Habambo v The King

[2023] NSWCCA 328

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Habambo v R [2023] NSWCCA 328

Hearing dates:

3 November 2023

Date of orders:

15 December 2023

Decision date:

15 December 2023

Before:

Ward P; Rothman J; Davies J

Decision:

In relation to the conviction appeal:

1.   Leave is refused in relation to each of the grounds of appeal.

2.   Dismiss the appeal.

In relation to the sentence appeal:

1.   Grant leave to appeal.

2.   Dismiss the appeal.

Catchwords:

CRIME – Appeals – Appeal against conviction – Where evidence of text conversations between complainant and relative of applicant had been admitted by the primary judge – Whether evidence was admitted in error – Whether admission of evidence caused a miscarriage of justice

CRIME – Appeals – Appeal against conviction – Where evidence of messages sent by the complainant had been obtained improperly but were admitted on the basis of relevance – Where the evidence was not admitted until the complainant and other Crown witnesses had already been cross-examined – Whether the failure to determine the admissibility of the evidence until after the Crown witnesses had been cross-examined was an error or caused a miscarriage of justice

CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Whether failure of counsel to object to admission of evidence occasioned a miscarriage of justice

CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Whether failure of counsel to determine admissibility of evidence prior to cross-examination of the complainant caused a miscarriage of justice

CRIME – Appeals – Appeal against sentence – Where two counts of intimidation also involved suffocation – Whether sentencing judge fell into De Simoni error by sentencing on the basis of findings constituting a more serious offence

CRIME – Appeals – Appeal against sentence seriousness – Where count of common assault constituted fourth of four counts in final episode of abuse after nine years of domestic violence – Whether sentencing judge erred in finding count was at the mid-range of objective

CRIME – Appeals – Appeal against sentence – Where offending involved 28 counts of domestic violence over nine years – Whether aggregate sentence was manifestly excessive

Legislation Cited:

Bail Act 2013 (NSW), s 22B

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13

Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Crimes Act 1900 (NSW) ss 37, 59, 61, 308

Criminal Appeal Act 1912 (NSW) ss 5, 6

Evidence Act 1995 (NSW) ss 38, 43, 44, 55, 56, 76, 137, 138, 192

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

Alkheir v R [2016] NSWCCA 4

Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322

Antouny v R [2020] NSWCCA 203

Aravena v R [2015] NSWCCA 288

ARS v R [2011] NSWCCA 266

Crofts v The Queen (1996) 186 CLR 42; [1996] HCA 22

Dedeoglu v R [2023] NSWCCA 126

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40

Dogan v R [2020] NSWCCA 151

FDP v R [2008] NSWCCA 317

Flood-Smith v R [2018] NSWCCA 103

GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40

Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15

Glennon v The Queen (1994) 179 CLR 1; [1994] HCA 7

Hamilton (a pseudonym) v R [2020] NSWCCA 80

Hanna v R [2022] NSWCCA 7

Hilton v Legal Profession Admission Board [2017] NSWCA 232

IW v R [2019] NSWCCA 311

James v The Queen [2014] HCA 6

Kapanadze v The Queen [2017] NSWCCA 69

Kirby v R [2021] NSWCCA 162

Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220

McIlwraith v R [2020] NSWCCA 274

Nudd v The Queen [2006] HCA 9

Osolin v R (1993) 86 CCC (3d) 481

Panayi v Deputy Commissioner of Taxation [2017] NSWCA 93; (2017) 319 FLR 228

Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20

Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89

Poniris v R [2014] NSWCCA 100

R v Esho [2001] NSWCCA 415

R v Miletic [1997] 1 VR 593

Roach v R [2019] NSWCCA 160; (2019) 344 FLR 429

Salafia v R [2015] NSWCCA 141

Severino v The Queen [2017] NSWCCA 80

Stack v Western Australia [2004] WASCA 300

The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31

The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Tsiakas v R [2015] NSWCCA 187

XY (A Pseudonym) v R [2023] NSWCCA 50

Category:

Principal judgment

Parties:

George Habambo (Applicant)
Rex (Respondent)

Representation:

Counsel:
S Holt KC with D McMahon (Applicant)
G Newton SC (Respondent)

Solicitors:
Korn Tlais Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2020/00304824

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

6 October 2022

Before:

Culver DCJ

File Number(s):

2020/00304824

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was convicted on 6 October 2022, following a jury trial in the District Court, of 28 counts relating to domestic violence offences against his former wife. The applicant was sentenced on 17 February 2023 in relation to ten of those counts to a total aggregate sentence of 10 years imprisonment with a non-parole period of 6 years, commencing on 4 October 2022. A 2 year conditional release order and a 3 year community correction order were imposed in relation to the remainder of the counts, commencing on 17 February 2023.

The charges of which the applicant was convicted were several counts of both common assault and intimidation, as well as assault occasioning actual bodily harm, damage property, intentionally choke person with recklessness, and intentionally suffocate person without consent, contrary to the Crimes Act 1900 (NSW) and the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The offending took place between late 2011/early 2012 and August 2020.

The applicant sought leave to appeal against both his conviction and in relation to the aggregate sentence imposed on him. Regarding his conviction, the applicant raised six grounds of appeal, which essentially involved complaints as to two issues: the admission of Exhibit C (a record of text messages exchanged between the complainant and the applicant’s sister, Ms Harb) (the subject of grounds 1, 1A and 2); and the manner in which the admissibility of Exhibit 11 was dealt with (the subject of grounds 3, 3A and 4). Exhibit 11 was a record of WhatsApp messages exchanged by the complainant and others, including her sisters, which had been obtained by the defence from the complainant’s phone (which was still in the applicant’s possession at the time).

Four grounds were raised regarding the appeal against sentence: relating to a complaint that the sentence for counts 3 and 11 was on the basis of findings constituting more serious offending (grounds 5 and 6), a contention that the aggregate sentence imposed was manifestly excessive (ground 7), and an alleged error in the determination of the objective seriousness of count 34 (ground 8).

Held (Ward P, Rothman J, Davies J) refusing leave to appeal in respect of the conviction appeal, and granting leave to appeal but dismissing the appeal in respect of the sentence appeal:

Conviction appeal:

1. Grounds 1, 1A and 2: The text messages constituting Exhibit C were both admissible and relevant in circumstances where there was a dispute raised as to the complaint made by the complainant to Ms Harb (the Court at [222]). The messages were relied upon as relevant to Ms Harb’s credibility in respect of her evidence that all the complainant had told her was that the applicant had forcefully pushed her (the Court at [223]). The trial judge was not required to intervene to reject the evidence (the Court at [227]), nor had there been a miscarriage of justice due to defence counsel’s failure to object to the admission of Exhibit C (the Court at [232]-[233]).

   FDP v R [2008] NSWCCA 317; Hanna v R [2022] NSWCCA 7; Tsiakias v R [2015] NSWCCA 187 applied.

2. Grounds 3, 3A and 4: While there was some confusion or overlapping of the objections made in relation to defence counsel’s cross-examination as to the Exhibit 11 messages, defence counsel was permitted to cross-examine on the topics raised by the messages, and did not seek to recall the witnesses for further cross-examination once those messages had been admitted, for which there must have been a forensic decision (the Court at [292]). The trial judge’s concern as to the provenance of the text messages was appropriate, and defence counsel’s decision not to forewarn the Crown or the complainant of the Exhibit 11 messages was clearly a forensic decision; as such it cannot be said that there was not a rational forensic decision open to defence counsel not to seek an earlier ruling as to the admissibility of the messages (the Court at [296]).

Sentence appeal:

1. Grounds 5 and 6: The Remarks on Sentence demonstrate that the sentencing judge was aware of the De Simoni principle; and was careful to sentence the applicant for the offences of which he had been convicted, and not of a more serious offence which had not been charged (the Court at [316], [319]). There was no error in the sentencing judge determining that the objective gravity of the offence was high because the offence involved behaviour that could be said to amount to suffocation, and because the applicant told the complainant not to say anything to the police (the Court at [322]).

   The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31; R v Esho [2001] NSWCCA 415 considered.

2. Ground 8: The offending constituting count 34 was far more serious that some of the previous assaults: it was part of the final episode of intimidation and violence inflicted on the complainant following nine years of domestic violence; it occurred at the complainant’s home in front of their children; and it involved the applicant jamming the complainant in the door, having threatened to throw her off the balcony (the Court at [334]). The sentencing judge had the very considerable advantage of having presided over the trial, and was able to compare the relative seriousness of a number of different assaults; it cannot be concluded that the sentencing judge erred in determining the objective seriousness of count 34 (the Court at [333], [335]).

   Salafia v R [2015] NSWCCA 141 applied.

3. Ground 7: The applicant’s complaints as to the indicative sentences of counts 3, 11, 27 and 33 had not been made out, having regard to the overall pattern of behaviours and the context surrounding each incident (the Court at [367], [373] and [376]). Given the nine-year period of offending and the seriousness of the offences, the aggregate sentence, while stern, was not manifestly excessive (the Court at [378]).

   XY (A Pseudonym) v R [2023] NSWCCA 50; Kirby v R [2021] NSWCCA 162 considered.

JUDGMENT

1. THE COURT: On 6 October 2022, the applicant (George Habambo) was convicted, following a jury trial in the District Court before Culver DCJ, on a large number of counts relating to domestic violence offences against his former wife (Ann-Marie Habambo). The offences included acts of assault, intimidation, damaging property, choking and suffocation. Of the 34 counts on the indictment, the applicant was convicted on 28 counts (all other than counts 1, 4, 12, 22, 25 and 29). The Crown then made a detention application pursuant to s 22B of the Bail Act 2013 (NSW) and the applicant was bail refused.

