Benson v The Queen

[2016] NSWCCA 267

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Benson v R [2016] NSWCCA 267
Hearing dates:	18 November 2016
Date of orders:	30 November 2016
Decision date:	30 November 2016
Before:	Hoeben CJ at CL at [1]; Payne JA at [2]; Button J at [35].
Decision:	(1)   Leave to appeal against sentence granted; (2)   Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence –wounding with intent to cause grievous bodily harm –whether sentencing judge made House v The King errors in her factual findings – where parties presented two irreconcilable accounts of the critical facts – no error shown – appeal dismissed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Part 4 Division 1A Crimes Act 1900 (NSW) s 33 Criminal Appeal Act 1912 (NSW) s 5
Cases Cited:	Betts v The Queen (2016) 90 ALJR 758; [2016] HCA 25 House v The King (1936) 55 CLR 499 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 R v Edwards [2009] SASC 233
Category:	Principal judgment
Parties:	Audette Amy Therese Benson (appellant) The Crown (respondent)
Representation:	Counsel: A Bellanto QC (appellant) N Williams / Stewart (respondent)   Solicitors: Beazley Boorman Lawyers (appellant) Solicitor for Public Prosecutions (respondent)
File Number(s):	2014/5286
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 18 September 2015 Before: Huggett DCJ File Number(s): 2014/5286

Judgment

1. HOEBEN CJ at CL: I agree with Payne JA.

2. PAYNE JA: The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed upon her by Huggett DCJ in the District Court at Sydney on 18 September 2015.

3. The applicant was charged with the offence of wounding with intent to cause grievous bodily harm contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty for the offence is 25 years imprisonment. A standard non-parole period of 7 years applies: Crimes (Sentencing Procedure) Act 1999 (NSW) Part 4 Division 1A.

4. The applicant pleaded not guilty. She was found guilty and sentenced to a non-parole period of 3 years imprisonment to date from 18 September 2015 (the date of sentence) with a balance of term of 2 years and 6 months.

5. The offence involved the applicant stabbing her former husband, Mr Robertson. There was no factual dispute that the applicant stabbed Mr Robertson. The critical question at trial was whether she was acting in self-defence when she did so.

6. The applicant and Mr Robertson gave factual accounts that were starkly different.

1. Mr Robertson gave evidence that he had attended the applicant’s home to pick up a car borrowed by his son. The applicant told him that the swimming pool was in need of attention and Mr Robertson offered to assist, which offer the applicant accepted. Mr Robertson was on his hands and knees reaching into the pool when the applicant stabbed him in his torso from below with a kitchen knife having a blade of 17 cm. Mr Robertson fell into the swimming pool, climbed out, picked up a long aluminium pole (the pool scoop) and swung it at the applicant, striking her only once as she walked away. The applicant fell down the stairs leading to the pool and suffered various injuries as a result. A neighbour heard Mr Robertson’s cries for help and came over. An ambulance was called and Mr Robertson was taken to hospital where he underwent two life-saving operations.

2. The applicant gave evidence on sentence that she was in the kitchen when she saw Mr Robertson standing by the pool. They had a violent argument and she asked him to leave. Mr Robertson poked her forcefully in the sternum three times and the applicant pushed her hand away which he grabbed and bent her fingers back. She pushed Mr Robertson into the pool. He climbed out and picked up the pool scoop. The applicant turned to walk away and was struck from behind by the pool scoop to the back of the head. She turned and was struck again more than three times, including to the forehead. She ran into the kitchen (25-30 metres away), picked up a knife and returned to the pool. She feared for her safety and did not want the confrontation to move into the house. She again asked Mr Robertson to leave and he struck her again. She fell backwards onto the steps and he stood over her and raised the pole again. At this point she stabbed him in his lower abdomen.

Remarks on sentence

7. The issue in the trial was self-defence. The effect of the jury’s finding of guilt was consistent with either:

1. the applicant having stabbed Mr Robertson with the necessary intent and not acting in self-defence; or

2. the applicant having stabbed Mr Robertson with the necessary intent and acting in self-defence, but such self-defence being excessive.

