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Court of Criminal Appeal 6 August 2021

Irmak v R; Dagdanasar v R

[2021] NSWCCA 178

Sexual offencesAssault & violence

Citation: Irmak v R; Dagdanasar v R [2021] NSWCCA 178
Court: NSW Court of Criminal Appeal
Date: 6 August 2021
Judges: Johnson J; Wilson J; Cavanagh J

Background

Two applicants were tried in the District Court on 10 counts of aggravated sexual assault in company under s 61JA(1) of the Crimes Act 1900 (NSW). The charges arose from events on 9 November 2016 and alleged that the applicants, acting with a third man who had fled overseas, sexually assaulted the complainant without her consent while in company with each other, and recklessly inflicted actual bodily harm in connection with each act of intercourse.

The complainant was 18 years old at the time. She had consumed alcohol before and during her school formal, and the Crown's case depended significantly on evidence about her level of intoxication and its effect on her capacity to consent.

The jury returned guilty verdicts on six counts in total: one count under s 61JA(1) (the charged offence, which includes the element of recklessly inflicting actual bodily harm) and five counts under the statutory alternative, s 61J(1) (aggravated sexual assault in company, without the bodily harm element). The applicants were acquitted on four counts. The sentencing judge imposed an aggregate term of 26 years on the first applicant and 24 years on the second. Both applicants sought leave to appeal against conviction and sentence.

  • Whether the guilty verdicts on the counts appealed were unreasonable or unsupported by the evidence
  • Whether the absence of medical evidence and the Crown's failure to particularise the injury relevant to each count affected the validity of the conviction under s 61JA(1)
  • Whether the verdicts were inconsistent with the not-guilty verdicts returned on other counts
  • Whether expert pharmacological evidence about the effect of alcohol on the complainant's capacity to consent was properly admitted
  • Whether the Crown Prosecutor's closing address misused that expert evidence by conflating intoxication with incapacity to consent
  • Whether the sentencing judge made errors in assessing the objective gravity of the offences or imposed manifestly excessive sentences

Decision

The Court dismissed all grounds of appeal against conviction for both applicants. On the reasonableness of the verdicts, the Court found that the jury's conclusions were well open on the evidence, including the complainant's detailed testimony given over five days. The acquittals on some counts did not produce verdicts that were legally inconsistent with the convictions on others; the jury was entitled to apply different assessments across individual counts.

On the actual bodily harm element in count 2 (the only count resulting in conviction under s 61JA(1)), the Court accepted that injury attributable to the sexual act itself could, in appropriate circumstances, satisfy the bodily harm element of the offence. The Court acknowledged the Crown's failure to particularise the injury relevant to each count as a concern but found it did not produce a miscarriage of justice in the circumstances of this case.

Regarding the expert pharmacological evidence, the Court accepted that evidence about the effects of alcohol and the complainant's prescribed anti-depressant medication was properly admitted. However, the Court found that the Crown Prosecutor's closing address had, in certain passages, improperly conflated intoxication with incapacity to consent. Despite that misdirection, the Court concluded that no substantial miscarriage of justice resulted, having regard to the strength of the remaining evidence and the directions given by the trial judge.

On sentence, the Court rejected the applicants' submissions that the sentencing judge had erred in assessing the objective gravity of the offences or that the aggregate sentences were manifestly excessive. The Court noted the absence of mitigating factors, the presence of aggravating circumstances (including that one applicant was on conditional liberty at the time), and the appalling nature of the overall course of conduct. The sentences were found to be reasonably proportionate to the total criminality involved.

Orders Made

Applicant Irmak:
- Leave to appeal against conviction granted; appeal dismissed
- Leave to appeal against sentence granted; appeal dismissed
- Non-publication order made on 19 July 2019 regarding the applicant's name lifted

Applicant Dagdanasar:
- Leave to appeal against conviction granted; appeal dismissed
- Leave to appeal against sentence granted; appeal dismissed

Key Takeaways

  • Under s 61JA(1) of the Crimes Act 1900 (NSW), injury attributable to the sexual act itself can, in appropriate circumstances, satisfy the actual bodily harm element of the offence, though the Crown's failure to particularise the relevant injury for each count is a matter the Court treated with concern.
  • A Crown Prosecutor's closing address that conflates a complainant's intoxication with a conclusion of incapacity to consent constitutes an impermissible conflation of two distinct concepts; however, such error does not automatically result in a successful appeal if the Court is satisfied no substantial miscarriage of justice occurred.
  • Inconsistent verdicts will not automatically vitiate a conviction. The Court of Criminal Appeal confirmed that a jury is entitled to reach different conclusions across individual counts, and not-guilty verdicts on some counts do not necessarily render guilty verdicts on others unreasonable.
  • In dismissing the sentence appeals, the Court reaffirmed that manifest excess must be assessed by reference to the totality of the criminality involved, and that the absence of remorse or rehabilitation prospects, while not a basis for additional punishment, is relevant context when no mitigating submissions are available.
  • Comparable sentencing cases may be used to assist in identifying error on appeal, but they do not of themselves establish that a given sentence is manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61JA(1), 61Q(1A), 80AB(1A)
- Criminal Appeal Act 1912 (NSW), s 5(1)(a) and (b)

Cases:
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58
- Dinsdale v The Queen (2000) 202 CLR 321
- Ford v R [2016] NSWCCA 69
- Haines v R [2012] NSWCCA 238
- House v The King (1936) 55 CLR 499
- JM v R (2014) 246 A Crim R 528
- Kelley v R [2021] NSWCCA 173
- King v R [2010] NSWCCA 33
- Kirby v R [2021] NSWCCA 162
- LN v R [2020] NSWCCA 131
- Lowndes v The Queen (1999) 195 CLR 665
- Mackenzie v R (1996) 190 CLR 348
- Magro v R [2020] NSWCCA 25
- Markarian v The Queen (2005) 228 CLR 357
- McIntyre v R (2009) 198 A Crim R 549
- Mulato v R [2006] NSWCCA 282
- Qoro v R [2008] NSWCCA 220
- R v AI; R v Dagdanasar [2019] NSWDC 370
- R v Campbell [2014] NSWCCA 102
- R v Donovan [1934] 2 KB 498