2. On 17 February 2023, the applicant was sentenced in relation to counts 3, 7, 9, 11, 16, 23, 26, 27, 33 and 34 to a total aggregate sentence of 10 years imprisonment with a non-parole period of 6 years pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), that sentence commencing on 4 October 2022.

3. As to the remaining counts, a 2 year conditional release order was imposed in relation to counts 6, 21, 28 and 30 and a 3 year community correction order was imposed in relation to counts 2, 5, 8, 10, 13, 14, 15, 17, 18, 19, 20, 24, 31 and 32. Both community based orders commenced on 17 February 2023.

4. The applicant now appeals (and, where necessary, seeks leave to appeal) both in relation to conviction and in relation to the aggregate sentence imposed on him, pursuant to s 5 of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act). Leave is required for both the sentence appeal and for those grounds of the conviction appeal that involve determinations of fact (see s 5(1)(b)-(c) of the Criminal Appeal Act; Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220 at [2] (Basten JA, Latham and Rothman JJ agreeing); Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 at [44] (Basten JA, Latham J agreeing); [68]-[71] (Rothman J)).

5. As to certain of the grounds raised in the conviction appeal (grounds 1, 2, 3 and 4), leave is also required pursuant to rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Criminal Appeal Rules), as no objection was taken by defence counsel during the trial to the matters about which complaint is now made (the admission of Exhibit C – grounds 1 and 2; and the manner in which the admissibility of Exhibit 11 was dealt with – grounds 3 and 4).

6. In supplementary submissions, the applicant sought to raise further grounds of appeal, being grounds 1A, 3A, 9 and 10. Grounds 9 and 10 were abandoned shortly before the hearing of the appeal.

Background

7. The applicant and the complainant met in early 2011 and were married on 10 November 2012 (25/08/22; T 68.35-69.10). They had not lived together prior to marriage (25/08/22; T 69.12-13). They first resided together in a granny flat at a property in Bass Hill for about two years (25/08/22; T 69.25-26). The couple had two children born in November 2014 and December 2016, respectively (25/08/22; T 69.34-36). The family moved into a larger house in Illawong at the beginning of 2015 (26/08/2022; T 126.35-36). The couple separated on 29 August 2020 (the date of the last of the charged offences – counts 31 to 34) (25/08/2022; T 69.41-42).

The respective cases

8. The Crown case was that the offences occurred in the context of an abusive domestic relationship. In opening submissions, the solicitor advocate referring to the trial as being one about “coercive control”, explaining that concept as “a practice or a pattern of behaviour” that could include “psychological, physical, emotional and financial abuse through which one partner seeks to intimidate, isolate and control the other partner” (25/08/22; T 35.10-18). The defence took issue with this, applying unsuccessfully for the jury to be discharged as a result of what was described by defence counsel as “an argumentative submission that shouldn’t have been made in an opening address” (see 25/08/22; T 40.11-44.40; T 45.38-52.25). No complaint is here made about this.

9. The Crown case included evidence of contemporaneous complaints made to family members, friends and (in the case of counts 9, 10 and 11) a general practitioner; contemporaneous text messages and other electronic records created by the complainant referring to incidents that had occurred; and photographs taken by the complainant immediately after particular incidents. The Crown also called various members of the applicant’s family, including his sister (Rita Harb), his mother (Mona Habambo), another of his sisters (Remy Boumoussa) and his brother-in-law (Jimmy Boumoussa), the husband of the applicant’s other sister, Rebecca. Pausing here, there is some inconsistency in the spelling of some of the names of members of the applicant’s family. In a family tree tendered at the trial (Ex R) the names of the applicant’s brothers in law are listed as “George Boumoussa” and “Jimmy Boumoussa” but in the transcript the complainant is recorded (at 29/08/22; T 192.25) as referring to Jimmy as “Jimmy Marousa”; (at 29/08/22;, T 193.25-28) to George and Jimmy as “George Marousa” and “Jimmy Marousa”; and (at 29/08/22; T 195.9) to George again as “George Marousa”. The obvious explanation is that “Marousa” is a transcript error, given the family tree, and given the complainant’s evidence (30/08/22; T 266.33-40) that George and Jimmy are brothers with the last name “Boumoussa”.

10. The Crown was granted leave to cross-examine the applicant’s family members witnesses pursuant to s 38 of the Evidence Act 1995 (NSW) (Evidence Act) on the basis that they had provided statements which it was accepted contained evidence unfavourable to the Crown case. The trial judge also, over the applicant’s objection, granted the Crown leave to cross-examine those witnesses more generally as to credibility pursuant to s 38(3) of the Evidence Act (12/09/22; T 1047.21-24).

11. The defence case was that the alleged offending did not occur and that the allegations were motivated by financial and custodial issues on the part of the complainant. The defence tendered (over the Crown’s objection) a number of text messages retrieved from an old phone of the complainant, which the applicant maintains were relevant to the complainant’s motivation to lie (see the complaint as to Exhibit 11 raised by the applicant on the present appeal (3/11/23; AT 15.36-16.8)). The trial judge admitted the text messages in Exhibit 11 notwithstanding her ruling that they had been improperly obtained (see below).

Counts

12. The incidents the subject of the respective counts, and the evidence as to those incidents, can be summarised as follows.

Count 1 – 5 June 2011 – the “egg incident” (Not Guilty)

13. Count 1 (common assault) related to an incident alleged to have occurred on 5 June 2011 at the applicant’s parents’ house (prior to the marriage of the complainant and the applicant). The complainant said that the applicant had called her over and asked her to get something from the bottom of the fridge and that, while she was bending down to get a bottle of orange juice, the applicant had smashed an egg on her head “really, really hard” (25/08/22; T 70.11-15) and the egg was dripping down her face. The complainant said that the applicant’s mother was present and said “Oh, my God. What are you doing? What did you do to her?”; and that the applicant had then taken a photo of her (25/08/22; T 70.15-17). The complainant said she was crying and that the applicant’s mother was screaming and yelling at him. The complainant said that the applicant’s mother tried to help her clean it out as best she could; but it smelled bad and the complainant was too upset so the complainant left and drove home to her parents’ home address where she was then living (25/08/22; T 70.19-35). The applicant later emailed to the complainant the photograph he had taken of her (Ex A) (25/08/22; T 70.37-49).

14. In cross-examination, the complainant accepted that she had emailed the applicant on 5 June 2011, addressed to “Mr Hafaslam”, which she agreed was a funny name that the applicant’s friends would use (31/08/22; T 393.30-40). The complainant said that when she sent the email she was trying to be funny about the incident because she did not want the applicant to realise just how upset she was about it because he was her first boyfriend and they had only been dating a few months (31/08/22; T 397.9-11; 1/09/22; T 415.12-17).

15. Ms Harb gave evidence about the egg incident; namely, that she had come home from work that day and noticed that the complainant’s hair was wet and that the complainant had told her about the incident and had been laughing about it (13/09/22; T 1091.16-27). There was also evidence from Ms Remy Boumoussa, who said that she was present in the kitchen, to the effect that someone had grabbed an egg and the applicant then grabbed another egg and cracked it on the complainant’s hand; and that she and her mother had “just looked at each other laughing, like, this is cute, but then we had to clean the eggs” (14/09.22; T 1183.46-1184.5).

16. The applicant’s mother, Mrs Mona Habambo, also gave evidence of the egg incident (14/09/22; T 1224.29-40) to the effect that the applicant cracked the eggs above the complainant’s head and some of it went on the complainant’s head and some on the kitchen floor; and that the couple was laughing. Mrs Mona Habambo said that she remembered the incident, that it was a joke; but that it was a nasty joke for her because she had to clean up the kitchen; and that she had offered to help the complainant clean her hair.

Count 2 – between January and March 2012 – “duct tape incident” (Guilty)

17. Count 2 (common assault) related to an incident alleged to have occurred in the applicant’s vehicle (a Toyota Ute) between January and March 2012 (again before the couple’s marriage) when the couple were on their way to church in Punchbowl.

18. The complainant said that the two were “mucking around” when the applicant’s face changed all of a sudden and he told her to stop; that the applicant continued driving and then turned right onto King Georges Road and pulled over to the left putting his hazard lights on; and that he got out of the car, walked around the vehicle and opened the passenger side door and had silver duct tape in his hand (25/08/22; T 73.18-34). The complainant said that the applicant wrapped the duct tape around her head (around three or four times) and she had to put her hands up to her face to try and cover her eyes and prevent them getting stuck with the duct tape on her eyelashes and eyebrows (25/08/22; T 73.34-38). The complainant said that the applicant then returned to the driver’s seat and continued driving to church like nothing had happened; and that she just sat there in the passenger seat truing to remove the duct tape very carefully (and painfully) because it was stuck to her hair (25/08/22; T 73.42-49).

19. The complainant’s sister (Ms Marie-Antoinette Rachwan) gave evidence that she had a conversation with the complainant sometime in 2012 (6/09/22; T 759.2-4) (after the time the complainant was engaged to be married to the applicant, which was in October or November 2011) in which the complainant told her about an incident in the applicant’s car when they had been “play fighting”; she had “flicked” the applicant’s leg; and the applicant became angry and had pulled over to the side of the road, pulled out some tape and started taping around her face, with her hands covering her face (6/09/22; T 758.14-28; T 778.7-21). In cross-examination, Ms M Rachwan said that the complainant appeared scared and worried when she told her about the incident in 2012 (7/09/22; T 798.3-5).