8. After hearing detailed evidence and submissions the primary judge ultimately found:

The matters I have referred to individually and collectively refute the offender’s evidence and support the truthfulness of Quentin Robertson’s evidence. Having carefully considered all of the evidence elicited during the trial and all of the submissions of the parties I am satisfied beyond reasonable doubt that the offender with the knife secreted likely in the back of her pants went to the front of the house and spoke to Quentin Robertson about the condition of the pool and that he offered to look at the pool and thereafter he and the offender walked along the eastern pathway to the backyard.

I am satisfied beyond reasonable doubt that the offender stabbed Quentin Robertson when he was on his hands and knees side on to the pool. I am satisfied beyond reasonable doubt that Quentin Robertson neither verbally nor physically assaulted the offender at all before he was stabbed.

There was no provocation that morning, nor was she acting in self-defence. I am satisfied beyond reasonable doubt that Quentin Robertson struck the offender with the pole he was holding only after he had been stabbed by her and she was advancing towards him. ... (italics added)

9. Her Honour’s ultimate conclusion was based upon a large number of careful and detailed intermediate findings of fact. Her Honour was faced with two irreconcilable accounts of the critical facts. Her Honour resolved the matter after hearing evidence and observing the principal players give evidence. The most important of her Honour’s intermediate findings of fact were as follows:

1. Mr Robertson had (post-separation) attended the family home without the applicant’s permission and without providing any advance notice. He accepted that after moving out of the home he had returned on occasions without the applicant’s knowledge and taken personal effects and paperwork. He agreed that when the applicant discovered he had done this she made it clear to him she did not wish it to occur without her permission. By early 2013 Mr Robertson knew that the applicant did not want him to come to the property without her knowledge and he believed it was no longer appropriate to do so.

2. On 6 January 2014 (the day of the stabbing) Mr Robertson was dressed for work and was commencing a new contract position in the City. His partner dropped him at the former marital home at about 9 am. Prior to dropping him she heard Mr Robertson speak only to his son, Duncan. The applicant left his briefcase at the front of the property. Her Honour found that Mr Robertson left his briefcase where he did because the applicant had spoken to him about the pool and he was expecting his visit to the pool to be a brief one after which he intended to get into his car and drive to his new position in the City.

3. The primary judge found that it was implausible that Mr Robertson would elect of his own volition to go to the backyard to inspect the condition of the pool on his way to work on the morning of the first day of a new job. Mr Robertson knew that the applicant did not wish him to enter the property without her permission and he had not done so since early 2013, almost a year earlier. Her Honour found that the applicant’s evidence that she first saw Mr Robertson at the pool when she was making breakfast in the kitchen does not sit at all comfortably with other aspects of the evidence, including the applicant’s own evidence.

4. The applicant’s evidence was that she received a call regarding the car key, after which she placed the key outside and went upstairs to have a shower and get dressed. She stated that she subsequently went downstairs to prepare breakfast and it was then that she first saw Mr Robertson by the pool. Her Honour found that the applicant’s evidence was inconsistent with the timing based on independent contemporaneous documents being telephone records of the initial call by Mr Robertson to the applicant (at 9 am) and a triple-0 message (at 9:14 am). Her Honour found that the 14 minute time period was consistent with the events described by Mr Robertson but not as described by the applicant. On the applicant’s account in 14 minutes she went upstairs, showered, changed, came downstairs, began preparing breakfast, went outside, had a lengthy verbal and physical confrontation with Mr Robertson, went back inside and obtained a knife, then went back outside and had a second verbal and physical confrontation with her former husband which led to Mr Robertson being stabbed. Her Honour found that it was implausible that this would occur in the approximately 14 minutes the independent contemporaneous evidence described.

5. Her Honour found the evidence of the neighbour, Mr Wilkin, to be important. Mr Wilkin was in his living room in the property adjoining of the applicant’s property. Mr Wilkin heard a male voice yell out several times “help”. After determining that the cry was coming from next door he ran to the backyard and saw Mr Robertson standing inside the pool enclosure holding a pool cleaner and the applicant on the grass area that leads to the pool. Mr Wilkin denied that Mr Robertson appeared angry. Mr Robertson said “she stabbed me”. The applicant said nothing. During the telephone call to triple-0 that Mr Wilkin made he heard Mr Robertson say “be careful she’s … she’s got a knife in the back of her pants”. The applicant said “it’s not true”. A few minutes later the applicant left and returned and threw a towel towards Mr Robertson. Her Honour found that the only voice Mr Wilkin heard that morning was a male voice calling for help. He did not hear any of the hostile conversations the applicant alleged took place prior to the stabbing.

