Giotas v The Queen - [2008] NSWCCA 287

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Giotas v R [2008] NSWCCA 287

FILE NUMBER(S):
2007/3009

HEARING DATE(S):
21 August 2008

JUDGMENT DATE:
5 December 2008

PARTIES:
Aris Giotas v R

JUDGMENT OF:
McClellan CJ at CL Hislop J Hoeben J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/0975

LOWER COURT JUDICIAL OFFICER:
Knox SC DCJ

LOWER COURT DATE OF DECISION:
23 March 2007

COUNSEL:
M. Thangaraj (Appellant)
P. Calvert (Crown)

SOLICITORS:
Legal Aid Commission (Appellant)
Solicitor for Public Prosecutions

CATCHWORDS:

LEGISLATION CITED:
Crimes Act, 1900
Criminal Appeal Act, 1912
Crimes (Sentencing Procedure) Act, 1999

CASES CITED:
DRE v R [2006] NSWCCA 280; (2006) 164 A Crim R 400
M v The Queen (1994) 181 CLR 287
Jones v The Queen (1997) 191 CLR 439
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
RHMcL v The Queen [200] HCA 46; (2000) 203 CLR 452
R v Hannes [2002] NSWSC 1182; (2002) 173 FLR 1
Tarrant v R [2007] NSWCCA 124; (2007) 171 A Crim R 425
Markarian v R [2005] HCA 25; (2005) 228 CLR 357

TEXTS CITED:

DECISION:
Appeal against convictions dismissed. Leave to appeal against sentence granted. Appeal against sentences allowed. Quash the sentences and in lieu thereof on each count sentence the appellant to imprisonment for a non parole period of 2 years 3 months to commence on 29 July 2005 and to expire on 28 October 2007 with a balance of term of 2 years 3 months to commence on 29 October 2007 and expire on 28 January 2010.

PUBLICATION RESTRICTION:
Non publication order re name of complainant.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3009
McCLELLAN CJ at CL
HISLOP J
HOEBEN J
Friday 5 December 2008

