Bussey v R

Court of Criminal Appeal (NSW)|2020-10-21|Before: Hoeben CJ, Harrison J, Bellew J

Judgment

HOEBEN CJ at CL: I agree with Harrison J and the orders which he proposes. I particularly endorse his Honour's remarks at [95]-[97].

Factual background and evidence from the trial

The evidence tendered at the trial was extensive. The following summary is taken from a recitation of matters upon which Mr Bussey placed emphasis in this Court.
The four offences were all alleged to have been committed on 3 November 2018 at North Sydney. Mr Bussey and RM had for some years previously been in a relationship that had, by then, come to an end. They remained in contact as members of a band. The Crown alleged that the offences occurred at RM's apartment when Mr Bussey visited her there in order to retrieve a number of personal items.
In broad terms the Crown case against Mr Bussey alleged that he and RM were in a personal relationship between 2015 and October 2018. At some point there was talk of marriage. However, the relationship ended at the instigation of RM. Mr Bussey and RM were musicians in a rock band called Vaudeville/Vodvile. This band was assembled by Mr Bussey.
Despite the end of their romantic relationship, Mr Bussey and RM remained in contact through social media and their involvement with the band. RM told the jury that as part of the process of their break up: "…we agreed that we kind of had - we called it the no-bonking rule. It's where we wouldn't sleep with other people for, like, a while, for say like six months".
There was an understanding between Mr Bussey and RM that neither would engage in sexual relations with third parties for six months. RM said in her evidence that if she: "… fucked up, I would be out of the band and if he fucked up, we'd both be in the band but, I mean, it would be awkward, there'd be disagreements and I don't know if I want to stay in the band if that were to happen".
On 3 November 2018, just before midday, RM received an unsolicited telephone call from Mr Bussey. The last contact she had with him had been on 27 and 28 October 2018. On 28 October, RM received a text message from Mr Bussey advising her that she was "on hiatus from the band for six months". According to RM, in the call on 3 November 2018, Mr Bussey wished to resuscitate their relationship by persuading her to choose between her future in the band and her relationship with him.
After the phone call Mr Bussey presented himself at RM's apartment in North Sydney. She was wearing underpants and pyjamas in the form of a T-shirt and tracksuit pants.
Mr Bussey located an item of personal property and then placed himself on a couch. RM moved from the front door to the kitchen and obtained a drink of water. Eventually, a conversation occurred in the passageway of the unit during which RM said: "…went along the lines of firstly he asked to get back together. I refused, and then he - when he finally accepted that it wasn't going to happen, he then asked for sex one last time".
According to RM, Mr Bussey implored her for one last sexual episode. She refused.
RM said that she: "began to feel quite uncomfortable and started crying again telling him 'No'. I also lightly put my hand on him just to signal to stop him coming closer to - to myself, and yeah".
RM told the jury that Mr Bussey suddenly placed his hand around her throat. She was facing the kitchen area of the unit. She asked Mr Bussey: "What are you doing?" She fought back by trying to "wiggle [her] way out of his grip". RM testified that she thought it was Mr Bussey's right hand around her neck and his left hand around her torso as he forced her into the bedroom where he pushed her onto a bed and tried to remove her pants. Mr Bussey had difficulty doing so.
RM asked to go to the bathroom. After she emerged from the bathroom she ran to the front door of the unit. She was unable to unlock the door and said "before I was able to make it outside, he came up from behind me, and put his hand around my throat". She tried to scream. However, the manner in which Mr Bussey held her by the throat resulted in her scream being muted and she blacked out.
RM woke up on the bed. She was face up, her head on a pillow and arms by her side. Mr Bussey returned to the bedroom and asked whether RM "was going to fight him". She said "no and reluctantly gave in to intercourse". Mr Bussey and RM had penile/vaginal intercourse. RM said she "went along with it to avoid further abuse". RM said that during intercourse Mr Bussey said to her "I bet you missed this cock and stuff like that". She said, "Yeah" because she did not want to be abused anymore.
Mr Bussey ejaculated outside RM's vagina and then re-inserted his penis saying, "What am I doing? You're not enjoying this are you?" Following this, Mr Bussey gathered his belongings and left the unit. RM soon thereafter messaged her friend Bryce Bernius, known as "Biz".
RM also gave evidence of a telephone conversation she had with her friend Mira Echevirria. This conversation concerned what had occurred between her and Mr Bussey inside the unit. They met later outside RM's unit and went to a hotel where RM spoke more about the circumstances of the sexual assault inside the unit. RM also described, albeit in less detail, the sexual assault to Rhys Stephens. RM stayed overnight at the home of Rhys and Mira.
On 5 November 2018, RM reported the sexual assault at the North Sydney Police Station. She was shown a series of photographs taken by police and identified finger impressions on her throat. She made four formal statements to police between 5 November 2018 and 3 March 2020, including screenshots of text messages from her mobile phone.
RM described her sexual experience with Mr Bussey and identified particular sexual practices, including regular consensual choking. In cross-examination RM accepted that her consensual sexual experience with Mr Bussey also included having her head forced into a pillow, physical restraint, being thrown onto a bed, role playing and "rough sex".
RM was asked questions about a series of text messages between her and Mr Bussey dated 10 August 2016. These messages were referred to as the "mock rape scenario". RM confirmed that at no stage did the events in the unit represent acting out a rape scenario. There was also a series of text messages dated 17 November 2018 between RM and band member named Josh Foster, in which RM said: "You know I could still drop the charges if we can't find a replacement".
Rhys Stephens met Mr Bussey in 2016 and became a member of the band. In September 2018, he became aware that the romantic relationship between Mr Bussey and RM had "broken down". Mr Stephens confirmed there were discussions between band members concerning whether RM should remain in the band.