6. Her Honour accepted that Mr Wilkin stated he could not generally hear conversations in the neighbouring property when his windows were closed as they were that day. Her Honour found, however that he did hear Mr Robertson calling for help yet heard none of the loud shouted statements purportedly made by Mr Robertson if the applicant’s version were correct. Her Honour found that if in fact Mr Robertson had delivered the sustained brutal assault the applicant asserted it was reasonable to expect that she would have called out herself for help, screamed or called in pain; and likewise it was reasonable to expect that she would have told Mr Wilkin what Mr Robertson had done when he said “she stabbed me”. The applicant’s evidence was that she remained silent as it was not appropriate to say anything and her primary focus was on Mr Robertson’s wound. Her Honour found this evidence was “disingenuous”. Her Honour concluded that even accepting the degree of shock, fear or pain the applicant described, at the time Mr Wilkin arrived in her backyard, had the events occurred as described by the applicant she would have said something to Mr Wilkin. Equally Mr Wilkin’s description of the applicant as disoriented is of no moment as her appearance would be expected given she had just stabbed her former husband. Her Honour described the essence of the applicant’s account as being that she had been the victim of a barrage of verbal abuse and physical brutality by a man who was stronger than her. She escaped him by running inside the house for safety. On her account, once there, rather than calling triple-0 or seeking help in any other way she armed herself with a kitchen knife. She then ascertained that Mr Robertson was some 30 m away by the pool. He was not advancing towards the house at all nor issuing any verbal threats. Despite this, the applicant returned to the pool area to tell him to leave. That is in circumstances where, on her account, she had only a short time earlier demanded that Mr Robertson leave and he had responded by physically assaulting her. The primary judge said she found it “entirely unconvincing and nonsensical” that in such circumstances the applicant would return to the pool with a knife because she did not want the daughter, who was asleep in the front bedroom, to become involved. If the events had occurred in the way that the applicant had described, and were the applicant genuinely scared, her Honour found that the last thing she would have done would be to return to the pool.

7. Her Honour addressed the position Mr Robertson was in when he was stabbed. He consistently described that as being on his hands and knees by the side of the pool. The applicant submitted to the primary judge that if Mr Robertson’s account was correct it is more likely the applicant would have stabbed him “in a more accessible spot”. Her Honour rejected that submission. There may have been another location in which the offender could have stabbed Mr Robertson, however that was not decisive for her Honour.

8. Her Honour addressed the injuries suffered by the applicant. The applicant spoke to various people about how she received them. To the police she stated that there been an argument between her and Mr Robertson. When asked by the police which injuries were a result of the altercation, the applicant made no reply. Later that morning a paramedic saw the applicant in the holding cells at the Chatswood police station. Her injuries were described. The applicant was conveyed to Royal North Shore Hospital at 11.40 am and seen by Dr Rostogi. The primary judge accepted that the applicant was in a degree of pain and perhaps shock at the time she spoke to the police and Dr Rostogi and that she was not necessarily purporting to provide a complete account. Nevertheless, her Honour concluded that she would have expected that the applicant would have told either or both of those persons the significant aspects of her account if it were true. Her Honour was satisfied the applicant deliberately kept her account to a bare minimum, not yet having constructed a version of events more favourable to herself as to how Mr Robertson was stabbed and how she was injured. Further, that morning at Royal North Shore Hospital she told Constable Taylor that “I just lost it”.

9. On 8 January 2014 the applicant saw her general practitioner Dr David. Dr David’s notes recorded being told that Mr Robertson “continued the attack in the kitchen” and the applicant “stabbed him there”. Those notes also contain an assertion that Mr Robertson had engaged in acts of “multiple previous violence” upon her. It was common ground that both matters recorded in the note were untrue. The applicant denied that she had said either thing to Dr David. Her Honour found that on 8 January 2014 the applicant did tell Dr David that Mr Robertson had followed her into the kitchen and continued the attack there and she stabbed him there. She was likewise satisfied the applicant told Dr David that there had been multiple previous acts of violence towards her by Mr Robertson. Her Honour was satisfied that the applicant “deliberately fabricated that information” so as to bolster her account that Mr Robertson had been the aggressor.