ARIS GIOTAS v R

Judgment

Non publication order re name of complainant

McCLELLAN CJ at CL: I agree with Hislop J.
HISLOP J: Aris Giotas (“the appellant”) has appealed against conviction and seeks leave to appeal against sentence.
The conviction appeal
The appellant appeals against conviction following a verdict of guilty returned by a District Court jury on 13 February 2007 on each of two counts that on 2 August 2001 at Marrickville, NSW he did have sexual intercourse with [the complainant] without her consent, knowing that she did not consent, contrary to the Crimes Act, 1900, s 61I. The maximum penalty for an offence under that section is 14 years imprisonment.
The grounds of appeal are:
“1.His Honour erred in failing to discharge the jury and allowing the evidence of Dr Larsen.
2.His Honour erred in failing to give a Longman direction in relation to persons at the hotel and the Salvation Army.
3.His Honour erred in failing to require the complainant to be made available for further cross examination and failing to discharge the jury.
4.The verdict was unreasonable and could not be supported by the evidence.”
The appellant had been convicted of these offences at an earlier trial before Judge Woods QC and jury. He appealed against those convictions to this court, which granted a new trial on the ground that the trial judge had erred in failing to give a direction in relation to the appellant’s failure to give evidence. The present appeal arises from the subsequent retrial before Judge Knox SC and jury.
Facts - the Crown case - summary
In February/March 2001 the complainant commenced work as a receptionist in a real estate agency in Marrickville, which was co-owned by the appellant and Jonathan Ford (to whom she reported directly). She rarely saw the appellant at work (no more than once a week) and did not socialise with him.
On the morning of Thursday 2 August 2001 the appellant rang the complainant at the office and asked her when she would be leaving for lunch. He wanted her to collect a contract from him and take it to a solicitor’s office, and he also asked her to buy him cigarettes. He asked her to leave for lunch at 11.00 am instead of midday, and the complainant told him that she would see if Marina (another employee) could cover the front desk. Marina agreed, and the complainant left the office at 11.00 am. The complainant then went to see the appellant around the back of a café, two minutes away on Marrickville Road where the appellant told her he would be waiting for her.
The complainant saw the appellant waving out of the window above the café; he waved towards the side laneway and told her to come around the back. She went round the back and saw the appellant standing in the doorway, and he motioned with his hands for her to keep the noise down as they walked up the stairs. At the top the complainant entered a minimally furnished room, and the appellant closed the door behind them. He made a mobile phone call in an adjacent room and subsequently called her into that room. The complainant entered and saw a messed-up bed and a window covered by blinds. She handed him his cigarettes. He offered her one and she said no but he kept holding out the packet and she finally accepted one, which he lit for her. The appellant was sitting at the head of the bed, close to the doorway where the complainant was standing, and he told her to come and sit next to him and to tell him what was going on at the office. She sat on the edge of the bed, halfway down. There was no chair in the room. In cross examination the complainant agreed that she did not tell the appellant that she had to go. She also said that when the appellant told her to sit down, she had been concerned that she was going to be fired, that he was going to lead up to something like, perhaps, a mistake she had made at work.
The complainant gave evidence that she leaned over to an ashtray on a table and the appellant grabbed her waist-length hair from behind. He pulled her head down onto the bed. Her feet were still on the floor. He half-rolled on top of her and tried to kiss her, pressing his face against hers. In cross examination she said that she dropped the cigarette she had been holding and although it was lit, nothing caught alight. The complainant tried to jerk her head free and it hit one of the bed posts. The appellant kept winding his fingers through her hair, holding it with a tight grip, and she tried to move her head to the side because she could not breathe. She kept telling him to stop and that she did not want to do this, but he laughed and said, “No”.
The appellant rolled on top of the complainant, pressing down on her left side, and he started pulling down her stockings with his left hand; she was also wearing a skirt. His right hand was still holding her hair. The appellant then pulled down the complainant’s stockings further with his feet (whilst he was on his knees) and they came down on one side to her knees and almost all the way down on the other side; they also ripped. The appellant pulled down the front of his shorts and (whilst lying flat on top of her) pushed his penis into her vagina. She saw his penis, which was erect, and he penetrated her without a condom for between five to ten minutes; it was very rough and painful. The complainant tried to wriggle away, kicking her legs, but the appellant still had a tight grip on her hair and was pulling her head back sharply and pressing his right shoulder against her face. When her mouth was free she would yell for him to stop. With his other hand the appellant pushed up her bra under her t-shirt and pinched/twisted her nipples very hard.
The complainant felt the appellant ejaculate inside her and he then pushed her face around (with his hand still in her hair) and pushed her body over with his arm so that she was now lying on her stomach, and he forced her face into the pillow. He put his penis into her vagina again whilst he was lying on her back for about two to three minutes; she did not see his penis this time. He told her, “You like this, don’t you? You like being fucked.” He then stopped, pushed her over and told her to get dressed. The complainant was cross examined to the effect that there were not two ejaculations minutes apart and she gave evidence that she felt something wet on her back, but she did not know if it would be called an ejaculation although she had assumed that was what it was.
The complainant gathered her stockings and underwear from the floor and pulled them up her legs. She noticed a long hole on one side of the stockings. She then pulled down her skirt. The appellant told her, “You’re not going to say anything to anybody about this, are you?” She did not respond and he kept repeating those words and kept staring at her, and he said, “That’s good, I’m going to look after you.” The appellant went into the other room, looked down the stairwell and told her it would be their secret, and he opened the door for her. She walked past him and went down the stairs whilst he was looking out the window overlooking the back lane.
The complainant went out into the lane and felt as though she would be sick; she stayed in an alcove for a minute or two to catch her breath. She walked up the lane into an alleyway and when she walked out she saw a lot of people and crossed the road. She entered a pub and locked herself in a toilet cubicle. She felt pain shooting up her leg and into her stomach. Her stockings were falling and she pulled them down and saw blood on one of her legs; she also saw a fair bit of blood when she pulled down her underwear. The complainant agreed in cross examination that she had previously given evidence that her underwear and stockings were soaked with blood and that there was blood on her legs and stomach. She wiped off most of the blood with toilet paper and folded up some toilet paper into her underwear before pulling them back up, and she tucked her stockings into the waistband of her underwear to keep them from falling. Her face felt hot, her mascara had smudged from her crying, and she washed herself in the sink.