On 3 November 2018, Mr Stephens was with Mira Echevirria when she received a phone call from RM. Ms Echevirria appeared distressed and as a result Mr Stephens rang Mr Bussey. His call went through to voice mail. He also sent a text message to Mr Bussey. Mr Stephens drove Ms Echevirria to RM's home. Mr Stephens continued to send text messages to Mr Bussey, eventually learning that Mr Bussey was in transit. Arrangements were made to meet at Central Station. Mr Stephens and Mr Bussey subsequently met and spoke at Baker Park in Randwick. Mr Stephens consumed approximately 3 bottles of alcoholic cider for about an hour before the conversation. Mr Bussey had consumed four cans of bourbon. This meeting explored the allegations that Mr Stephens had learnt from Ms Echevirria, namely, that Mr Bussey had grabbed RM by the throat and raped her. According to Mr Stephens, Mr Bussey "broke down crying" on hearing this allegation. Mr Bussey said to Mr Stephens, "Yes I blacked out. I don't know but something came over me". Lauren Heffner joined Mr Bussey and Mr Stephens and, according to Mr Stephens, Ms Heffner asked, "Is it true?" Mr Bussey "nodded his head up and down". Mr Bussey said he wanted to go to hospital and was taken there by Mr Stephens and Ms Heffner.
Mr Stephens stayed at the hospital until about 10pm and then made his way to Central Station where he met RM and Ms Echevirria. The party went to Mr Stephen's home in Randwick. Mr Stephens asked RM to describe her encounter with Mr Bussey. However, beyond telling Mr Stephens that Mr Bussey made an amorous advance, she did not go into further detail. Mr Stephens said Ms Echevirria appeared to be "trying to finish" RM's narrative. He did not observe any physical injuries on RM.
Mr Stephens accepted in cross-examination that RM's future with the band was problematic and emotionally destabilizing for Mr Bussey given the romantic relationship between them. He agreed that Mr Bussey was not in a good state and had been drinking. Mr Stephens accepted that in the conversation in Baker Park he had asked Mr Bussey "So what's happened", and that Mr Bussey replied "I don't even know mate". Importantly in cross-examination, Mr Stephens also accepted that the words he said to Mr Bussey, referencing what he had been told by Ms Echevirria, were "I choked her and had sex with her or I choked her and we had sex", rather than "I grabbed her by the throat and raped her". Further passages of conversation between Mr Bussey and Mr Stephens were put to Mr Stephens which he appeared to accept may have occurred but was unable to remember. He confirmed that in his police statement he had said: "[RM] told me that Derek grabbed her by the throat, threw her against the wall and dragged her into a bedroom". He could not remember RM telling him this when they met later that evening.
Ms Echevirria confirmed that she was in a relationship with Mr Stephens and was a close friend of Mr Bussey. However, RM was like a sister to her and she was very protective of her. Ms Echevirria is a solicitor. She confirmed she was aware of the travail experienced by RM and Mr Bussey during their break up. She described the circumstances and content of a brief telephone conversation between her and RM on 3 November 2018 at about 1pm. RM was crying and told her "Derek was here" and "He choked me".
Mr Stephens drove Ms Echevirria to RM's home where she arrived a couple of hours after her telephone conversation with RM. On arrival, Ms Echevirria noticed that RM was distressed and had "kind of reddish marks" on the left side of her neck. Ms Echevirria and RM decided to adjourn to a pub and "talk about what happened".
They remained at the pub for about three hours. RM described what had occurred between her and Mr Bussey. She alleged Mr Bussey tried to hug her and then proceeded to have sexual relations with her by dragging her into a bedroom. RM told Ms Echevirria she was "resisting" and "screaming". RM said she wanted to use her bathroom but when she was in the bathroom Mr Bussey "dragged me back into the bedroom and … put a pillow over my head and I stopped resisting and I don't remember much, I passed out." RM also told Ms Echevirria that Mr Bussey was crying and said, "What have I done? I don't think I could live with myself."
Ms Echevirria advised RM to go to the police and make a report. RM said that she didn't want anybody to know and that she felt violated. She wished it had happened with a stranger rather than somebody she loved and she was angry at Mr Bussey. RM was also worried about her future in the band. Ms Echevirria and RM left the pub and had dinner in Chinatown. RM ended up at Mr Stephen's place and stayed the night there.
Ms Echevirria recalled that at a later time, RM indicated to her that she was going to make a report to police. She also confirmed that RM told her Mr Bussey had choked her and had sex with her, that he dragged her back to the bedroom and choked her and put a pillow over her head and that she passed out.
In cross-examination, Ms Echevirria confirmed that she raised the topic of police involvement with RM on the day they met at the police station nearby. RM did not want immediate police involvement. Ms Echevirria raised this topic again over a number of days.
At about 9.30pm on 4 November 2018, Constable Abela was on duty at North Sydney Police Station when RM approached him and alleged that she had been sexually assaulted by Mr Bussey. She was directed to another police officer, Detective Shibble.
RM gave Constable Abela a version of the events of 3 November 2018 which in summary was that Mr Bussey had arrived at her apartment and sought to collect some personal items. Mr Bussey implored her to take him back and requested a final sexual encounter as it was his birthday. Mr Bussey grabbed her by the throat but she broke free. She said she needed to go to the toilet. RM tried to run for the front door but Mr Bussey grabbed her from behind in a choke hold and she lost consciousness. She woke up in her bed with Mr Bussey continuing to choke her. He pulled her pants down and had sexual intercourse to ejaculation.
In cross-examination, Constable Abela indicated he had not made any police notebook entries concerning RM. However, it was revealed that this was not accurate and in fact the police officer had made some entries in his note book that referred to her.
Detective Shibble confirmed that she assumed management of the investigation. She further confirmed Mr Bussey declined an ERISP and that she ultimately charged him. Screenshots were obtained from RM's mobile phone. Detective Shibble confirmed that Mr Bussey consented to a police DNA procedure and had no criminal antecedents.