10. The primary judge considered carefully the evidence of injuries to the applicant and in particular the evidence of injury to the back left-hand side of the applicant’s head. Her Honour found that the evidence was not inconsistent with Mr Robertson’s account. Further, her Honour found that the applicant’s evidence initially did not include any assertion she been hit on the back of the head as she was moving away from Mr Robertson. Her Honour considered the entirety of the medical evidence, in particular Dr Rostogi’s. Her Honour found generally that the medical evidence was equivocal. Dr Rostogi was not able to say the injuries were the result of having been struck by a pole more than once. He was unable to say how the dislocation to the left ring finger had been caused. When presented with photographs of the entirety of the applicant’s injuries, Dr Rostogi stated he simply could not be confident as to the number of blows and exactly how those injuries were caused.

11. Her Honour made findings about what was said to the police when they arrived having been called by Mr Wilkin. At 9:23 am Senior Constable Hurley asked Mr Robertson what had happened. Mr Robertson said:

I came over and was helping her with the pool. I was cleaning the leaf catcher and she stabbed me. I said “what are you doing” and she said “I’m going to kill you”. She came at me again and I tried to ward her off with the pole.

Her Honour found that Mr Robertson gave the same account to the ambulance officers. Significantly, later that day Mr Robertson spoke to his partner and conveyed information which her Honour found would not have occurred to him to be forensically significant. He told her that the applicant had said that there was a problem with the pool and she asked whether he would look at the pool. The important part of that statement was how the applicant came to be on the property, a matter which turned out to be a critical difference with the applicant’s account, but which Mr Robertson could not have known at the time. Her Honour concluded that the evidence revealed that from the time of the stabbing Mr Robertson made complaints which were consistent, spontaneous and unprompted which supported him as a witness. Her Honour found that his evidence was truthful, credible and reliable. Her Honour found that the evidence given by the applicant could not be described in that way.

12. Her Honour made findings based on her observations of the critical witnesses. Mr Robertson impressed her as a careful, considered and truthful witness. He gave his evidence responsibly without attempting to exaggerate or embellish. His evidence was consistent and firmly maintained in vital respects. On the other hand her Honour found that the applicant was an unconvincing witness whose evidence was in vital respects inconsistent, implausible and calculated. Her Honour described her on occasions as “evasive and unresponsive”. Her Honour formed the distinct impression that having appreciated the enormity of her situation she had deliberately tailored her account of the events that morning to fit the known facts.

10. Having made all of those important intermediate findings of fact her Honour then expressed her ultimate conclusions as set out above.

Ground of appeal

11. The single ground of appeal is as follows:

The court below erred in its fact finding role in rejecting excessive self-defence as a basis for passing sentence and as a consequence the sentence imposed upon the applicant was manifestly excessive.

Applicant’s submissions

12. The applicant accepted that the appeal “turns on the analysis of two competing versions of the facts consistent with the jury’s verdict”. The applicant submitted that her Honour erred in rejecting, as an explanation for the verdict, excessive self-defence on the part of the applicant.

13. The applicant submitted that the evidence supported a conclusion that the applicant stabbed Mr Robertson believing it was necessary to defend herself, but that her actions were not a reasonable response in the circumstances as she perceived them.

14. The applicant accepted that House v The King (1936) 55 CLR 499 error needed to be demonstrated and submitted that her Honour embarked upon a resolution rather than considering all the relevant facts and then deciding if she was satisfied beyond reasonable doubt of the facts adverse to the applicant. It was submitted that:

... her Honour’s approach bespeaks of a concluded view and then looking for reasons to find favour of Mr Robertson and reject the accused. In particular, her Honour set out a number of “significant factors” that she took into account “individually and collectively” to displace a finding of excessive self-defence …

15. In her written submissions in chief the applicant submitted that:

1. it was highly unlikely that she would have invited Mr Robertson into the premises or asked for his help with the swimming pool;

