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Court of Criminal Appeal 28 July 2008

Graham v R

[2008] NSWCCA 174

Sexual offences
CRIMINAL LAW CONVICTION AND SENTENCE APPEAL SEXUAL CRIMES DIFFERENT JURY VERDICTS JURY VERDICTS NOT UNREASONABLE

Citation: Graham v R [2008] NSWCCA 174
Court: NSW Court of Criminal Appeal
Date: 28 July 2008
Judge(s): Spigelman CJ, Price J, McCallum J

Background

The appellant was tried in the District Court on an indictment containing twelve counts arising from alleged sexual offences against a single complainant on 16 December 2005. The counts included indecent assault, sexual intercourse without consent, and attempted sexual intercourse without consent. The appellant pleaded not guilty to all counts.

The jury returned guilty verdicts on two counts only: one count of sexual intercourse without consent (count 6) and one count of attempted sexual intercourse without consent (count 9). It acquitted the appellant on all remaining ten counts.

At sentencing, the trial judge found special circumstances justifying a departure from the standard ratio between the non-parole period and the balance of term. However, the sentence as structured did not actually reflect that finding. The appellant appealed both the convictions and the sentences.

  • Whether the guilty verdicts on counts 6 and 9 were unreasonable or could not be supported by the evidence, given the acquittals on the remaining ten counts arising from the same incident
  • Whether the sentencing judge correctly assessed the objective seriousness of the offences
  • Whether the sentencing judge failed to give proper effect to the finding of special circumstances when fixing the non-parole period

Decision

On the conviction appeal, the Court applied the test from M v The Queen (1994): whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on the counts in question. The relevant standard under s 6(1) of the Criminal Appeal Act 1912 is unreasonableness, not inconsistency between verdicts.

Drawing on the High Court's analysis in MFA v The Queen (2002), the Court noted that mixed verdicts in sexual assault trials do not necessarily indicate a failure of the jury's function. Jurors may accept a complainant's evidence in part, require additional caution where no objective evidence exists, or reach different conclusions on individual counts without rejecting the complainant wholesale. The Court was satisfied that the jury's verdicts on counts 6 and 9 were open on the evidence, and dismissed the conviction appeal.

On the first two sentence appeal grounds, the Court found that the trial judge's characterisation of the objective seriousness of the offences was open to him, and those grounds were not established.

On the third ground, the Court found that the trial judge had identified special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, based on totality, proportionality, and the appellant's need for extended supervision. However, the balance of term as structured slightly exceeded one-third of the non-parole period, meaning the judge had inadvertently failed to adjust the statutory ratio to reflect the special circumstances he had found. The Court upheld this ground and resentenced the appellant on count 6 to give proper effect to the special circumstances finding.

Orders Made

  • Leave to appeal granted
  • Appeal against the convictions dismissed
  • Sentence on count 6 quashed
  • Appellant resentenced on count 6 to a non-parole period of 6 years 5 months commencing 19 June 2006 and expiring 18 November 2012, with a balance of term of 3 years 1 month expiring 18 December 2015
  • Earliest parole eligibility date: 18 November 2012

Key Takeaways

  • Mixed jury verdicts in sexual assault proceedings are not automatically unreasonable simply because a jury acquitted on multiple related counts while convicting on others. The applicable test is unreasonableness, not inconsistency.
  • Under the framework confirmed in MFA v The Queen, jurors may accept a complainant's evidence on some counts and decline to be satisfied beyond reasonable doubt on others, without that differentiation constituting an affront to logic or commonsense.
  • A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 must be given actual effect in the arithmetic of the sentence. Identifying special circumstances without adjusting the non-parole to parole ratio accordingly constitutes error.
  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that the presence of acquittals on related counts does not, without more, undermine the validity of guilty verdicts returned by the same jury on a different count.
  • Sufficient grounds existed to resentence on count 6 under s 6(3) of the Criminal Appeal Act 1912, where the appellate court forms the opinion that another sentence is warranted in law and should have been passed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61P
- Criminal Appeal Act 1912 (NSW), ss 6(1), 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases
- 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