Prior to the trial, Detective Shibble had taken three statements from RM dated 5 November 2018, 25 January 2019 and 22 March 2019. Solicitors for Mr Bussey had sent the DPP a screenshot from RM's phone that said "she could drop the charges" and a message that became known as the "rape lane message". There were also screenshots of messages from band member "Biz". Detective Shibble conceded she was unaware of these messages until she received them from the DPP about a week before RM's third statement. Significant criticism was made in cross-examination of Detective Shibble concerning the manner in which she managed the investigation into the allegations against Mr Bussey. Detective Shibble confirmed that RM did not volunteer information about the "rape lane" scenario and the message saying "You know, I could still drop the charges if we can't find a replacement vocalist" which came from the band chat messages. In re-examination Detective Shibble confirmed that RM, when relating her sexual history with Mr Bussey, said words to the effect, "Well, there was never any violence".
Pursuant to s 191 of the Evidence Act 1995, the parties agreed that RM was medically examined at around 10.30pm on 4 November 2018 and bruising was observed around her neck.
Mr Bussey gave evidence. He said his relationship with RM commenced in 2015. By September 2018, the relationship was moribund but they maintained episodic sexual contact.
Mr Bussey's birthday was on 3 November. He had attended a party the day before and on his way home to Sylvania decided to visit RM. He phoned her as he wanted to "talk about the band". Mr Bussey denied RM's evidence that she went downstairs to collect him and that they returned and entered the unit together.
Mr Bussey asked to search the unit for two USB sticks and his father's ring. Mr Bussey and RM spoke about their respective futures in the band. According to Mr Bussey, RM initiated physical contact associated with an invitation to "give [him] a birthday present". Mr Bussey believed this to be a "birthday sex" insinuation. Mr Bussey stood up from the couch and put his hands on RM's waist and said "Is this what you want?" and she said "It is". He also placed a hand around her neck.
Mr Bussey explained that historically their intimate relations involved "rough sex" including mutual "erotic asphyxiation". Mr Bussey explained that by her physical and verbal responses to him, RM was inviting sexual activity, including choking. He said they had consensual penile/vaginal sexual intercourse for about 10 minutes in the bedroom of the unit. Mr Bussey ejaculated onto RM's right thigh. Following sexual intercourse, Mr Bussey said RM appeared to demonstrate irritation and disappointment. According to him, RM said: "Then what the fuck did you just sleep with me for then", a reference to an earlier question by her concerning her future in the band. RM claimed, "Well, that was rape - I'm going to tell the band I was raped". Mr Bussey replied, "Get fucked" and "You're off your fucking head". Mr Bussey left the unit at about 12.50pm and went to Chatswood and purchased a four pack of bourbon and cola. He noticed that he had some missed calls on his mobile phone from band members.
Mr Bussey had contact with Rhys Stephens and arranged a rendezvous at Central Station. They ultimately ended up at Mr Stephens' home at Randwick. Mr Stephens told Mr Bussey what he had heard from Ms Echevirria, namely: "She said basically that you choked her and had sex with her". Mr Stephens asked Mr Bussey if the allegation was "true". Mr Bussey confirmed that it was "true". On further interrogation by Mr Stephens as to what had actually occurred, Mr Bussey explained he did not think his version of events inside the unit would be believed. Lauren Heffner attended and interrogated Mr Bussey concerning what had occurred. Mr Bussey told her that he could not remember and had "blacked out". Mr Bussey went to a hospital for four days for mental health reasons. He then attended a police station and declined to be interviewed. He submitted himself to a DNA test. He said that RM's musical ability was not very good.
In cross-examination, Mr Bussey accepted he had discussed RM's future in the band following their break-up. He accepted he had made telephone contact with her on the date of the offence. He denied his attendance at her residence was to put pressure on her "to revive the relationship". Mr Bussey denied the particulars of relevant phone calls between them.
Mr Bussey did not accept the suggestion that he asked RM to choose between reviving their relationship and returning to the band. Mr Bussey denied he was using the band as leverage in order to resuscitate their relationship.
Mr Bussey denied the suggestion that RM did not want him in her unit. Mr Bussey disagreed that he was "almost begging" to have sex with her one last time. He disagreed RM started to cry or put her hand up or turned her body away from him.
It was put to Mr Bussey he had not told the truth about what had occurred in the unit. He agreed with the proposition that RM offered sex in return for her returning to the band. Mr Bussey denied the bruising on RM's throat was as a result of a non-consensual sexual encounter. He disagreed he cried and apologised following the sexual encounter. Numerous propositions were put to Mr Bussey concerning the course of events in the unit with which he mostly disagreed. He disagreed with the proposition that there were two episodes of non-consensual penile/vaginal sexual intercourse following which he apologised to RM. He denied that Mr Stephens used the expression "rape" rather than "sex". Mr Bussey further denied that in the conversation with Mr Stephens and later with Lauren Heffner he insinuated he had had non-consensual sex with RM.
Mr Bussey called two witnesses in his case: Susan Godfrey and his father David Bussey. They told the jury that they had telephone contact with RM on 3 November 2018 at "around 6pm" seeking Mr Bussey's whereabouts. Ms Godfrey said she asked RM how long it had been since she had seen Mr Bussey. RM confirmed that she had seen him earlier that day. She said that from the tone of the telephone conversation, RM seemed "fine" to her. When cross-examined, she confirmed she was absolutely sure the call occurred on 3 November.
David Bussey confirmed he had a telephone conversation with RM on 3 November seeking the whereabouts of his son. RM confirmed that Mr Bussey was "there a couple of hours prior, but he's left" and that "he's no longer her problem". He said the impression he gained from the tone of RM's voice was "more like someone rolling their eyes back".

