Thornton v R

Court of Criminal Appeal (NSW)|2007-05-30|Before: Tobias JA, Latham J, Fullerton J

DECISION: (a) Appeal against conviction dismissed; (b) Grant leave to appeal against sentence; (c) Appeal against sentence allowed in part; (d) Quash the sentence imposed on Count 3 and in lieu impose a sentence of 10 years 6 months imprisonment to date from 14 March 2007, with a non-parole period of 7 years, expiring 13 March 2014. The appellant is eligible for release to parole on 14 March 2014

CATCHWORDS: CRIMINAL LAW - JURIES - Verdict - Whether inconsistent findings on chargers relating to simultaneous acts are unreasonable or unsupportable - Where "something additional" to complainant's evidence available for one charge but not the other - SENTENCE - "Special Cricumstances" - Principle of totality

Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 CASES CITED: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 R v Romano [2004] NSWCCA 380

PARTIES: Ronald James Thornton Regina

COUNSEL: A: J Conomos R: W Dawe QC

SOLICITORS: A: McGowan Lawyers R: S Kavanagh (Solicitor for Public Prosecution)

IN THE COURT OF CRIMINAL APPEAL CCAP 2006/584 DC 03/21/3160

TOBIAS JA LATHAM J FULLERTON J

Thursday 21 June 2007 RONALD JAMES THORNTON v REGINA Judgment 1 THE COURT: On 7 March 2005 the appellant was indicted before his Honour Judge Goldring and a jury of 12 in the Campbelltown District Court on the following charges relating to offences committed in the early hours of 11 January 2003: (a) One count of enter dwelling with intent to commit a serious indictable offence, namely, sexual intercourse without consent contrary to s 111(1) of the Crimes Act 1900 (Count 1); (b) Fourteen counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (Counts 2, 4-10, 12-17); (c) One count of attempt to choke with intent to commit a serious indictable offence, namely, sexual intercourse without consent contrary to s 37 of the Crimes Act 1900 (Count 3); (d) One count of attempt sexual intercourse without consent contrary to ss 61I and 344A of the Crimes Act 900 (Count 11); and (e) One count of indecent assault contrary to s 61L of the Crimes Act 1900 (Count 18). 2 The appellant pleaded not guilty to each count. On 14 March 2005 the jury returned verdicts of guilty on all counts other than Counts 5, 7, 10 and 14, all of which charged the appellant with sexual intercourse without consent. It follows that the jury returned a verdict of guilty on ten of the fourteen counts charging that offence. Of those ten charges, two (Counts 8 and 15) were particularised as the act of cunnilingus and two (Counts 12 and 16) as the act of fellatio. The remaining six counts of sexual intercourse without consent in respect of which the jury returned a verdict of guilty (Counts 2, 4, 6, 9, 13 and 17) were particularised as the act of the appellant digitally penetrating the complainant's vagina. Of the four counts in respect of which the jury returned a verdict of not guilty (Counts 5, 7, 10 and 14), each was particularised as the act of the appellant digitally penetrating the complainant's anus. 3 Of particular significance to the issue raised on the appeal is that Counts 4 and 5, 6 and 7, 9 and 10, 13 and 14 could be said to have arisen out of the same incidents in that Counts 4, 6, 9 and 13 (upon each of which the appellant was found guilty) related to the appellant's digital penetration of the complainant's vagina and were simultaneous to Counts 5, 7, 10 and 14 (upon each of which the appellant was found not guilty) of alleged digital penetration of the complainant's anus. In other words, Counts 4, 5, 6, 7, 9, 10, 13 and 14 alleged the appellant's simultaneous digital penetration of the complainant's vagina and anus. 4 On 6 September 2005 the appellant was sentenced by the primary judge to the following terms of imprisonment: (a) On the charge of enter dwelling with intent (Count 1) to a non-parole period of 5 years commencing 14 March 2005 and expiring on 13 March 2010, a total term of 6 years and 3 months expiring on 13 June 2011; (b) On each of the ten charges of sexual intercourse without consent (Counts 2, 4, 6, 8, 9, 12, 13, 15, 16 and 17) and the charge of attempted sexual intercourse without consent (Count 11), to a non-parole period of 7 years commencing 14 March 2006 and expiring on 13 March 2013, a total term of 8 years 9 months expiring on 13 December 2014; (c) On the charge of indecent assault (Count 18), to a fixed term of 3 years and 6 months commencing on 14 March 2006 and expiring on 13 September 2009; (d) On the charge of attempting to choke (Count 3), to a non-parole period of 8 years commencing 14 March 2007 and expiring 13 March 2015, a total term of 10 years and 6 months expiring on 13 September 2017. 5 His Honour found special circumstances arose from the accumulation of sentences and the principle of totality allowing a variation in the statutory proportion between the non-parole period and the total sentence. The resultant overall sentence of imprisonment was one of 12½ years with a non-parole period of 10 years. The appellant appeals against his conviction and seeks leave of this Court to appeal against the alleged severity of his sentence.

