Boney v R - [2008] NSWCCA 165

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
BONEY v R [2008] NSWCCA 165

FILE NUMBER(S):
2006/5211

HEARING DATE(S):
19 February 2008

JUDGMENT DATE:
19 August 2008

PARTIES:
Regina
Phillip Mitchell BONEY

JUDGMENT OF:
McClellan CJ at CL Hulme J Mathews AJ

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
05/31/0300

LOWER COURT JUDICIAL OFFICER:
Finanne DCJ

COUNSEL:
Crown: Mr P Ingram
Appellant: Ms S Kluss

SOLICITORS:
Crown: S Kavanagh
Appellant: S O'Connor

CATCHWORDS:

LEGISLATION CITED:

CASES CITED:

TEXTS CITED:

DECISION:
(i) Appeal against conviction dismissed;
(ii) Leave to appeal against sentence granted;
(iii) Appeal against sentence, except in the case of the sentence imposed on counts 1 and 3 allowed;
(iv) Appeal against the sentences imposed on counts 1 and 3 dismissed;
(v) The sentences imposed on counts 2 and 4 to 11 quashed, and in lieu thereof, the Appellant sentenced as follows;
(vi) On count 2, the Appellant be sentenced to imprisonment for a fixed term of 3 years, commencing on 22 July 2005
(vii) On count 4, the Appellant be sentenced to imprisonment for a fixed term of 3 years, commencing on 22 July 2005;
(viii) On count 5, the Appellant be sentenced to imprisonment for a fixed term of 4 years, commencing on 22 July 2005;
(ix) On count 9, the Appellant be sentenced to imprisonment for a fixed term of 3 years, commencing on 22 July 2006;
(x) On count 10, the Appellant be sentenced to imprisonment for a fixed term of 5 years, commencing on 22 July 2006;
(xi) On count 11, the Appellant be sentenced to imprisonment for a fixed term of 4 years, commencing on 22 July 2006;
(xii) On count 6, the Appellant be sentenced to imprisonment for a fixed term of 4 years, commencing on 22 July 2008;
(xiii) On count 7, the Appellant be sentenced to imprisonment for a non-parole period of 6 years and a total term of 10 years, both such periods commencing on 22 July 2010;
(xiv) On count 8, the Appellant be sentenced to imprisonment for a fixed term of 4 years, commencing on 22 July 2008;
(xv) On each of the charges referred under s166 of the Criminal Procedure, the Appellant be sentenced to imprisonment for a fixed term of 1 year, commencing on 22 July 2016.
(xvi) Record as the date upon which it appears to the Court that the Appellant shall be eligible for parole, 22 July 2017.

JUDGMENT:

- 47 -

IN THE COURT OF
CRIMINAL APPEAL

2006/5211
McCLELLAN CJ at CL
HULME J
MATHEWS AJ
Tuesday, 19 August 2008

Phillip Mitchell BONEY v REGINA

Judgment

McCLELLAN CJ AT CL: I agree with Hulme J.
HULME J: On 22 March 2006 the Appellant in these proceedings was convicted by a jury of 11 offences involving a woman who, in consequence of a non-publication order made by Finnane DCJ, was referred to as “NC”. The Appellant and NC had previously been in a relationship. Whether they still were was an issue at the trial.
The charges fell into three groups, depending on the date when they were said to have occurred. In summary form the charges, the section of the Crimes Act under which they fall, the maximum penalties prescribed and any relevant standard non-parole periods are as follows:
Between 21 and 24 June 2005
(i) Assault – Section 61 – 2 years imprisonment.
(ii)Entering a dwelling house of GC with intent to commit a serious indictable offence, namely intimidation, in circumstances of aggravation, viz. he deprived NC of her liberty – s111(2) – 14 years imprisonment.
(iii)Malicious damage of a bathroom door, the property of GC – s195(1)(a) – 5 years imprisonment.
(iv)Detaining NC without consent with intent to obtain an advantage, viz to have sexual intercourse with her – s86(1)(b) – 14 years imprisonment.
(v)Sexual intercourse with NC without her consent, knowing that she did not consent – s61I – 14 years. There is a standard non-parole period of 7 years.
Between 24 and 27 June 2005
(vi)Detaining NC without consent with intent to obtain an advantage, viz to have sexual intercourse with her and immediately before the offence actual bodily harm was occasioned to her – s86(2)(b) – 20 years imprisonment.
(vii)Sexual intercourse with NC without her consent, knowing that she did not consent in circumstances of aggravation, viz. immediately before the offence he did maliciously inflict actual bodily harm upon her – s61J(1) – 20 years. There is a standard non-parole period of 10 years.
(viii)Sexual intercourse with NC without her consent, knowing that she did not consent – s61I(1) – 14 years. There is a standard non-parole period of 7 years.
Between 19 and 22 July 2005
(ix)Detaining NC without consent with intent to obtain an advantage, viz to have sexual intercourse with her – s86(1)(b) – 14 years imprisonment.
(x)Sexual intercourse with NC without her consent, knowing that she did not consent in circumstances of aggravation, viz. immediately before the offence he threatened to inflict actual bodily harm upon her by means of an offensive weapon, namely a wooden stick – s61J(1) – 20 years. There is a standard non-parole period of 10 years.
(xi)Sexual intercourse with NC without her consent, knowing that she did not consent – s61I(1) – 14 years. There is a standard non-parole period of 7 years.
On 27 October 2006 Finnane DCJ sentenced the Appellant. The effective sentence imposed in respect of the above offences was of imprisonment for 27 years including non-parole periods totalling 20 years. The details of the individual sentences and others imposed at the same time can be deferred until the Application to appeal against sentence is dealt with.
In summary, the Complainant’s evidence concerning the first group of offences was that the Appellant attended her father’s premises at 2 Mehi Crescent, Moree where the Complainant was temporarily staying. With her agreement he took their two children to go fishing. He himself returned some 10 minutes later and requesting her to go to sleep with him at his sister’s house. The Complainant refused. The Appellant grabbed her hair, punched and otherwise assaulted her. The Complainant’s sister threatened the Appellant with a piece of iron, but then left (apparently to ring the police). The Appellant grabbed the Complainant by the jumper and took her outside. She escaped, and ran inside locking herself in the bathroom; the Appellant then kicked the door open, grabbed the Complainant and took her to the house of one of his relations. The Complainant needed tampons, so they left there and went to a shop and then to 6 Birrawee Place, the house of one of his sister’s.
According to the Complainant, on arrival she and the Appellant went into a bedroom, he told her to lie down, she did so because she was frightened the Appellant would hit her, she then went to the toilet and returned to the bedroom, the Appellant pulled her trousers down and had intercourse. They showered, slept and next morning the Appellant and then the Complainant left the house and went their separate ways.
The Complainant’s evidence concerning the second group of offences was that on the evening of 25 June, she was at 20 Birrawee Place. The Appellant arrived. An altercation occurred in the course of which the Appellant assaulted the Complainant by punching her “all over” and kicking her causing inter alia, a “busted” lip. Others joined in but eventually the Appellant grabbed the Complainant by the jumper and forced her to accompany him to 6 Birrawee Place. In the lounge room there the Appellant again assaulted the Complainant, punching and kicking her and jumping on her head causing a tooth to chip. The Appellant’s sister and brother in law were there but apparently did not intervene. The Complainant’s brother arrived and sought to help the Complainant but then left saying he was going to ring the police. After a time the Appellant took the Complainant into a bedroom. He grabbed a mattress and blankets and put them in the room and told the Complainant to lie down on her back. He took her trousers off and had intercourse.
The evidence in respect of the eighth offence was that, after the intercourse the subject of the seventh offence, the Complainant went from the bedroom to the kitchen to obtain a glass of water; the Appellant went too; there he had a knife; the Complainant called out to the Appellant’s sister about that fact, his sister told him to go to bed and stop being stupid; the Complainant and Appellant returned to the bedroom and she sat on the bed. Then, on the Appellant’s instruction, the Complainant lay down and took her trousers off again and intercourse again occurred without her consent. On the next morning the Complainant’s sister and later the police arrived and the Appellant decamped.
On 21 July the Complainant and Appellant were again at 20 Birrawee Place, which seems to have been an establishment where those in the community went to drink. Again there was an altercation between them which concluded with the Appellant grabbing the Complainant’s clothing and taking her to 29 Arunga Street where another of his sisters lived. He told the Complainant to jump through the window and open the door which she did. At his insistence they went into a bedroom. The Complainant was crying. The Appellant grabbed a stick and held it up telling her to stop crying. He took the Complainant’s trousers off and had intercourse.
The next morning the Appellant took the Complainant down to his uncle’s house but, nobody being home, they then returned to 29 Arunga Street where the Appellant again made the Complainant lie down on the bed and he had intercourse. While the two were still on the bed the police arrived.
The Appellant challenges his convictions, relying on 4 grounds:-
1.The trial judge erred in the admission of the “relationship” evidence.
2.The trial judge erred in directions to the jury in respect of the “relationship” evidence.
3.The trial judge did not give a balanced summing up of the defence case.
4.The trial judge erred in failing to direct the jury that they must consider each count separately and only by the evidence that applied to it.
Ground 1
The trial judge erred in the admission of the “relationship” evidence.
The “relationship” evidence which the Crown led from the Complainant was to the following effect. She said she had known the Appellant for about 9 or 10 years, she had started a relationship with him prior to 1997, in 1997 and 1999 she had had children to the Appellant, and by August 2000 the two had separated. Asked why the relationship ended the Complainant replied “because he was violent and I feared for me and my children’s life”. (sic)
The Complainant also gave evidence that after separation, in August 2000, December 2001, and on 26 October 2002 he had assaulted her, she had reported the incidents to the police, they took action on each occasion, the action was not contested and the Complainant did not have to go to Court.
She said also that on 25 December 2003 she had been with friends, the Appellant had approached her and suggested she go with him, she had refused after which he started to punch her and, against her wishes, took her to a relative’s place and kept her overnight. She said she reported this to the police after she “got away from him”, that the matter went to Court and was not contested.
Other evidence she gave was that in 2004 she obtained a Court order against the Appellant directing that he not approach, harass, molest or assault her. She said that in June of 2005 there was no existing relationship between her and the Appellant.
His Honour ruled this evidence was admissible against the background of a Crown case opened to the jury to the following effect:-
1.On 22 June 2005 the Appellant attended where the Complainant was residing and asked to take their children fishing. He departed with the children but after leaving them with relatives, returned. The Complainant asked the accused to leave. He made a threatening gesture. The Complainant ran into another room chased by the accused who grabbed her by the hair, shook her, threw her to the ground and kicked her.
2.A little time later he pulled her out the back door. She induced him to let her go and she returned inside locking herself in the bathroom. The Appellant entered the premises through the front door, went to the bathroom and kicked the door open, damaging it and then took the Complainant to the home of a relative at 6 Birrawee Place, kept her there all night and had sexual intercourse with her without her consent.
3.A day or two later (which the Complainant’s evidence placed to be 25 June 2005) the Appellant came across the Complainant and after a number of incidents of resistance by her again took her to 6 Birrawee Place. In the kitchen there he punched her and forced her face to the floor, chipping her teeth, and took her into a bedroom where he had sexual intercourse without her consent.
4.He then led her back into the kitchen and again into the bedroom where he had sexual intercourse again without her consent.
5.On 20 July the Complainant went to 20 Birrawee Place. There the Appellant again took hold of her taking her to 29 Arunga Street and had intercourse with her without her consent. Next morning he took her elsewhere and then back to 29 Arunga Street and again had intercourse without consent.
Defence Counsel then made an opening address. It contained no particularity and so far as is relevant was merely in these terms:-
“The Accused, that is Mr Boney, certainly would dispute all of these allegations being 11 that you have been given a background to. So what I am asking is that you keep an open mind. We just started and there is some more of this to go before you hear from the Accused. Thank you.”
One of the complaints made under the aegis of this ground was that the relationship evidence went further than the Crown had identified when the trial judge was asked to rule on its admissibility.