The complainant walked back to the office, trying to compose herself, and when she walked inside she saw an employee, Dennis Tsokis, near the reception desk. He looked worried and asked her what was wrong. He said, “You look like you’ve been roughed up.” He stared at her, she did not say anything, and he shrugged and walked away. The evidence of Mr Tsokis (read from previous proceedings) was that he had noticed that the complainant left for lunch and when she returned she looked flustered and he saw redness on her cheek. He denied telling the complainant that she looked as though she had been “roughed up”. He gave evidence that the complainant was not talkative and did not say anything (leading him to conclude that she was distressed about something) and that he returned to his office. He said that the complainant remained at work for the rest of the afternoon. Mr Ford did not specifically recall seeing the complainant at the office on Thursday and he may have been out that afternoon.
The complainant stayed behind the desk until around 5.30 pm. She did not tell anyone at work what had happened because “they were all friends of his”; she was afraid because they all knew each other and did not know her, and she did not feel she could go to any of them for help. On the way home the complainant rang the Rape Crisis Centre from a payphone but no one answered and she did not leave a message. She went home, changed into pyjamas and went to bed and cried. When her boyfriend came home from work she told him she was not feeling well and was tired, and she pretended to be asleep when he came to bed. She did not tell him what had happened because she was “afraid of what he might do and…I didn’t know what to do”.
The following morning (Friday 3 August) the complainant rang the Rape Crisis Centre again and was told to go to the Royal Prince Alfred Hospital emergency department. The complainant stayed home for a few hours and then went to the office to collect her things. She spoke to one of the girls and she did not remember seeing or speaking to Mr Ford. She was at the office only for a little while (not all day) before leaving on her own accord. She denied in cross examination that she had been sent home (either on Thursday or Friday) due to distress, even though she may have subsequently said that to her GP. She did not return to the office ever again.
The complainant was cross examined to the effect that she had remained at the office all day on Friday. It was put to her that this would explain why no one had missed her from the office. She denied this and gave evidence (for the first time in cross examination) that she had spoken to an employee, Bianca, on Friday and that Bianca knew she was leaving. The complainant was cross examined about a statement she made to Dr Larsen when she went to Royal Prince Alfred Hospital later that night to the effect that she had gone back to the office because she was worried that the appellant would know why she was not there, and it was put to her that if she had left early on Friday then the appellant would know something was wrong. The complainant’s evidence was that it did not matter anymore once she did not have to return there and that she was confused and upset when speaking to Dr Larsen. In re-examination she explained that she had been concerned about the appellant knowing where she lived and stopping her from going to the police.
Mr Ford gave evidence that there was nothing significant about Friday 3 August and nothing to suggest that the complainant may not have been at the office, but if she had not been in, it would have been business as usual. He was not always in the office on Friday afternoons. In cross examination he agreed that he made a statement in November 2001 to an insurance company (as a result of a workers’ compensation claim lodged by the complainant arising from her allegations against the appellant). In this statement he said that he recalled seeing her at work on Friday and that “she appeared her normal self and demonstrated no signs of being unhappy or upset”. He also gave evidence that “she would’ve been there, I suppose, and she wasn’t unnoticed” and he did not remember anyone having to temp for her. Dennis Tsokis’ evidence was that he did not remember if the complainant was there on Friday.
Around 5.00 pm on Friday 3 August the complainant went to Royal Prince Alfred Hospital and told a counsellor that she was worried about telling her boyfriend and that he would be worried about her coming home late. The counsellor offered to ring him, but the complainant said that she preferred to go home and tell him. The counsellor told her that it would be a long time before she could see a doctor so she could go home and come back later.
The complainant went home and her boyfriend asked her what was wrong. She told him she had been to the hospital. He pressed her for details, asking her if someone had hurt her, and she told him that she wanted to return to the hospital to be checked out. He borrowed a car and drove her to the hospital. The complainant’s evidence was that she had not told him any details but that he had pretty much figured it out.
The complainant returned to the hospital around 8.00 pm and saw Dr Larsen at 1.00 am. In cross examination she agreed that she told Dr Larsen that there were two separate acts of intercourse in a “second by second” account of what happened. Dr Larsen asked for her underwear. The complainant gave Dr Larsen her underwear. She was cross examined about not having given the doctor her stockings, and she said that they were home at the time and that she had only been told (when she had been to the hospital earlier) to bring her underwear for DNA testing. She said she had told “the hospital” about her stockings but that no one told her to bring them in. She subsequently threw them away and denied, in cross examination, that they had not been ripped or soaked with blood.
Dr Larsen gave evidence (relying on an expert certificate typed up from her notes in May 2003) of the history given to her by the complainant. This was consistent with the complainant’s evidence leading up to the appellant grabbing her hair as they sat together on the bed, pulling her down, kissing her and then taking off his shorts and pulling down her underwear. The complainant then told Dr Larsen that the appellant
“put his shoulder in her face. He was being very violent and pinching her nipples really hard. After 5-10 minutes he pushed her onto her stomach and pushed her face into a pillow. He put his penis in her vagina from the rear. He pulled his penis out and ejaculated onto her right trunk, then pushed her away”.
Dr Larsen explained that the complainant had told her there was fluid on her right side. In cross examination Dr Larsen said that this was the reason why she had taken a swab from that area. In re-examination Dr Larsen explained that she had made an assumption that there had also been penile penetration when the complainant had been pushed back on the bed, but she had not made a note of it. Dr Larsen said that it was possible for a male to ejaculate twice in a few minutes, but this was not common and depended on a number of variables. It was certainly quite common within half an hour and was possible within 10 to 15 minutes.