2. she had previously told Mr Robertson not to enter the premises and was generally opposed to his presence there. Although she requested financial assistance with respect to maintenance of the premises she did not seek his personal or direct involvement;

3. Mr Robertson left his briefcase, containing wallet and work papers, in the driveway entrance where it was at risk of being stolen. The applicant submitted it is unlikely he would have done this if invited in;

4. aspects of the applicant’s and Mr Robertson’s injuries were inconsistent with Mr Robertson’s account. The fact that she suffered an injury to the back of her head is more consistent with her version of events (he struck her from behind when she had turned to walk away after pushing him into the pool) than his (he struck her only once with the pole as she was facing him);

5. it was unlikely that Mr Robertson was on his hands and knees when he was stabbed from below. The applicant submitted that it is unlikely that she would have ignored and by-passed Mr Robertson’s exposed back and “choose a more remote and far less obvious location”; and that stabbing him from below in an upward motion while he was on his hands and knees would have required an “unnecessarily difficult manoeuvre” i.e. bending down, placing the knife between the ground and his torso facing up and bringing the knife up from below; and

6. Mr Robertson’s version of events – that he struck her only once causing her to fall – is inconsistent with the number and extent of her injuries.

16. In her written submissions in reply the applicant made the following submissions:

1. How it was that Quentin Robertson came to be on the property - the applicant asserted that the trial judge failed to take into account a number of “relevant considerations” and also took into account a number of “irrelevant/unsupported considerations”. It was submitted that, as had been submitted in chief, the evidence of Mr Robertson leaving his briefcase outside was equally consistent with the applicant’s version of events. Secondly, in making the finding that it was implausible that Mr Robertson would elect to go into the backyard “completely of his own volition” the sentencing judge failed “to take into account a number of important factors” being Mr Robertson’s past history, an email from the applicant asking him not to do so, an email from the applicant asking him to provide financial assistance, the maintenance of the property being undertaken by an employed person, Mr Robertson having an “interest” in checking the pool as he wanted the house to be sold, and the significant history of acrimony. Her Honour’s finding based on timing was criticised as “unsubstantiated”.

2. The evidence of the neighbour Gary Wilkin – her Honour’s findings in relation to the neighbour are said not to be able to “be established beyond reasonable doubt”. Thus House v The King error is asserted. The principal complaint made was that Mr Wilkin would “not have been able to hear an altercation” and that, accordingly, her Honour erroneously took this matter into account. Her Honour’s fact finding about what the applicant said to Mr Wilkin was attacked on the basis of other facts said to be inconsistent with that finding in particular, the applicant obtaining a towel for Mr Robertson, the fact that it was “inappropriate” to start an argument about what occurred while Mr Robertson was wounded, the offender’s “substantial degree of shock fear and/or pain” and her Honour’s allegedly objective assessment of the offender’s actions.

3. The offender’s explanation for why she armed herself with a 30 cm long knife – it is asserted that it was “implicit” in the jury’s verdict the offender acted unreasonably. The critical issue is said to be whether or not the applicant held the requisite state of mind which is a subjective matter. It is alleged that her Honour “failed to put her mind to this critical issue”.

4. The position that Quentin Robertson was in when he was stabbed - the applicant repeated the argument made to the primary judge and addressed in chief that her Honour “failed to take into account two important factors” namely that the medical evidence and the assertion that it is unlikely that the stabbing would have occurred in the way described by Mr Robertson.

5. The injuries observed to the offender – again the complaint was repeated that her Honour’s findings under this heading could not be established beyond reasonable doubt and that this amounts to House v The King error. It was asserted that her Honour failed to take into account that the offender would have been in a “substantial degree of pain and shock” and that soon after she did convey greater detail to her GP.

6. The complaints made by Quentin Robertson and the observation of the critical witnesses – the applicant accepted that her Honour’s findings were within her discretion.

17. Finally, the applicant submitted that her Honour erred in failing to give sufficient weight to the applicant’s good character in making factual findings by reference to the decision of Gray J in R v Edwards [2009] SASC 233.

Crown submissions

18. The Crown submitted that its case at trial was that the primary judge should entirely reject the applicant’s version of events.

