Regina v Chonka [2000] NSWCCA 466

New South Wales Court of Criminal Appeal

CITATION : Regina v Chonka [2000] NSWCCA 466 FILE NUMBER(S) : CCA 60504/99 HEARING DATE(S) : 18/07/00 JUDGMENT DATE : 7 November 2000

PARTIES : REGINA Michael CHONKA (Appellant) JUDGMENT OF : Fitzgerald JA at 1; Smart AJ at 59; Ireland AJ at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0338 LOWER COURT JUDICIAL Twigg DCJ OFFICER :

COUNSEL : S J Odgers (Appellant) L M B Lamprati (Crown) SOLICITORS : T A Murphy (Appellant) S E O'Connor (Crown) CATCHWORDS : Criminal law - offences against the person - obscene phone calls - appeal against conviction - leave to appeal against sentence - whether the trial judge failed to properly direct the jury regarding the elements of the offences charged - whether the convictions were unreasonable and unsupported by the evidence DECISION : The appeal should be allowed and the convictions quashed. Verdicts of acquittal should be entered on counts 1, 4 and 8. New trial directed on counts 2, 3, 5, 6, and 9.

IN THE COURT OF CRIMINAL APPEAL CCA 60504/99 DC 98/11/0388 FITZGERALD JA SMART AJ IRELAND AJ TUESDAY 7 NOVEMBER 2000 REGINA v Michael CHONKA

JUDGMENT 1 FITZGERALD JA & IRELAND AJ: On 7 June 1999, the appellant was indicted before his Honour Judge Twigg QC at the Sydney District Court on the following charges:- 2 Count 1: For that he on 23 June 1997 at Sydney in the State of New South Wales did incite ASF, a person under the age of 10 years, namely 7 years of age, to an act of indecency with Michael Chonka. (Section 61O(2) Crimes Act, 1900 , maximum penalty 7 years imprisonment) 3 Count 2: Further, that he on 23 June 1997 at Sydney in the State of New South Wales did incite WSF, a person under the age of 16 years, namely 10 years of age, to an act of indecency with ASF. (Section 61N(1) Crimes Act, 1900 , maximum penalty 2 years imprisonment) 4 Count 3: Further, that he on 25 June 1997 at Sydney in the State of New South Wales did incite KP, a person above the age of 16 years, namely 18 years of age, to an act of indecency towards Michael Chonka. (Section 61N(2) Crimes Act, 1900 , maximum penalty 18 months imprisonment) 5 Count 4: On 6 July 1997 at Sydney in the State of New South Wales did incite JS, a person under the age of 10 years, namely 7 years of age, to an act of indecency with Michael Chonka. (Section 61O(2) Crimes Act, 1900 , maximum penalty 7 years imprisonment) 6 Count 5: On 6 July 1997 at Sydney in the State of New South Wales did incite JS, a person under the age of 10 years, namely 7 years of age, to an act of indecency with Arthur Stevens. (Section 61O(2) Crimes Act, 1900 , maximum penalty 7 years imprisonment) 7 Count 6: On 6 July 1997 at Sydney in the State of New South Wales did incite JS, a person under the age of 10 years, namely 7 years of age, to an act of indecency with Kerry Louanne Stevens. (Section 61O(2) Crimes Act, 1900 , maximum penalty 7 years imprisonment) 8 Count 7: On 6 July 1997 at Sydney in the State of New South Wales did incite CO, a person under the age of 10 years, namely 6 years of age, to an act of indecency with Michael Chonka. (Section 61O(2) Crimes Act, 1900 , maximum penalty 7 years imprisonment) 9 Count 8: On 6 July 1997 at Sydney in the State of New South Wales did incite WL, a person under the age of 10 years, namely 7 years of age, to an act of indecency with Michael Chonka. (Section 61O(2) Crimes Act, 1900 , maximum penalty 7 years imprisonment) 10 Count 9: On 6 July 1997 at Sydney in the State of New South Wales did incite JT, a person under the age of 10 years, namely 9 years of age, to an act of indecency with KNL. (Section 61O(2) Crimes Act, 1900 , maximum penalty 5 years imprisonment) 11 The appellant pleaded not guilty to each Count and was tried before his Honour and a jury of twelve. 12 A verdict of not guilty by direction was returned on Count 7. 13 On 21 June 1999, the jury returned with verdicts of guilty to Counts 1, 2, 3, 4, 5, 6, 8 and 9. 14 On 5 August 1999, the appellant was sentenced as follows:- 15 Count 2: Fixed term of 12 months imprisonment to commence on 5 August 1999 and to expire on 4 August 2000. 16 Count 3: Fixed term of 9 months imprisonment to commence on 5 August 1999 and to expire on 4 May 2000. 17 Counts 1, 4, 5, 6, 8 and 9: Minimum term of 2 years and 6 months imprisonment to commence on 5 August 1999 and to expire on 4 February 2002 with an additional term of 2 years and 6 months to commence on 5 February 2002 and to expire on 4 August 2004. 18 Subsections 61O(2), 61N(1) and 61N(2) are expressed in the following terms:- 61O … (2) Any person who commits an act of indecency with or towards a person under the age of 10 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 7 years.