Count 3 – late February 2013 – “plastic bag incident” (Guilty)

20. Count 3 (intimidation) related to an incident alleged to have occurred in late February 2013 (25/08/22; T 76.17). The complainant and the applicant (who by this time were married) were talking in the granny flat when the applicant forced the complainant onto the ground face down, face down between the back of the couch and the kitchen bench; kneeled on top of her with his knees on her hands so that her hands were behind her; and placed a plastic bag over her head and put duct tape around her neck. The complainant said that she was struggling to get out of it and that every time she took a breath the bag would be sucked into her mouth and she thought she was going to die. The complainant said that eventually the applicant got off her and she was able to get up and that she ripped the bag open so that she could breathe; and that the applicant then suggested that they watch a movie and he sat on the couch “like nothing had happened”. The complainant said that she walked into the ensuite bathroom so that she could get rid of the tape and the plastic bag around her head; and that she called her friend (Antoinette Al Hage) and told her what happened (and that she was whispering when she spoke to Ms Al Hage) (25/08/22; T 76.15-45).

21. Ms Al Hage gave evidence that the complainant had called her around Valentine’s Day 2013 from the bathroom and was whispering and talking very fast (13/09/22; T 1057.16, 31). Ms Al Hage said the complainant told her that the applicant had put her face down to the floor, put a plastic bag around her head and wrapped duct tape around her neck; that she thought she was going to die; and that when he let her go she was able to rip the bag open and he then asked her to watch a movie in the lounge area (13/09/22; T 1057.16-22).

22. Ms M Rachwan recalled that the complainant had told her of an incident where the applicant had put a plastic bag over her head and then taped around her neck; that he had her pinned down somehow where she was unable to breathe; that the bag was going in and out of her mouth as she was trying to breathe; and that eventually he let go and she ripped open the bag to catch her breath (6/9/22; T 763.39-45).

Count 4 (Not Guilty) and Count 5 (Guilty) – March 2013 spitting/ponytail incidents

23. Count 4 (common assault) was alleged to have occurred in about March 2013. The complainant said that she was in the bedroom of their Bass Hill home and was on her phone (texting); that the applicant saw her on the phone (which he usually did not like); and he started screaming and swearing at her. The complainant said that the applicant was saying a lot of nasty things about her and that he kept pushing her until she ended up on the back of the bed next to the bedhead; that one of the pushes forced her down onto the bed; and that she was sitting on the edge when he said “You’re a shit wife and you’re a shit person” and then made a sound like he was “coughing up phlegm”’ and a large amount of spit landed on her face (26/08/22; T 96.8-35).

24. Count 5 (intimidation) was alleged to have occurred immediately following the above incident and as part of the same incident. The complainant said that she went to wipe off the spit; that the applicant was ranting and screaming at her; and that the applicant picked up some poultry or kitchen scissors and grabbed her ponytail in his fist; that the applicant pulled her hair down to the right so that her neck was strained and her head was downwards towards the right; and that the applicant put the scissors up with the vee open against her ponytail and held them there so that she could feel the blunt end of the blade against her neck. The complainant said that the applicant said to her “[y]ou don’t need your hair. I’ll cut it off for you”; and then eventually he let go and walked out of the room taking the scissors with him (26/08/22; T 96.35-97.6).

25. Ms M Rachwan gave evidence that the complainant had told her in around 2013 or 2014 that the applicant had grabbed a pair of scissors and put the scissors right against the base of the complainant’s ponytail and threatened to cut her hair (6/09/22; T 763.23-26).

26. Another of the complainant’s sisters (Ms Sueallen Rachwan) gave evidence that while the complainant was still living at the Bass Hill address the complainant told her of an incident in the bedroom at Bass Hill where the applicant had grabbed the complainant’s hair and put scissors up to her ponytail, at the root of the hair, and was threatening to cut it off (7/09/22; T 840.16-40).

Counts 6, 7 and 8 – Easter 2013 incidents (Guilty)

27. Count 6 (common assault) was alleged to have occurred at Easter, after the couple had left a party at a friend’s house in Greenacre on 31 March or 1 April 2013. The complainant said that when they were sitting together with friends in Greenacre the applicant had received a text message from his ex-partner, which had a photo of a lady wearing black lingerie and the message Happy Easter (26/08/22; T 99.32-41). The complainant said that she turned to the applicant and said “Oh, so you’re still talking to her”; and that she got upset over it and walked outside; and that she called one of her sisters who was trying to console her (26/08/22; T 99.44-46). The complainant said that she went back inside and then the applicant decided that they had to leave because she looked visibly upset (26/08/22; T 100.6-7).

28. The complainant said that they got in the car; it was afternoon; that they were going home to their house in Bass Hill and arguing in the car about the text message; and that when they were near St Joseph’s school in Enfield, approaching a red light, the applicant grabbed her right wrist and twisted it “really hard”; and it hurt a lot (26/08/22; T 100.7-14). The complainant said that she was yelling at the applicant to let her go and she tried to push his head away to do something to cause him to let go of her hand; and that eventually he ended up letting go of her wrist but then he used that same hand and grabbed the back of her neck and forced it down really hard between her knees (26/08/22; T 100.14-20). The complainant said that the applicant held her neck down while he continued to scream and swear at her and then finally he let go (26/08/22; T 100.20-22). The complainant said that they continued driving to the granny flat at Bass Hill and that when they went inside they both went into the bedroom and the applicant said “Look at you. You’re fucked. You’re drunk” and kept saying that to her (26/08/22; T 100.27-31).

29. Count 7 (common assault) followed the above incident. The complainant said that the applicant backed her to the bottom edge of the bed and then slapped her across the face. The complainant said that she fell onto the bed and just held her face and was crying when she was lying down (26/08/22; T 100.33-36).

30. Pausing here, in the complainant’s account of events when giving evidence it is clear from the transcript that on occasion she demonstrated physically what had occurred; and on occasion she became upset (as, for example, when she needed a moment after recounting the incident in count 7) (26/08/22; T 100.36-37). The jury, of course, had the distinct advantage of directly observing such things.

31. Count 8 (intimidation) followed the above incidents. The complainant said that the applicant told her that “you need to cool off” and started removing her shoes (brand new boots, which he ripped in the process of removing them) and her clothes; and then forced her naked into a cold shower and left her there (26/08/22; T 100.40-50). The complainant said that she was huddled up in the corner of the shower and crying; and that after the applicant left the house she turned the water onto warm; and then called one of her sisters to tell her what had happened; and that all three of her sisters then came over to her house (26/08/22; T 100.50-101).

32. Ms M Rachwan gave evidence that the complainant had told her about an incident where the couple were driving home from an event and the complainant had seen something to do with an ex-girlfriend on the applicant’s phone; and that the applicant had grabbed her and shoved her head between her knees in the car; and that once they got to their house he had forcefully ripped off her clothes and threw her in a cold shower; and that her boot was broken in the process (6/09/22; T 764.18-46). Ms M Rachwan said that she had been contacted by Ms S Rachwan who had said something along the lines that they needed to go to the complainant’s house and it was an emergency (6/09/22; T 764.48-765.12). Ms M Rachwan said the all three sisters attended on this occasion; that the complainant’s hair was wet and her face was “pretty red”, like she had been crying (6/09/22; T 765.48-766.2).

33. Ms S Rachwan gave evidence that the complainant had called her and told her about a message the applicant had received from his ex-girlfriend with a photograph of a lady half naked or in lingerie with bunny ears; that the complainant was very, very upset at the time; and that the complainant called her again within less than an hour and was hysterically crying again, saying that the applicant was “still texting” her (the ex-girlfriend) (7/09/22; T 840.50-841.21).

34. Ms S Rachwan said that she called her the complainant later that day; that the complainant was crying and told her that when they got into the car the applicant was angry at her; that the applicant had twisted her arm and shoved her head between her legs; and that when they got back to the house he had stripped her clothes off and threw her into the shower, turned on the cold water and said “You need to cool off” (7/09/22; T 841.34-41). Her evidence was that she and her other sister (Caroline) drove to the complainant’s house and that the complainant’s hair was wet, her eyes were red and puffy and her cheeks were red and puffy; and that it was obvious that she had been crying (7/09/22; T 841.50-842.1; T 842.16-19).

35. Ms Caroline Rachwan (the complainant’s third sister) gave evidence that she had made her way to the Bass Hill house with Ms M Rachwan; that the complainant’s hair was wet and her eyes were teary; and that the complainant had told her that the applicant had forced her to leave their friend’s house; and that once they arrived at their house he had slapped her across the face, stripped her clothes off and threw her into a cold shower (9/09/22; T 917.9-24).

Counts 9-11 – 22 November 2013 – “Exhibit C incidents” (Guilty)

36. Count 9 (assault occasioning actual bodily harm) related to an incident at about midnight on 22 November 2013 (a date the complainant recalled as it was shortly after their first year anniversary) (26/08/22; T 103.29-36). The complainant said that she was in the ensuite bathroom and she was on her phone; that the applicant barged in to the bathroom and demanded that she hand over her phone; that he started getting more and more wound-up and aggressive as he was demanding she give him her phone; and that he snatched the phone out of her hand and threw it down on the ground causing the screen to crack (26/08/22; T 103.43-50). The complainant said that she backed away from the applicant but ended up backing away into where the shower was (an open shower with just one panel of glass) and that the applicant kept backing her into the shower while yelling and swearing at her. The complainant said that the applicant grabbed her head and her right shoulder and then rammed them into the tiled wall of the shower (26/08/22; T 104.2-9). The complainant said that she was dazed from the hit of her head to the tiles and that her shoulder was cut (about a four centimetre laceration that she did not notice at the time) (26/08/22; 104.11-14).