In cross examination Dr Larsen denied that she had been looking for a number of sexual acts, though she had said so when she previously gave evidence in the context of needing to know where the sexual acts occurred and where to look for injuries. She had previously agreed in evidence that she had only been told of one act of penetration. However, she explained that she regarded the incident as one whole assault and was not looking at the “number of times” despite what she had said before.
Dr Larsen described the complainant as tearful at times, very quiet and upset. Based on the history she was given, her examination of the complainant, and her experience, Dr Larsen concluded that the medical findings were consistent with a history of sexual assault. She agreed in cross examination that she had previously given evidence that her findings were also consistent with consensual sex, but this was in relation to the graze around the vagina. Her evidence was that grazes and abdominal pain were possible from vigorous consensual sex, but rarely to the degree she saw in the complainant, and she said that when a woman was stimulated there would be fewer injuries. The range of injuries she saw was not consistent with, or were uncommon with, consensual sex.
The complainant gave evidence that she had a bit of bruising on her thighs, back and shoulder. Her nipples were sore and sort of scratched up. She was also bleeding for a few days. Her head was also sore. In cross examination she agreed that she had previously given evidence that she had red welts on her leg; she explained that the red marks had developed into bruises within a day or two, and she agreed that the bruises had already come up on the inside of her thighs by the time she saw Dr Larsen, but she did not actually know how bad they were at the time.
When Dr Larsen examined the complainant she noted the following: tenderness on the left side of the complainant’s head, in the middle and towards the back (Dr Larsen did not see any bruising); tenderness around the complainant’s nipples and lower ribcage on the sides and across the lower abdomen (she did not see any grazes or lines on the nipples); tenderness over the back of the complainant’s right shoulder and quite a bit across the lower lumbar area above the buttocks, especially on the right; tenderness on the complainant’s inner thighs (Dr Larsen gave evidence that she had not seen any bruises but she did find consistent areas of tenderness. She said that redness could disappear within a few hours to 24 hours and that bruises could take days to come out); vaginal bleeding (Dr Larsen also made a note, “This is less today”). Dr Larsen conducted a speculum examination to check on the bleeding and found tenderness at the sides of the uterus. In cross examination Dr Larsen agreed that she was not told of extreme bleeding at the hotel nor of the complainant’s underwear and stockings being soaked); a graze at the entrance of the complainant’s vagina and tenderness over the mons pubis, down both sides and at the entrance to the vagina; the complainant told Dr Larsen that she was limping as her right leg and abdomen were sore. In cross examination the complainant agreed that she had told police that she had been feeling a sharp pain in her left foot.
Semen was detected on the crotch area of the complainant’s underwear. DNA was too weak to compare with a buccal swab taken from the appellant on 18 February 2003 (which he had given willingly to police). No semen was detected on the vaginal, vulval or abdomen swabs and smears taken from the complainant. The complainant’s evidence was that she had not showered before seeing Dr Larsen. Presumptive blood tests on swabs taken from the complainant’s vaginal area, abdomen and the crotch of her underwear tested positive.
Mr Ford gave evidence that on Saturday a receptionist (Bianca) informed him that the complainant’s boyfriend had rung to say that she was not coming in; indeed, the complainant never returned to work. Bianca told Mr Ford that the complainant’s boyfriend had also told her that the complainant had made an attempt on her life. In cross examination the complainant denied any knowledge of this call.
On 17 August 2001 Mr Ford visited the complainant’s home in Glebe. He gave evidence that the complainant’s boyfriend was home and she walked Mr Ford downstairs and asked if she could tell him something. She was very emotional and teary and said, “Well, actually I was sexually assaulted on the way home from work.” In cross examination Mr Ford agreed that hearing those words did not lead him to think that she had in fact not been at work on Friday (3 August), so he assumed she had been there. The complainant told Mr Ford that she could not identify the person and that it was no one she knew. Mr Ford told her that she was welcome to return to work and also offered her assistance with relocating closer to work. Mr Ford had visited the complainant in order to obtain her tax file number so as to process her group certificate, and he told her that she would be entitled to a tax refund. She did not contact him afterwards and he never saw her again.
The complainant gave evidence that she did not tell Mr Ford that the appellant had attacked her because she feared he would tell the appellant and she did not want to constantly watch over her shoulder. She was already too afraid to even walk down the street because she kept thinking that she would see the appellant and that he would do something else to her.
Subsequent to Mr Ford visiting the complainant, Mr Ford found out from a representative of the insurance company dealing with the complainant’s workers’ compensation claim that the allegation which led to her not returning to work related to Mr Ford’s partner having sexually assaulted her. Mr Ford spoke to the appellant about the allegations at his (Mr Ford’s) house. The appellant said, “I knew something bad would come of this - I’m going to be framed for this.” He told Mr Ford that this was going to be an attempt at extortion. The appellant told Mr Ford that he had asked the complainant to bring him some cigarettes and files during her lunch break and that they started talking. The complainant told him that she was having trouble with her boyfriend and that he was violent. The appellant told Mr Ford that they were embracing and then had consensual sex. This happened at the flat above the café on Marrickville Road. Mr Ford never discussed the matter again with the appellant, and the last time he saw the appellant was in mid 2003 when he bought out the appellant’s share in the company. In cross examination the complainant denied telling the appellant that she was having problems with her boyfriend. She gave evidence that the reason she had broken up with him was because she did not feel she could remain in a relationship as a result of what had happened to her.
The complainant made an official complaint to police on 19 January 2002. She gave evidence that she had waited so long because the counsellors she spoke to at the hospital had warned her of the difficulties faced by rape victims and the low success rate, and she was told to think carefully about whether it was worth it and the danger she might put herself in. As time passed, she felt less scared and more angry. By this time the complainant had broken up with her boyfriend and she had also deferred her Real Estate Management course.
Appellant’s case - summary