What the Crown had said in this connection was:-
“I anticipate that (the Complainant) will give evidence that they separated in about 2000 to 2001 (and) that at least in part the reason for that separation was violence in their relationship. I intend to lead in a general way the proposition that there were further acts of violence committed by the accused on her after that.

It’s the Crown’s intention to lead evidence from her specifically that on Christmas night 2003, 25 December 2003, the accused assaulted her, took her away to a relative’s house and detained her against her will overnight and that she complained about that incident immediately to the police the next day…

I don’t anticipate that there’s any dispute about that, the accused having subsequently pleaded guilty in the District Court to that incident… I also seek to lead evidence from the Complainant that there’s an apprehended violence order which I intend to lead as being a court order, which prohibits the accused from assaulting, molesting, harassing or intimidating the Complainant. That order was granted in 2004 and is still current.”

A little later the Crown Prosecutor referred Finnane DCJ to R v Selsby [2004] NSWCCA 381 at [44] as indicating the level of generality in which evidence of the nature under consideration should be led, adding:-
“The situation is that before Christmas 2003, the accused pleaded guilty on three other occasions – on two of those occasions to assaulting the Complainant and on one of those occasions to assault occasioning actual bodily harm on the Complainant.
… It is my intention to lead that other material at just the general level of the fact that there were other occasions of violence.”
What was said at [44] of R v Selsby was:-
“In my opinion, there was an element of discretion to be exercised by the Crown Prosecutor and the primary judge concerning the level of generality at which this evidence was led. If such evidence is led at a high level of generality, there is difficulty in the appellant answering it. On the other hand, if it is led with too much specific detail, the evidence could be distracting from the real issues in the case.”
The course of evidence subsequent to the Complainant’s evidence in chief should also be referred to. She was cross-examined to suggest that she and the Appellant were living together in June 2005 albeit not every night, that there had been no violence on 22 June, that the Appellant did not kick the bathroom door, and that he did not have intercourse with the Complainant on 22 June. So far as events of 25 June are concerned, it was put to the Complainant that the Appellant had not punched and kicked her prior to going to 6 Birrawee Place, had not pushed and kicked and hit her at 6 Birrawee Place, had not bashed her that day, had not threatened her and had intercourse with her only once and that was with her consent.
In relation to 20 July, it was put to the Complainant that the Appellant did not make her go with him, that the first incident of sexual intercourse at 29 Arunga Place was with consent and the second that she alleged did not occur. It was put to her that on the dates charged the Complainant had no fear or the Appellant and was encouraging a relationship between the two.
The Appellant also gave evidence. So far as is presently relevant his evidence-in-chief concerning the 11 offences charged was to the effect of the suggestions put during the cross-examination of the Complainant.
The Appellant said nothing in evidence-in-chief concerning events prior to 2005. However, the Crown Prosecutor elected to cross-examine concerning them. In the course of that questioning, the Appellant admitted:-
Pleading guilty to a charge of assaulting the Complainant in March 1999;
Pleading guilty on 23 July 2001 to, on 28 August 2000, breaching an apprehended violence order;
Pleading guilty on 13 January 2003 to a charge of assaulting the Complainant on 26 October 2002, even though his solicitor had told him that he would probably go to gaol; and
Pleading guilty on 6 May 2004 in the District Court to, on 24 or 25 December 2003, kidnapping the Complainant.
He said however that his pleas to the first 3 matters – the questioning about the fourth was not as comprehensive - were not because he was guilty of the charges. He said that he pleaded guilty to the first because “I just wanted to get away from her” and he said that he pleaded guilty to the second because, although he did not do it, he just felt guilty and because he just wanted to get it over with. To “get it over with” was also the Appellant’s explanation for pleading guilty to the third matter and this notwithstanding that his solicitor had told him that he might, or would probably, go to gaol. In relation to the fourth matter the Appellant said that his solicitor had told him that he was better off pleading guilty because there were too many witnesses.
In the course of his questioning concerning the first of these occasions the Crown Prosecutor put to the Appellant that he had grabbed hold of the Complainant, pushed her out a door, dragged her along and, after she had fallen to the ground, punched and kicked her to the head. In the course of questioning about the second, the Crown Prosecutor suggested that the Appellant threw a television set into a box next to the Complainant, took down a curtain rod and began swinging it around the room. In the course of questioning about the third, the Crown Prosecutor suggested that the Appellant had approached the Complainant in the street, started arguing and then punched her in the nose.
In the course of his questioning concerning the fourth occasion, the Crown Prosecutor suggested that the Appellant had run up behind the Complainant and started punching into her, struck her in the eye causing her to fall down whereupon the Appellant started kicking her in the face and upper body. It was suggested that the Complainant then agreed to go with the Appellant to 6 Birrawee Place where he kept her for 2 nights. The Appellant agreed that there had been a Statement of Agreed Facts tendered to the court in those earlier proceedings and which he had authorised his lawyers to sign. In response to the Crown Prosecutor’s questioning, the Appellant identified the Statement of Agreed Facts and it was marked for identification before Finnane DCJ.