37. The complainant said that the applicant left the room and she closed the door and locked it; that she was terrified and looking for a way out; and that she was trying to open the window quietly but she could not get the flyscreen off. The complainant said that the applicant asked what she was doing and started screaming at her to open the door (26/08/22; 104.14-25).

38. Count 10 (malicious damage) related to the conduct of the applicant forcing open the bathroom door and causing damage to the door jamb (26/08/22; T 104.26-27).

39. The complainant said that the applicant dragged her away from the window and pulled or dragged her backwards to the other side of the bed. The complainant said that the applicant had gotten her down on the ground between the bed and the sliding wardrobe and that she was flat on her back and he was crouched behind her (26/08/22; 104.29-33).

40. Count 11 (intimidation) followed on from the above two counts. The complainant said that the applicant put one of his hands over her mouth, covering it tightly, and with the other hand he pinched her nose closed hard so that she could not breathe (26/08/22; T 104.33-35). The complainant said that she was thrashing and kicking and trying to move his hands; and that eventually he let go and she started screaming for help (26/08/22; T 104.35-42). The complainant said that the applicant put his hand back on her mouth again but not so hard and yelled at her to “Shut up”; and that she stopped screaming because she was scared of what he was going to do. The complainant said that the applicant walked out of the bedroom and she followed because she thought she might be able to run out the front door but that before she got there he grabbed her arm and he pulled her back (26/08/22; T 104.44-105.2).

41. The complainant said that she tried again a few times to run out the front door but the applicant again pulled her back, grabbing her arm and causing her to fall to the ground, and that she eventually gave up (26/08/22; T 105.4-8). The complainant recalled that the police arrived a short time later; that when they heard police announce themselves at the door the applicant told her not to say anything; and told her to tell them that they had argued about money (26/08/22; T 105.8-11). The complainant accepted that she had lied to the police officer; and said that she was scared of repercussions from the applicant if he had found out she had told them the truth (26/08/22; T 105.33-38). The complainant said that the police had asked if she needed an ambulance and that was when she realised that her arm was dripping blood from the cut on it (26/08/22; T 105.41-47).

42. The complainant gave evidence that she complained to Ms M Rachwan about the incident (26/08/22; T 107.26030); and that she was also experiencing headaches shortly after the incident as a result of which she attended a doctor in Campsie with Ms S Rachwan to see if she required further medical treatment (see below) (26/08/22; T 110.9-16).

43. The complainant gave evidence that she also spoke to the applicant’s sister, Ms Harb, about the incident (26/08/22; T 112.27-41). In cross-examination, the complainant gave evidence that she told Ms Harb “the truth of what had happened, what [she] told the Court” (2/09/22; T 522.19-22). The complainant could not remember word for word what she told Ms Harb but agreed with the proposition that she told Ms Harb that she had her head bashed against the wall and that she was the victim of the conduct about which she had given evidence in chief (2/09/22; T 522.15-22).

44. In cross-examination, the complainant agreed that she did not tell the police officer the truth of what happened; she did not remember exactly what she told the police officer; and she could not remember what she had told the police officer as to how she got the injury to her shoulder (30/08/22; T 277.42-278.15; T 278.32-43; T 280.50-281.4).

45. Senior Constable White gave evidence that he had attended the Bass Hill premises on 22 November 2013; and that the COPS entry created in relation to the incident recorded that the couple had been arguing over financial issues; that the complainant had said she had slipped over in the shower scratching her left shoulder on a rough surface inside the shower as a result of the argument (15/09/22; T 1399.20-1400.29) and that the COPS entry also recorded that the complainant, “angered” by slipping over, had then scratched the applicant’s left shoulder (15/09/22; T 1401.13-15).

46. Ms M Rachwan gave evidence that the complainant told her in about 2013 about an incident where the couple were having an argument at their house at Bass Hill; that they were in the bathroom; and that the applicant had grabber the complainant’s head and slammed the side of her head against the wall of the bathroom; that they continued arguing and that the complainant was trying to escape from the applicant (6/09/22; T 759.11-15). Her evidence was that the complainant told her that she was trying to remove the flyscreen in their bedroom to escape through the window into the backyard; and that the applicant had somehow broken the door down and continued to chase her after he got access to the bedroom; and that he chased her out of the bedroom and he somehow got a hold of her and had placed his two hands to block her airways (6/09/22; T 759.18-27). Ms M Rachwan had taken photographs of the damage to the door and of injuries to the complainant’s arm and shoulder the following day (6/09/22; T 760.40-42) (Ex B; 26/08/22; T 107.34-108.3) (see 30/08/22; T 222.5-17).

47. In cross-examination, Ms M Rachwan confirmed her evidence in chief (7/09/22; T 804.16-808.15), agreeing that there was a conversation within their family about the police being called to the complainant and the applicant’s house on this occasion (7/09/22; T 804.39-45).

48. Ms S Rachwan gave evidence that the complainant had told her about in incident sometime during summer in 2013 where the applicant had grabbed her phone and thrown it/smashed it on the floor; and had hit her head into a wall (7/09/22; T 843.14-18). Ms S Rachwan did not remember the exact details but said that somehow the applicant was outside the bedroom; the complainant was inside the bedroom and had locked the bedroom door; that the complainant was trying to escape out of the bedroom window and was pulled back in by the applicant and that the applicant had broken down the door and gotten into the bedroom (7/09/22; T 843.18-26). She thought that the complainant had told her that she was on the floor and that her mouth and nose were covered so that she could not breathe; and that she had been screaming for help (7/09/22; T 843.26-31). She said that the complainant told her that the police had turned up and the applicant had told her not to say anything and so when she spoke to the police she said that they had just had a normal marital argument (7/09/22; T 843.31-37). In cross-examination she confirmed her evidence in chief (at T 909.44-913.6).

36. The complainant’s mother, Mrs Lina Rachwan, said that the complainant had told her that the applicant had pushed her in the shower and that she hit her head and cut her shoulder; and that the applicant was trying to suffocate her and put his hand on her mouth and nose (7/09/22; T 990.26-34). Mrs L Rachwan also referred to having spoken to the applicant about the incident and that the applicant’s response was that the complainant had been screaming and that he put his hand over her mouth and nose to calm her down, to stop screaming (12/09/22; T 992.41-993.9). The complainant’s mother confirmed her evidence in cross-examination (at T 999.44-1004.35).

37. Ms Harb gave evidence that the complainant had told her in relation to this incident that she had a fight with the applicant and that “He pushed me. He pushed me really hard”; that they had a big fight and he pushed her; and that she had bruises to prove it (13/09/22; T 1096.11-49). However, Ms Harb did not accept that the complainant had told her that she had been thrown against a wall or that she had been choked or suffocated by the applicant (13/09/22; T 1101.37-44). (This factual dispute is relied upon by the Crown in answer to the complaint as to the admissibility and relevance of Exhibit C – see below.)

38. In evidence were text messages exchanged on 23 November 2013 between the complainant and Ms Harb about this incident (see below) (admitted as Ex C; 26/08/22; T 112.43-49). (The admission of this material and the way in which it was utilised at trial is the subject of Grounds 1, 1A and 2.)

39. As referred to above, the complainant said she suffered from headaches as a result of this incident, which led to her attendance on Dr Khuu on 22 November 2013. Dr Khuu gave evidence at the hearing. Dr Khuu had no recollection of the consultation (29/08/22; T 146.43-147.2 on the voir dire; 16/09/22; T 1440.35-36) but notes that he had made of the consultation were admitted, without objection (see Ex W; 16/09/22; T 1440.2-8). For completeness, we note that there was an objection to certain of the questions asked of Dr Khuu, but not to the admission of Ex W into evidence – see 16/09/22; T 1440.7-8. The notes recorded:

Reason for contact:

Left side bad headache from yesterdqy [sic]

Management:

temperature is 37.2

head injury

advise of precautions on head injuries, to go to hospital if danger sign or symptom occur

advise to see doctor GAN if it a legasl [sic] case patient might need to see psychologist as she said her husband pushed her left side of her head against a wall and also tried to suffercate [sic] her

53. Ms Al Hage gave evidence (13/09/22; at T 1058.44-50; T 1073.6-1074.12) of a complaint made by the complainant to her about this incident.

54. Mrs Mona Habambo was cross-examined about her evidence in relation to this incident, and said that the applicant called her and told her that he had had an argument with the complainant (14/09/22; T 1263.18-20). Mrs Mona Habambo gave evidence that, when she arrived, the applicant told her that the complainant “went crazy…she tried to hit me…I hold her hand and she scratch me” (14/09/22; T 1263.35-1264.5).

Count 12 – July 2014 – “pushing during pregnancy” incident (Not Guilty)

55. Count 12 (common assault) related to an alleged offence in June or July 2014, at a time when the complainant was pregnant with the couple’s first child. The complainant said that the couple were in the bedroom talking, not arguing but “playing around”, when the applicant got angry and grabbed her shoulders and very aggressively shoved her back onto the bed; that she got back up and he did so aggressively again; and that she told him to stop “be careful of the baby”. The complainant said she was really scared about the baby but did not tell anyone else about this incident (26/08/22; T 125.41-126.3).

Counts 13, 14 and 15 – 12 October 2015 – pushing/balcony threats (Guilty)

56. Count 13 (common assault) was alleged to have occurred on 12 October 2015 at the Illawong property. The complainant gave evidence that she was on the bed with their son (then aged 11 months) when the applicant became angry and began kicking her really hard a few times in her thighs (26/08/22; T 127.20). The complainant said that she had fallen half off the bed from the force of the kicks.

57. Count 14 (intimidation) related to the complainant’s evidence that the applicant then told her “Get out, you’re not – get out, this is not your house, you’re not allowed to live here, and if I could, I’d throw you off the balcony, I would” (26/08/22; T 127.26-29).