Mr Bussey's submissions

In order to succeed, Mr Bussey must demonstrate that the four verdicts returned by the jury cannot stand together or, more particularly in this case, the verdicts on Counts 3 and 4 cannot stand together. Mr Bussey, who carries the burden of demonstrating inconsistency, submitted that there is no proper or rational way this Court could reconcile the "not guilty" verdicts on Counts 1, 2 and 4 with the "guilty" verdict on Count 3.
Mr Bussey submitted that as RM was the central witness in the prosecution case, "everything depended on her as a reliable historian". The trial judge gave correct Murray directions in this regard: R v Murray (1987) 11 NSWLR 12. The trial judge also gave a Markuleski direction.
The defence case was that all sexual contact between Mr Bussey and RM was consensual, that he did not indecently assault her and that his choking of her was a natural and historical reprise of their powerful style of love making.
Mr Bussey submitted that the more significant matters identified by the defence relevant to the question of whether the charges had been proved beyond reasonable doubt included the inadequate police investigation, which did not cover the true history of the relationship between Mr Bussey and RM, in particular the "rape lane" fantasy message on her phone that RM did not disclose to police, and the band chat message offered by RM saying, "You know I could drop the charges". When RM made first contact with Ms Echevirria, RM only alleged Mr Bussey had choked her. There was also a lack of particularity of her account to Constable Abela. RM's description to Ms Echevirria of having a pillow put over her head before sexual intercourse was never mentioned by RM in any statement, nor was it mentioned in her evidence before the jury. RM also maintained a calm demeanour on the day of the alleged offences when she had telephone contact with Ms Godfrey and David Bussey.
The four counts on the indictment represented a course of conduct by Mr Bussey. He submitted that he was acquitted of the indecent assault because either the jury were not satisfied that it occurred in the way the prosecution alleged or alternatively that the acts were consensual and consistent with the historical sexual practices of RM and Mr Bussey. Mr Bussey submitted that he was acquitted of the choking charge because the jury accepted that the choking occurred in circumstances that were consistent with that history.
Counts 3 and 4 concerned two episodes of penile/vaginal sexual intercourse in circumstances of aggravation namely, deprivation of liberty prior to penetration. The acts of sexual intercourse were alleged to have occurred within seconds of each other. Mr Bussey submitted that it was difficult to understand, given the close temporal relationship between the identical aggravating conduct accompanying both acts of sexual intercourse, how the first act involved a deprivation of liberty and the second act did not. He maintained that it was unreasonable for the jury not to have acquitted on Count 3 on the indictment: the verdict on Count 3 is suggestive of a compromise, which must be unreasonable. Further, having acquitted Mr Bussey on Counts 1 and 2, presumably on the basis of the previous consensual sexual practices, it was unreasonable for that doubt not to have flowed on to Count 3 on the indictment.

Legal principles

In a case where there are mixed verdicts of guilty and not guilty and the complainant's evidence is the only evidence of an accused's guilt, a Court may (but not must) conclude the verdicts are factually inconsistent: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [33]. Where there is nothing in the complainant's evidence or the surrounding circumstances that provides an explanation for supposing that his or her evidence was more reliable in relation to those counts where a guilty verdict was entered than it was in relation to the count or counts where a not guilty verdict was entered, there is factual inconsistency: Jones v The Queen (1997) 191 CLR 439 at 453. This is because the jury's finding of not guilty on any count will have "damaged the credibility of the complainant with respect to all counts in the indictment": Jones at 453.
However, "(n)othing in Jones casts any doubt on the appropriateness of a jury accepting a witness' evidence in one respect, whilst retaining a reasonable doubt about the commission of events about which that same witness is the only substantive witness": R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [31].
The test is one of logic and reasonableness. As was stated in Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 at 367 citing a judgment of Devlin J in R v Stone (13 December 1954, unreported), the applicant: "must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."
In other words, the test is, "whether or not the failure of the jury to accept the complainant's version in one respect ought to have led … the jury to have a reasonable doubt with respect to other matters": Markuleski at [65].
An appellate court needs to consider whether the mixed verdicts can be reconciled. "[I]f there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted": Mackenzie at 367. In considering whether the verdicts can be reconciled, "the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals": R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128] and [130]. Attention should be drawn to the facts and circumstances of the case: MFA at [35], Markuleski at [65].
An appellate court should not assume too readily that mixed verdicts are inconsistent: Markuleski at [219]-[221]. Mixed verdicts arise from the burden and standard of proof, the requirement of separate verdicts and the role of the jury: MFA at [34]. "A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant": MFA at [34]. In Artery v R [2017] NSWCCA 259 at [36] Adamson J, cited this passage from MFA and said: "That a jury reaches a different verdict with respect to different counts does not lead to any assumption of inconsistency. Where an accused is acquitted of a charge of sexual offence, it ought not be assumed that the jury did not find the complainant credible, particularly where a guilty verdict has been returned on another count."

Consideration

In my opinion, the verdicts of not guilty on Counts 1, 2 and 4 are entirely explicable without leading to a conclusion that the jury must have formed an adverse impression about RM's credibility. It is not the case that the guilty verdict on Count 3, dependant as it was on the jury's acceptance of her on this count, is therefore inconsistent and unreasonable.

Count 1

The verdict of not guilty on this count is not necessarily the product of the jury disbelieving RM that the events said to constitute this offence occurred. RM asserted that Mr Bussey pulled her pants down so that at most her buttocks were exposed. The jury's verdict is entirely consistent with an acceptance of RM's account of what happened, but with a simultaneous finding that the physical acts described by her did not legally constitute the offence charged.
His Honour directed the jury that to convict on Count 1 they had to be satisfied that the assault was indecent. He continued: "For an assault to be indecent it must have a sexual connotation or overtone. It will generally be considered, for example, the touching of the genitals or the anus of a male, or the genitals or breast area of a female will be seen often to have a sexual connotation."
It is trite to observe that RM's evidence did not concern the legal issue of whether or not the alleged assault was indecent, even though the assessment of that legal issue required the jury to consider whether what RM said took place had in fact occurred. The jury in this case may well not have been satisfied that an important and necessary legal ingredient of the offence had been established to their satisfaction beyond reasonable doubt: such an approach says nothing one way or the other about RM's credibility or about any conclusion that the jury may have reached concerning the particular relevant events that RM specifically described with respect to this count.

