 years with a total effective non-parole period of 5 years 6 months. That non-parole period exceeded the standard 75% statutory ratio when calculated against the head sentence.

The appellant challenged the s 61K(a) conviction on two grounds: that the verdict was unreasonable and unsupported by the evidence, and that the trial judge's directions to the jury regarding the requirement of malice were defective. He also sought leave to appeal against sentence.

  • Whether the verdict on the s 61K(a) count was unreasonable given that the Crown had not identified a single specific injury upon which it relied
  • Whether, on a circumstantial evidence case, the inference of guilt was the only reasonable inference open on the evidence
  • Whether the trial judge's jury directions adequately distinguished the requirement to find that actual bodily harm was inflicted maliciously, separately from the intent to have sexual intercourse
  • Whether reading the full statutory definition of "maliciously" under s 5 of the Crimes Act 1900 to the jury constituted a misdirection or caused a miscarriage of justice
  • Whether the trial judge erred at sentencing by reference to the victim's lack of consent, contrary to the principle in R v De Simoni
  • Whether the cumulative effect of the sentences, producing a non-parole period exceeding the statutory 75% ratio, warranted intervention

Decision

Unreasonable verdict ground: The Court held that any one of the multiple injuries suffered by TD, if accepted by the jury, was sufficient to establish actual bodily harm. Because the injuries were clearly identified in both the evidence and the summing-up, there was no basis to contend the Crown had failed to specify a particular injury. On the circumstantial case, the Court confirmed the principle that a bare possibility of innocence does not prevent a guilty verdict where guilt is the only inference open to a reasonable jury on all the evidence. Given that the only occasion of physical contact between the appellant and TD was during his attempt to have sexual intercourse with her, there was no tenable alternative explanation for her injuries.

Jury directions ground: The Court found that the trial judge had properly directed the jury that actual bodily harm must be both maliciously inflicted and accompanied by the intent to have sexual intercourse. These were treated as distinct elements. The trial judge had read the complete s 5 statutory definition of "maliciously" to the jury, covering four limbs: acting with malice; acting without malice but with indifference to human life or suffering; acting with intent to injure; and acting recklessly or wantonly. The Court held there was no error in providing the full definition. The directions sufficiently focused the jury on the recklessness limb, which was the relevant one on the facts. No substantial miscarriage of justice occurred, and leave to appeal on this ground was refused.

Sentence: De Simoni ground: The Court considered whether the trial judge had impermissibly taken into account the victim's lack of consent as a circumstance of aggravation that would have supported a more serious charge, contrary to R v De Simoni. The Court found no breach of that principle. The reference to lack of consent was made only to assess the relative seriousness of the offence actually charged, which was a permissible sentencing consideration.

Sentence: accumulation and statutory ratio: The Court accepted that accumulation of sentences can, of itself, give rise to special circumstances where the combined effect pushes the non-parole period above the 75% statutory ratio. In this case, the trial judge had maintained the correct ratio within each individual sentence but had not addressed the aggregate effect of the accumulation in her remarks on sentence. The resulting non-parole period exceeded 80% of the head sentence. Following Dunn v R, the Court intervened and reduced the non-parole period for the s 61K(a) count to restore the statutory proportion across the total effective sentence.

Orders Made

  • Appeal against conviction in respect of count 4: dismissed
  • Application for leave to appeal against sentence: granted
  • Appeal against sentence in respect of count 4: allowed
  • Sentence for count 4 set aside and replaced with a non-parole period of 4 years 3 months (commencing 23 August 2007, expiring 22 November 2011) and a balance of term of 1 year 9 months (expiring 22 August 2013)

Key Takeaways

  • Where multiple injuries are identified in evidence and the summing-up, any one of those injuries, if accepted by the jury, is sufficient to establish actual bodily harm. A conviction is not defective simply because the Crown did not nominate a single specific injury.
  • In a circumstantial evidence case, the bare possibility of an innocent explanation does not render a guilty verdict unreasonable. Guilt must be the only inference reasonably open on all of the evidence before a conviction can stand.
  • Reading the full statutory definition of "maliciously" under s 5 of the Crimes Act 1900 to the jury does not, of itself, constitute a misdirection, provided the directions are adequate in focusing the jury on the element of malice as a separate requirement from any intent element of the offence charged.
  • Under the De Simoni principle, a sentencing court may refer to a victim's lack of consent to assess the seriousness of the offence charged, provided that reference is not used as a basis to treat the conduct as warranting conviction for a more serious offence.
  • Cumulative sentencing that produces a total non-parole period exceeding the 75% statutory ratio can constitute special circumstances justifying a reduction, particularly where the sentencing judge's remarks do not indicate awareness of that aggregate effect.

Legislation and Cases Referenced

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

Cases:
- R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
- Dunn v R [2007] NSWCCA 312
- Barca v R [1975] HCA 42; (1975) 133 CLR 82
- Knight v R [1992] HCA 56; (1992) 175 CLR 495
- Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234
- Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367
- R v Coleman (1990) 19 NSWLR 467
- R v Safwan (1986) 8 NSWLR 97
- R v Smith (1982) 1 NSWLR 1
- Pengilley v R [2006] NSWCCA 163
- R v Grant [2002] NSWCCA 243; (2002) 55 NSWLR 80
- R v Fajka [