AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 7 July 2020

R v Bussey

[2020] NSWDC 802

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE JURY VERDICT AGGRAVATED SEXUAL ASSAULT DEPRIVATION OF LIBERTY.

Citation: R v Bussey [2020] NSWDC 802
Court: District Court of New South Wales
Date: 7 July 2020
Judge: W Hunt DCJ

Background

The offender was tried before a jury on four counts arising from events on 3 November 2018, when he attended the apartment of his former partner in the North Sydney area. The relationship between the two had ended approximately a month earlier, and the offender attended following telephone contact he had initiated.

The jury returned mixed verdicts. It acquitted the offender on count 1 (sexual intercourse without consent under s 61L of the Crimes Act), count 2 (choking to render unconscious with intent to commit an indictable offence under s 37(2)), and count 4 (a second count of aggravated sexual assault in similar terms to count 3). The jury found the offender guilty on count 3: aggravated sexual assault under s 61J(2), with the aggravating circumstance being the deprivation of the victim's liberty before the offence.

The sentencing hearing required the court to determine the facts on which the offender would be sentenced, a task made considerably more difficult by the mixed verdicts and the apparent inconsistencies between them.

  • What facts could properly be found beyond reasonable doubt for sentencing purposes, taking account of the jury's acquittals on the other three counts?
  • What deprivation of liberty could be established consistently with all of the jury's verdicts?
  • Whether bruising observed on the victim's neck could be relied on as an aggravating factual finding at sentence, given the acquittal on count 2 (choking)?
  • What weight should be given to the standard non-parole period as a benchmark, and whether there were grounds to depart from it?
  • Whether special circumstances existed justifying a variation of the standard ratio between non-parole period and total sentence?

Decision

Fact-finding principles after mixed verdicts

Hunt DCJ identified the governing principle as requiring the sentencing court to determine facts consistent with the jury's verdicts and proved beyond reasonable doubt. The court is not required to adopt the most favourable view of the facts for the offender, following Filippou v The Queen [2015] HCA 29 and Weininger v The Queen [2003] HCA 14. However, facts adverse to the offender must be proved beyond reasonable doubt, and the offender is entitled to the full benefit of each acquittal.

Deprivation of liberty

The Crown submitted that the deprivation of liberty commenced at the front door of the apartment, when the offender first physically took hold of the victim. The defence argued that only conduct consistent with all of the jury's verdicts could be relied upon, pointing to a more confined sequence of events on the bed in the bedroom immediately before the offence on count 3. His Honour accepted the defence position in substance. Relying on a deprivation of liberty associated with the events immediately preceding the acquitted count 1 would be inconsistent with giving the offender the full benefit of that acquittal. The court was satisfied that the deprivation of liberty was established by the offender's conduct in the bedroom, including kneeling over the victim and dragging her down by her feet before removing her clothing.

Bruising and neck injury

The acquittal on count 2 (choking) required the court to give the offender the benefit of that finding. His Honour did not rely on the bruising to the victim's neck as an aggravating factual matter, given the inconsistency such a finding would create with the acquittal on the choking count.

Sentence and departure from the standard non-parole period

The offence under s 61J(2) carries a maximum penalty of 20 years' imprisonment and attracts a standard non-parole period. Hunt DCJ treated those as benchmarks or guideposts in accordance with the relevant authorities. His Honour articulated reasons for departing significantly downward from the standard non-parole period. Among those reasons were that this was the offender's first time in custody and the need for an extended period of community supervision to support rehabilitation. Special circumstances were found on that basis, justifying a longer parole period relative to the non-parole period than the standard ratio would produce.

Orders Made

  • Count 3: the offender was convicted of aggravated sexual assault under s 61J(2) of the Crimes Act.
  • Sentenced to imprisonment for 4 years and 6 months, commencing 22 June 2020 and expiring 21 December 2024.
  • Non-parole period fixed at 3 years, expiring 21 May 2023, with the earliest parole consideration date of 21 June 2023.

Key Takeaways

  • A sentencing court determining facts after mixed jury verdicts must ensure its factual findings are consistent with each acquittal, and must give the offender the full benefit of those acquittals when assessing contested aggravating circumstances such as deprivation of liberty.
  • Facts adverse to the offender at sentence must be proved beyond reasonable doubt, but the court is not required to take the most favourable possible view of the facts: Filippou v The Queen and Weininger v The Queen confirm this balance.
  • Where an acquittal on a related count directly implicates a factual finding that would otherwise aggravate the convicted offence, relying on that finding would be impermissible. The District Court declined to use evidence of neck bruising in circumstances where the choking count had been acquitted.
  • The standard non-parole period under the Crimes (Sentencing Procedure) Act operates as a guidepost rather than a mandatory minimum, and significant departure is available where the particular circumstances of the offender and offence warrant it.
  • First-time custodial sentences and the identified need for extended post-release supervision can support a finding of special circumstances, resulting in a proportionally longer parole period than the standard ratio prescribes.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 37(2), 61J(2), 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5

Cases
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Filippou v The Queen [2015] HCA 29
- R v GDP (1991) 53 A Crim R 112
- R v Henry (1999) 106 A Crim R 149
- R v Lattouf (Unreported, CCA NSW, 12 December 1996)
- R v Miller [2015] NSWCCA 86
- R v O'Neill [1979] 2 NSWLR 582
- R v Olbrich (1999) 108 A Crim R 464
- R v Qutami [2001] NSWCCA 353
- Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629