Count 2

RM gave evidence of being choked. Ms Echevirria gave evidence that RM had complained to her of having a pillow pressed to her face. It is on one view possible reasonably to conclude that the jury was unable to reach a conclusion on this count upon the basis that it was confronted with competing versions between which it was unable to choose, so that it could not therefore be satisfied beyond reasonable doubt that the Crown had made out its case. If the jury were unable to be satisfied whose version, if either, to accept, it does not follow that a not guilty verdict on this count can only be explained because the jury disbelieved RM. The jury may well have generally accepted RM's evidence as honest and accurate while at the same time not being satisfied beyond reasonable doubt about the accuracy of RM's particular evidence because of the existence of a competing and equally compelling version of what occurred.
Moreover, the charge on Count 2 required the Crown to prove that what is alleged physically to have occurred was committed by Mr Bussey with the requisite intention. The jury's acceptance or rejection of the Crown's attempt to establish the existence of that intention beyond reasonable doubt is wholly unrelated to, or at least not necessarily dependent upon, any evidence given by RM. The verdict of not guilty on this count does not inform any conclusion that the jury must have found RM to be untruthful or unreliable.

Count 3

The verdicts of not guilty on Counts 1 and 2 are not inconsistent with Mr Bussey depriving RM of her liberty for a period of time before the commission of the sexual intercourse that constituted Count 3. RM's evidence was that Mr Bussey asked her after she had been choked whether she was going to fight him. RM replied "No". If accepted by the jury, that evidence was sufficient to explain that RM had given in to Mr Bussey and that he had thereby deprived her of her liberty.

Count 4

When RM reported the events of 3 November 2018 to the North Sydney police, she spoke first to Constable Abela. His account of her complaints contained no reference to any act of sexual intercourse that was consistent with Count 4. Such an inconsistency would alone be sufficient to cast a reasonable doubt upon whether the act said to constitute that count had occurred. The existence of a reasonable doubt about that count would not therefore inevitably indicate the existence of fundamental issues with RM's credibility in any other respects. As the Crown submitted in this Court, Constable Abela's evidence or recollection may have been inaccurate for any number of reasons, none of which necessarily being only because RM told him that Mr Bussey left her apartment at the conclusion of the acts constituting Count 3. Constable Abela's recorded summary of what he was told amounted to an inconsistency that would have been sufficient for the jury to have retained a reasonable doubt that the second act of sexual intercourse did not take place. By way of contrast, a verdict of guilty on Count 3 would arguably be unreasonable if the only conclusion to be drawn with respect to Count 4 were that the jury must have concluded that RM consented. That is not this case: the jury's verdict of not guilty on Count 4 is not dependent on such a conclusion.

Summary

Despite the fact that the jury heard substantial evidence that raised the issue of RM's credibility, the jury was satisfied that her account with respect to the events that constituted Count 3 had been established to their satisfaction beyond reasonable doubt. In the circumstances of this case, it is only if that conclusion about RM's credibility can be impugned that the jury's verdict on Count 3 can be shown to be unreasonable. An examination of the jury's verdicts on Counts 1, 2 or 4 in this case raises no general doubt about RM's believability with respect to Count 3. The verdicts of not guilty are entirely explicable without producing an inevitably adverse finding about RM's credibility. The acquittals can be reconciled: TK at [128].
Mr Bussey's conviction on Count 3 is not inconsistent with his acquittal on the other counts.