The appellant telephoned the complainant on 2 August 2001. He asked her to bring his messages to him at an address in Marrickville Road and a packet of cigarettes. He said nothing about a contract and did not say to the complainant that he would pay her for the cigarettes when she arrived. He had no money on him at the time and did not have access to an ATM card. He assumed she would reimburse herself from the office petty cash. He denied he was standing at or leaning out of a window when the complainant arrived.
The apartment was on the first floor of the premises. The Salvation Army was the tenant of the front of the first floor and occupied the whole of the Marrickville Road frontage. The café was on the ground floor immediately below the apartment. Just outside the door to the apartment were toilets used by patrons of the café, accessible by them coming upstairs. The partitions upstairs were of fibro-gyprock, and the floors were wooden.
The appellant met the complainant in the doorway at the side of the premises and together they mounted the stairs to the apartment. The appellant gave evidence that he was sitting on the bed in the bedroom when the complainant entered the bedroom. He offered her a cigarette, which she accepted. She sat on the bed next to him.
The only social contact the appellant had had with the complainant in the six months he had employed her was when he gave her a lift home from an auction. However, he thought she had shown interest in him by being nice to him. He gave an example that on an occasion he recalled having lunch and she came up and joined him at the lunch table and talked about her real estate course which she was about to commence. He described this as flirting. They had never spoken of sex. The only conversation with the complainant before kissing commenced was that she spoke of her boyfriend, saying she was unhappy in the relationship and that he was violent toward her (this conversation was denied by the complainant). The conversation ceased. The complainant pulled up right next to the appellant and rubbed her leg against his left leg. They started kissing and had passionate and energetic sex. Intercourse took place whilst the complainant was on her back. He ejaculated during the course of this intercourse. There had been no discussion about condoms. The intercourse was consensual and the kissing and intercourse lasted in total approximately 10-15 minutes.
The appellant denied there was any second act of intercourse or that the complainant was wearing stockings. He could ejaculate twice within about an hour but not within a few minutes. His ex-wife gave evidence that she had been with the appellant for a couple of years prior to marrying him in 1991. They separated in 1996. During that time they had sexual relations and there was never a time when he had ejaculated twice within a few minutes. The shortest period between ejaculations and between erections was an hour.
At the conclusion of the sexual activity, the appellant and complainant each had another cigarette. He said goodbye and that he was not interested in a relationship, to which the complainant said “Fine” (this conversation was denied by the complainant). At no time was he violent to the complainant.
He saw the complainant at work on the next day about mid-morning. She was at the reception desk. He said “Hello” and she said “Hello, good morning”. She was her normal self. There was no other conversation between them that day. It was not put to the complainant she had seen the appellant on the Friday. The appellant’s case was that the office was relatively small (around 10 persons) and that if the complainant had been absent from the office on Friday 3 August this would have been noticed. Mr Ford said in cross examination that any problem would have stood out.
The appellant had no idea how the complainant suffered the injuries of which she complained. He was not rough with her. He did not pull her hair, twist her nipples, lean on her right shoulder and he never noticed any vaginal bleeding.
The complainant never rang him or demanded money and she never contacted him thereafter.
He knew the café operators. It was a café he frequented. In 2001 he was a very good friend of Mr Tsokis.
The appellant accepted the accuracy of his account to Mr Ford (as per Mr Ford’s evidence).
The complainant was then aged 20, almost 21, was 165 centimetres tall and weighed 48 kilograms, the appellant was aged 31, was 176 centimetres tall and weighed 70 kilograms.
Ground 1: His Honour erred in failing to discharge the jury and allowing the evidence of Dr Larsen.
Dr Larsen is a general practitioner conducting her practice in the inner west. She was, at the relevant time, also a member of the Sexual Assault Unit at Royal Prince Alfred Hospital where she was rostered on one night per week. She had had many years experience working in the Sexual Assault Units at Royal Prince Alfred Hospital and Liverpool Hospital on a part-time after-hours basis. There was no evidence that she knew the complainant prior to her examination on 4 August 2001.
Dr Larsen had given evidence at the trial before Judge Woods. She was called by the Crown to give evidence at the retrial. Whilst waiting in the court precincts she conversed with the officer in charge of the investigation, whom she had known for some time. The conversation was overheard and this resulted in her being examined by the appellant’s counsel on the voir dire. She gave evidence on the voir dire that she had had a general conversation with the police officer. They talked about a lot of different things but did not discuss the evidence the doctor would be giving. In the course of that conversation, the police officer had mentioned that there was a possibility the complainant’s and the appellant’s past bad character might be raised. He also asked her non specific questions as to whether drugs affect ejaculation or sperm. The officer in charge may have said that the sperm tested was infertile and this could be due to cocaine that the appellant probably used that night. The doctor had been aware of the allegation of drug use by the appellant. The original history taken by her from the complainant had included reference to allegations of drug use by the appellant.
Upon completion of the voir dire, counsel for the appellant sought a discharge of the jury on the basis that:
“…a very important Crown witness has now been told that my client has bad character and it has been told to her that he may have used cocaine that night.
The context of being asked about ejaculation and sperm, she’s assumed relates to this case, she’s assumed the drugs, and then she doesn’t actually admit it until I put the proposition to her, and I read out the note that I’ve been given, and then she agrees that he probably said that, cocaine use that night. Now she’s being called to give evidence for the Crown.”
His Honour refused the application. He said:
“…the position is that Dr Larsen is an expert witness.
She can, in any event, be cross examined as to the impact on her of that conversation if that is thought forensically desirable.
I do not think that the prejudice is such to warrant the step of a discharge in these circumstances.”
In R v George (1987) 9 NSWLR 527 at 534 Street CJ said:
“This Court has repeatedly emphasised that the decision to discharge or not is essentially one within the discretion of the trial judge, being a decision to be made in the awareness of contemporary atmosphere and the likelihood of material prejudice being occasioned to the accused person.”
Whilst it is true the appellant’s counsel would have been hampered in cross examining on this issue as it may have involved disclosure of the appellant’s bad character, there was no evidence Dr Larsen was influenced in any way by the conversation. At the highest, counsel for the appellant suggested some evasiveness or reluctance on the part of Dr Larsen in answering questions on the voir dire. However, this is explicable by some concern on the part of the doctor that she may have erred in talking to the police officer or that she had difficulty in recalling what was said in a casual, wide-ranging, conversation. Her evidence was the subject of earlier notes and a transcript and any departure from that evidence could be the subject of attack in cross examination. In my opinion, his Honour did not err in exercising his discretion to refuse the application to discharge the jury.
In this Court, counsel for the appellant submitted there was evidence that the information obtained from the officer in charge may have caused Dr Larsen to change her evidence from that which she had given at the earlier trial and to give evidence designed to assist the complainant. He relied, essentially, upon two matters in support of this contention. Firstly, the doctor’s notes only recorded one act of penetration (whilst the complainant was on her stomach) yet the doctor was prepared to assume an earlier penetration from that part of her note which read “After 5-10 minutes he pushed her onto her stomach and pushed her face in a pillow”. However, this does not advance the appellant’s case as there was no issue that penetration occurred during the period to which the doctor’s note referred. The disputed intercourse, which the complainant alleged occurred whilst she was on her stomach, was the subject of a clear record in the doctor’s note. Secondly it was submitted that Dr Larsen had agreed at the first trial that the complainant’s injuries could have been caused by vigorous sexual intercourse and she had given contrary evidence at the second trial. However, a fair reading of the evidence at the first trial was, as the doctor explained, that in giving such evidence she was referring to the graze on the complainant’s vagina only.