58. Count 15 (intimidation) related to the complainant’s evidence that later in the evening, when the complainant brought that incident up with the applicant, he said “Yeah, if I could, I would throw you off the balcony as well” (26/08/22; T 127.34-38).

59. In evidence there was a screen shot of a note that the complainant said she had recorded on her phone in relation to this incident (which was tendered without objection) (Ex D; 26/08/22; T 128.30-41). The applicant points out that there was no evidence as to when the complainant had created the note. The complainant gave evidence that she did not tell anyone about this incident (26/08/22; T 129.25-27).

Counts 16 and 17 – 26 January 2016 incident at Illawong (Guilty)

60. Count 16 (intimidation) related to an incident on 26 January 2016. The complainant said that the couple was getting ready to leave for the applicant’s sister’s house for an Australia Day BBQ and there was an argument because the complainant was not ready on time to leave. The complainant said that the applicant said that he was going to take their son and leave; the complainant said “No, just wait” and was rushing to get ready; and that the applicant kept yelling at her and telling her she was too dumb to do anything and too stupid to know better (26/08/22; T 129.37-130.9).

61. The complainant’s evidence was that the applicant went to leave with their son; that she went to follow them and the applicant pushed her back into the house; that the applicant took her handbag and both sets of the car keys; and that when she went to try and follow the applicant downstairs to the car, the applicant kept pushing her away from the car, saying “you’re not allowed in”. The complainant said that she went to run around the other side of the car by Which time the applicant was already in the driver’s seat; that the complainant went to enter the vehicle in the back left passenger side and had opened the door and had one foot inside the car and one hand holding the handle of the door inside the door. The complainant said that the applicant was looking at her directly in her eyes and that he started accelerating the car very fast; and the complainant started screaming because she thought she was going to get crushed by the gate and the door or by the gate or fence hitting the door. The complainant said that the applicant stopped after driving maybe a metre or so (26/08/22; T 130.21-42).

62. Count 17 (common assault) followed on from the above incident. The complainant said that she jumped into the car, buckled herself up and said she was ready to go with them; and that the applicant then got out, came around to her side, opened the passenger door and unbuckled her seatbelt. The complainant said that the applicant grabbed her arm and pulled her out of the car, throwing her down to the ground. The complainant said that the applicant pushed her well away from the car a couple of times and shut the door; then drove off with her son and without her (26/08/22; T 130.48-131.15).

63. The complainant gave evidence that she had made some notes on her phone about the incident, which were tendered without objection (Ex E; 26/08/22; T 131.44-132.13). The complainant said that she made the notes at the time (26/08/22; T 135.13-17). The notes do not appear to be complete. The complainant confirmed that she did not remember telling anyone else about the incident (26/08/22; T 135.40-43).

64. Ms S Rachwan gave evidence that she was told sometime in 2015 by the complainant about an incident where the applicant had taken the couple’s son and put him in the car and had told her that she was never going to see him again and that he had driven off when she was half inside the vehicle. The complainant had said that she ended up on the floor but Ms S Rachwan was unsure whether that was due to the applicant pushing the complainant or driving off (7/09/22; T 844.43-845.14).

Count 18 – 16 April 2017 – Easter 2017 incident (Guilty)

65. Count 18 (intimidation) related to an incident at Easter on 16 April 2017. On this occasion, the couple’s son had been swearing in church at Punchbowl and the complainant had taken him outside to sit with him in the car. The complainant said that the applicant came out with their daughter in the pram and they had an argument; the applicant told her that it was her fault that their son was “acting up” and then said that he was leaving with their daughter and that the complainant would never see her again, after which he started walking away with their daughter in the outside carpark. The complainant said that she was yelling at him to come back with their daughter and that eventually he did. The complainant said that the applicant drove them home to Illawong although they had been supposed to go to the complainant’s aunt’s house for Easter lunch. The complainant said that the applicant told her “in a really aggressive way” that they were not going (to her aunt’s home for Easter lunch)and told her to ring her mother to tell her that they would not be coming. The complainant said that she called her mother as they were driving back to Illawong; and that when they got home the applicant took her phone, car keys out of her bag and her credit card out of her wallet so that she would not be able to leave the house or make any phone call (29/08/22; T 167.41-168.34). The complainant said that the applicant later forced them to go to see his family (29/08/22; T 168.47-169.2).

66. Ms M Rachwan gave evidence that the day after this incident the complainant had come over to the family’s house at Canterbury and told them that the applicant had taken away her phone, wallet and keys, preventing her from attending Easter with them in Canterbury and that she was forced to attend his family’s Easter celebration (6/09/22; T 766.46-767.1).

67. Ms S Rachwan said that the complainant told their mother about the incident in her presence a day or several days later; that the complainant indicated that her son was being naughty and that at some point the applicant had said to her that she was never going to see her daughter again. Ms S Rachwan confirmed that the complainant did not attend Easter lunch as planned (7/09/22; T 845.34-50).

68. Mrs L Rachwan gave evidence about an incident at Easter (the “next one” after her evidence in relation to the 22 November 2013 incident); recalling that the complainant had called her on that occasion and said that they were not coming to Easter lunch (12/09/22; T 993.46-994) and that the following day the complainant had said that at the church the applicant had the couple’s daughter in a pram and had threatened to take her away so that the complainant would never see her again (12/09/22; T 994.­29-32).

Count 19 – July 2017 Fish markets incident (Guilty)

69. Count 19 (intimidation) related to an incident in July 2017. The complainant said that they had just had lunch at the Notaras Fish Markets in Cronulla and were going to take the children home for their nap; that the applicant’s mother called saying that they (the applicant’s parents) wanted to see the children; and that she and the applicant had an argument as to whether the applicant’s parents meet them at Cronulla or at the couple’s home at Illawong. The complainant said that she was pleading with him to take the children home as they were tired; and that the applicant said to her “I want to put you six feet under, and I’m going to bury you under the pool” (29/08/22; T 169.17-50); and that made her feel scared and intimidated (29/08/22; T 170.9-10). The complainant said that they stayed in Cronulla and waited for the applicant’s family to come; and that later the applicant’s mother had called her and complained that she had been very rude; and that the complainant told her that the applicant had threatened to kill her and she was terrified and could not even speak (29/08/22; T 170.10-20).

70. Ms S Rachwan gave evidence that the complainant had told her that the applicant had said things to her, saying that “A few times, there was, you know, ‘I’ll – I’ll bury you. I’ll put you six feet under.’ That was one I remember because he actually said that he would bury her under the pool … and that happened a few times. It wasn’t just once” (7/09/22; T 853.27-30).

71. Mrs L Rachwan gave evidence that when her husband was in Lebanon in 2017 the complainant had told her something similar (that the applicant had threatened to put her “six feet under”) (12/09/22; T 995.24-26).

72. Mrs Mona Habambo denied that Mrs L Rachwan had told her that the applicant threatened to kill the complainant, that the complainant was scared, and that the applicant had threatened to put the complainant “six feet under” (14/09/22; T 1284.34-40). Mrs Mona Habambo said that the meeting that was held in 2017 was arranged because the complainant’s mother wanted a bigger house for her daughter (14/09/22; T 1284.47-50-1285.13).

Count 20 — 16 April 2017 bomb threat incident (Guilty)

73. Count 20 (intimidation) related to an incident that occurred around 16 August 2017 (the day of the complainant’s mother’s birthday). The complainant said that the next day they were having an argument and the applicant said “[i]f you leave you leave with nothing but the clothes on your back” and that “[y]ou can take the kids, but you have to pay for everything for them. You won’t see a dollar from me” and “[o]r they stay with me and I’ll pay for everything for them”, to which the complainant said that she said “Of course they are going to stay with me” and the applicant replied “with what money? Good luck to you” (29/08/22; T 170.33-171.3). After this evidence, the complainant requested a short break.

74. When the hearing resumed, the complainant gave evidence that the next day in the evening they were having an argument about the complainant being upset, during the course of which the applicant said to her that he was testing her the other day; and that the applicant said “Put it this way. If you think you’re going to forcefully get me out of this house, good luck to you” and then he said “You, anyone. There’s police; you can bring the whole army down here. I’ll turn the whole suburb of Illawong into a bomb and blow everyone up including myself” and that “I’ll tie a grenade and I’ll blow everything up. No one is taking my kids away from me. These kids aren’t growing up without me” (29/08/22; T 173.12-38).

Count 21 – 7 October 2017 – outfit incident (Guilty)

75. Count 21 (intimidation) related to an occasion on 7 October 2017, when there was to be a pre-wedding party for the applicant’s sister. The complainant said that they were at their house in Illawong and Ms M Rachwan and two friends had been asked to babysit the children while they attended the event in the evening. The complainant said that she had come out of her bedroom in her outfit to ask them their opinion of it; that after she returned to the wardrobe the applicant was yelling and shouting at her to change her outfit and said that she looked like a whore; and that she was not allowed to go unless she changed her outfit. The complainant said that the applicant ended up storming out of the house and forcing her to stay at home; and that he then sent her a text message shortly after he left saying “I dare you to turn up” . The complainant said that she took a screen shot of the message (no such document was in evidence) (29/08/22; T 174.46-175.46).

76. Ms Janet Akl (one of the complainant’s friends who was there on that occasion) gave evidence that the complainant had told her that the applicant was not happy with her outfit; and that the complainant was quite upset; and that the applicant left without the complainant and told her not to follow him. Ms Akl also said that the applicant had sent a text message to the complainant saying “I dare you to come” (12/09/22; T 951.25-952.9).