Mr Bussey's submissions

Mr Bussey submitted that an examination of his Honour's sentencing remarks dated 7 July 2020 reveals his observation concerning the apparent disconnect between the allegations comprising Counts 3 and 4. Mr Bussey was acquitted of Count 4 which was framed in identical terms to Count 3 and alleged the deprivation of the complainant's liberty almost immediately following the cessation of the events that constituted Count 3.
Mr Bussey emphasised that his Honour briefly set out the history of the relationship between him and RM and the law applicable to fact finding on sentence following trial. His Honour was not prepared to find beyond reasonable doubt that the deprivation of RM's liberty before the commission of Counts 1 and 2 were factors that increased Mr Bussey's objective level of criminality.
Mr Bussey submitted that having regard to the nature of the historical sexual relationship between him and RM, which included erotic choking coupled with Mr Bussey's evidence that he placed his hand on the complainant's neck during consensual sex, his Honour was "unable to be satisfied against his interest beyond reasonable doubt that that is how the bruises were caused".
On the issue of whether the verdict on Count 3 was indicative of actual knowledge of a lack of consent as opposed to recklessness, Mr Bussey referred to his Honour's finding that either state of mind was consistent with the jury's verdict: "I cannot be satisfied beyond reasonable doubt as to whether it is consistent with the jury's verdict that there was actual knowledge in the offender that the victim was not consenting or whether the jury's finding was as a result of recklessness".
According to the submissions, his Honour considered the objective criminality concerning Count 3 as comprising penile-vaginal intercourse to ejaculation without use of a condom for approximately 10 minutes committed in RM's home. His Honour noted that apart from the aggravating feature that the offence was committed in RM's home, there was no additional aggravating feature that was not part of the offence. As to the element of deprivation of liberty, his Honour found this to be "towards virtually the very lowest end of the range of objective seriousness limited to that element alone". Ultimately his Honour assessed the level of objective seriousness as belonging "in the low range and towards the top of the low range, but before the commencement of the mid-range of objective seriousness".
It was submitted that, subjectively, Mr Bussey had no criminal antecedents, had good prospects concerning rehabilitation and unlikely to re-offend. He was accordingly of previous good character, was only 26, he had strong family support and numerous character referees.
A forensic psychiatric report from Dr Furst dated 1 June 2020 identified Mr Bussey as meeting the diagnostic criteria of persistent, depressive disorder, anxiety disorder, and ADHD. However, his Honour said he could not be satisfied that Mr Bussey's depressive disorder had a causal relationship with the commission of the offence. Mr Bussey does not take issue with this specific finding.
Having regard to Mr Bussey's history with anxiety and depression, his Honour was prepared to find that Mr Bussey's time in custody will be more onerous, partly because, to a limited degree, of COVID 19 restrictions. His Honour found special circumstances.
Ultimately his Honour found that the s 5 Crimes (Sentencing and Procedure) Act threshold had been satisfied.
Mr Bussey accepted that all sexual assaults are serious and a species of violence and that, of course, some sexual assaults are more serious than others. He emphasised that sexual assaults can range from mild sexual touching to digital and penile penetration associated with humiliation, cruelty, degradation, extreme violence, use of weapons, physical damage, deprivation of liberty and trophy taking.
It was further submitted that a sentence claimed to be manifestly excessive is one that is unreasonable or plainly unjust such that it can be inferred from the quantum of punishment that there was a failure properly to exercise the primary sentencing discretion House v The King (1936) 55 CLR 499; Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54; Hili v R (2010) 242 CLR 520; [2010] HCA 45; Barbaro v R (2014) 253 CLR 58; [2014] HCA 2.
Mr Bussey submitted that close scrutiny of the sentencing remarks reveals House v King error in that his Honour did not in the circumstances give any or sufficient weight to the historical sexual relationship and experience of Mr Bussey and RM. This failure resulted in his Honour assessing the objective criminality as "towards the top of the low range but before the commencement of the mid-range of objective seriousness" rather than as submitted by Mr Bussey as residing at the "very bottom" of objective seriousness.
Mr Bussey drew attention to NM v R [2012] NSWCCA 215 at [56] and [58] where this Court referred to Bellchambers v R [2011] NSWCCA 131 and R v Hendricks [2011] NSWCCA 203 and the principle in sentencing concerning the significance of a relationship between offender and victim. Further, the Court observed the exhaustive treatment by the Northern Territory Court of Criminal Appeal concerning prior sexual experience between victim and offender in the context of the sentencing exercise and said, with approval, at [52]: "That a prior sexual relationship between a victim and an offender may, depending on the particular circumstances of the case, be an important mitigating factor in sentencing for sexual offences was recognised by the NT Court of Criminal Appeal in Wiren v R (1996) 89 A Crim R 356 at 360 and following".
Mr Bussey submitted that he had been found guilty of non-consensual sexual intercourse in circumstances of aggravation namely deprivation of liberty, that he and RM were not strangers to each other and that evidence at trial disclosed they had engaged in regular sexual activity. This included sexually innovative styles of mutual pleasuring involving the deprivation of liberty, the very aggravating feature of the offence proved, as well as choking, "rough sex" and fantasy episodes such as the "mock rape scenario", all apparently directed to enhancing their sexual experience. Mr Bussey maintained that these matters were relevant to the objective criminality of his offending.
Mr Bussey submitted that his Honour erred by failing to consider as relevant to the sentencing exercise the particular prior sexual experiences shared between Mr Bussey and RM and that this failure amounted to error in the House v The King sense. As a result, the sentence imposed was said to be manifestly excessive.