Whether one considers the matter from the point of view of the defence case as it was presented in cross-examination of the Complainant or in the Appellant’s evidence in chief or upon the theoretical bases open in light of defence counsel’s opening, it is apparent that evidence indicating the nature of the relationship between the Complainant and the Appellant was relevant. The nature of the past events bore on the issues of whether the Complainant voluntarily accompanied the Appellant to the various places mentioned and consented to intercourse with him and whether he may have had any belief as to the existence of such consent. Furthermore, at no time was it unlikely that the Complainant would be challenged on her evidence that on these occasions prior to 2005 the Appellant had assaulted her. Evidence that the Appellant had pleaded guilty to charges arising out of these occasions – evidence likely to be unchallenged – therefore significantly strengthened the Crown case on the issue of the nature of the relationship between the Complainant and the Appellant. The evidence of the times when the incidents occurred was appropriate to rebut any suggestion that there was, for example, merely a very brief period, well removed from June and July 2005, of difficulty in an otherwise happy relationship.
Certainly, the admission of the relationship evidence as foreshadowed created a danger of unfair prejudice to the Appellant. That possibility was recognised by Finnane DCJ who concluded that the danger did not outweigh the probative value of the evidence. That conclusion was clearly open to his Honour. Indeed, I would have reached the same view.
However, it is clear that the Crown Prosecutor in his cross-examination of the Appellant went, at least in his questioning, very considerably further than the “general level” referred to in his remarks when the admissibility of the material was under debate.
After the Appellant’s evidence in relation to the first of these incidents to the effect that he had pleaded guilty because he wanted to get away from the Complainant, the transcript records the following:-
HH:I don’t follow. Why would you plead guilty if you were not guilty.
A:Well she – she trying to say that I assaulted her and I did not do it.
KUMARASINHE: Would your Honour hear me please?
HH: No, go on.
Crown: Thank you…
The Crown Prosecutor then resumed his questioning. Apart from the objection to the whole topic of relationship evidence - an objection that had been overruled 5 days earlier - the intervention by defence counsel just referred to was the only one that could have amounted to an objection to the questioning of the Crown Prosecutor.
In judging the significance of the evidence, 2 other matters should also be mentioned. One is that, although the Crown Prosecutor did, his Honour did not tell the jury that questions or suggestions made by counsel were not evidence. The second relates to further evidence that came before the jury while the Appellant was in the witness box. Although the Appellant’s evidence is not entirely clear, the tenor of some of it was that he and the Complainant had been in a relationship for 9 or 10 years. They would live together until they had a row when the Appellant would leave and live at his sister’s place for a short period at the end of which the Complainant would come to him. He then agreed with the suggestion that at 22 June 2005 the Complainant had been living in Lismore, adding that he wasn’t in Moree at the time. The following exchange then occurred:-
“HH:      If you weren’t in Moree how could you be living with her.
A:           Because I was away.
HH:        I know, but if you’re not here--
A:           I’m saying, like, I would have been in custody--
HH:        --couldn’t be living here--
A:           --at the time.
HH:        Beg your pardon?
A:           I would have been in custody at the time.”
A little later the Appellant gave evidence to the effect that the Complainant had been living at 2 Mehi Crescent in 2005 and he lived there for roughly 3 months. The course of evidence continued:-
“HH:      Which particular 3 months are you talking about?
A:           Last year.
HH:        Can you tell us--
A:           When I just out of, like, from just getting out of custody.
Q:           What was that?
A:           March, 19 March.
Q:           Last year?
A:           Yes.”
Soon afterwards, the Appellant’s counsel sought the discharge of the jury, an application that his Honour rejected.
In support of the contention that the relationship evidence should not have been admitted, it was submitted that the combined effect of all that occurred was to convert the effect of the evidence from relationship evidence to tendency evidence and that the requirements of the Evidence Act for evidence falling into the latter category were not met, and secondly, that the expanded relationship evidence rendered the proceedings fundamentally flawed to a degree that the trial “so far miscarried as hardly to be a trial at all”, resulting in a miscarriage to justice. Wilde v R (1987–1988) 164 CLR 350 at 373 was relied upon.
The first of these submissions presupposes that the jury disregarded his Honour’s directions concerning tendency and that the jury regarded the Crown Prosecutor’s questions as evidence. I am not disposed to accept the first of these propositions and I am not positively persuaded of the second. Nevertheless, having regard to the detail into which the Crown Prosecutor delved in his questioning, there is no doubt that there was a risk that the jury might well have taken that last mentioned approach. That risk was reinforced by the attention given to the agreed Statement of Facts relating to the events of 24 or 25 December 2003. The terms of the questioning and the presence of the document can have left the jury in no doubt that events as put to the Appellant had occurred.
Furthermore, in light of the fact that the Appellant had given no evidence in chief contradicting the Complainant’s evidence concerning these past events, there was no need for the Crown Prosecutor to ask the Appellant any questions concerning those events. In the circumstances, and having regard to the potential for prejudice in the questioning it should not have occurred and should not have been allowed and this, whether or not there was objection to it. Because of the extent of the Appellant’s denials, what was said did not amount to evidence to be excluded under s135 or s137 and because the subject matter did not relate only to the Appellant’s credibility the questioning did not require leave under s104. However, the power to disallow questions or evidence is not restricted to those or other specific provisions of the Evidence Act and the requirement that the Appellant’s trial be fair necessitated that the Crown Prosecutor not proceed as he did.
In the contest of the totality of issues in the trial, I do not regard these errors as so substantial as to lead to the conclusion that the trial “so far miscarried as hardly to be a trial at all”, but they were certainly of a nature that, subject to the operation of the proviso to s6(1) of the Criminal Appeal Act, justifies the allowing of the appeal.
I do not ignore the fact that there was no significant objection by counsel for the Appellant at the trial. The objection to all of the relationship evidence was, as I have indicated, properly overruled and did not extend to the Crown prosecutor’s questioning of the Appellant. Furthermore, the single plea “would your Honour hear me please”, is not properly an objection and certainly not one that could be regarded as having any application wider than the immediately preceding question. Nor do I ignore the fact that the different counsel that appeared for the Appellant in this Court did not seek leave under rule 4 to raise the point presently under consideration. Nevertheless, the unfairness in the questioning in the circumstances that prevailed was such that the Court should uphold this ground and grant leave for the point to be taken.
Ground 2
Immediately after the relationship evidence of the Complainant was given, his Honour observed to the jury:-
“I should say something at this stage I think. Members of the jury the case on the indictment against the accused you have in front of you, it concerns events in June and July last year. You’ve just had evidence put before you about matters occurring before that date, going back to the year 2000 of assaults and violence, Court proceedings and the like and the compelling of this young lady to go to the house of the relative of the accused Christmas night 2003. That evidence is what is called relationship evidence. It is evidence to show the nature of the relationship between the accused and the Complainant, and it is done so that when you come to consider the evidence about the counts on the indictment, you can consider it in its context.
In other words, before the events of June 2005, there was a relationship between the parties, you’re entitled to know what type of relationship it was, so that when you give consideration to the case against the accused in relation to each of the counts in the indictment, you can put those particular events in the context of a pre-existing relationship.
So it is put in this way so that it doesn’t appear unreal, as if events occurred in June and July 2005 for no apparent reason, just out of the blue. They’re put in the context of a relationship between the parties that had gone back some years.
Now you cannot use this evidence, which shows assaults and the like just to say, well I’ve heard that evidence, he was therefore guilty. That is not the purpose of the evidence, it is to assist you to understand the nature of the relationship between the parties and to consider it.
You must still consider the case against the accused in relation to each count, it is only if you are satisfied beyond reasonable doubt that that case has been proved that you can convict him.
So the use of this evidence is limited, and it’s limited in a way in which I have told you, I’ll come back to it a little bit later in the trial.
Does either counsel wish me to say anymore about it at this point?”
The Crown Prosecutor is recorded as having said, “No” and although there is no recorded response by counsel for the Appellant, the fact that questioning of the Complainant by the Crown Prosecutor immediately resumed indicates that the Appellant’s counsel also was content with his Honour’s remarks.
During the course of his summing up, Finnane DCJ provided to the jury a set of written directions and also made some oral remarks on the topic. Included in the written directions was the following. (For convenience of later reference I have, added some emphasis, and broken up some of the paragraphs and adopted a numbering system):-
(i)“Evidence was given that on four separate occasions before June last year, the accused had treated the Complainant with violence.
(ii)That evidence was called to show the true relationship between the parties, that is to say, that during the period between March 1999 and June 2005, the relationship which they had was characterised by acts of violence by the accused, towards the Complainant.
(iii)He has denied committing acts of violence against the Complainant. Between March 1999 and June 2005 but has admitted that he pleaded guilty to offences of assaulting the Complainant on three occasions and of kidnapping her on one occasion. His claim is that he pleaded guilty, although he was not guilty.
(iv)This evidence was introduced to put in context the evidence about the acts referred to in the indictment since otherwise it would appear that on three unconnected occasions there were sexual acts, violent acts and acts of kidnapping which occurred out of the blue.
(v)If, having considered his evidence, you are not satisfied beyond reasonable doubt that he did commit the acts alleged against him in 1999, 2000, 2002 and 2003, then you could not use this evidence in any way in assessing the relationship between them before 22nd June 2005.
(vi)In considering this matter, you should take into account his claim in evidence that he pleaded guilty on each occasion, when represented by a solicitor or barrister, although he was not guilty and that on the last occasion, when represented by a barrister and a solicitor, he pleaded guilty and instructed them to put forward an agreed statement of facts to show his guilt, although he was not guilty and notwithstanding his understanding that if he pleaded guilty, he would be likely to receive a gaol sentence.
(vii)However, I must warn you that on no account can you use this evidence to conclude that the accused had a propensity to engage in sexual or violent conduct or kidnapping or a tendency to do those things or that he is guilty of all or any of the offences charged against him merely because he engaged in the conduct alleged, between 1999 and 2003. You can use this evidence to give the other evidence some context but you must consider the charges on the indictment only. The court will receive a verdict only on those charges. Unless you are satisfied of his guilt on those charges he must be found not guilty.
(viii)If you are satisfied beyond reasonable doubt that he committed any or all of the offences that are the subject of counts 1 to 5 inclusive, you are entitled to take that into account in three particular ways:
a.It can be used to show, what was the true relationship between the parties at the time the events referred to in the other counts in the indictment occurred, namely on the 25th June 2005 and 20 and 21 July 2005.
b.It can be used to show that the Complainant did not at any time on the 25th June 2005 or 20th and 21st July 2005 consent to anything done to her by the accused, and particularly, did not consent at any time to having sexual intercourse with the accused.
c.It tends to show that the accused knew that the Complainant was not consenting at any of this conduct and in particular, was not consenting to any act of sexual intercourse with the accused.
(ix)Of course, as I have warned you before, you can use this relationship evidence, only for the purpose for which it was intended, namely, to show the true relationship between the parties. It is particularly important that you examine this relationship.
(x)The Complainant says that at no time on the nights concerned in the charges in the indictment, was she in any relationship with the accused, other than one arising from the fact that they were both parents of the same two children, and another one arising from violence perpetrated on her by him. The accused, on the other hand, claims that they were living together for a month before the 22 June 2005 in her father’s house, that their relationship was a close one, though there were some quarrels and that she willingly went with him on each of the three nights, which other (sic) subject of the charges and at no time was he violent towards her, nor did he have sexual intercourse with her, without her consent.
(xi)The relationship evidence, then, is important to enable you to establish what was their true relationship. The evidence of what occurred on the 22nd June 2005 does not in itself enable you to conclude, what happened on each of the other nights and can be used by you when considering the question of whether he is guilty of all or any of the offences alleged to have been committed by him on the 25th June 2005 and the 20th and 21st July 2005 only to assess what the relationship between the parties was on those subsequent occasions and to use it, when considering the question of consent in relation to those subsequent occasions.”
His Honour’s oral remarks included the following:-
(xii)Now as to the relationship evidence itself – it is there to show nothing more than this – that before the 22nd June 2005 the relationship between these two people was a very bad one and it could be regarded as a violent one on his part towards her. Acts of violence with periods of separation with the only real relationship between them of a continuing nature being in relation to access to their two children.
(xiii)Now if you are satisfied, or rather if you are not satisfied he committed the acts that are charted in this indictment then.. (not transcribable).. you have to consider the evidence – if you are not satisfied he committed these previous acts then you could not use the evidence in any way. He however has admitted that he did commit them, or rather he has not admitted he did commit them, he said he did not commit them but he pleaded guilty to them.
(xiv)Now if you are not satisfied that he did commit them, - if you think “Well it might just be reasonably possible that he was an innocent man, he just pleaded guilty to get it over and done with as he said” then you could not use this evidence in any way in assessing the relationship between them. You cannot take it into account in concluding that he had a propensity to engage in sexual violent conduct or kidnapping or a tendency to do those things merely because he engaged in that conduct.
(xv)Now you may find that hard to understand, but what it really means is this – he did those acts at that time – you are satisfied he did those acts – that establishes their relationship was a violent one. You cannot use that to say “Well because it was violent then without considering anything more I convict him of these offences” that would be quite wrong. And you cannot say “Well because he committed those acts then he has obviously got a tendency to go and commit other violent acts” but you can consider it in the context of what their real relationship was.
(xvi)Now additional evidence has been put, or rather has been put before you by the Crown that you should also consider relationship in another sense. The way he puts it is this – that the first set of events on the 22nd Of June – if you are satisfied they occurred – then what you would be satisfied occurred was assaults, abduction and sexual intercourse without consent. If you are satisfied that those acts occurred, that is the first five counts, then your satisfaction and those matters can be used to show what was their true relationship on these two subsequent occasions.
(xvii)Now he has said on all occasions he did nothing except with her consent. If you are satisfied beyond reasonable doubt that on the first occasion that was not so then you can say “Well what was the relationship on the second occasion and the third occasion.” And it can be used to show that he (sic) did not consent and it can be used to show that the Complainant was not consenting and he knew she was not consenting.
(xviii)So if you are satisfied he bashed, kidnapped her and raped her on the 22nd of June you can say “Well this is relevant to show their relationship subsequently was certainly not a consenting one, she did not consent to anything, and he knew it.” Now this evidence is put – this can be considered in this way only to establish what was their true relationship, and that is important because that is the central feature of the case. He says “I was living at this house” something which is denied by three people – Mr Gordon Copeland, Jacinta Copeland and Narelle Copeland. She says he was not living at the house. He says “We had this close relationship.” She says “We did not. I feared him. I did not want him anywhere near me because I feared him.” She denies being in any relationship with him other than the one that I have indicated. You are entitled to look at all this evidence to determine what was their true relationship and consider it on the question of consent.”
In the appeal to this Court, Ms Kluss who appeared for the Appellant drew the Court’s attention to what had been said by McClellan CJ at CL with the concurrence of the other members of the Court in Qualtieri v R (2006) 171 A Crim R 463 at [80 - 81] and submitted that the summing-up in this case did not comply with the observations of his Honour. In particular it was submitted that:-
The evidence led went beyond what had been foreshadowed during the course of argument over whether relationship evidence should be allowed;
There was error in his Honour describing to the jury the evidence as “relationship evidence” rather than “context evidence”
The passage was insufficient to warn against “this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged” and therefore, “it cannot be used as an element in the chain of proof of the offences charged.”
The direction omitted the last 4 paragraphs in the below quotation from Qualtieri v R.