In my opinion it has not been demonstrated that Dr Larsen materially changed her evidence, or that her evidence was influenced by the conversation with the officer in charge. I reject this ground of appeal.
Ground 2: His Honour erred in failing to give a Longman direction in relation to persons at the hotel and the Salvation Army
The subject incident occurred in the apartment above the café in a building occupied, in part, by the Salvation Army. The complainant said she proceeded from the apartment to a nearby hotel. It was possible someone in or in the vicinity of the premises may have seen or heard something of relevance.
The appellant did not become aware of the allegations against him until two weeks after the event. Counsel for the appellant sought a [reduced] “Longman direction with respect to the patrons of the hotel, the people at the café, and the people in the Salvation Army office that relates to the short delay that it took him to be informed of the allegations”. It was contended in the appellant’s written submissions on appeal:
“Earlier notice may have allowed CCTV footage from the hotel to have been obtained to demonstrate that the complainant had in fact not attended the hotel at all let alone in despair. It may also have allowed witnesses to have been approached as to what they saw, whether the female toilets were closed for any reason etc.”
There was no evidence that CCTV was in place at the hotel at that time, that any attempt was made to find witnesses once the appellant was aware of the allegations made against him, that inquiry within the first two weeks would have yielded any result or that inquiry would have been made during that time.
The application was opposed by the Crown but his Honour gave a direction in his summing up in the following terms:
“There is another matter that I want to speak to you in terms of the legal directions and categories of evidence about the delay aspect. Mr Giotas says here that he was not informed about the complaint until [some two weeks later].
It is important that you appreciate the effect of any delay on the ability of Mr Giotas to defend himself by testing the prosecution evidence or the evidence in his own case to establish reasonable doubt about his guilt.
Now the defence submits that had the allegation been made at an earlier time, the parties, including the accused, may have had a more detailed or more accurate record of what actually happened. The accused might have had in that intervening period the opportunity to go to people at the Marrickville Road café or others to find evidence to throw doubt on the complainant’s evidence. He might, as said, have been able to recall what he was doing at that particular time of the incident and to call evidence in support of his contention as to what actually occurred and what he was doing.”
Appellant’s counsel sought a further direction from his Honour as follows:
“One very small thing your Honour…your Honour has said ‘café’, I specifically ask that your Honour say the hotel because the Crown says well the café at his friend’s. Because they’ve produced evidence and they’ve made a submission and adduced evidence from the complainant about well, he knew people in the office and the café was obviously somewhere that he knew people. And I accept those submissions. But it’s important that in the context of potential difficulties, it not be limited to people that he would otherwise have had access to.”
His Honour refused the request.
Subsequently counsel for the appellant sought that the direction be extended to the hotel and Salvation Army. The application was again refused.
In DRE v R [2006] NSWCCA 280; (2006) 164 A Crim R 400 at [59]-[60] Simpson J observed:
“…a Longman or Crampton direction should be tailored to the factual circumstances of the case in which the question arises.”
In my opinion, his Honour’s directions were adequate and appropriate to inform the jury of the possible effect of delay on the appellant in the circumstances. No error is evidenced. Counsel for the appellant accepted that this ground alone would not be sufficient to uphold the appeal. I agree with that concession.
Ground 3:His Honour erred in failing to require the complainant to be made available for further cross examination and failing to discharge the jury
The complainant had made a claim for workers’ compensation against her employers in respect of the subject incident. She had later sought to make a victims’ compensation claim but as this was out of time she was advised to bring a civil action for damages, which she did.
One of the appellant’s arguments was that the complainant was motivated to make false allegations against him for the purpose of monetary gain. The complainant was cross examined in respect of that allegation. She denied it and asserted she no longer intended to pursue the common law claim.
There was further cross examination, by leave, by counsel for the appellant when he asked the complainant (313/50-/55):
“Q. Did you tell the Crown Prosecutor or the solicitor for her before you started giving your evidence that you did not intend to proceed with the civil claim?
A. Yes.”
There was no further re-examination.
At the conclusion of her evidence, the complainant, with the consent of counsel, was excused. It was known she would be flying out of Sydney later that day.
Counsel for the appellant sought a discharge of the jury by reason of the Crown’s failure to advise him that the complainant did not propose to continue with the civil action, as a result of which he had adduced evidence unhelpful to his case.
This application resulted in the Crown conceding that neither the prosecutor nor her instructing solicitor had been so informed by the complainant. There was evidence the common law proceedings were still on foot.
Counsel for the appellant then requested that the complainant be recalled. The complainant was due to depart on her flight at 1.00 pm. His Honour refused the request, stating:
“It is now twenty to one. The risk is, and I have been involved in a case like this in another jurisdiction whereby attempting to delay people getting onto planes can cost something of the order of $30,000-40,000 by the time planes are apprehended and I am not prepared to do that in these circumstances.”
His Honour rejected the application to discharge the jury. He held:
“I accept what the Crown Prosecutor tells me, that neither she nor the DPP solicitor were informed of that specific aspect. I do think that there is some prejudice to the defence in the light of that change of circumstances but nevertheless, that is part of the perils of cross examination in that area. I do not think that the prejudice that they suffer outweighs the value of the trial proceeding in these circumstances - particularly when, as I say, in my view there is no responsibility for the Crown for having brought that about.”
In my opinion, his Honour’s decision not to discharge the jury was well open to him in the exercise of his discretion. The overall prejudice to the appellant was not such as to have justified the discharge of the jury. Indeed, these events provided a forensic advantage to the appellant in that his counsel was able to complete his address to the jury by asserting
“…that she claims on this very important issue ‘I told the Crown. I told the Crown I wasn’t interested in proceeding.’ Well, she didn’t tell the Crown…She wants to backtrack because she knows the importance of that piece of evidence and she’s even prepared to lie about what she told the Crown. How can you accept her beyond reasonable doubt?”
This ground of appeal fails.
Ground 4:The verdict was unreasonable and could not be supported by the evidence
The Criminal Appeal Act, 1912, s 6(1), provides, as far as here relevant:
“The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence… provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”
The Crown’s version of events was that two non consensual acts of intercourse had occurred during which the complainant had sustained physical injury. The appellant’s version of events was that the first act of intercourse occurred at the time and place alleged. It was consensual. The second act did not occur. At no time did he cause injury to the complainant. The circumstances were that the only persons who could give direct evidence as to what had occurred were the complainant and the appellant and their evidence was relevantly in conflict. The jury convicted the appellant. The issue is whether that verdict is unreasonable and cannot be supported having regard to the evidence.
In M v The Queen (1994) 181 CLR 487 at 493 Mason CJ, Deane, Dawson and Toohey JJ held:
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”
This test was confirmed in Jones v The Queen (1997) 191 CLR 439 at 452 and MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [25] and [97].
In Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 the High Court was concerned with the proviso to s 6(1) of the Criminal Appeal Act, 1912. The court stated:
“[41] That task [of considering the application of the proviso] is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty…
[43] The court’s task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict… The fact that the jury did return a guilty verdict cannot be discarded from the appellate court’s assessment of the whole record of trial.”