Consideration

Although Mr Bussey has particularised two grounds of appeal, his significant contention is that his Honour made a specific and identifiable mistake that led him erroneously to impose a sentence that was manifestly excessive. Mr Bussey maintained that, but for his Honour's failure to have sufficient regard to the fact that he and RM had, until only a relatively short time before the commission of the offence, been in a close and enthusiastic personal relationship, he would have concluded that Mr Bussey's objective criminality was reduced and would have imposed a less severe sentence. In this sense, it is said that his Honour allegedly failed to have regard to a relevant consideration.
In my opinion, that submission falls foul of the principle that just because it may be possible to contemplate more serious examples of the same offence does not mean that the particular offence being considered is for that reason less serious.
Mr Bussey's submissions effectively commenced by placing understandable reliance upon the decision of the Northern Territory Court of Criminal Appeal in Wiren v R (1996) 89 A Crim R 356, especially at 360-363. The first ground of appeal relied upon by the applicant in that case, who challenged his sentence following a plea of guilty on a charge of sexual intercourse without consent, was that he and the victim had had a longstanding prior sexual relationship and had been still living together until about three weeks before the offence was committed. The Court observed that "[t]he authorities show that a prior sexual relationship between victim and offender can be an important mitigating factor in sentencing for sexual offences…" [Emphasis in original]
In Wiren, their Honours referred extensively to English cases, including that of Berry (1988) 10 Cr App R (S) 13 at 15 as follows: "…the rape of a former wife or lover is of course always a serious offence, and nothing that we say should be taken to indicate the contrary. The relevance of a previous settled sexual relationship was made plain by the decision of this Court in Cox (1985) 7 Cr App R (S) 104. The rape of a former wife or mistress may have exceptional features which make it a less serious offence than otherwise it would be: see also Stockwell. To our mind these cases show that in some instances the violation of the person and the defilement that are inevitable features where a stranger rapes a woman are not always present to the same degree when the offender and the victim had previously had a longstanding sexual relationship. …the circumstances in cases of this kind are never precisely the same, and there is no stock sentence for an offence of this nature."
Mr Bussey also referred this Court to its earlier decision in R v Hendricks [2011] NSWCCA 203. In that case, the applicant sought leave to appeal against two sentences imposed upon him for sexual assaults committed upon his then partner. Garling J referred as a matter "of particular importance" to a number of facts including the nature of the relationship between the applicant and the victim. One of its features was accepted to be that the relationship had existed for about six years at the time of the first offence. Another feature was that the applicant and the victim had planned to marry about two weeks thereafter, although this did not ultimately occur.
However, the applicant's challenge to his two sentences was not to their respective length but to the fact that the second sentence was made entirely cumulative upon the non-parole period for the first. It was in that context that Garling J, with the agreement of Basten JA and Simpson J, concluded that "the circumstances in which [the offences] occurred…warranted the sentences being made concurrent to a degree far greater than that which the sentencing judge did." Hendricks does not support the proposition that sexual intercourse without consent with a partner or former partner is a less serious offence than if it had been committed by a stranger.
Both Wiren and Hendricks were referred to by this Court in NM v R [2012] NSWCCA 215. Macfarlan JA said this at [58]: "[58] The importance of considering the nature of the relationship between an offender and victim was also emphasised in R v Hendricks [2011] NSWCCA 203 at [86], in that case, in the context of consideration of the extent of concurrence of sentences. That a prior sexual relationship between a victim and an offender may, depending upon the particular circumstances of the case, be an important mitigating factor in sentencing for sexual offences was recognised by the Northern Territory Court of Criminal Appeal in Wiren v R (1996) 89 A Crim R 356 at 360 and following. See also R v Mason [2001] VSCA 62 at [6] and [7]."
His Honour had earlier referred at [56] to the decision of this Court in Bellchambers v R [2011] NSWCCA 131 as follows: "[56] The significance in sentencing of a relationship between an offender and a victim was considered by this Court in Bellchambers v R [2011] NSWCCA 131. In that case, offences under s 61I of the Crimes Act were committed on four occasions over a four year period, commencing a year after a relationship commenced between the victim and the applicant. The offences were accompanied by force and threats. In the course of his judgment Hoeben J (as his Honour then was) (with whom Campbell JA and RS Hulme J agreed) said: '47 There was also a difficulty in his Honour's failure to review the facts, both relating to the circumstances of the offences and in relation to the applicant's personal and medical circumstances. A review of the offences would have revealed that while serious they occurred in a domestic relationship which involved considerable ambivalence on the part of the complainant. Whilst sexual assault even within the confines of a continuing relationship cannot be condoned, that fact and the comparatively low level of violence are matters of relevance to the objective seriousness of the offences. Regrettably, that comment is made against the background of sexual assaults which come before this Court involving very considerable threats and violence'."
The cases reveal a consistent and commendable emphasis upon the need to consider each offence of sexual assault upon a woman by her partner or former partner with special and particular regard to the circumstances of the case. However, there has in my view been a regrettable tendency in some cases to refer to the fact that the assault occurred within, or following the breakdown of, a relationship as something that might "mitigate" the seriousness of the particular offence. This type of language has the unfortunate potential erroneously to dilute the significance of the offence under consideration. Put simply, the objective seriousness of sexual intercourse without consent cannot be reduced because of factors such as a prior sexual history between an offender and his victim without making unjustified and impermissible assumptions about the effect upon the victim. It depreciates the notion that no means no, whatever other factors may be involved. To accept that a prior relationship can ever operate to mitigate the seriousness of the offending completely abandons that uncontroversial wisdom and reverts to the type of attitude that once saw domestic violence treated as less culpable than other assaults. It also proceeds upon the implicit and unsafe adoption of non-consensual sexual intercourse with a stranger as the default position.
I cannot accept that a statement such as "the violation of the person and the defilement that are inevitable features where a stranger rapes a woman are not always present to the same degree when the offender and the victim had previously had a longstanding sexual relationship" is now or could ever have been an acceptable, far less correct, summary of the law or that it should continue to influence this Court in the determination of cases such as the present. Violation and defilement of the victim are quintessential aspects of the offence and the victim's familiarity with an assailant can have no bearing upon that fundamental circumstance. Indeed, such an assault, committed by a person with whom the victim may have had a formerly close and respectful relationship, is potentially more likely to exacerbate the seriousness of the offence than otherwise. I cannot accept the proposition that there can be varying degrees of violation and defilement. Such a concept appears to derive from the offensive notion that a man should in certain circumstances be entitled to raise his prior relationship with the victim as some kind of limited excuse for disregarding the absence of consent to an act of intercourse with him to which activity the victim had historically consented.