Count 22 (Not Guilty) and Count 23 (Guilty) – 30 January 2018 – bathroom/choking incidents

77. Count 22 (common assault) related to an incident on 30 January 2018 at Illawong. The complainant’s evidence was that in the morning at around 8am the applicant was getting ready for work; they were in the ensuite bathroom; she was standing right beside the applicant in front of the basin using a tooth whitening pen; and the applicant went to leave the bathroom and walked behind her, grabbed her by the waist and shoved her forward hard so that her hips hit the edge of the marble topped basin “really, really hard” and it hurt a lot (29/08/22; T 176.32-47). The complainant said that the applicant then came back to stand in front of the toilet and she asked him why he had done so he said to her angrily “because you were deliberately sticking your arse out” (29/08/22; T 176.49-177.4).

78. Count 23 (intentionally choke with recklessness; this being one of the counts on the indictment that was amended during the trial) related to conduct immediately following the incident the subject of count 22 (on which the applicant was acquitted). The complainant, who had been rinsing her mouth at the time, said that she turned to the applicant (intending to say “sorry, no I didn’t”) and some water came out of her mouth onto the applicant. The complainant said that the applicant said to her (in a screaming sort of voice) “you spat dirty water on me?” and then grabbed her neck with both hands and ran her backwards into the bedroom, maybe two metres or so, and her knees hit the bed and she fell on it while the applicant was still holding her neck with both hands. The complainant said that she was trying to gasp for air but could not breathe (29/08/22; T 177.4-14; T 177.40-50). The complainant said that eventually the applicant let her go (estimating that he let go after less than 10 seconds) (29/08/22; T 177.16; T 178.2-3).

79. The complainant said that she asked the applicant what he was doing and why he could not just wait for her to get the whitening pen; and that he grabbed her wrist, took the whitening pen and threw it across the room (29/08/22; T 177.16-23). The complainant said she then went to the playroom and took some photographs of herself and her wrists (see Ex G; 29/08/22; T 178.5-33). (The applicant says that those photos are of limited quality and do not appear to depict any obvious injury (6/09/22; T 720.15-19).) There was no evidence of any complaint being made in relation to this incident at the time.

Count 24-27 – 14 July 2019 – pushing/choking/intimidation (Guilty on counts 24, 26 and 27; Not Guilty on count 25)

80. Count 24 (common assault) related to an incident on 14 July 2019 at Illawong. The complainant said that they had been out shopping at Birkenhead Point and the children had fallen asleep in the car on the way home. The complainant said that she put the children in their beds to have their nap and the applicant went to have a nap while she cleaned the house. Then the complainant decided to fix her nails and was doing that at home, sitting in front of the heater on top of a thick, heavy brown blanket. The complainant said that her daughter woke up from her nap around 5pm and had gone to the fridge and was crying because she wanted some cupcakes. The complainant said that her daughter’s crying had woken up the applicant who had got out of bed and was yelling at her, saying “Oh, was that so hard, for anyone to close the fridge”. At this point, the daughter (by then about two and a half) had come to sit next to the complainant on the blanket with a bag of snacks (29/08/22; T 181.8-37).

80. The complainant said that the applicant was yelling at her and telling both her and their son to turn off the heater. The complainant said that their son did so and that the applicant then grabbed the blanket from behind her and tugged it from right under her; that their daughter was sitting on it too and she fell forward and hurt her knee and started crying; and that the applicant kept tugging the blanket. The complainant said that she put her hand up to stop herself from falling (describing how she had done so) and that it ended up being around his crotch area. The complainant said that the applicant yelled at her, saying “You – you punched me in the balls” and that he hit her in the face around the corner of her mouth with his hand (either a fist or open hand) (29/08/22; T 181.42-182.11).

81. Count 25 (common assault), of which the applicant was found not guilty related to an incident immediately following count 24. The complainant said that the applicant then grabbed her by the neck with one of his hands; that it “wasn’t like his choking hold”; it was a “threatening hold”, with his hand just there on her neck (29/08/22; T 182.12-16). The complainant said that, when the applicant let go, she got up; that she said “Come on. I dare you. I’m waiting for the day. And I can’t believe you would do that in front of the kids”; and then the applicant stood really hard on her big toe. The complainant said that the applicant knew that she already had an injury on this toe. The complainant said that she screamed and then stepped on “his” (the applicant’s) toe to get him away from her (29/08/22; T 182.19-24).

82. Count 26 (intentionally choke/suffocate; this being another count amended on the indictment during the trial) related to an incident immediately following the above. The complainant said that the applicant put both his hands around her neck again (to strangle her); that he ran her over to the couch, which was a distance behind her; that she fell onto her back on the couch; that he continued to choke her and “was still strangling” her; and that he said “Oh, here, I’ll stop your breathing, too” (29/08/22; T 182.24-30; T 184.41-48).

83. The complainant said that the applicant let go at that point; and that she told the children (who were in the middle of the living room “watching the whole thing”) to call the police. The complainant said that the applicant was then standing behind her head and that he covered her mouth and blocked her nose again; and that she could not breathe again. The complainant said that she was thrashing and struggling to try to get the applicant off her and that he was telling her to shut up. The complainant said that she could not breathe and that eventually the applicant let go of her (29/08/22; T 182.30-34; T 184.48-185.2).

84. Count 27 (intimidation) followed on from the above incident. The complainant gave evidence that after the applicant had removed his hands from her neck and she had told the children to call the police, she asked him how he could do that to her, especially in front of the children; and the applicant said “If I was going to choke you, you would’ve been dead. [If] I was going to hurt you, you would’ve been hurt” (25/08/22; T 182.40-41; T 185.24-33).

85. In evidence there were some photographs the complainant said she had taken of herself in the laundry right after this had happened (Ex H; 29/08/22; T 183.35-50); the first photograph of her face, relating to count 24; the second of her neck, and the third being a screen shot of the time and date taken of the photographs. The complainant said that she was bleeding inside her mouth as a consequence of count 24 and that her neck was red (29/08/22; T 183.40-43).

86. The complainant she had sent some text messages to Ms M Rachwan about the incident (Ex J; 29/08/22; T 186.2-10). The first text message was sent at 9.24am on 15 July 2019 and read “Hey. Can you talk for a bit? George did some shit to me in front of the kids yesterday and I don’t know what to do” (which the complainant said referred to the 14 July incident). The complainant said that she met her sister at Metro Café in Campsie and told her what had happened (29/08/22; T 186.24-36).

87. Ms M Rachwan gave evidence that the complainant had sent her the photos (Ex J) and that the complainant told her that she was at her house in Illawong, sitting in front of the heater on a blanket and her daughter had come and sat next to her on the blanket. Ms M Rachwan thought that the applicant had tried to turn the heater off or maybe approached the complainant but remembered that they were “kind of verbally arguing and then he tried to slap her". Ms M Rachwan recalled that the complainant told her that the applicant had pulled the blanket from underneath her trying to get up; and that because of that the daughter had fallen or slid off the blanket and hurt herself somewhere in the process; and that is when the applicant tried to slap the complainant. Ms M Rachwan said that the complainant was “kind of pulling, pushing him away” but because she was on the floor she got his groin area at the time and the applicant started saying something like “You got me in the nuts, you got me in the nuts”. Ms M Rachwan’s understanding from what the complainant told her was that it was unintentional, that it was just the height she was at. Ms M Rachwan said that she believed that the complainant stood up and the applicant stepped on her big toe (which she said “gets quite infected”) and that it was painful for the complainant; and that the complainant did the same thing back to him. Ms M Rachwan said that the complainant told her that the applicant had grabbed her by the neck and then dragged her to the couch and starting choking her; and that the children were there, just standing and staring at the whole thing “basically just frozen”; and that the complainant was screaming out to her son to call the police (6/09/22; T 769.23-770.7).

88. Ms Al Hage also gave evidence about disclosure by the complainant about an incident in 2019 where she was sitting with her daughter on a blanket in front of the heater and the applicant got angry and pulled the blanket from underneath them; that while she was falling the complainant had pushed the applicant; and that the applicant hit her in the face and then started to choke her in front of the children and was trying to suffocate her by putting something over her mouth and nose for her to stop breathing (13/09/22; T 1060.12-17).

89. The complainant gave evidence that she had made a note in her phone about the incident that same day (Ex K; 29/08/22; T 188.42-189.11).

Counts 28 (Guilty) and 29 (Not guilty) – 24 December 2019 – “Christmas Eve 2019 incidents”

91. Count 28 (intimidation) related to an incident on 24 December 2019 at Strathfield. The complainant said that they were at the applicant’s sister’s house and they were packing away to leave; it was close to midnight; and the children had already unwrapped all their presents. The complainant said that the applicant told her to stack the pile of boxes into his arms so he could carry them all out to the car; and that he told her to hurry up and go outside to open the doors for him. The complainant said that she told the applicant that she was just going to pack up the children and their things and would then follow him outside; that she realised she needed another bag; and asked the applicant’s sister if there was a bag she could use. The complainant said that Rita went to find one and that she (the complainant) was waiting in the living room with the applicant’s mother sitting on the couch opposite, and they were talking while she was gathering the children’s things (29/08/22; T 24-44).

92. The complainant said that Ms Harb then came back with a bag; that she was loading up the toys in the bag and she was still talking to the applicant’s mother; and that she heard shouting outside and was concerned that the applicant was calling her name. The complainant said that the applicant’s mother told her that the applicant was calling his younger sister (Remy) and not to worry (29/08/22; T 192.46-193.2).