19. The Crown submitted that in order to succeed in this appeal the applicant must show that findings of fact made by the sentencing judge were not open to her Honour. The Crown submitted that her Honour’s findings with respect to provocation and self-defence were entirely open to her, and it cannot be said that her Honour did not carefully consider the evidence.

20. The remarks on sentence demonstrated a thorough and considered approach to the determination of these matters, and, in proceedings involving competing factual accounts, this Court should defer to her Honour’s observation of the applicant and Mr Robertson giving evidence.

21. The Crown submitted that the primary judge appropriately determined that the objective seriousness of the offending fell below the notional mid-range, given that it was not spontaneous and involved a limited degree of planning. Her Honour appropriately took into account all relevant objective and subjective circumstances as well as considerations of specific and general deterrence.

Consideration

Relevant principles

22. It was common ground that in order to succeed on the only ground of appeal which was raised the applicant must show that the findings of fact made by the sentencing judge were affected by error of the kind described in House v The King.

23. In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35] the High Court said:

The history of the provision [s 6(3)] is touched on in Lacey v A-G (Qld) [[2011] HCA 10; 242 CLR 573]. Notwithstanding the breadth of its language, it was settled at an early stage that the appellate court's authority to intervene is dependent upon demonstration of error.

24. In Bettsv The Queen (2016) 90 ALJR 758; [2016] HCA 25 the High Court said at [9]-[10]:

Section 5(1)(c) of the CAA confers on a person convicted on indictment a right to appeal by leave of the Court of Criminal Appeal against the sentence passed on the person's conviction. Where leave is granted, the determination of an offender's appeal is governed by s 6(3):

"[T]he court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."

Notwithstanding its wide terms, it is well settled that the Court of Criminal Appeal's power to intervene is not enlivened unless error in any of the ways explained in House v The King is established. The identification of error will ordinarily be by reference to the sentencing judge's reasons on the material that was before the court….

25. House v The King error involves the sentencing judge acting on a wrong principle, allowing extraneous or irrelevant matters to guide judicial decision making, mistaking the facts or failing to take into account a material consideration.

The primary judge’s findings critical to her ultimate conclusion on the facts

26. The applicant’s submissions, whilst asserting House v The King error, did not identify the respects in which that error was demonstrated. To be clear, carefully considering competing evidence, making findings about that evidence and ultimately preferring one version of events to another does not demonstrate House v The King error.

27. Rather than engage in the necessary analysis, the applicant’s submissions sought to repeat submissions made to the sentencing judge and assert that her Honour fell into error in failing to find matters of primary fact based on the reasoning urged upon her by the applicant below.

28. Her Honour engaged in a careful, thorough and fair examination of all of the evidence in making the findings of fact that she did. Her Honour applied the correct legal principles to that determination, reminding herself prior to embarking on her fact finding, and again in expressing her ultimate conclusion, of the correct legal tests to be applied in finding facts alleged by the Crown (on the one hand) and applicant (on the other) for the purposes of sentencing. Her Honour had the benefit of seeing both Mr Robertson and the applicant give evidence and be cross-examined. No challenge is made by the applicant to her Honour’s findings based on her examination of that evidence.

29. For my part I did not discern any submission made by the applicant which rose any higher than an assertion that her Honour should have preferred the submission made by the applicant and thus found different primary facts to the ones she did. This is not an assertion of House v The King error.

30. I will, for the purposes of analysis, repeat the headings adopted by the primary judge and address each of the applicant’s complaints about her Honour’s findings of fact:

1. How it was that Quentin Robertson came to be on the property - the primary judge’s findings on this issue were detailed and clear. They were based on the contemporaneous objective evidence together with a close analysis of the evidence given by Mr Robertson and the applicant. Her Honour took into account all of the evidence on this issue. The essence of the applicant’s submission was that the evidence of Mr Robertson leaving his briefcase outside was equally consistent with the applicant’s version of events. It is not a permissible approach to a sentencing appeal to submit that if an alternative reasonable inference is open, a factual finding made by a sentencing judge cannot stand. The applicant’s attempt to convert this suggested available inference into a House v The King relevant consideration is misconceived. The applicant’s attempt to convert suggested available inferences into a House v The King irrelevant consideration is equally misconceived. All of the matters the primary judge allegedly failed to take into account were specifically addressed by the primary judge. The timing evidence was important to her Honour. There was nothing erroneous about her Honour’s process of reasoning in taking into account independent contemporaneous evidence of timing or the facts as she found them. The applicant’s attack on these findings of fact fails.