As I have indicated, Mr Bussey's submissions implicitly rely upon the proposition that the offence of which he was found guilty could have been more serious. The fact that one can imagine the commission of more serious offences of this type is not controversial. It does not, however, mean that the sentence imposed by his Honour for the offence committed by Mr Bussey should somehow be assessed by reference to that fact. It certainly does not mean that the objective seriousness of Count 3 is diminished or reduced because Mr Bussey and RM had previously been in a consensual sexual relationship. Once it is accepted that no means no, that should be the end of the matter.
The Crown's submissions in this Court with respect to Grounds 2 and 3 proceeded upon this very basis. They were as follows.
His Honour referred, at the outset, to the fact that Mr Bussey commenced a relationship with RM in about March 2016 and that the relationship ended in October 2018. His Honour also expressly referred to the fact that although RM said that it did not operate in relation to the events on 3 November 2018, "she agreed that her relationship with Mr Bussey had included instances of consensual choking in an erotic context, consistent with sexual intercourse between the two of them".
RM gave evidence that prior to the acts that constituted Count, 1 Mr Bussey grabbed her by the neck and waist and forced her into the bedroom. In relation to Count 2, RM gave evidence that Mr Bussey took hold of her neck and choked her before she lost consciousness. As his Honour noted, RM contended, inferentially, that marks on her neck were sustained during either or both of those actions. Mr Bussey gave evidence that when they were in the lounge room, he placed his hand on RM's throat without applying any pressure. He also gave evidence that during the act of sexual intercourse, which on his case was consensual, he applied pressure to RM's throat before releasing his grip when she pulled him closer towards her, "putting too much weight down on her throat".
As the Crown correctly submitted, his Honour did not sentence Mr Bussey on the basis that an act of choking took place during the act of sexual intercourse or that an act of choking was a circumstance in the actions that constituted the deprivation of liberty. The Crown submitted that it is clear that his Honour was not satisfied beyond reasonable doubt that Mr Bussey choked RM on either or both of the instances described by her. His Honour was also not satisfied on the balance of probabilities that the bruises were as a result of "consensual choking during the sexual intercourse or choking during the sexual intercourse relied on in relation to Count 3".
In setting out the facts in relation to Count 3 his Honour said this: "The sexual intercourse for the purposes of count 3 was penile-vaginal intercourse undertaken without the use of a condom. The sexual intercourse was up to a maximum of ten minutes, although the complainant conceded it could have been less than that. Mr Bussey ultimately ejaculates, but at a time after he removed his penis from the complainant's vagina and he ejaculated on the back of her thigh".
His Honour specifically noted that apart from the circumstances of the offence being committed in RM's home, there were no other identifiable circumstances of aggravation beyond the circumstance of aggravation that was an element of the offence. Whilst acknowledging that an "absence of other core behaviour or aggravating circumstances does not serve to mitigate the offence", his Honour noted that "there will be additional characteristics of this class of offence that will render it more objectively serious, for instance, the use of threats, reports of pain, some resulting physical injury, actions in degradation of the complainant over and above the sexual act itself". His Honour also referred to other facts that could elevate the objective seriousness of an offence to the level of mid-range or above mid-range.
In relation to the actions that constituted the circumstances of aggravation, namely the deprivation of liberty, his Honour found that when RM was on the bed, Mr Bussey said to her, "Are you going to keep fighting me?", and she said, "No". Mr Bussey then straddled RM's legs, with his legs outside hers and proceeded to pull her down the bed. Those actions were committed before the commencement of sexual penetration. Consistent with those factual findings, his Honour found that the element of aggravation "fell towards virtually the very lowest end of the range". The Crown contended that it is clear that any act of choking was not a factual circumstance that his Honour took into account when assessing the objective seriousness of the offence.
The Crown therefore submitted, in my view correctly, that in the circumstances of the present case, the "particular sexual experience" of Mr Bussey and RM was not a matter that was relevant to the assessment of objective seriousness. Mr Bussey and RM were not in a relationship. While RM may have previously consented to sexual activity of a particular nature, the jury's verdict established that she did not consent to the act of aggravated sexual intercourse that was charged as Count 3. It was Mr Bussey's case at trial that they had engaged in consensual sexual intercourse, initiated by RM. It was not his case that he was under the mistaken belief that he and RM were acting out a "mock rape scenario". Nor was it a case involving non-consensual continuation of consensual "rough sex". Given his Honour's findings regarding the alleged choking, it is clear that it was not taken into account as part of the circumstances of the offence either in aggravation or mitigation: the previous practices of Mr Bussey and RM were not used to provide context for any choking committed by Mr Bussey. It was only in relation to this issue that counsel for Mr Bussey referred to the relevance of the previous relationship when making submissions during the sentence proceedings.
As the Crown correctly observed, the existence of the prior relationship may have had some bearing upon Mr Bussey's state of mind with respect to the issue of consent. However, in this respect, it was taken into account by his Honour, most favourably to Mr Bussey, when his Honour concluded that he could not differentiate between whether Mr Bussey knew RM was not consenting or whether he was reckless as to her consent.
The Crown emphasised the fact that, in the sentence proceedings, the relationship that had existed between Mr Bussey and RM was relied upon by Mr Bussey on the question of what facts his Honour should find. There appears to have been no other reliance upon the former relationship for any other purpose. The Crown submitted that it is therefore difficult to see how his Honour erred as alleged in Ground 2: Zreika v R [2012] NSWCCA 33; (2012) 223 A Crim R 460 at [79]-[82].
The existence of the relationship had significance with respect to general deterrence. When a relationship has ended a party to that relationship should be protected from unwanted sexual advances from the other party.
The Crown submitted in accordance with recognised principles that an assessment of the objective seriousness of an offence is classically within the role of a sentencing judge and, as such, is a determination with which this Court will be slow to interfere: Mulato v R [2006] NSWCCA 282; Magro v R [2020] NSWCCA 25 at [29]. The Crown submitted that his Honour's finding that "the objective seriousness of this offending was in the low range and towards the top of the low range, but before the commencement of the mid-range of objective seriousness" was well open.
In my opinion, his Honour did not err in his approach to the sentence he imposed. His Honour appears on my assessment to have given Mr Bussey the benefit of all factors and findings that he was legitimately able to make. The sentence imposed upon Mr Bussey was not in the circumstances of this case infected by error. It is not unreasonable or plainly unjust.

Conclusion

In my opinion, the following orders should be made: 1. Grant leave to appeal against conviction. 2. Dismiss the appeal against conviction. 3. Grant leave to appeal against sentence. 4. Dismiss the appeal against sentence. 5. The applicant is to be taken into custody today.
BELLEW J: I have had the advantage of reading, in draft, the judgment of Harrison J. I agree with the orders that his Honour proposes, for the reasons his Honour has expressed.
I also specifically endorse his Honour's observations at [95]-[97].

Amendments 23 November 2020 - [84] Case citation corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 November 2020

Crimes (Sentencing and Procedure) Act 1999(NSW)s 5

Crimes Act 1900(NSW)ss 37(2), 61J(1), 61L

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