93. The complainant gave evidence that she finished packing everything and started walking towards the door with the children; and before they reached the hallway she saw Ms Harb running towards her. The complainant said that Ms Harb looked worried like she was very anxious and said “Hurry up. You have to come outside now. My brother’s losing it because you’re not there to open the door for him”. The complainant said that when she got to the front door the complainant said she could hear the applicant yelling at her very loudly from the street “Where the fuck were you? Where the fuck were you? I fucking told you to come outside now and open the fucking door for me. And you do what I tell you to do when I tell you to do it”. The complainant said that she said to him “why don’t you just do us all a favour and just fucking leave”; and that the applicant yelled out “I had to call George Marousa [sic] to come and get you because you’re so fucking dumb and so fucking useless” (and continued on with that tirade) (29/08/22; T 193.4-26).

94. The complainant said that outside with the applicant were his two brothers-in-law (George Boumoussa and Jimmy Boumoussa) and that they were trying to calm the applicant down. The complainant said that Ms Harb had followed her outside along with the children; and that the applicant’s family members had come out as well because they heard all the commotion. The complainant said she kept trying to explain to him that she was just inside packing the children’s things; and the applicant just continued and screamed “open the fucking door” (29/08/22; T 193.26-194.3).

95. Count 29 (common assault) (of which the applicant was acquitted) followed on from the above incident. The complainant said that when she opened the car boot, the applicant yelled “Move” and said that very forcefully; and that the applicant then shoved the pile of boxes he was holding very hard into her stomach area, and that because of the force she stumbled backwards. The complainant said that behind her was her son and behind him was the applicant’s mother. The complainant said that she realised that she was tripping on something behind and when she turned around she saw her son there and that the applicant’s mother had caught him to prevent him from falling. The complainant said that the applicant then started saying really loudly “Look at her, she’s fucking crazy. She’s falling all over the kids”; that she (the complainant) then said “You just pushed me with the boxes” and that George and Jimmy would have seen him do it; and that she then said to the applicant “why don’t you just choke me? Would that make you feel better?”. The complainant said that the applicant just stared at her “dead in the eye” in a frozen way; and that she went onto the footpath and his brothers in law were trying to calm him down (29/08/22; T 194.5-25).

96. The complainant’s evidence was that the applicant’s sisters had come outside and were screaming at him asking what was wrong with him and why he would treat his wife like that; and yelling that he was the worst husband (29/08/22; T 194.25-32). The complainant also said that the applicant’s mother had told her that claimed that the applicant’s mother was saying that she should slap the applicant or hit him; and that she told his mother that she would never hit him because “He would kill me” (29/08/22; T 194.46-50).

97. The complainant said that the following day she sent text messages to the applicant’s sisters (Rita, Remy and Rebecca) apologising for what had taken place outside “because it was quite bad’, and they have obviously neighbours, and … it was close to midnight” (Ex M, N, O; 29/08/22; T 195.24-197.15).

98. The message to Ms Harb (Ex M) (responding to her message that “Let me know If you need anything. I’ll happily crack him in the head for you any time”) included the words “sorry about the screaming match last night” (29/08/22; T 196.3-11).

99. Similarly, the message to Ms Remy Boumassa (Ex N) included “I’m sorry about all the yelling that happened last night in front of your family and kids” (to which Remy responded “Why be sorry. You done nothing. I would’ve slapped my husband if he done that lol. It would have been much worse. You done nothing wrong”) (29/08/22; T 196.38-197.2).

100. Again along similar lines, the message to Ms Rebecca Boumassa (Ex O) included “I’m so sorry to you and Jimmy about the screaming match in front of your home and kids” (to which Rebecca responded that she was “so angry at him and worried about you”; and that “you’re an angel. I seriously wish I could change him. No one deserves that treatment especially you”) (29/08/22; T 197.17-30).

101. Ms Harb in her statement said of the Christmas Eve 2019 incident that the complainant was “in my brother’s face”, screaming at him, swearing and screaming in front of the kids (13/09/22; T 1137.6-14). Ms Harb was cross-examined as to this (13/09/22; T 1147.5-1148.28).

102. Ms Remy Boumoussa was cross-examined about her evidence that she was present at the incident alleged to have occurred on Christmas Eve in 2019 but that she did not observe the applicant behaving aggressively at all that evening (14/09/22; T 1202.7-1205.48).

103. Mrs Mona Habambo gave evidence about the alleged incident on Christmas Eve 2019 to the effect that the complainant and the applicant were arguing but that the argument was “normal” (14/09/22; T 1279.44-1280.6). She denied that the applicant had become increasingly angry because the complainant had not come outside to help him or that he had been screaming at her to do so; and she denied that the applicant yelled at the complainant or abused her and said that the applicant was yelling at someone to get the keys from the complainant’s bag (14/09/22; T 1280.8-21).

104. Jimmy Boumoussa, who was also present at the incident on Christmas Eve 2019, was cross-examined about his evidence that, during the incident, the complainant stood in the way of the applicant as he attempted to access the boot of his car, that the complainant was “in [the applicant’s] face” saying “fucking hit me. Hit me, George if you’re a man, fucking hit me, do it if you’re a man, hit me”, the applicant then saying to the complainant, “Ann-Maree, what the fuck are you talking about what’s wrong with you? Stop it” (15/09/22; T 1319.30-40). His evidence was that the complainant continued to provoke the applicant; that the complainant “bridged up to George, provoking him to hit her” (15/09/22; T 1332.29-37); that he had never seen anything like this before from the complainant, she was not crying, he did not hear the applicant call the complainant any derogatory names, and he did not see the complainant stumble or fall over when she opened the car boot (15/09/22; T 1332.44-45; T 1334.6-23; T 1335.24-30).

Count 30 – 28 July 2020 – intimidation incident (Guilty)

105. Count 30 (intimidation) related to an incident on 28 July 2020. The complainant said that it was in the evening; she was ironing and the applicant was sitting on the couch going through her expenses and seeing where she had spent money from the bank account. The complainant explained that the applicant had opened a different account that he allocated to her only to use as her expenditure account where he would put a weekly allowance. The complainant said that the applicant was arguing with her and yelling at her about “YouTube” expenses; and that he said to her “you’re so selfish, that’s why you won’t have another kid with me”; and threatening her saying that “if you don’t have a baby in two year’s time, then you’re out”; and then said that she could get half of whatever profit they made from selling the top half or top house of a proposed development and “that’s it, you won’t get another dollar from me” if she did not have a child in the next two years”. The complainant’s evidence was that she felt really intimidated and forced to have a child against her will. (29/08/22; T 198.19-199.16).

Counts 31-34 – 29 August 2020 – final incidents (Guilty)

106. Count 31 (common assault) related to an incident on 29 August 2020 at Illawong, the day that the complainant left the applicant (29/08/22; T 199.29).

107. The complainant said that it was a Saturday; in the afternoon; and that they were at home with the children; she was in the kitchen doing the dishes and when she turned on the tap it started spraying water everywhere. The complainant said that she asked the applicant to help her. The complainant said that the applicant got his tools and set of Allen keys; and that she was taking things in and out of the washing machine. The complainant said that the applicant told her to come over so that she could be the one to fix the sink and he was going to teach her. The complainant said that she was frustrated and said something like “why can’t you just do it, aren’t you a man?” (29/08/22; T 199.25-45).

108. The complainant said that the applicant kept telling her what to do; and the applicant said that his hand was still sore from having mixed cement with his hands the day before. The complainant said to the applicant that she could not understand how he had been out all day helping his friend put together a pergola, such a massive job, and could not do this; that she began crying and walked away; and that the applicant said “you can’t fucking do anything you’re too dumb. You and your fucking family”. The complainant said that they were arguing and yelling at each other; and that the children had come inside and were standing between the applicant (who was near the kitchen sink) and the complainant (in the laundry) (29/08/22; T 199.45-200.20).

109. The complainant said that the applicant told the kids to come on and go on the boat (a little tinny at the back of the property); that she told him “no” (because she was concerned that it could be dangerous); and that their daughter did not want to go. The complainant said that the applicant was trying to take their daughter outside; that she followed them; and that they ended up going downstairs from the front of the house over to where the shed was; and the applicant was saying to her “stop hitting me” and “don’t push me”. The complainant said that she was not even touching him at all; and then the applicant picked up their daughter, who was screaming and crying; that he put their daughter down onto the grass around the pool; and he then walked over to the complainant and ended up backing her into where the outside benches were and then used both hands and pushed her against the bench. The complainant said that she fell onto her back because the back of her knees had hit the bench. (29/08/22; T 200.22-201.31).

110. Count 32 (common assault) followed on from this incident. The complainant said that she had stood back up and went to make sure their daughter was okay; that the applicant said again “Get out of my way … don’t hit me” (the complainant said she was not touching him); and that the applicant ended up going upstairs the back way, so she carried her daughter through the backyard around the shed; that the applicant was trying to get their son to go with him and their son was saying no and walking away from him; and that she was pleading with the applicant to leave the children. The complainant said that the applicant pushed her again with both hands and she fell backwards onto an old washing machine at the front of the house, hitting the edge of the washing machine. (29/08/22; T 201.30-202.12).

111. Count 33 (intimidation) followed on from the above incident. The complainant said that after she got back up the applicant said to her “I’m gonna put you six feet under” and “I’m going to throw you off the balcony”; at this time she was still pleading with him to leave the children and they were standing right next to the glass balustrade (29/08/22; T 202.36-40).