The appeal against conviction 6 The only ground of appeal ultimately advanced by the appellant against his conviction was that the jury's verdicts were inconsistent insofar as he was found to be not guilty on those counts which charged him with sexual intercourse without consent, particularised as the digital penetration of the complainant's anus, simultaneously with those charges upon which he was found guilty of the same offence, particularised as his digital penetration of the complainant's vagina. It was therefore submitted that the verdicts of guilty on 14 out of the 18 charges were unsafe and unsatisfactory, as logically they could not stand with the not guilty verdicts on the remaining four charges. 7 Accordingly, the appellant submitted that the verdicts of guilty should be set aside pursuant to s 6(1) of the Criminal Appeal Act 1912 on the grounds that they were unreasonable or could not be supported. 8 The appropriate test for determining whether a verdict is unreasonable or unsupportable within the meaning of s 6(1) of the Criminal Appeal Act 1912, was authoritatively stated by the High Court in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at 614 [25] and 634 [97]. In so doing the justices accepted that that test was as formulated in the following terms by the majority of the High Court in M v The Queen (1994) 181 CLR 487 at 493 (and applied by that Court in Jones v The Queen (1997) 191 CLR 439 at 452): "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, the court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." 9 In MFA the High Court approved a number of principles enunciated in MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 at 366-368 in respect of the application of the test in circumstances where the unreasonableness is said to lie in factually inconsistent verdicts of the jury. Thus, Gleeson CJ, Hayne and Callinan JJ stated the following (at 617 [34]): "Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie . They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman , and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only . And there may be an interaction between this consideration and the two matters earlier discussed." (Emphasis added) 10 Their Honours then went on (at 617-618 [35]) to reject as erroneous the proposition that where multiple offences are alleged involving the one complainant then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. Their Honours thus emphasised (at 618 [36]) that the test established by s 6(1) of the Criminal Appeal Act 1912 is unreasonableness, not inconsistency. 11 In their joint judgment in MFA, McHugh, Gummow and Kirby JJ also referred to the principles in MacKenzie noting that the instant case was not one of "legal technical inconsistency" or where "logic and reasonableness" necessarily dictated a common approach to the several verdicts concerned. At 630-631 [85] they continued in these terms: "In judging suggested inconsistency, this Court said in MacKenzie that 'if 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'. The Court cited with approval the remarks of King CJ in R v Kirkman to the effect that juries may not always act 'in accordance with strictly logical considerations' or even 'in accordance with the strict principles of the law which are explained to them'. Juries sometimes give effect to 'their innate sense of fairness and justice' as well as to their sense of proportion and compassion." 12 Their Honours acknowledged (at 631 [86]) that cases did arise where different verdicts returned by a jury represent "an affront to logic and common sense" and suggested a compromise in the performance of the jury's duty. However, for the reasons to which we shall refer, we do not consider that the jury's conviction of the appellant on Count 1 can be described this way. We will also explain why we consider that the jury's acquittal of the appellant on Counts 5,7,10 and 14 was not necessarily related to any disbelief of the complainant's evidence. So far as the other counts on which the appellant was found guilty are concerned, as we will demonstrate, the remarks of the Gleeson CJ, Hayne and Callinan JJ which we have emphasised in [9] above are apposite to the present case. 13 Relevant also to the test of whether a jury verdict is "unreasonable, or cannot be supported" within the meaning of s 6(1) of the Criminal Appeal Act is the following passage from the joint judgment of the High Court in M (at 494): "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." 