The passages from Qualtieri v R that were relied on are as follows:-
“80 To my mind it is essential in any trial where the Crown seeks to tender evidence which may suggest prior illegal acts by the accused, especially where the charges relate to alleged sexual acts, that a number of steps are followed. Although the circumstances of the particular trial may require some modification the relevant steps will generally be -

Identification of the evidence which the Crown seeks to tender and the purpose of its tender.
If the Crown asserts that the evidence is evidence of a tendency on the part of the accused the admissibility of that evidence must be assessed having regard to s 97 and s 101 of the Evidence Act (see R v Fletcher [2005] NSWCCA 338). Ireland J also provides an analysis of the relevant provisions of the Evidence Act in R v AH at 709.
If the evidence is tendered merely to provide context to the charges which have been laid, it is first necessary to consider whether any issue has been raised in the trial which makes that evidence relevant (see R v ATM [2000] NSWCCA 475 at [72]). In relation to crimes of a sexual nature, particularly involving children, it may be anticipated that lack of complaint or surprise by the Complainant may be an issue at the trial. If it is, it will nevertheless fall upon the trial judge to determine whether the proffered evidence should be admitted having regard to s 135 and s 137. Because the evidence will inevitably be prejudicial, great care must be exercised at this point in the trial.
If admitted, the trial judge must carefully direct the jury both at the time at which the evidence is given and in the summing up of the confined use they may make of the evidence. They should be told in clear terms that the evidence has been admitted to provide background to the alleged relationship between the Complainant and the accused so that the evidence of the Complainant and his/her response to the alleged acts of the accused, can be understood and his/her evidence evaluated with a complete understanding of that alleged relationship. The jury must be told that they cannot use the evidence as tendency evidence.
81 The Supreme Court Bench Book contains a model direction with respect to relationship evidence which is to my mind the appropriate manner in which to instruct the jury. It states:
"It is important that I explain to you the relevance of this evidence of other acts. It was admitted solely for the purpose of placing the evidence of the particular acts relied upon by the Crown to prove the charges in the indictment into a true and realistic context. It is confined, in other words, to making the circumstances of the particular offences charged more intelligible.
Otherwise, a jury such as yourselves may wonder about the likelihood of apparently isolated acts occurring suddenly without any apparent reason. If a Complainant gave evidence of isolated acts of sexual misconduct, a jury would be entitled to say to themselves, as persons of common sense, well, really, it is very odd for there to be such isolated acts between these persons.
Thus, it is open to the Crown to lead evidence of other acts of sexual nature between the accused and [the Complainant] ... [it is necessary, to explain this direction, by reference to the facts of the particular case]
However, I must give you certain important warnings with regard to this evidence of other acts, which we can conveniently refer to as 'context evidence.'
You must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged, and, therefore, it cannot be used as an element in the chain of proof of the offences charged.
You must not substitute the evidence of the other acts for the evidence of the specific offences charged.
You must not reason that, because the accused may have done something wrong to [the Complainant] on another occasion, [he/she] must have done so on the occasions charged.
You must give careful consideration to the time frame within which the other acts are alleged to have occurred. The more remote the other sexual activity is, the less will be its weight ... [this direction will require amplification].”