I have independently assessed the evidence in this matter. The factual matters of significance are as follows:
(a)Dr Larsen is an experienced and independent medical practitioner. Her evidence records a history and examination findings generally corroborative of the complainant’s evidence. The range of the findings, in her opinion, was not consistent with consensual sexual intercourse but was consistent with a sexual assault and consistent with the attack described by the complainant. There was no expert evidence to the contrary. There was no evidence which would justify the conclusion that Dr Larsen was a biased witness.
(b)The complainant’s evidence that she was attacked by the appellant, confirmed as it was by the objective evidence of injury, is inherently plausible.
(c)It was not put to the complainant in cross examination that the injuries were self inflicted or inflicted by a third person. The complainant had said to Mr Ford that she had been sexually assaulted on her way home from work by a stranger. For reasons which will later appear, there was no validity in that suggestion. There was otherwise no evidence that the injuries were self-inflicted or inflicted by a third person.
(d)Whilst Mr Tsokis’ evidence denied he said to the complainant that she looked like she had been “roughed up”, his evidence was nevertheless corroborative of her in that the evidence was that on return to the office the complainant was “sort of flustered, with redness on her cheeks sort of thing.” The complainant’s evidence was that her face was very hot, “like burning”, at the hotel where she had attempted to cool it with cold water. She appeared distressed about something, according to Mr Tsokis, and he asked her if she was all right but she was not talkative and he desisted. Mr Tsokis was described by the appellant as a very good friend of his at the time.
(e)The complainant had been employed by the partnership for six months. Mr Ford, by whom she was directly employed, considered she was good for the job, none of the staff had criticisms of her work, she fitted in and worked well, she was punctual, she was taking a real estate course, she enjoyed her job, and if she wanted to return to her work she could. Yet the complainant left that employment without notice on the day following the incident with the appellant. She never again contacted the appellant personally in any way nor did she communicate with Mr Ford after he had called upon her on 17 August 2001.
(g)The appellant’s version of events preceding the incident was inherently improbable. In particular the assertion that the complainant, who was some 10 years his junior, who had shown no more interest in him other than being nice, and engaging in a conversation as to her proposed real estate course, should, after a short discussion of her relationship with her boyfriend (which conversation she denied), lead her employer on to engage in consensual sexual activity where there had been no previous sexual or social contact with the appellant. It was never put to the complainant in cross examination that she pulled up right next to the appellant and rubbed her leg against his left leg before they started kissing.
(h)The matters particularly advanced by the appellant to detract from the credibility of the complainant did not create a reasonable doubt as to the guilt of the appellant, whether taken alone or separately.
The matters particularly advanced by the appellant to detract from the credibility of the complainant were as follows:
(a)The complainant had been a drug user. She was recovering from drug addiction and was on methadone at the time of the alleged offences. She had made false claims against other persons. She had lied to a security officer and police when she was 18 years old and was arrested for shoplifting a packet of batteries. She had provided a false name at the time as she did not wish to get into trouble. She had shoplifted on other occasions. These were events in the complainant’s past. There was no direct evidence she had made claims against others which were false some years before. She was no longer using drugs. These matters in the complainant’s past had nothing to do with the alleged offence.
(b)The complainant’s motive in making allegations against the appellant was financial gain. She was prepared to lie in the proceedings against the appellant to assist that endeavour. She had falsely asserted she had told the Crown Prosecutor and her instructing solicitor that she was not pursuing the civil claim. However, the complainant, if injured as she alleged, was perfectly entitled to claim damages from the appellant. She had made no attempt to extort money from the appellant, she never rang him demanding money and never contacted him thereafter. She had not pursued her claim with any vigour and said she did not propose to proceed with it. She had been told by her solicitor that it would be better if there was no conviction as otherwise she would not be able to get payment of any damages.
(c)The complainant’s boyfriend was alleged to have become interested in the visit of Mr Ford when the question of money was raised and had rung the office to falsely claim the complainant had attempted suicide. The factual basis for the first allegation was tenuous at best, the complainant denied any knowledge of the second allegation.
(d)The appellant gave evidence that he observed the complainant was at work on Friday and acting normally and that they had spoken to each other at work on that day. However, this was never put in cross examination to the complainant. There was no evidence the complainant was present the whole of the Friday. It was submitted that as the complainant was a receptionist at the office it was improbable that had she been absent on the Friday that this would not have been observed. The complainant conceded that she had attended the place of employment on the Friday for a limited period for the purpose of collecting her possessions. She said she had told Bianca a fellow employee that she was leaving so that her absence could be covered.
(e)She did not take the blood-stained and torn stockings to the hospital for examination. The complainant said she had told the hospital of the stockings but was not told to bring them in. She was told only to bring in her underpants for DNA testing.
(f)The appellant knew the complainant had told someone in the office she was going to see him on this occasion.
(g)The complainant alleged the appellant had ejaculated twice within a short space of time. This was not possible according to the appellant or his wife. Dr Larsen gave evidence that it was possible though unusual. There was doubt in any event that there was a second ejaculation as opposed to fluid simply being deposited upon the complainant’s back after the appellant had withdrawn.
(h)The complainant told Mr Ford that she had been attacked on her way home from work on the Friday and that she did not know the attacker. She admitted she said this because she feared that if she told Mr Ford that the appellant had attacked her he would tell the appellant and her fear that the appellant would do something else to her would be increased. However, as the conversation with Mr Ford was well after the complainant had given a version of facts consistent with her claim to Dr Larsen, it can be disregarded.
(i)The complainant made no complaint to fellow workers or people at the cafe. The complainant accepted this was so but said it was because they were all friends of the appellant. .
(j)The scene of the relevant events was adjacent to an office operated by the Salvation Army and the café toilet. The room had wooden floors and gyprock partitioning. She made no cries for help in a situation where there were other people in the building who would have heard such cries. The complainant’s evidence (which she had told Dr Larsen) was that her face was beneath the appellant’s shoulder and then subsequently when she was on her stomach her face was thrust into the pillow. She was also afraid of what the appellant might do if she screamed out.
(k)Her demeanour was such as to make her an unacceptable witness. However, her evidence was accepted by the judge and jury at each trial.
(l)She told the police that she had pain when she stepped on her left foot but had said to the doctor that it was the right leg that was painful. As appellant’s counsel said, this was a very minor point. She told a hospital staff member she was too scared to walk outside on the following day in case she saw the appellant.
The matters referred to in the preceding paragraph and other lesser matters relied upon by the appellant to attack the complainant’s credit, in my opinion, were not, when regard was had to the whole of the evidence, such as to lead to the rejection of the Crown case. These matters involved essentially the type of conflict and imperfections of evidence which a jury is well able to evaluate. It is apparent from the verdict returned by the jury that they accepted the complainant as essentially a witness of credit whose version of events was to be accepted in preference to that of the appellant. The jury was entitled so to do.
I am satisfied the jury was entitled to convict on the evidence before it. Further, in my opinion, the appellant was proved beyond reasonable doubt to be guilty of the offences on which the jury returned its verdicts of guilty.
In my opinion, the appeal against conviction should be dismissed.