2. the evidence of the neighbour – Gary Wilkin - her Honour’s findings about the evidence of Mr Wilkin were careful, thorough and fair. Broadly speaking, the primary judge found that Mr Wilkin was able to hear Mr Robertson’s cries for help but not what the applicant alleged was the product of shouting and rage generated in the argument she described with Mr Robertson. Further, Mr Wilkin gave independent evidence of what was said by the parties in the immediate aftermath of the confrontation. Again, that evidence was inconsistent with the applicant’s version of events. Having seen all relevant parties give evidence, her Honour was satisfied beyond reasonable doubt that the applicant’s version of events was untrue. The House v the King error asserted by the applicant is that her Honour’s findings were not able to “be established beyond reasonable doubt”. This betrays a fundamental misunderstanding of what the applicant must show. It elides the distinction between the demonstration of error and the attack on factual findings based upon a mere preference for some evidence over other evidence in reaching factual conclusions. Her Honour was aware of and took into account the other facts said by the applicant to be “inconsistent” with her findings of fact; in particular, the applicant obtaining a towel for Mr Robertson, the applicant’s supposed reluctance to start an argument about what occurred while Mr Robertson was wounded and the applicant’s apparent mental state. The applicant’s attack on these findings of fact fails.

3. the offender’s explanation for why she armed herself with a 30 cm long knife – this factual dispute was at the heart of the very detailed consideration her Honour gave to the facts. The applicant submitted that the critical issue was whether or not the applicant held the requisite state of mind she alleged. The explanation offered by the applicant was a central part of a narrative of events that her Honour examined, piece by piece, and made careful intermediate findings of fact about which led to her ultimate finding about this critical issue. The applicant’s submission that her Honour “failed to put her mind to this critical issue” should be rejected.

4. the position that Quentin Robertson was in when he was stabbed - the primary judge made detailed findings of fact about this issue. The applicant simply repeats the argument made the primary judge, which her Honour considered and rejected. The medical evidence referred to by the applicant was specifically addressed by her Honour. It was equivocal. The applicant’s bare assertion that it is unlikely that the stabbing would have occurred in the way described by Mr Robertson does not address the central question of House v The King error.

5. the injuries observed to the offender - the primary judge made detailed findings of fact about this issue. The applicant again submitted that the facts are not “established beyond reasonable doubt” and that this amounts to House v The King error. It does not. The primary judge specifically took into account the applicant’s psychological condition, the fact she was in police custody and her subsequent explanations to her doctor. Far from being exculpatory, the explanations to her doctor contained graphic details about Mr Robertson following the applicant into her kitchen. The primary judge was satisfied that the applicant did make that statement to her doctor. The account, as her Honour found, was deliberately fabricated. Before leaving this issue I should record my disagreement with the submission that her Honour was attempting to resolve facts in favour of Mr Robertson as opposed to appropriately considering the relevant matters. That submission was completely without foundation.

6. the complaints made by Quentin Robertson and my observation of the critical witnesses - the applicant accepted that her Honour’s findings on these issues were within her discretion.

31. Finally, the applicant submitted that her Honour erred in failing to give sufficient weight to the applicant’s good character in making factual findings by reference to the decision of Gray J in Edwards.

32. Her Honour specifically referred to the applicant’s good character. I do not read the decision of Gray J in Edwards as circumscribing the fact finding methodology to be adopted by sentencing judges or to require any more attention to the applicant’s prior good character than her Honour gave it.

Conclusion and orders

33. No House v The King error was established in this case. Her Honour acted on the correct principle, did not allow extraneous or irrelevant matters to guide her judicial decision making, did not mistake the facts and did not fail to take into account any material consideration.

34. I propose the following orders:

1. Leave to appeal against sentence granted;

2. Appeal dismissed.

35. BUTTON J: I agree with Payne JA.

**********

Decision last updated: 30 November 2016