14 The appellant relied in particular upon the following passages from the judgment of McHugh J in Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at 357-358 [120]-[122]: "When there is no legal and technical inconsistency in the verdicts, a conviction can only be set aside where the inconsistency in the verdicts demonstrates that no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts. In such a case, the Court of Criminal Appeal sets aside the conviction because it is unsafe or unsatisfactory. In determining whether the inconsistency points to an unsatisfactory conviction, the appellate Court must consider the evidence, the issues and the directions which the jury were given … an examination of the directions, issues and evidence may confirm that apparently inconsistent verdicts are in fact inconsistent and demonstrate that the conviction is unsafe. Just as frequently, however, examination of the issues evidence and directions may show that apparently inconsistent verdicts are not inconsistent and that there has been no failure in the reasoning process of the jury." 15 The appellant submitted that the inconsistency between the verdicts of guilty on the charges of sexual intercourse without consent particularised as the digital penetration of the complainant's vagina, were so inconsistent with the verdicts of not guilty on the same charges particularised as the simultaneous digital penetration of the claimant's anus as to demonstrate that no reasonable jury, in applying their minds to the evidence, could have arrived at such different verdicts. This was so, it was contended, given that both the Crown and the defence had conducted the trial upon the basis that the Crown's case was, to all intents and purposes, totally reliant upon the jury's acceptance of the reliability and credibility of the complainant's evidence which could not stand if the appellant's evidence was accepted or the jury thought it reasonably capable of acceptance. This was because the appellant's case, in which he acknowledged that he was in the complainant's house for some 10 minutes but during which she consensually performed fellatio on him, was totally at odds with the complainant's evidence that the appellant broke into her house and assaulted her both physically and sexually in the manner particularised in the 18 counts over a period of two to three hours. Their versions were diametrically opposed. There was no room for mistake. 16 Furthermore, the appellant submitted that as the trial judge had directed the jury in accordance with R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at 121-122 (known as a Markuleski direction), it was illogical for the jury to have accepted as truthful the evidence of the complainant on the counts upon which the appellant was found guilty but to have rejected as truthful her evidence on the four counts upon which he was found not guilty. Of course, this submission assumes (wrongly as we will demonstrate) that the jury's verdict of not guilty on those four counts is rationally inexplicable except on the basis that the jury had rejected the complainant's evidence relating to them as credible or truthful. 17 Thus, from the appellant's point of view, the high point of the trial judge's summing up was as follows (S/U -28-29): "One other thing I should tell you is here there are eighteen counts and the evidence of [the complainant] is crucial in respect of each of them. You must scrutinise and examine it very carefully before you find Mr Thornton guilty because, as I have said to you, it is the only evidence in relation to a number of matters that the Crown must prove beyond reasonable doubt before you can be satisfied of the essential ingredients of the charge. I have told you at the beginning of the trial that you must consider each of the charges separately, and you must do that. If you are not satisfied beyond reasonable doubt that [the complainant's] evidence is reliable in respect of an essential ingredient of any one of the charges of sexual intercourse without consent, then you may find that it is unreliable in respect of the essential ingredients or one or more of the other charges. It is a matter for you. It may be difficult for you to see how in the circumstances of this case you could not be satisfied beyond reasonable doubt in respect of one charge and yet accept it in respect of the others." 18 The appellant pointed to the complainant's evidence relating to each of the counts which alleged simultaneous digital penetration of her vagina and anus. The relevant exchanges were in the complainant's evidence in chief. Her evidence relating to Counts 4 and 5 was as follows: "Q. When he did that, what position were you in? A. By this stage I'd pulled my legs up in front of me so I was sort of still crouched on the floor but he was able to put his hand out and have it inside me and he still had a hand over my mouth. Q. Was he in front of you or behind you? A. he was more to the side of me. Q. Was he standing or -- A. No he was crouching down. Q. And he had a hand over your mouth? A. He had one hand over my mouth. Q. And the other hand? A. The other hand he managed to get inside my pants. Q. Then you said he took you around the throat? A. Yes, because when he put his hand in my vagina I jumped with upset the whole thing and I was still trying to scream and put his finger around my throat and I was just found really