The sentence appeal
The appellant had been sentenced on 21 November 2005, by Judge Woods , to imprisonment on each count for a non parole period of two years three months commencing on 29 July 2005 and expiring on 28 October 2007 with the balance of term of two years three months commencing upon the expiration of the non parole period. The sentences were to be served concurrently.
On 23 March 2007 Judge Knox sentenced the appellant on each count to a head sentence of five years imprisonment commencing on 23 February 2006 and expiring on 22 February 2011 with a non parole period of three years four months, commencing on 23 February 2006 and expiring on 22 June 2009.
The appellant has sought leave to appeal against the latter sentences on the following grounds:
“1.His Honour erred in imposing a sentence in excess of that previously imposed.
2. The sentence was manifestly excessive.”
The second ground was relied upon only in conjunction with the first ground. It was not contended the sentences under appeal could otherwise be categorised as manifestly excessive. The critical question is whether Judge Knox erred in not imposing the same sentences as were imposed by Judge Woods.
The principles applicable to sentencing following a retrial were summarised, albeit obiter, by the High Court in R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452. In a joint judgment, Gleeson CJ, Gaudron and Callinan JJ said (at [23]):
“In brief, in the absence of countervailing considerations, the sentences imposed following the first trial should be regarded as the upper limit of the sentence to be imposed following the second trial, otherwise an offender will be seen to have been worse off as a result of having brought a successful appeal against a conviction. The weight to be given to that consideration depends, of course, upon the circumstances of the individual case.”
McHugh, Gummow and Hayne JJ, also in a joint judgment, said (at [72]):
“Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a re-trial than he or she received at the original trial. If the sentencing judge at the re-trial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare. That is because such an increase may be perceived, by the public and the accused, as containing a retributive element imposed because the accused had successfully appealed against his or her earlier conviction or sentence. If the raising of a sentence after a successful appeal became common, it might discourage appeals. Such a result would be contrary to the public interest, for an organised society has a vital interest in the proper administration of its criminal justice system. Rights of appeal are an important means of preventing the perpetuation of error in criminal trials.”
In R v Hannes [2002] NSWSC 1182; (2002) 173 FLR 1 James J was required to sentence an offender who had been found guilty of a series of offences at a retrial. His Honour said:
“[84] Because of the division of judicial opinion and because the remarks by justices of the High Court in McL were, strictly speaking, dicta, it is not entirely clear what principles I should apply in the re-sentencing of Mr Hannes. I consider that it would clearly be open to me to impose a heavier sentence than Judge Backhouse did, if I consider that a sentence imposed by her was so manifestly inadequate that it would be set aside on a Crown appeal on the ground of its manifest inadequacy. I also consider that it would be open to me to impose a heavier sentence than Judge Backhouse did, if I consider that there are new, significantly different facts before me which were not before Judge Backhouse. I also consider that it would be open to me to impose a heavier sentence than Judge Backhouse did, if I consider that Judge Backhouse made a significant specific error in sentencing Mr Hannes. It is not clear whether there are any other circumstances in which I would be justified in imposing a heavier sentence than Judge Backhouse did. If I consider that a sentence imposed by Judge Backhouse is within the permissible range of sentences and, hence, is not manifestly inadequate, it is at least doubtful whether I should impose any heavier sentence, merely because, if I had been sentencing Mr Hannes for the first time, I would have imposed a somewhat heavier sentence.”
In Tarrant v R [2007] NSWCCA 124; (2007) 171 A Crim R 425 at [14]-[31], a judgment delivered after sentence was pronounced in this case, this court reviewed the major authorities on this issue, including those referred to above and concluded (at [31]):
“What does emerge clearly from the authorities is that a judge at a second trial need not perpetuate a sentence which is manifestly inadequate. That was the approach of this Court in Merritt (No 2) and of James J in Hannes. In the present case, that is not suggested of the sentence which Hulme J passed upon the applicant at the first trial. However, what also emerges is that the judge at a second trial might pass a heavier sentence if he or she makes findings of fact bearing upon the offender’s criminality significantly different from those made by the judge at the first trial. It is this which lies at the heart of the application.”
The appellant did not give evidence at the sentencing hearing. Judge Knox accepted the complainant’s evidence on those matters which were in dispute. He rejected the appellant’s evidence at the trial.
The sentences imposed by Judge Knox exceeded those imposed by Judge Woods, the head sentence by six months, the non parole period by one year and one month. His Honour’s reasons for the increases were:
(a)His findings as to criminality were different from those of Judge Woods in that he considered the range of criminality was “at least of mid range” whereas Judge Woods considered it “toward the middle lower end”.
(b)The original sentence did not, on the evidence before Judge Knox, meet the objectives of sentencing as set out in the Crimes (Sentencing Procedure) Act, 1999, s 3A. In particular the sentence was a lenient one when the circumstances did not call for a lenient sentence.
(c)He heard the appellant give evidence. That evidence formed an essential part of the basis of the exercise of his sentencing discretion. The appellant did not give evidence before Judge Woods.
The applicant submitted that prima facie, the same sentence as Judge Woods had imposed following the first trial should be imposed unless there were special features justifying an increase. The sentence imposed by Judge Woods was within the appropriate range and had not been challenged by the Crown on appeal. There were no special features justifying an increase.
The Crown submitted there were special features which would justify an increased sentence. Judge Woods considered the offence was spontaneous whereas Judge Knox considered that the appellant had deliberately lured the complainant to the apartment. Each judge was aware of the appellant’s prior convictions. Judge Knox may have increased the sentence as a result of those convictions. Each judge considered the circumstances of the offence, Judge Knox considering that a higher level of objective criminality was involved than did Judge Woods. Judge Woods found some contrition and remorse and special circumstances. Judge Knox found no indication of remorse and considered that special circumstances had not been established.
The evidence before Judge Woods was not significantly different than the evidence before Judge Knox. Whether the actions of the appellant were relatively spontaneous or the result of planning is speculative. The only matter of significance was that the appellant gave evidence before Judge Knox. However, his evidence and demeanour merely affirmed that the evidence of the complainant should be preferred.
In Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [27] Gleeson CJ, Gummow, Hayne and Callinan JJ held:
“The judgment [on sentence] is a discretionary judgment…As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.”
In this case each judge formed a different opinion as to what the appropriate sentences should be, based upon their subjective interpretation of similar material. The available sentencing range was sufficiently broad in my opinion to encompass each sentence. There is nothing in the material before Judge Knox which was so different, special or significant as to overcome the prima facie presumption that the original sentence should not be increased. This is not a case where the sentence imposed by Judge Woods is so manifestly inadequate that it would be set aside on a Crown appeal on the ground of its manifest inadequacy.
In my opinion, his Honour Judge Knox erred in imposing a sentence in excess of that previously imposed by Judge Woods.
Orders
I propose the following orders:
1.            Appeal against convictions dismissed.
2.            Leave to appeal against sentences granted.
3.            Appeal against sentences allowed.
4.Quash the sentences and in lieu thereof on each count sentence the appellant to imprisonment for a non parole period of 2 years 3 months to commence on 29 July 2005 and to expire on 28 October 2007 with a balance of term of 2 years 3 months to commence on 29 October 2007 and expire on 28 January 2010.
I note that the appellant has served the non parole period of this sentence and is presently on bail.
HOEBEN J: I agree with Hislop J and the orders which he proposes.

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LAST UPDATED:
5 December 2008