Citation: Bussey v R [2020] NSWCCA 280
Court: NSW Court of Criminal Appeal
Date: 16 November 2020
Judges: Hoeben CJ at CL, Harrison J, Bellew J
Background
The appellant stood trial in the District Court on four counts arising from events on 3 November 2018 at a North Sydney apartment. The appellant and the complainant had been in a romantic relationship between 2015 and October 2018, which ended at the complainant's instigation. They remained in contact through their shared involvement in a rock band.
On the day in question, the appellant attended the complainant's apartment, ostensibly to retrieve personal belongings. The complainant gave evidence that after she refused his requests to resume the relationship and to have sex one final time, the appellant choked her, forced her into the bedroom, and following a period in which she lost consciousness, had sexual intercourse with her without her consent.
The jury acquitted the appellant on Counts 1 (indecent assault), 2 (choking with intent to commit an indictable offence), and 4 (aggravated sexual assault), but convicted him on Count 3 (aggravated sexual assault, contrary to s 61J(1) of the Crimes Act 1900). The District Court sentenced him to 4 years and 6 months imprisonment with a non-parole period of 3 years. He appealed both the conviction and the sentence.
Legal Issues
- Whether the guilty verdict on Count 3 was unreasonable because it was inconsistent with the acquittals on Counts 1, 2 and 4, particularly the acquittal on Count 4 (which alleged an offence in relevantly similar terms)
- Whether the sentence was manifestly excessive
- Whether the sentencing judge erred by failing to give sufficient weight to the prior intimate relationship between the appellant and the complainant when assessing the objective seriousness of the offence
Decision
Conviction appeal: The Court of Criminal Appeal rejected the argument that the guilty verdict on Count 3 was unreasonable by reason of its inconsistency with the acquittals on the other counts. The court applied the established principle that a conviction is only rendered unreasonable by inconsistent verdicts where the acquittals were necessarily dependent on an adverse finding as to the complainant's credibility, such that accepting her account on the convicted count is logically irreconcilable with accepting it on the acquitted counts. Here, the acquittals did not carry that necessary implication.
The court noted that the acquittals on Counts 1, 2 and 4 could be explained on bases that did not require the jury to have disbelieved the complainant's core account of the sexual intercourse. For example, the jury's acquittal on the choking count may have reflected doubt about the appellant's specific intent rather than a rejection of the complainant's evidence. The guilty finding on Count 3 was therefore neither inconsistent nor unreasonable.
Sentence appeal: The court dismissed the argument that the sentence was manifestly excessive. The sentencing judge had assessed the objective seriousness of the offending as being in the low range, towards the top of that range but below the mid-range, and had resolved factual disputes in the appellant's favour. The Court of Criminal Appeal found no error in that approach.
On the question of the prior relationship, the court confirmed that the existence of a former intimate relationship does not mitigate the objective seriousness of a sexual assault. Once a relationship has ended, the former partner is entitled to protection from unwanted sexual advances. The sentencing judge's treatment of the prior relationship, which had been raised by the appellant in the sentencing proceedings on questions of fact-finding, was found to be appropriate.
Orders Made
- Leave to appeal against conviction granted; appeal against conviction dismissed
- Leave to appeal against sentence granted; appeal against sentence dismissed
- The appellant was remanded into custody
Key Takeaways
- Inconsistent jury verdicts will not render a conviction unreasonable unless the acquittals were necessarily dependent on a rejection of the complainant's credibility, making the guilty verdict on another count logically irreconcilable with those acquittals.
- The Court of Criminal Appeal confirmed that acquittals can rest on grounds unrelated to credibility (such as doubt about a specific mental element), and in such cases a separate conviction on related counts is not automatically unsafe.
- A prior consensual sexual relationship between an offender and a victim does not mitigate the objective seriousness of a subsequent sexual assault. The court emphasised that the end of a relationship brings with it full protection against non-consensual conduct by the former partner.
- Assessing objective seriousness in sentencing is a function classically within a sentencing judge's role, and the Court of Criminal Appeal will be slow to interfere with such assessments in the absence of demonstrated error.
- In dismissing both appeals, the court underscored that a sentencing judge who resolves factual disputes in an offender's favour and identifies a low range of objective seriousness has not thereby committed an error simply because the offender sought greater leniency.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 37(2), 61J(1), 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5
- Criminal Appeal Act 1912 (NSW), s 6
- Evidence Act 1995 (NSW), s 191
Cases:
- Artery v R [2017] NSWCCA 259
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58
- Bellchambers v R [2011] NSWCCA 131
- Dinsdale v The Queen (2000) 202 CLR 321
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- House v The King (1936) 55 CLR 499
- Jones v The Queen (1997) 191 CLR 439
- Mackenzie v The Queen (1996) 190 CLR 348
- Magro v R [2020] NSWCCA 25
- MFA v The Queen (2002) 213 CLR 606
- Mulato v R [2006] NSWCCA 282
- NM v R [2012] NSWCCA 215
- R v Hendricks [2011] NSWCCA 203
- R v Markuleski (2001) 52 NSWLR 82
- R v Murray (1987) 11 NSWLR 12
- TK v R (2009) 74 NSWLR 299
- Wiren v R (1996) 89 A Crim R 356
- Zreika v R [2012] NSWCCA 33