The first of the above complaints relates to the first ground of appeal, is irrelevant to this one, and I have dealt with it sufficiently above.
There is no substance in the second complaint. Although in the passage quoted from the Bench Book, “context evidence” is used, there was no obligation in his Honour to follow that wording – see R v Forbes (2005) 160 A Crim R 1 at [72]–[76] – and there is nothing misleading or erroneous in his Honour’s use of the word “relationship” – an expression not only commonly used in this area to describe the relationship between a Complainant and person accused but one that appears in paragraph 80 that I have quoted.
Nor is most of the fourth complaint one with merit. The circumstances of the case made the terms of the last of the paragraphs quoted from Qualtieri v R irrelevant. Although there is no simple statement to the effect of the second last of the paragraphs quoted from Qualtieri v R – and it would have been better if there was - the tenor of much of what his Honour said both in writing and orally is sufficient in my view to accommodate the requirements of that paragraph. The third last paragraph quoted and part of the fourth are sufficiently accommodated by the passage in the written directions to the effect:-
“You can use this (relationship) evidence to give the other evidence some context but you must consider the charges on the indictment only. The court will receive a verdict only on those charges. Unless your are satisfied of his guilt on those charges he must be found not guilty”
However the complaint, whether framed by reference to the fourth last paragraph from Qualtieri v R or otherwise, to the effect that his Honour did not appropriately warn the jury that the relationship evidence could not be used as indicating a tendency on the part of the Appellant to commit offences of the nature charged has more substance. Although at times his Honour indicated the limited relevance of the relationship evidence, the emphasis his Honour gave to it and the frequency with which he referred to the nature of the relationship and its violent characteristics without any limitation, was calculated to conceal the limitations.
In so remarking, I am conscious that a summing up has to be read as a whole. Not all concepts and qualifications can be dealt with in the one sentence or paragraph but the paragraphs I have quoted and numbered (ii), (iv), (vii), (x) – (xii), (xiv), (xvi) and (xviii) illustrate the point just made.
Furthermore, his Honour’s use of the term “merely” in the passages numbered (vii) and (xiv) carried the result that in the passages where that word appears he was not telling the jury they could not indulge in propensity or tendency reasoning but only that they could not do so solely on the basis of the evidence of events prior to 2005. Given the existence of much evidence of violence in 2005, his Honour’s remarks effectively permitted such reasoning. The evidence had not been presented on that basis and no consideration had been given in the trial to its admissibility under s97 or s101. It was accordingly wrong to leave it to the jury as his Honour did. I would uphold this ground of appeal.
Ground 3
The trial judge did not give a balanced summing up of the defence case.
The principal argument advanced in support of this ground related to events that occurred prior to the summing up. It was submitted that throughout the trial his Honour ignored and dismissed the applications made by defence Counsel before the jury and unabashedly indicated his distain of the Accused’s case. Reference was made to particular passages and it was submitted that:-
“At p66 His Honour was derogatory of Counsel.
At p78                   His Honour ignored an objection by Counsel.
At p125 His Honour overrode and ignored an objection by Counsel.
At p223 His Honour interrupted.
At p234 There was an issue between counsel and his Honour on the topic of intoxication and consent. (This was in the absence of the jury.)
At p266His Honour ignored an objection to the effect that evidence being given went beyond the brief.
At p281 His Honour remarked, “Really that’s ridiculous”.
At p423 His Honour refused to hear Counsel.
At p434-5 His Honour elicited that the Appellant was in custody.
At p10 (21/3/06)                   His Honour refused an application to hear counsel on what was said to be a point of law.
At p25 (21/3/06)                   His Honour refused to hear counsel on an objection to evidence.
At p26 (21/3/06)                   His Honour said to the Appellant’s counsel, “Would you stop interrupting?”
Having regard to the fact that the instant complaint does not fall within the grounds of appeal and that I have concluded that the matters about which complaint is made do not come close to justifying any interference by this Court, I do not regard it as necessary to set out the context in which the passages referred to appeared, not to deal with them seriatim. I will simply add this. Although his Honour could with advantage have been less peremptory on some of the occasions referred to, I do not agree with the characterisation made on the Appellant’s behalf of a number of his Honour’s remarks. It is to be remembered also that a trial judge is under no obligation to permit argument from counsel on objections to evidence.
The only particular matter in the summing up referred to in the submissions in support of this ground were remarks by his Honour characterised in the submission as telling the jury that “no woman deserves to be raped”. Somewhat more precisely, the object of this submission were remarks his Honour made at the commencement of his summing-up. Having mentioned in one short paragraph the indictment and written directions, his Honour then devoted a page of his summing up to contrasting the 21st and the 18th centuries, saying that there may have been a view once that a woman had almost an obligation to resist to the point of death an attempt to sexually assault her but now a simple “no” is a sufficient refusal of consent, and that consent procured by fear is not consent. His Honour concluded these observations with the words:-
“If a woman had to resist to the point of being beaten badly, then it could be said the law would not protect her at all, and the law is there to protect all people. That is why we have laws, and that is why we have courts.”
One may add to this reference remarks his Honour made shortly before asking the jury to retire:-
“Take into account in relation to the second and third sets of incidents that there was heavy drinking on the night. But bear in mind what I said in the beginning about it being the 21st century – the fact that a woman drinks heavily does not mean that a man can then treat her badly and sexually assault her.”
The purpose of a summing-up is to direct a jury as to the applicable law, define the issues and, if appropriate, provide some reference to the evidence, not moralising about the deficiencies of past centuries. There was nothing in the case that called for what his Honour said in that connection and although it may have been proper for his Honour to point out how little is required for there to be a lack of consent and that resistance to the point of being beaten was not required, neither the evidence nor submissions in the case really raised the point. Furthermore, while in cross-examination it was put to the Complainant that on the second and third occasions she was intoxicated, a proposition with which she agreed, neither the evidence nor submissions suggested this bore on the issue of consent or ill treatment of her by the Appellant.
In these circumstances his Honour’s remarks to which I have referred were rather calculated to distract the jury from the issues they had to decide and they may well have been understood as somewhat anti-Appellant. However, in the context of the whole of the summing up, I am unable to conclude that they rendered it unbalanced. I would reject this ground of appeal.
Ground 4
The trial judge erred in failing to direct the jury that they must consider each count separately and only by the evidence that applied to it.
The written directions provided to the jury extending to something over 11 pages and dealt with not only the elements of the offences but covered matters such as proof beyond reasonable doubt, unanimity, complaint, relationship evidence and the evidence of an accused. In the course of these directions all that was said on the topic of separate consideration was:-
Each charge to be considered separately
Each charge must be considered separately against the accused. A separate verdict must be given on each count.
In his summing up all that his Honour had to say relevant to this ground was:-
“Each charge, as I say in the third item (of the written directions) has to be considered separately, and there can only be two possible verdicts, guilty and not guilty. There’s no in between verdict. Now please understand that agreement does not mean you agree on every single minor point. It means that you agree in the result. You can all come to agree on a verdict using different means…”
At the commencement of the trial, his Honour had been more fulsome. Included in his remarks at that stage was the following:-
“… it’s an indictment that’s got 11 charges on it and there are 3 separate series of incidents. There could be 11 separate trials or there could be 3 separate trials. I’ve decided all matters should be heard together because they concern one woman and they concern the accused. The only alleged victim is this one person and the events are fairly closely connected, but you have to give a separate verdict on each count. It’s not a question of all-in or all-out. There could be different verdicts on different counts and very often in a case where there are numerous counts, there are different verdicts.”
It is also necessary to have regard to further directions his Honour gave after his summing up. His Honour’s concluding words were to invite the jury to decide whether they wished to consider their verdict that day or return on the following morning. They left the Court at 4.10pm. Two pages of transcript later, a speaker, presumably one of the sheriff’s officers, is recorded as saying words to the effect that the jury were voting on whether to go (home) or stay and a little later saying “they need 15 to 20 minutes your Honour. Soon after a note was received from the jury, “can we get some more clarification on aggravation in relation to count 10? Is it possible to find the accused guilty without any corroborating evidence of a weapon?” His Honour had the jury brought into court to answer that question at 4.55pm and having answered it added the following:-
“I must also caution you in this way too – something I omitted to say before – our system does not permit compromise verdicts. You cannot have a situation of one for the Crown and one for the accused, or give each of them a little bit – “well on this one we feel a bit sorry, so we will find this way, or I will give him one and her one.” That is not the process at all. The Complainant herself is not on trial, so she is no part of it. She is merely a witness in the trial. The question is can he – can the Crown prove his guilt beyond reasonable doubt. Each count must be considered separately. It is inappropriate to in effect compromise and say “well we will find some his way and some against him.” That is just not appropriate at all. You consider each charge. You decide whether the Crown has proved that charge beyond reasonable doubt. If you accept her evidence beyond reasonable doubt then you are entitled to convict. If you do not accept her evidence – certainly relation to sexual assault matters (sic) – you could not possibly convict if you do not accept her evidence. If you accept her evidence on every other count except count 10, it is difficult to see why you could not accept it in relation to count 10. If you do not accept her evidence in relation to count 10, it is difficult to see why you would accept it in other counts unless it is otherwise supported. …”
The jury retired at 5.02pm and returned with verdicts of guilty at 5.10pm.
If the matter stopped there, I would not uphold this ground. Although it would have been preferable if his Honour had included in his oral, and possibly also in his written, directions a statement to the effect of that I have quoted from his opening remarks, those last quoted by me are sufficient to remedy any deficiency.
However, other matters must be referred to. During the course of his summing up, his Honour commenced to deal with the ingredients of the counts seriatim, when he came to some ingredients common to a number of counts he dealt with those counts together. Thus he pointed out that counts 5, 7, 8, 10 and 11 all involved sexual intercourse without consent and observed that “in each of the cases in these counts, sexual intercourse means penetration of the sexual organs of the Complainant by the penis of the accused”. Still dealing with the 5 counts mentioned, he explained what consent encompassed and referred to evidence of a bruise on the Complainant’s inner right thigh. Although the evidence was that this was observed on 27 June and thus could not have been caused in the course of the third group of offences, his Honour did not draw that distinction.
The summing up then included the following:
“Now if someone, she’s given evidence of acts of violence on each of these nights, but the Crown and Mr Kumarasinhe have gone all through that evidence with you and I do not intend to go through it again. If you find beyond reasonable doubt that those acts of violence occurred or some of them occurred even, and then you would take that into account in determining was she consenting. The allegations are that on each occasion she was, in effect, abducted, forced to go somewhere. If that is so, that would be something to consider in relation to consent.
It is also something to be considered in relation to what his state of mind would be. …
Now his state of mind might be that he actually knew she was not consenting, that’s a guilty state of mind. Now if the Crown satisfies you beyond reasonable doubt that that’s his state of mind at the time of these acts of intercourse, the Crown has proved its case. …
Well just taking the first, if he just simply said “lie down there and just pull your trousers off, I’m having sex with you” and didn’t in any way consider was she consenting or not consenting, as far as he was concerned, he just went ahead and did it. Although if he’d thought about it, how could she be consenting in circumstances where he’d been engaged in all these acts of violence, then that’s reckless. …
But I first of all say that because he himself has given evidence, you are more easily able to assess his state of mind at the time each act of sexual intercourse occurred. …
Shortly afterwards his Honour returned to elements of individual, or smaller, groups of offences and then to other matters.
In his written directions when referring to counts 5, 7, 8, 10 and 11 and the topic of consent, his Honour observed, inter alia:-
“The Crown must prove that the accused knew that the Complainant was not consenting. This is a subjective test. How then does the Crown prove the accused knew the Complainant was not consenting? The Crown relies on all the surrounding circumstances of the events of these 3 nights to establish that the accused must have known and in fact did know that the Complainant did not on any occasion consent.”
Although the jury were entitled to take into account, in considering such of the second and third groups of offences as involved consent, the evidence relating to the first group of offences on that topic, they were not entitled in the case of such of the first and second group as involved consent to take into account evidence adduced in connection with later offences. The above extracts make clear that in both his oral and written directions his Honour did not make this distinction. Accordingly, despite the directions above quoted to the effect that each charge should be considered separately, his Honour invited the jury, at least in one aspect, not to do so.