trouble - I couldn't breathe, I was gasping for air. I said 'Don't do this, I'm a mother' and that was the last thing that I remember saying. Q. Why is that, that's your last memory? A. Because I must have passed out because when I came too I was in a completely different position. Q. Which position were you in when you came to? A. My head was facing the front door and my body was along, beside the TV unit. So I was lying like this and the TV was on that side of me. … Q. Looking at the plan, where was your head and where were your feet? A. My head was near the word (sic) past TV and my feet were down past the unit. Q. So your head up, legs down? A. Mm. Q. As shown here, and was Mr Thornton still there when you came to? A. Yes, he was crouched over me and he had his finger in my vagina and in my anus. Q. At the same time? A. Yes. Q. Did he say anything to you whilst he was doing that? A. 'If you don't do as you are told you may not wake up'. I can't remember the exact words, I just remember him saying 'next time you might not wake up'. Q. How long did he have his fingers in your vagina and your anus? A. While he was talking to me I noted that he had no pressure on me so I pulled my legs up towards me." 19 The complainant's evidence with respect to Counts 6 and 7 was as follows: "Q. You told us that he - you came to, to find that his fingers were inside your vagina and your anus, did that happen again after your track suit pants came off? A. Yes, he put his finger back in there again when I had pulled my legs up. I pulled my legs up and I remember him grabbing my leg and pulling it back out and that's when my pants come off me. I remember him putting his finger in me again. Q. Into your vagina and your anus? A. Yes, and I pulled away, he then spread my legs and started to lick me, I started citing off the Our Father." 20 As to the complainant's evidence with respect to Counts 9 and 10, the relevant exchange was as follows: "Q. You said he started to lick you, where did he lick you? A. In my vagina. Q. You started praying? A. Yes. He told me that wouldn't help me. Q. Did you say anything to him about sex? A. I hate sex, why do you think my husband left me. Q. You told him 'you hate sex'? A. I was trying everything to get him to go away. He said 'I'm not going anywhere until you come'. Q. Did he put his fingers in your vagina and anus again after he licked you? A. Yes. Q. Where were you when he did it again? A. I'd moved closer, I was not at any angle, my head was probably more closer to the second lounge chair and I was getting closer to the lounge. Q. So that's the third time he did it? A. Yes. Q. That is put his fingers in your vagina and anus? A. Mm." 21 Finally, the following was the complainant's evidence in support of Counts 13 and 14: "Q. What did he do then? A. I said 'No you've got children', he then pulled me down again and put his fingers in my anus and vagina, I wriggled, he then - he licked me again because I remember citing off the 'Our Father' and getting it all - I said the whole 'Our Father' because I was about to start it again when I realised there was no more pressure on me. And I moved, I moved - pulled myself away. Q. You told us there was an earlier point at which his penis was making contact with your vagina? A. Yes. Q. Did his penis make contact with any part of you? A. He - when he realised that he wasn't - couldn't put it in - he didn't put it inside me, he said 'You can suck it'. Q. And what happened then? A. I told him I'd bite it off and he said 'No you won't' and he put his thumb to my throat and held me and he stuck it in my mouth. Q. His penis. For how long was his penis in your mouth? A. I don't know how long. Q. You mentioned a moment ago in evidence that there was a fourth occasion he put his fingers in your vagina and anus? A. Uh huh. Q. Was that fourth occasion before or after he placed his penis in your mouth? A. It was before." 22 The complainant was not cross-examined on this evidence in that it was never put to her, for instance, that the appellant only digitally penetrated her vagina and not her anus. Of course, since the appellant denied that he had penetrated her at all, it was not surprising there was no cross-examination of this kind. 23 After the appellant had left the complainant's house she immediately complained to a number of persons that she had just been raped by the appellant. One of those complaints was made to a Ms Taplin, who was a Senior Police Constable and with whom she had a conversation at 6am on the morning of 11 January 2003. Ms Taplin made notes of the conversation immediately after it. They relevantly recorded that the complaint said "He didn't penetrate me, he just put his finger in." In another part of the conversation, the complainant is recorded as having said to Ms Taplin: "I said to him [the appellant], when he had his fingers in, can't you come by doing that, because I was so angry, and that's when he came all over me."

