John Sgardelis v The Queen [2006] NSWCCA 338

New South Wales Court of Criminal Appeal

CITATION: John Sgardelis v The Queen [2006] NSWCCA 338 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 October 2006

JUDGMENT DATE: 24 October 2006

JUDGMENT OF: Sully J at 1; Adams J at 64; Howie J at 65

DECISION: Appeal allowed; Quash all of the appellant's convictions and sentences; Direct that a judgment and verdict of acquittal be entered upon each of the counts 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the indictment

LEGISLATION CITED: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW)

CASES CITED: R v Markuleski (2001) 52 NSWLR 82 MFA v The Queen [2002] 213 CLR 606

PARTIES: John Sgardelis The Queen

FILE NUMBER(S): CCA 2006/1407

COUNSEL: W. Dawe QC - Crown P. Byrne SC - Appellant

SOLICITORS: S. Kavanagh - Crown Justin Lewis & Co. - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 15/11/0405`

LOWER COURT JUDICIAL OFFICER: Murrell DCJ

LOWER COURT DATE OF DECISION: 16 June 2006

IN THE COURT OF CRIMINAL APPEAL 2006/1407

SULLY J ADAMS J HOWIE J

24 October 2006 John SGARDELIS v THE QUEEN Judgment

SULLY J:

INTRODUCTION 1 Between 12 October 2005 and 2 November 2005 the appellant, Mr. Sgardelis, stood trial in the District Court before her Honour Judge Murrell SC and a jury. He was so tried upon an indictment containing 13 counts. 2 Each of counts 1, 3, 4, 6, 8, 9, 11 and 12 alleged an act of sexual intercourse without consent. Such an offence contravenes section 61I of the Crimes Act 1900 (NSW) and attracts upon conviction a statutory maximum penalty of imprisonment for 14 years. 3 Each of counts 2, 5, 7 and 10 alleged an attempted act of sexual intercourse without consent. By reason of the combined effect of sections 61I and 344A of the Crimes Act any such offence attracts upon conviction a statutory maximum penalty of imprisonment for 14 years. 4 Count 13 alleged a detention with the intention of obtaining sexual gratification. Such an offence contravenes section 86(1)(b) of the Crimes Act, and it, too, attracts upon conviction a statutory maximum penalty of imprisonment for 14 years. 5 All of the 13 counts charged against the appellant were concerned with a common complainant, one R.W. 6 The jury acquitted the appellant on counts 1, 2, 3 and 4; and found him guilty on counts 5 to 13, both inclusive. On each of those 9 counts the appellant was formally convicted and he was sentenced to wholly concurrent sentences of imprisonment for a non-parole period of 2-1/2 years with a balance of term of 2-1/2 years. 7 The appellant challenges the 9 convictions upon the stated ground that the verdicts of guilty in respect of those 9 counts are "unreasonable". The gravamen of that challenge is that there is such an inconsistency between, on the one hand, the 4 verdicts of not guilty and, on the other hand, the 9 verdicts of guilty that the latter ought not to be allowed to stand. 8 There is no present challenge to the sentences and nothing further need be said about them.