I would uphold this ground of appeal also.
Criminal Appeal Act, s6(1)
The concluding words of s6(1) of the Criminal Appeal Act empower the Court, even if it takes the view that there has been error in the conduct of a trial, to dismiss an appeal if the Court considers that no substantial miscarriage of justice has occurred.
The Crown case against the Appellant was strong. While it undoubtedly depended on the evidence of the Complainant, there was a deal of supporting evidence. The fact that the Appellant had pleaded guilty to a number of prior charges of assaults on, or other conduct adverse to, the Complainant, provided strong support for her claim that there was no existing (friendly) relationship between them. In the face of his guilty pleas on 4 occasions, there is no reasonable prospect that his denials of past misconduct the subject of those charges could be accepted.
Evidence by the Appellant that he was living with the Complainant at 2 Mehi Crescent was very unconvincing. It was further weakened by the fact that when arrested on 21 July he had given to the police as his, a different address.
There was evidence of early complaint. The Complainant said that after the Appellant left her on 23 June, she went to her cousin’s place, told her that the Appellant had bashed her at her father’s house and taken her to his sister’s and asked her cousin to ring the police. There was evidence of 000 phone calls not long afterwards by the Complainant seeking help and alleging that she had been bashed. There was also evidence from a Constable Maynard that she had interviewed the Complainant on 23 June 2005. The Complainant at that time was very upset and crying. The constable did not give evidence of any details of what the Complainant said other than that it concerned the Appellant, the events of the previous night and what the Complainant said was the basis of part of the proceedings. She also said that she did not arrange for the Complainant to be medically examined because the Complainant had told her she had showered and that on 23 June the Complainant did not have a chipped front tooth..
Constable Harris said that he attended the premises at 11 Birrawee Place on 26 June. As he pulled up the Complainant ran out of the house and jumped into the back seat of the police vehicle. When asked, “What’s happened?” she replied, “He’s inside”. The Complainant gave similar evidence. Later, back at the police station Constable Harris took a statement from the Complainant, the terms of which were not stated in evidence.
Sergeant Spliet gave evidence of attending the premises at 29 Arunga Street on the morning of 21 July, seeing the Appellant escorted from the premises by other police and seeing the Complainant shaking, red around the eyes and upset. The Complainant said something to the effect, “He’s done it to me again”. Sergeant Spliet began to take a statement from her although other police then took over that task.
There was evidence also from a Dr Puxty who had first examined the Complainant at 3.30pm on 27 June. The doctor recorded having observed the following injuries:-
1.            A purple bruise around the left eye.
2.            A purple bruise underneath the right eye.
3.            A purple linear graze on the right of the base of the neck.
4.            Bruising to the lower lip.
5.            A chipped left front tooth.
6.            Purple and black bruising on the left arm.
7.            A purple to black bruise on the right arm.
8.A brown/black circular bruise on the right inner thigh about 10 centimetres from the genital area.
While saying that not being a forensic pathologist she did not consider herself an absolute expert on the age of bruises, Dr Puxty said her understanding as a general practitioner was that a purple bruise is a newer bruise than a black bruise. Asked whether all the bruising appeared to be recent, she said that it was very difficult to make a judgment but “certainly the purple bruising on the victim’s face I felt was relatively recent” and “certainly the purple bruises are likely to have been – again it’s hard to be exact – but probably several days whereas the black ones were older.” (sic).
Dr Puxty again examined the Complainant this time at about 4pm on 21 July and on that occasion the only item not noticed to be normal was the presence of some red linea scratches on the Complainant’s arm and a small red graze on one finger. The redness of these items meant they were new.
Dr Puxty’s evidence of injuries was supported by diagrams and photographs taken by Constable Harris that showed a chipped tooth, knee injury, cut and bruised lips, a bruised arm and black eye.
There was evidence also from a number of persons to the effect that they had witnessed some or parts of the incidents about which the Complainant complained. Kathleen Smith, an aunt of the Complainant and cousin of the Appellant said that she was present at 20 Birrawee Place on 25 June and that the Appellant there commenced to bash the Complainant. She said that following attempts by another person present and herself to protect the Complainant, the Appellant grabbed hold of the Complainant and took her in the direction of 3 Birrawee Place. Because at one stage Ms Smith seemed to be an unfavourable witness, purporting to have memory problems, the Crown was given leave to cross-examine her on the basis of a statement she had made shortly after the events. However, subject to the limitations inherent in any transcript, Ms Smith’s evidence thereafter was very definite, persuasive, and adverse to the Appellant’s case.
The Complainant’s 16 years old sister Jacinta gave evidence of the Appellant kicking and hitting the Complainant on 23 (sic) June at 2 Mehi Crescent, dragging her near the back door and of the absence of the Complainant and Appellant after Jacinta herself returned on a second occasion from a neighbour’s house where she had rung the police. There was also in evidence a record of two 000 calls made on 22 June, in one of which Jacinta is recorded as saying that her sister had been injured and that the Appellant had hit her. She said also that on the following day the Complainant had returned and informed Jacinta that the Appellant had hit her. The witness acknowledged that at the time her family and the Appellant’s family were brawling.
The Complainant’s brother Michael gave evidence that on 25 June 2005 he went to Georgina Boney’s house where he saw the Appellant hitting the Complainant.
Against this evidence was that from the Appellant and his sister, Melanie Boney. I have referred to some of the evidence of the former. The latter gave evidence that on 20 July 2005 the Appellant and Complainant arrived at her house. They were laughing and yarning, charged up (somewhat intoxicated) and very happy. They then went to bed. On the next day Ms Boney went out early and when she returned to the house, neither the Appellant nor the Complainant were there. In cross–examination she agreed that the two had also been rowing the previous night, that she became aware on the following day that the Appellant had been arrested, and that she had never attended the police station to inform the police of the nature of the relations between the Appellant and Complainant on the previous night.
In considering whether there has been a miscarriage of justice in circumstances where there is conflicting oral evidence on matters of significance, there are limitations on the extent to which that oral evidence can be relied on safely by an appellate court. In the circumstances of this case it is however apparent that the jury disbelieved the Appellant. Furthermore, the supporting evidence of more or less contemporaneous complaint, of the 000 calls, of the observations of the police officers, and of Dr Puxty made the Crown case compelling. In these circumstances I am satisfied that there has been no miscarriage of justice and that the Court should apply the proviso to s6(1) and dismiss the appeal against conviction.
In this connection, I should expressly refer to the decision of the High Court in HML v The Queen [2008] HCA 16 in which a majority of that Court said – see [247] and the notes thereto - that:-
“in the ordinary case a jury would be instructed by the trial judge that they must only find that the accused has a sexual interest in the Complainant if it is proved beyond reasonable doubt”.
The decision in HML v R was delivered well after the instant appeal was argued and made under the common law and not against the background of the restrictive terms of the Evidence Act dealing with the admissibility and use of tendency evidence. Nevertheless, had the Crown case against the Appellant not been so strong, it would have been appropriate to afford the Appellant an opportunity to argue that the conviction of the Appellant should be quashed since, although at one point the written directions instructed the jury that they could not use the evidence of the Appellant having committed offences against the Complainant in 1999 to 2003 in assessing the relationship between them unless satisfied of those matters beyond reasonable doubt, Finnane DCJ’s oral directions did not state the matter so highly.

