Citation: R v QIN; QIN v REGINA [2008] NSWCCA 189
Court: NSW Court of Criminal Appeal
Date: 8 August 2008
Judge(s): McClellan CJ at CL; Grove J; Blanch J
Background
The appellant was convicted in the District Court on two counts of sexual offences (one indecent assault and one sexual intercourse without consent) arising from a single incident on 24 March 2007. The offences occurred during a massage treatment at a clinic where the appellant worked as a qualified masseur. A fourth count of indecent assault, also arising from the same occasion, resulted in an acquittal.
The complainant was a regular client of the clinic who had received treatments from both the appellant and his partner, the clinic operator. On the day in question, the clinic operator left the premises to vote during a State election, leaving the appellant alone with the complainant. The complainant gave evidence, including evidence recorded at an earlier incomplete trial and tendered under s 306I of the Criminal Procedure Act 1986, that the appellant touched her in a sexual manner beyond the scope of the massage, removed her underwear without consent, and digitally penetrated her.
Following conviction, the District Court imposed a sentence that included a suspended term of imprisonment on the more serious count and a good behaviour bond on the indecent assault count. The Crown appealed that sentence as manifestly inadequate. The appellant separately appealed his conviction on the basis that the jury's mixed verdicts were unreasonable.
Legal Issues
- Whether the jury's verdicts of guilty on counts 1 and 2 were unreasonable or could not be supported by the evidence, having regard to the acquittal on count 4.
- Whether a rational basis existed for the jury to discriminate between the counts, given that the complainant's evidence was uncorroborated.
- Whether the sentences imposed by the District Court were manifestly inadequate and outside the proper exercise of sentencing discretion, warranting intervention by the Court of Criminal Appeal on Crown appeal.
Decision
Conviction appeal: The Court of Criminal Appeal dismissed the conviction appeal. The central question was whether the mixed verdicts were logically inconsistent or could be rationally reconciled. The Court found that the jury had a rational basis for distinguishing between the counts: the evidence relating to counts 1 and 2 was more compelling, while the evidence supporting count 4 was less certain or more susceptible to doubt. An uncorroborated complainant's account does not, of itself, prevent a jury from accepting parts of that account and rejecting others, provided there is a rational basis for the discrimination.
The Court confirmed that mixed verdicts are not automatically unreasonable simply because all counts arose from a single occasion and rested on the same witness's evidence. The jury was entitled to assess each count separately and to form different views about the strength of the evidence on each allegation.
Crown sentence appeal: The Court of Criminal Appeal also dismissed the Crown appeal. Grove J found that the sentencing judge had properly assessed the relevant factors, including the nature of the breach of trust, the vulnerability of the complainant, and the mitigating features such as the absence of violence, the brief duration of the incident, and the cessation of conduct when the complainant resisted. The sentence, while perhaps open to criticism as lenient, was not shown to be outside the range of the sentencing judge's discretion.
McClellan CJ at CL agreed, acknowledging that a more severe penalty may have been appropriate but holding that the principles governing Crown appeals set a high threshold for intervention. The sentence as imposed did not meet that threshold.
Orders Made
- Conviction appeal by the appellant dismissed.
- Crown appeal against sentence dismissed.
Key Takeaways
- Mixed verdicts of guilty and not guilty arising from a single incident and based on the uncorroborated evidence of one complainant are not automatically unreasonable. A rational basis for the jury's discrimination between counts is sufficient to sustain the verdicts.
- Where a jury accepts parts of a complainant's evidence and rejects others, the Court of Criminal Appeal will not interfere with the resulting mixed verdicts unless no rational basis for the distinction can be identified.
- A sentencing court is entitled to take into account factors such as brevity of the incident, absence of force, and cessation of conduct upon resistance, and to weigh these against the breach of trust and impact on the victim when determining the appropriate sentence.
- On a Crown appeal, the threshold for intervention is high. The Court of Criminal Appeal confirmed that a sentence is not reviewable merely because a more severe penalty may have been appropriate; error or a departure from the proper discretionary range must be demonstrated.
- In dismissing both appeals, the Court applied established principles from multiple High Court authorities on the consistency of jury verdicts and the proper approach to Crown appeals against sentence.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 306I
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
Cases:
- Dinsdale v The Queen (2000) 202 CLR 321
- Everett v The Queen (1994) 181 CLR 295
- Ibbs v The Queen (1987) 163 CLR 447
- Jones v The Queen (1997) 191 CLR 439
- Lowndes v The Queen (1999) 195 CLR 665
- MacKenzie v The Queen (1996) 190 CLR 348
- MFA v The Queen (2002) 213 CLR 606
- The Queen v Shrestha (1991) 173 CLR 48
- R v Jap (NSWCCA, 20 July 1998)
- R v Latumetan and Murwanto [2003] NSWCCA 70
- R v Markuleski (2001) 52 NSWLR 82
- R v Mirzaee [2004] NSWCCA 315
- R v Pham [2005] NSWCCA 94
- R v Price [2005] NSWCCA 285
- R v Wall [2002] NSWCCA 42
- R v Zamagias [2002] NSWCCA 17