She also called 000 at 6.13am informing the police operator that: "…he kept fingering me, both holes." 24 When the police arrived between 6am and 6.30am, she was asked whether she was injured. She replied: "He didn't go inside me except with his fingers."

According to the admitted statement of the ambulance officer who attended the complainant at 6.29am, the complainant said "that he had penetrated her vagina and anus with his fingers and had attempted to perform oral sex." 25 The point made by the appellant with respect to the evidence which we have recorded above was that it left no room for the jury to find that the complainant had made a mistake when she swore that the appellant had on four occasions digitally penetrated her anus. This being so, it was submitted that the jury must therefore have disbelieved the complainant's evidence with respect to those four counts. If it had, it must also have had at least a reasonable doubt as to the credibility of her evidence generally and, in particular, with respect to the offences alleged in the other 14 counts. 26 However, as against that possibility is the evidence of Dr Spencer who, on 11 January 2003, was employed at the Liverpool/Fairfield Sexual Service and who examined the complainant on her admission to the Liverpool Sexual Assault Centre at about 9.30am. She gave detailed evidence of the emotional state of the complainant and of the injuries allegedly inflicted upon her during the course of her struggles with the appellant. Relevant to the present issue, she referred to her examination of the complainant to detect the presence of any tenderness, saying that she was able to ascertain the presence of tenderness when the patient reacted to the application of force. In the course of her evidence in chief, the following exchange occurred: "Q. Did you examine the genital area of [the complainant]? A. There was no evidence of any - there was only tenderness, there were no acute lesions in the genital area. Q. What do you mean by 'acute lesions'? A. Any superficial abrasions or any bleeding or any rupture of the skin in any area. Q. But were you able to form the opinion that she was tender in that area, is that right? A. Well again you know when I was examining her she was moving as if it was hurting. Q. Did you make an examination of her anus? A. There was no evidence of any acute lesions in that area at all. Q. Again no tearing or bleeding or anything like that? A. No, nothing like that, it was all normal." 27 In cross-examination, the following exchange took place: "Q. You examined [the complainant's] genital area is that right? A. That's true. Q. And that is typically done during the course of sexual assault allegation examination is that right? A. That's right, yes. Q. And indeed the sexual assault kit requires you to go through that process does it not? A. That's right yes. Q. There [w]as a complaint of tenderness to her vaginal area, is that right? A. Yes. Q. But you saw no damage whatsoever? A. No. Q. You observed no damage whatsoever in relation to her anal area, is that right? A. No. Q. No reddening? A. No. Q. No erythema? A. No. Q. No fissures? A. No. Q. Which are small cracks? A. No, nothing. Q. Or small tears is that right? A. Nothing. Q. No bruising? A. No. Q. And certainly no bruising to vaginal area is that right? A. No." 28 What is of particular significance in the evidence of Dr Spencer is that she found tenderness in the complainant's genital or vagina area, but did not suggest that any tenderness was present in her anal area. That fact would, in our opinion, have justified the jury in declining to find the appellant guilty on the four counts relating to the alleged digital penetration of the complainant's anus, not because she was mistaken in her evidence as to what the appellant was doing to her, but because, notwithstanding that they considered that the complainant was telling the truth, they required (to adopt the observations in the joint judgment of Gleeson CJ, Hayne and Callinan JJ in MFA which I have emphasised in [9] above) something additional before reaching a conclusion beyond reasonable doubt. That "something additional" was corroborative evidence from Dr Spencer as the complainant's examining medical officer. 29 In this respect Dr Spencer's evidence of tenderness in the complainant's genital or vaginal area was supportive of her vagina having been subjected to digital penetration on six occasions, whereas her evidence with respect to the physical injuries visible upon examination of the complainant's person was supportive of Count 3 which charged the appellant with attempting to choke the complainant. The fact that the jury also found the appellant guilty of the charges preferred in Counts 8, 11, 12, 15 and 16 (fellatio and cunnilingus and attempted sexual intercourse), none of which would have manifested itself in any physical signs on the complainant's person, was indicative of the fact that the jury considered the complainant generally to be a witness of truth, that is, she was not lying when she claimed to have been sexually assaulted by the appellant on multiple occasions over several hours.. 30 It is also of some relevance that in his final address to the jury, the learned Crown Prosecutor when dealing with the injuries sustained by the complainant as described in Dr Spencer's evidence, particularly in the context of Count 3 which alleged an attempt to choke the complainant, made the following statement to the jury: "It might have been a bruise depending on how long she was held around the throat. But she was held for long enough to faint and the mark is there to prove it. Perhaps it will be suggested to you and I detected this during the cross-examination of Dr Spencer, 'Well there is no tearing or bleeding to her vagina or anus'. Well you have heard what it was that Mr Thornton did to her and you will remember that Dr Spencer when she examined [the complainant] found that there was tenderness to the vaginal area . The [complainant] isn't saying to you 'He raped me by inserting his penis into my vagina'. She is not walking into the witness box and telling you that. She's telling you that it was with his fingers. That's bad enough. …" (Emphasis added) 31 This is the only passage in the Crown Prosecutor's address that specifically referred to the detail of the digital penetration counts. It will be noted that he confined his remarks to the complainant's vaginal area where Dr Spencer detected tenderness. The jury may well have considered that it was the digital penetration of the complainant's vagina which was the gravamen of the appellant's conduct rather than the simultaneous digital penetration of her anus that did not, as far as the evidence went, produce any tenderness in that area. 32 As we have observed, the appellant submitted that on the basis of the manner in which the trial was conducted and in the absence of any room for mistake on the part of the complainant, there could be no explanation for the four not guilty verdicts other than that the jury found the complainant's evidence unreliable. Accordingly, they could not have logically found her evidence unreliable on the four counts upon which they returned a verdict of not guilty without finding her evidence generally unreliable with respect to the counts upon which they found the appellant guilty. 33 In our opinion the proposition encapsulated in the above submission is far too broad a generalisation as to attract acceptance. In particular, it fails to take account of the following factors:

(a) With respect to the digital penetration counts, those alleging digital penetration of the complainant's vagina were corroborated by the objective evidence of tenderness in that area given by Dr Spencer, whereas there was no objective evidence of tenderness with respect to the complainant's anal area;

(b) The jury may therefore have required something additional before reaching a conclusion upon the counts alleging digital penetration of the complainant's anus over and above their general acceptance of the complainant's evidence;

(c) Given that the four counts upon which the jury found the appellant not guilty related to alleged digital penetration of the complainant's anus simultaneous with digital penetration of her vagina, the jury may well have considered that justice was met by convicting the appellant of the vaginal penetration counts and not the simultaneous anal penetration counts. 34 It is true that a reading of the complainant's evidence set out above indicates that she was precise in the detailed manner in which she recounted the various acts of the appellant upon her. Moreover, she did not falter under cross-examination. But as the High Court in the passages to which we have referred above has made patently clear, there are many factors which might cause a jury where there is a multiplicity of offences charged to draw back from reaching a conclusion beyond reasonable doubt in relation to some counts which simply reflects the cautious approach by the jury to the discharge of its responsibilities and which in no way reflects upon their view, evidenced by their findings of guilty on other counts, that the complainant was both a truthful and reliable witness. 35 Equally, notwithstanding the trial judge's Markuleski direction, the jury were not bound to reject the whole of the complainant's evidence merely because in respect of the anal digital penetration counts they were not satisfied beyond reasonable doubt that the appellant was guilty of them. 36 Thus there were a number of rational bases upon which the jury could find the appellant not guilty of those counts and yet find him guilty of the balance of the charges preferred against him. It follows that no proper basis has been demonstrated that would justify the setting aside of all (and not just some) of the guilty verdicts on the ground that they were unreasonable or cannot be supported within the meaning of s 6(11) of the Criminal Appeal Act. We would therefore reject the appellant's challenge to his conviction and dismiss the appeal with respect thereto.