However, the strength of the Crown case was such that, even if I concluded that his Honour’s directions in this respect were inadequate, I would still apply the proviso.
The Appeal against Sentence
At the commencement of these reasons I have summarised the 11 charges against the Appellant which went to the jury and I need not repeat that summary.
The sentences imposed by his Honour were:-
(i)Imprisonment for 2 years including a non-parole period of 1 year, both such periods commencing on 22 July 2005;
(ii)Imprisonment for 7 years including a non-parole period of 3 years, both such periods commencing on 22 July 2005;
(iii)Imprisonment for 1 year including a non-parole period of 6 months, both such periods commencing on 22 July 2005;
(iv)Imprisonment for 9 years including a non-parole period of 6 years, both such periods commencing on 22 July 2005;
(v)Imprisonment for 10 years including a non-parole period of 7 years, both such periods commencing on 22 July 2005;
(vi)Imprisonment for 12 years including a non-parole period of 8 years, both such periods commencing on 22 July 2006;
(vii)Imprisonment for 15 years including a non-parole period of 11 years, both such periods commencing on 22 July 2006;
(viii)Imprisonment for 10 years including a non-parole period of 7 years, both such periods commencing on 22 July 2011;
(ix)Imprisonment for 9 years including a non-parole period of 6 years, both such periods commencing on 22 July 2011;
(x)Imprisonment for 16 years including a non-parole period of 10 years, both such periods commencing on 22 July 2012;
(xi)Imprisonment for 14 years including a non-parole period of 7 years, both such periods commencing on 22 July 2018;
The effective total of the sentences imposed on the first group of offences was thus of imprisonment for 10 years (22/7/05–21/7/15) including a non-parole period of 7 years (22/7/05-21/7/12). The effective total of the sentences imposed on the second group of offences was thus of imprisonment for 15 years (22/7/06-21/7/21) including a non-parole period of 12 years (22/7/06-21/7/18). The effective total of the sentences imposed on the third group of offences was thus of imprisonment for 21 years (22/7/11-21/7/32) including a non-parole period of 14 years (22/7/11-21/7/25). The non-parole portion of the sentences in the second group overlapped the effective non-parole period of those in the first group by 6 years and the non-parole portion of the sentences in the third group overlapped the effective non-parole period of those in the second group by 7 years.
As has been said, the effective total sentence for these 11 offences was of imprisonment for 27 years including non-parole periods totalling 20 years.
Finanne DCJ also sentenced the Applicant for 3 offences referred under Section 166 of the Criminal Procedure Act of contravening an apprehended violence order during the periods of each of the 3 groups of offences. For each of these contraventions the sentence imposed was of imprisonment for a period of 3 years including a non-parole period of 1 year, both such periods commencing on 22 July 2025.
In sentencing the Applicant in respect of the 7th count, Finnane DCJ took into account 7 further offences included on a Form 1. They, the dates of them, and a brief account of the circumstances of each, were:-
(a)Contravene apprehended violence order – 30 April 2005 – the Appellant, intoxicated, approached the Complainant at an oval where she was watching football. The Appellant raised a “throw down” beer in his hand as if to hit the Complainant.
(b)Threaten injury to person with intent to commit indictable offence – 30 April 2005 – after the altercation referred to in (a) the Complainant ran from the Appellant who took his son out on to the roadway. The Complainant feared harm to the child so ran out of the house with a knife. The Appellant pulled out a pocket knife and ran at the Complainant who went inside the house. She heard the Appellant yell “I’m gunna stick this in you” referring to the knife.
(c)Contravene apprehended violence order – 14 May 2005 - the Appellant, intoxicated, threatened the Complainant with a beer bottle and with kicking her and demanded she accompany him. She did so until she saw an opportunity to run off.
(d)Contravene apprehended violence order – 20 April 2005 – the Appellant insisted on accompanying the Complainant in a car and then accompany him to two separate addresses. He demanded she leave the second threatening to “kick the cunt out of you”.
(e)Contravene apprehended violence order – 19 July 2005 - the Appellant while intoxicated attended at 2 Mehi Crescent, Moree where the Complainant, children and father were. The conditions of the AVO required that the Appellant not approach the Complainant while intoxicated.
(f)Assault law enforcement officer while in the execution of his duty – 2 November 2005 – The Appellant approached a corrective services officer and expressed spittle over the latter’s face, “because you are a fucking dog”.
(g)Assault officer in the execution of his duty – 14 November 2005 – the Appellant came within a 5cm radius of the victim’s face, then lunged at him. A little later the Appellant swung his arm making contact with the victim’s face and occasioning two split lips, sore gums and a loose tooth.
The Appellant was born in August 1979. His antecedent report records as committed between June 1996 and May 2005 at least 3 offences of contravening an apprehended violence order, something of the order of 9 offences of dishonesty, 13 offences of assault including some of assault occasioning actual bodily harm, 3 of resisting an officer in the execution of his duty, and 2 of taking or detaining a person with intent to obtain an advantage. For these offences he seems to have spent something over 3½ years in custody. He has had numerous convictions for not adhering to prison rules.
The author of a Pre-Sentence Report recorded that the Appellant had grown up in a family environment where alcohol abuse and domestic violence were prevalent, and that the Appellant’s education had been disrupted because of his juvenile offending. Thereafter, although he had periodically undertaken seasonal work, he was usually unemployed. The Appellant had agreed that drugs and alcohol use were a regular part of his lifestyle and records indicated that the Appellant, who had for a time attended residential rehabilitation at Bennelong’s Haven, had done little to address these problems or his tendency for violence. The Appellant was assessed as unlikely to benefit from further supervision by the Probation and Parole Service.
A psychologist’s report covered a deal of the same ground as did the Pre-Sentence report though in appreciably more detail in a number of areas. It emphasised the disadvantage the Appellant suffered from his upbringing; made the point that the Appellant had very limited skills for self-regulation and problem solving; and suggested that he might well have a mild intellectual disability – a suggestion that Finnane DCJ, on the basis of the Appellant’s conduct in the witness box, rejected. The report also indicated that there was considerable need for the Appellant to undertake a variety of programs including general life skills, drug and alcohol counselling, anger management, and anti-violence and sexual assault treatment.
It should be mentioned also that there was tendered during the hearing of the appeal, an affidavit by the Complainant. In it she indicated a close relationship between the Appellant and their children, that she had been in contact with the Appellant since his incarceration and it is her strong desire that the Appellant be available to assist her in raising the children and that she supported the Appellant’s appeal.
In the course of his remarks on sentence Finnane DCJ observed:-
The offender in this case is an Aboriginal man living in Moree. He is dangerous, violent and incorrigible. He has attacked the victim in this case many times over many years. Gaol sentences visited on him before this have had no effect in preventing him from continuing to wage a campaign of terror against her. He comes before me now for sentence following a trial at which he was convicted of 5 counts of sexual intercourse without consent, 2 of them being aggravated offences, 3 counts of detaining for advantage, 1 of them being an aggravated offence, 1 count of entering a dwelling with intent to commit a serious indictable offence in circumstances of aggravation, namely deprivation of the Complainant’s liberty, 1 count of malicious damage to property and 1 count of common assault.
…
These offences were all grave violations of the rights of the Complainant. They were violent and degrading. The Complainant, NC, was a brave young woman who gave compelling evidence. She asserted her personal dignity and made it clear in her evidence that the offender did not own her.
He has been violating her rights since 1997. The current offences take the violations of rights to a new level, where they involve kidnapping, rape and aggravated rape. The only way of protecting her and protecting society is to impose on him a lengthy non-parole period and a heavy head sentence. This will also serve to warn any others minded to engage in similar conduct what they can expect if they do engage in such conduct.
His Honour found that the Appellant:-
“has no remorse, and regards himself as being entitled to do what he did. This means that he poses a danger to (the Complainant) of a continuing nature. The only way that she can be protected is to ensure that (the Appellant) is kept in custody for many years.”
His Honour remarked that the Appellant had never worked, did not regard himself as having raped the Complainant but only of treating her roughly, had pleaded guilty in the past to assaulting the Complainant and breaching apprehended violence orders and did not intend to change in the future. Referring to the Form 1 matters, his Honour observed that those involving the Complainant enabled him to reach the conclusion that the Appellant had no intention of changing his ways and would do the same in the future as he had in the past and that the offences against the Corrective Service Officers indicate that the Appellant “is arrogant, abusive and dangerous to persons in authority”. His Honour went on to observe:-
“I place little store on rehabilitation. Sentences must be fixed which properly reflect the seriousness of the offences, and they must be sufficiently stern to deter others, particularly men, be they aboriginal or otherwise, from ill treating and raping woman about whom they are obsessive.”

