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10
Court of Criminal Appeal 13 May 2010

Dungay v R; R v Dungay

[2010] NSWCCA 82

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW SEXUAL ASSAULT APPEAL AGAINST CONVICTION INCONSISTENT VERDICTS WHETHER VERDICTS UNRECONCILABLE VERDICTS NOT INCONSISTENT. CRIMINAL LAW

Citation: Dungay v R; R v Dungay [2010] NSWCCA 82
Court: Court of Criminal Appeal, New South Wales
Date: 13 May 2010
Judge(s): Giles JA; Hulme J; Latham J

Background

The appellant was tried before Payne DCJ and a jury in the Port Macquarie District Court on two counts of sexual assault arising from a single incident on 20 January 2008. Count 1 charged aggravated attempted sexual intercourse (where the aggravating circumstance was that the appellant had inflicted actual bodily harm on the complainant immediately beforehand). Count 2 charged completed sexual intercourse without consent arising from the same circumstances. The jury found the appellant guilty on Count 1 and not guilty on Count 2.

In addition to the sexual assault conviction, the appellant had pleaded guilty to two further offences: robbery in company with wounding (committed in November 2007) and assault occasioning actual bodily harm (committed on 21 January 2008, also against the same complainant). At sentencing, Payne DCJ imposed an overall sentence of 5 years 4 months with a non-parole period of 2 years 7 months across all three matters.

Two appeals came before the Court of Criminal Appeal. The appellant challenged the consistency of the jury's verdicts, arguing that his conviction on Count 1 was unreasonable given his acquittal on Count 2. The Crown separately appealed the sentences as manifestly inadequate.

  • Whether the jury's guilty verdict on aggravated attempted sexual intercourse was unreasonable or constituted a miscarriage of justice, given the simultaneous acquittal on the completed sexual intercourse charge arising from the same circumstances
  • Whether a lengthy period of jury deliberation supported an inference of unreasonableness or compromise in the verdicts
  • Whether the sentencing judge erred in declining to find the aggravating factors of gratuitous cruelty and vulnerability of the victim
  • Whether the sentencing judge's characterisation of the offences as mid-range in seriousness was in error
  • Whether the individual and total sentences imposed were manifestly inadequate

Decision

Conviction appeal: The Court dismissed the conviction appeal. The applicable test, drawn from M v The Queen (1997) 191 CLR 439 and MFA v The Queen (2002) 213 CLR 606, is whether it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of guilt. The Court confirmed that apparent inconsistency between verdicts does not automatically render a guilty verdict unreasonable: the question is whether there is a rational explanation for the difference. On the evidence in this case, a rational explanation existed, and the threshold for setting aside a verdict on grounds of inconsistency had not been met.

The Court also rejected the submission that the length of the jury's deliberations indicated unreasonableness or compromise. Lengthy deliberation, by itself, is not evidence that a verdict is unsound.

Crown sentence appeal: The Court upheld the Crown's appeal. It found no error in the sentencing judge's refusal to apply the aggravating factors of gratuitous cruelty or victim vulnerability. However, the Court identified error in the characterisation of the overall criminality: the sentencing judge had given excessive weight to the appellant's subjective circumstances and the sentences, taken individually and in combination, did not adequately reflect the totality and seriousness of the offending. The original sentences were set aside and heavier terms imposed.

Hulme J added separate observations emphasising the severity of the violence involved across all offences, including the attack on an elderly woman during the robbery and the serious injuries sustained by the primary robbery victim. His Honour noted the appellant's prior convictions for violent offending and his commission of the attempted sexual assault while on parole.

Orders Made

  • Conviction appeal dismissed
  • Sentence appeal allowed; original sentences imposed on 26 June 2009 set aside
  • In substitution, the appellant sentenced as follows:
  • Assault occasioning actual bodily harm: 6 months imprisonment commencing 21 January 2008
  • Aggravated attempted sexual intercourse: non-parole period of 2 years commencing 21 April 2008, with a further term of 1 year 6 months
  • Robbery in company with wounding: non-parole period of 5 years commencing 21 July 2009, with a further term of 3 years
  • Effective overall sentence: non-parole period of 6 years 6 months and a further term of 3 years; eligible for parole on 20 July 2014

Key Takeaways

  • Inconsistent jury verdicts do not automatically render a conviction unreasonable. The Court of Criminal Appeal confirmed the test remains whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of guilt, and whether a rational explanation for the difference in verdicts can be discerned from the evidence.

  • A high threshold applies before a conviction will be set aside on the basis of inconsistency with an acquittal on a related count. The mere fact that two charges arise from the same circumstances, and that both depend on the complainant's credibility, does not make divergent verdicts irreconcilable.

  • Lengthy jury deliberations are not, without more, indicative of unreasonableness or of a compromise verdict.

  • Where a sentencing judge assigns too much weight to subjective features of an offender's background and the resulting sentences fail to reflect the totality of the criminality, the Court of Criminal Appeal may find manifest inadequacy even where no error is established on specific aggravating factors.

  • Prior convictions for similar violent offending and the commission of further offences while on parole are matters that weigh against an offender at sentence, and the absence of adequate reflection of these circumstances may itself support a finding that sentences are manifestly inadequate.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- M v The Queen (1997) 191 CLR 439
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- TK v R [2009] NSWCCA 151
- MacKenzie v The Queen (1987) 190 CLR 348
- R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
- R v SDM [2001] NSWCCA 158; (2001) 51 NSWLR 530
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Sharma [2003] NSWCCA 142; (2002) 54 NSWLR 300
- R v JW [2010] NSWCCA 39
- Ersmann v R [2007] NSWCCA 161; (2007) 171 A Crim R 560
- Gao v R [2006] NSWCCA 384
- McCullough v R [2009] NSWCA 94
- R v Boney [2001] NSWCCA 432
- R v Carr [2002] NSWCCA 434
- R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 60
- R v Harmid [2006] NSWCCA 302; (2006) 164 A Crim R 179
- R v Institoris [2002] NSWCCA 8
- R v Knight and Biuvanua [2007] NSWCCA 283
- R v PMT [2003] VSCA 200; (2003) 8 VR 50
- Vragovic v R [2007] NSWCCA 46