The appeal against sentence 37 The appellant's appeal against the severity of the sentence imposed upon him was ultimately confined to the aggregate non-parole period and the aggregate head sentence. A number of subjective features were highlighted by the written submissions in support of this ground, namely, the appellant's age at the time of sentence (40), the fact that he had the care and custody of his two young children and was by all accounts a loving and responsible father, the fact that he had and no convictions for sexual offences and had not offended at all since August 1997, the fact that he was in employment and the fact that the offences occurred "as part of a single episode of activity". 38 There is nothing to suggest that his Honour overlooked any part of the appellant's subjective case. The "single episode of activity" was accepted by the jury and his Honour to have extended over a period of two to three hours. His Honour rightly remarked that "this was a vicious, violent series of offences which degraded the victim and caused her serious and permanent harm". There was no remorse and nothing in the way of mitigating circumstances. 39 However, his Honour's approach to the question of special circumstances is not altogether clear from the remarks on sentence. He said: "I do not understand Mr Conomos who appeared on the last occasion to have urged on me that apart from the requirements of the principle of totality there are any special circumstances in this case which warrant the fixing of longer additional term after the completion of the non-parole periods in respect of any of the sentences for these offences, and indeed I can find no special circumstances other than the requirement of totality as set out by the CCA in the case of Romano and similar cases. The non-parole period will therefore be at a statutory relationship to the total term except where the principle of totality applies a different ratio ." (Emphasis added) 40 It would appear from the portion of the remarks set out in bold above that his Honour intended each of the individual sentences to reflect the statutory proportion, but that the partial accumulation of those sentences would result in the alteration of that proportion, consistent with a finding of special circumstances on that basis. His honour's reference to R v Romano [2004] NSWCCA 380 (incidentally, an appeal against the severity of an accumulated sentence imposed by his Honour) is consistent with that meaning, as the following extract from the judgment of Adams J (at [31]) makes clear: "The accumulation of sentences should have been a matter that established special circumstances, if only to ensure that Romano would be eligible for parole after he had served 75 per cent of the total effective sentence. This sentence is thirteen years and nine months. There is no reason to suppose that enabling Romano to be released on parole after he had served 75 per cent of his sentence would lead to an inappropriately short period of imprisonment. Accordingly (assuming the total effective head sentence to be correct), he should have been eligible for parole after a little over ten years and three months, rather than the eleven years which Goldring DCJ imposed. In this respect, the attack on the non-parole period has been made good." 41 His Honour then proceeded to sentence the appellant on each individual offence. On Count 1, the non-parole period imposed was four months more than the statutory proportion. On Counts 2, 3, 4, 6, 8, 9, 12, 13, 15, 16 and 17 the non-parole period imposed was slightly les than the statutory proportion. When his Honour came to accumulate these sentences, despite his stated intention to find special circumstances, the aggregate non-parole period represented 80% of the aggregate head sentence. 42 Accordingly, some adjustment ought to be made to carry into effect the finding of special circumstances. That said, the criminality of the sustained and brutal assault upon the complainant in the sanctity of her own home warrants, in our view, nothing less than an aggregate non-parole period of 9 years. To achieve this outcome we would quash the sentence on Count 3 and impose in lieu thereof a sentence of 10 years and 6 months imprisonment, with a non-parole period of 7 years. 43 Accordingly, the orders of the Court are: (a) Appeal against conviction dismissed. (b) Grant leave to appeal against sentence. (c) Appeal against sentence allowed in part. (d) Quash the sentence imposed on Count 3 and in lieu impose a sentence of 10 years 6 months imprisonment to date from 14 March 2007, with a non-parole period of 7 years, expiring 13 March 2014. The appellant is eligible for release to parole on 14 March 2014.

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