His Honour concluded that each offence of sexual intercourse without consent was more than a mid range offence but decided not to increase the non-parole period for any of the three offences of sexual intercourse without consent or the count 10 offence above the standard non-parole period because of the need to ensure the overall period of imprisonment not be excessive. His Honour observed also:-
“In my opinion, the sexual offences in this case are offences of the worst type, since they were committed in circumstances of degradation, violence and as part of a long campaign of violence against the same victim, the Complainant in this case. No doubt, human imagination could conceive of even worse and even more degrading offences being committed, but in my opinion, that does not make my characterisation of these offences wrong or inappropriate.”
There is much in his Honour’s remarks with which one could not disagree. However, there are also some errors. His Honour’s observation, and one that was repeated, that the Appellant had never worked was unsupported by the evidence and contrary to statements to the contrary in both the Pre-Sentence and psychologist’s reports. There was also error in his Honour’s findings that each offence of sexual intercourse without consent was more than a mid-range offence and in his characterisation of them as “offences of the worst type”.
In concluding that his Honour erred in concluding that each sexual intercourse offences was “more than a mid-range offence”, I am not unconscious of observations in this Court to the effect that the Court should be slow to depart from a sentencing judge’s conclusion as to where, in the range of objective seriousness an offence lies - see R v Dang [2005] NSWCCA 430; R v Mulato [2006] NSWCCA 282 at [37]; Perry v R [2006] NSWCCA 351; Stanford v R [2007] NSWCCA 73; R v Fisher [2008] NSWCCA 103. Nevertheless, a consideration of the evidence makes my conclusion of error inevitable. I have summarised that evidence early in these reasons and there is no need to repeat that summary here. It is sufficient to point out that the offences the subject of charges 5, 8, and 11, as distinct from the detain-for-advantage charges, commence little if any earlier than when the Complainant and Appellant went into a bedroom. For whatever reason, there the Complainant was compliant with the Appellant’s demands and little more relevant to the current issue occurred than the simplest form of non-consensual intercourse.
It is also pertinent to bear in mind some circumstances that distinguish the offences here from others that arise from time to time. Although fearful of the Appellant the Complainant at least knew him and no doubt was capable of making some assessment of the situation. Also relevant is the fact that while the Appellant gave the Complainant cause to fear him, the situation was not one where she had to endure the terror of an unknown kidnapper. The fact that much of what was occurring was to the knowledge of others in the community of which the Complainant and Appellant were members, even if some of these others were the Appellant’s relatives, was a factor that made extremes of violence less likely. The case was not one where a victim walking through a lonely street or park at night is seized by a complete stranger about whom she knows nothing and who, for all the victim knows, may well kill her when the intercourse is over. There is nothing to suggest that the consequences of the Appellant’s conduct – see R v Way (2004) 60 NSWLR 168 at [85] - included in an unwanted pregnancy or AIDS or other potentially life damaging illness or left the Complainant with any fear of these matters.
Many of these remarks apply to the offences the subject of counts 7 and 10. These offences, although more serious than those the subject of counts 5, 8 and 11, fall to be judged by the standards expressed or implicit in s61J. The circumstances of aggravation therein referred to include not only threats of actual bodily harm but also the actual infliction of such harm, a circumstance that will often be far worse than threats.
The circumstances of the intercourse part of the offence the subject of count 10 were no more serious than those the subject of counts 5, 8 and 11. The threat was the holding up of a stick accompanied by the demand that the Complainant stop crying. While I do not intend to trivialise the threat and no doubt the fact of it being made was calculated to influence the conduct of the Complainant thereafter, that threat was significantly less serious than many that form part of offences against s61J.
The circumstances of the intercourse part of the offence the subject of count 7 were also no more serious than those the subject of counts 5, 8 and 11. However, an element of the count 7 offence was actual bodily harm occasioned by, according to the Complainant, the Appellant punching and kicking her and jumping on her head causing a tooth to chip. Clearly these matters aggravate the offence but without trivialising these events either, they fall considerably short of the conduct and injury that is liable to occur in offences under s61J. Thus it is that none of the offences involving sexual intercourse reached the mid-point of objective seriousness.
In so concluding I do not ignore the fact that his Honour was clearly influenced by what he referred to as a “a long campaign of violence against the” Complainant. Certainly whatever motivated the Appellant is, according to R v Way at [86] relevant to an assessment of the objective criminality of the offences and, inter alia, to the need for personal deterrence, but I rather doubt that it was correct to describe the history of the Appellant’s offending as a “campaign of violence” (which has implications of continuous planning) as distinct from a simple inability to accept that the Complainant was not his property or to resist his urge to fornicate.
A fortiori did his Honour err in characterising the sexual offences as “offences of the worst type”. His Honour went on to explain this characterisation as because the offences “were committed in circumstances of degradation, violence and as part of a long campaign of violence against the same victim”. In fact the degradation involved in the sexual offences was little or any more than is inherent in such offences and was far less than occurs in many, perhaps most, offences against s61I and 61J. Furthermore, most of the violence exhibited by the Appellant was the subject of other charges and not the sexual offence charges. By comparison with many offences against these sections with which the courts have to deal, all of the individual sexual offences here fell a long way short of offences of a worst type.
The sentences imposed on counts 4, 6 and 9, the “detain for advantage” charges, were also manifestly excessive. It seems likely that in deciding on them his Honour was influenced by his erroneous assessment of the offences involving sexual intercourse but whatever the reason, against a statutory maximum penalty of 14 years in the case of counts 4 and 9 and 20 years in the case of count 6, the sentences of 9 years (including non-parole periods of 6 years) and 12 years (including a non-parole period of 8 years) were unjustifiably high. The duration of the detentions, while far from short, was also far less than it might have been in circumstances encompassed by the statutory provision. In this connection it is to be borne in mind that that provision covers also detention for the purposes of ransom, detention that might well extend for much longer than occurred in this case and in circumstances where a victim might be blindfolded, in an unknown location and completely out of contact with anyone not an offender.
In the case of the sixth count the actual bodily harm fell very far short of the extremes of harm encompassed by the statutory provision. The Complainant said she was punched all over and kicked and this and other evidence properly entitled his Honour to regard the assaulting of the Complainant that fell within this charge as serious. However, it must also be recognised that Dr Puxty’s examination of the Complainant 2 days later revealed not many bruises and some of those that were seen are likely to have been attributable to other assaults. Thus the actual bodily harm component of the offence the subject of the sixth count could not, even coupled with the detention, justify the sentence of 12 years imposed.
I do not need to pursue the question of whether there were other errors in his Honour’s remarks although it may perhaps be noted that those concerning the protection of the Complainant certainly raise the question of whether he adhered to the limits involved in the operation of that factor – see Veen v R (No 2) (1987-1988) 164 CLR 465 at 472-3; R v Bilal Skaf [2005] NSWCCA 297 at [116 – 118].
Of course, when regard to the extent of concurrency of sentences within each of the 3 groups, whether reduction in the sentences I regard as manifestly excessive will be of benefit to the Appellant, will depend on the considerations of totality to which I shall turn in a moment.
Having regard to the Appellant’s record and the other findings of his Honour to which I have referred, the appeal against the sentences imposed on counts 1, and 3 should be dismissed. Those sentences are not affected by the matters to which I have referred and are not manifestly excessive. Nor is the non-parole component of the sentence on count 2 although the full term is. Except insofar as may be necessary to accommodate the allowance of the appeal against other sentences by adjusting starting dates, so should the appeal against the sentences imposed for the 3 offences of contravening an apprehended violence order during the periods of each of the 3 groups of principal offences. While the court must be careful to avoid double counting of the Appellant’s criminality, it should be made clear to the Appellant that court orders must be obeyed and that, given his past disregard of them, the time has arrived where he can expect to be punished for every breach of them.
However there was also error in the total sentence imposed. The effective sentence for the 11 offences committed in June and July 2005 of 27 years including a non-parole period of 20 years was the equal of many sentences imposed for murder. Despite the number and seriousness of those 11 offences, neither the Appellant’s criminality, nor the impact on the Complainant came close to what those elements would have been had the Appellant simply killed the Complainant at the commencement of his activities on 22 June.
It is of course generally not appropriate when sentencing under one or a number of provisions of the Crimes Act to have regard to penalties imposed under another. The matter is further complicated in this case because of the presence of standard non-parole periods. Nevertheless when considering issues of totality in an effective sentence as great as that here, the comparison is useful.
As a general proposition it is also not appropriate to compare sentences under challenge in one case with sentences imposed in only one other case. However, in the particular circumstances here the sentence imposed may usefully be compared with that imposed by this Court in the matter of R v Bilal Skaf which was also an appeal from Finnane DCJ. Although he was 2 years younger, that offender’s conduct was far worse than that of the Appellant here. It involved 3 victims each of whom was aged 18 and taken into isolated places, and led to Skaf being sentenced in respect of 21 counts including 11 of aggravated sexual intercourse without consent in company and 3 of detain for advantage, the advantage clearly being sexual intercourse. This Court reduced the total sentence imposed on Skaf from 46 years including non-parole periods totalling 30 years to an effective sentence of 28 years including non-parole periods totalling 22 years, i.e. a full term and non-parole period but one year longer than those imposed here for very substantially less criminality.
The decision of this Court in R v Skaf was delivered on 16 September 2005 and it is impossible to believe that his Honour was not aware of it. Although sentencing involves an appreciable degree of discretion, it should not be an idiosyncratic exercise. First instance judges are required to adhere to standards set down by this Court. His Honour would have been well advised to do so in this case.
Since it is appropriate to re-sentence the Appellant it is proper to have regard, at least in principle, to the affidavit of the Complainant read to this Court. That said, the vast bulk of the affidavit comes up against the rule that it is only in extreme cases that hardship to others should be taken into account in fixing a sentence. The affidavit does not establish that this is one of those extreme cases. Nevertheless the affidavit does tend to confirm the view to which I incline because of the absence of evidence before Finnane DCJ to the contrary, viz. that the Appellant’s offences had no major or long lasting physical or psychological impact on the Complainant.
The number and nature of the offences of which the Appellant was convicted means that considerations of totality will govern the effective sentence to be imposed. Although it is generally appropriate to make it clear to offenders that there will be extra punishment imposed for each offence, there comes a stage when there is no advantage to be gained by doing so. Accordingly, I propose to follow the course Finnane DCJ adopted of making the offences in each of the 3 groups largely concurrent.
Having regard to the extent of concurrency in the sentences imposed by Finnane DCJ and this Court it is also appropriate to make most of those imposed by this Court fixed terms rather than sentences including non-parole and further periods. The accumulation of sentences inspires a finding of special circumstances and an adjustment of the relativity of the non-parole and balance of term portions of the sentence imposed on count 7. Like Finnane DCJ, I take the offences on the Form 1 into account on count 7. I note also that under the sentences I propose, the period during which the Appellant will be eligible for parole, viz. 3 years, is less than one third of the total non-parole period. That last mentioned period is the minimum that the Appellant should be incarcerated and, if he has not reformed prior to the expiration of his total sentence, his spending an extra year on parole is unlikely to be of benefit to anyone.
The orders I propose are:-
(i) Appeal against conviction dismissed;
(ii) Leave to appeal against sentence granted;
(iii)Appeal against sentence, except in the case of the sentence imposed on counts 1 and 3 allowed;
(iv)Appeal against the sentences imposed on counts 1 and 3 dismissed;
(v)The sentences imposed on counts 2 and 4 to 11 quashed, and in lieu thereof, the Appellant sentenced as follows;
(vi)On count 2, the Appellant be sentenced to imprisonment for a fixed term of 3 years, commencing on 22 July 2005
(vii)On count 4, the Appellant be sentenced to imprisonment for a fixed term of 3 years, commencing on 22 July 2005;
(viii)On count 5, the Appellant be sentenced to imprisonment for a fixed term of 4 years, commencing on 22 July 2005;
(ix)On count 9, the Appellant be sentenced to imprisonment for a fixed term of 3 years, commencing on 22 July 2006;
(x)On count 10, the Appellant be sentenced to imprisonment for a fixed term of 5 years, commencing on 22 July 2006;
(xi)On count 11, the Appellant be sentenced to imprisonment for a fixed term of 4 years, commencing on 22 July 2006;
(xii)On count 6, the Appellant be sentenced to imprisonment for a fixed term of 4 years, commencing on 22 July 2008;
(xiii)On count 7, the Appellant be sentenced to imprisonment for a non-parole period of 6 years and a total term of 10 years, both such periods commencing on 22 July 2010;
(xiv)On count 8, the Appellant be sentenced to imprisonment for a fixed term of 4 years, commencing on 22 July 2008;
(xv)On each of the charges referred under s166 of the Criminal Procedure, the Appellant be sentenced to imprisonment for a fixed term of 1 year, commencing on 22 July 2016.
(xvi) Record as the date upon which it appears to the Court that the Appellant shall be eligible for parole, 22 July 2017.
MATHEWS AJ: I agree with Hulme J.

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LAST UPDATED:
20 August 2008