112. Finally, count 34 (common assault) related to an incident following the above. The complainant said that the applicant ended up going inside, after the children; that she followed him inside (because she was worried about them with him); and that, as she was walking in behind the applicant he shut the big glass door on her saying “It’s not your house”. The complainant said that the door was shut on her so that she was half inside the house and half outside the house “so it was across the middle of [her] body”. The complainant said that she was stuck and the applicant was holding it closed with her foot. The complainant said that she was screaming for help and that the applicant was telling her to get out of the house but she told him she was stuck in the door and was yelling at him to move his foot. The complainant said that the applicant eventually stopped blocking the door and she was able to enter the house. The complainant said that she saw some neighbours from the driveway and she told them she was scared. The complainant said that a short time after this the police arrived; and that she heard the applicant lying to the neighbours about what had happened (29/08/22; T 202.42-203.31).

306. The sentencing judge specified an indicative sentence of imprisonment for 2 years 6 months.

307. The sentencing judge first described the events constituting counts 9 and 10 (namely, the offending on 2 November 2013 where the applicant had assaulted the victim and damaged her phone by throwing it onto the ground; and then when the complainant went into her bedroom and locked the door behind her, the applicant then broke the door down to get into the bedroom).

308. Her Honour then said:

The appellant then ran at the victim and dragged her away from the window. He dragged her backwards onto the floor between the bed and the wardrobe. The victim was flat on her back and the appellant crouched behind her. He put one hand over her mouth tightly and with the other hand he pinched her nose so that she could not breathe. The victim was thrashing and kicking, and trying to move his hands. She was scratching his wrist trying to get them off but he would not move. Eventually he let go and she gasped deeply for breath and started screaming for help.

309. The Crown submitted to the sentencing judge that that offence fell well above the mid-range of objective seriousness. As noted above, the applicant had submitted that the offending was serious and would have caused a high level of anxiety to the complainant. It was also said on his behalf that, whilst suffocation was inherently serious, what had occurred was not the most serious form of suffocation.

310. In assessing the objective seriousness of the offence, the sentencing judge said this:

In the Court's assessment, the focus needs to be maintained on the type of offence, namely, intimidation. As for count 3, the Court is careful not to breach the principle in De Simoni. Whilst suffocation may be committed in different ways, this is an offence of intimidation. It is a particularly serious example of intimidation due to the fact that after breaking down the bedroom door, the offender threw the victim onto the floor and placed one hand over her mouth and used the other hand to pinch her nose. Her screams and struggles are evidence of the victim's extreme fear. The context of domestic violence and location of the offence in the victim's bedroom aggravate the offence. The offender's post-offence conduct in telling the victim not to say anything to police does make the offending more serious, just as the Court has recognised in other cases that the objective gravity of a sexual assault offence is rendered more serious if the offender directs the victim not to tell anyone about it, particularly in the context of child sexual assault offences. As this post-offence behaviour is entirely in the same context as the offender putting his hand over the victim's mouth to stop her screaming, the post-offence conduct does not add to the objective gravity in a significant way, but is still taken into account. For all of the reasons identified, this intimidation offence falls in its objective gravity well above the mid-range and towards the upper range.

311. The sentencing judge specified an indicative sentence of 3 years’ imprisonment.

Submissions

312. The applicant submitted that a sentencing judge ought to make careful findings, where the potential for De Simoni error is manifest, to demonstrate that such has not occurred: The factual findings on sentence may demonstrate De Simoni error inferentially even where the elements of the more serious offence are not specifically referred to. The applicant submitted that simply asserting that such has not occurred, or that the De Simoni principle has been adhered to, will generally be insufficient where the facts otherwise found are consistent with the commission of a more serious offence. Reference was made in particular to R v Esho [2001] NSWCCA 415 (Esho) at [160].

313. The applicant submitted that the practical effect of the factual findings on sentence appears to support a conclusion that the applicant had suffocated or had attempted to suffocate the complainant for a period or, alternatively, had rendered or had attempted to render her incapable of resistance in circumstances where the intended offence was that with which he was charged, that is, intimidation.

314. The applicant submitted that the charged offence required proof that the applicant intended, or at least knew, that his conduct was likely to cause fear of physical or mental harm in the complainant. On the other hand, an offence contrary to s 37 of the Crimes Act required proof of an intention to commit an indictable offence. Section 13(1) of the CDPV Act is an indictable offence. The applicant submitted that a finding ought to have been clearly made to the effect that the applicant was being sentenced on the basis that he knew his conduct was likely to cause the complainant to fear, but not on the basis that he had intended to do so.

315. The applicant submitted that a similar problem attends count 11. Although this was charged as an act of intimidation, on the findings made, the applicant was being sentenced on the basis of conduct constituting the more serious offence contrary to s 37 of the Crimes Act. The applicant submitted that, again, the reasons did not demonstrate how that was achieved.

Determination

316. As the ROS clearly demonstrate, the sentencing judge was aware of the De Simoni principle in relation to both counts 3 and 11. The issue had been raised by the solicitor advocate for the Crown at the sentence proceedings and the following discussion ensued:

Her Honour: Is there anything else either party wishes to advance?

MAXWELL-WILLIAMS: Your Honour, very briefly, and it is set out in my written submissions, but my friend raised it. I just wanted to clarify that the Crown doesn't submit that the offender should be sentenced on any other basis for counts 3 and 11 other than the fact that they are charges of intimidation. The offending conduct is, however, choking and suffocation.

HER HONOUR: Well, it's not Desimone [sic] because back then there wasn't a choking or suffocation offence.

MAXWELL-WILLIAMS: There was, but it was worded in a way that was very difficult to prosecute. It required proof of rendering of being capable of resisting and doing so with intent to commit an indictable offence. That's off the top of my head.

HER HONOUR: But the Crown hasn't relied on evidence that would bring that offence into Desimone [sic] territory?

MAXWELL-WILLIAMS: No, your Honour. No, your Honour.

HER HONOUR: You say it's not a breach of Desimone [sic] to regard the fact of choking or suffocation as rendering that type of offence at the upper end?

MAXWELL-WILLIAMS: Yes, thank you, your Honour.

HER HONOUR: Okay.

317. The sentencing judge subsequently asked counsel for the applicant if there was anything further he wished to say. Although counsel did not directly address the De Simoni principle, he said this:

Anyway, your Honour would be much more circumspect on any consideration of death or otherwise in terms of choking. The s 37 itself makes it perfectly clear that there are levels of choking, and you've got three different, as it were, offences, with three different levels of penalty.

318. It is perfectly clear, however, that counsel there was addressing count 26 which was the offence contrary to s 37(1A) of the Crimes Act. Further, nothing had been said in submissions on behalf of the applicant either in writing or orally in relation to the De Simoni principle and counts 3 and 11.

319. It is difficult to see how the sentencing judge could have more clearly indicated that she was conscious of the De Simoni principle and that she was careful to sentence the applicant for the offence of intimidation and not a more serious offence that had not been charged in relation to that count. Nothing in Esho at [160] assists the applicant; indeed what is said there provides support for the way the sentencing judge dealt with the problem.

320. In that case, Simpson J (as her Honour then was) (Spigelman CJ and Smart AJ agreeing) said at [160]:

The next two matters raised on behalf of Esho concerned Abadee J’s evaluation of the gravity of his conduct. The first of these challenges the finding that his conduct should be categorised as falling within the worst class of case. The second challenges the conclusion that the finding that Esho’s liability was accessorial, not direct, did not diminish his culpability. In considering the first of these matters it is necessary carefully to avoid classifying the s 35 offence as, in reality, a s 33 offence - that is, an offence committed with an intention to cause grievous bodily harm. The potential for De Simoni error is manifest. However, Abadee J carefully, and on more than one occasion, reminded himself that he was not sentencing for an offence that involved the element of specific intent; at the same time, he recognised that malice was an element of the offence proved. This court needs to take the same care, but, nevertheless, it is entitled to have regard to what Abadee J described as “the ferocity” of the attack that constituted the second phase. This was a circumstance in which a large number of young men surrounded Constable Carty, who had already been stabbed fatally, who was lying defenceless on the ground, and who was repeatedly kicked and stomped upon with such force as to cause the injuries earlier described. While I recognise the difficulty in approaching this question on the basis that there was no intention to inflict grievous bodily harm, I am nevertheless satisfied that the offence may properly be characterised as a worst case scenario: that is, a worst case under s 35. The sheer number of participants is a significant factor in this regard. I am satisfied that concluding that this was a worst case example of an s 35 offence does not fall foul of De Simoni principle. There must, after all, be room for a “worst case” under s 35 without crossing the boundary of s 33. In my opinion Abadee J’s finding that this was such a case was open to him and is not vulnerable to the challenge now made.

321. The sentencing judge in the present case took into account all aspects of the acts constituting the intimidation, including the suffocation, without concluding that there was any intention on the part of the applicant to suffocate the complainant. Her Honour noted, however, the complainant’s screams and struggling which manifested her extreme fear, from which it was clear that the applicant was being sentenced on the basis that he knew his conduct was likely to cause fear. Further, as in Esho, the sentencing judge referred on more than one occasion to the fact that she was not sentencing for the more serious offence.

322. There was no error, however, in her Honour determining that the objective gravity of the offence was high because the offence involved behaviour that could be said to amount to suffocation. So much was conceded in the submission made by counsel for the applicant in both his written and oral submissions. In addition, the objective seriousness was increased by the applicant telling the complainant not to say anything to the police, as the sentencing judge noted.

323. When the sentencing judge came to deal with count 11, her Honour expressly referred again to what she had said in relation to count 3 about being careful not to breach the principle in De Simoni.

324. In our opinion, the findings made by the sentencing judge did not result in her sentencing for a more serious offence for counts 3 and 11, and her Honour’s reasons were entirely sufficient to make clear the approach she took in that regard.

325. These grounds should be rejected.

Ground 8

Ground 8: The trial judge erred in her determination as to the objective seriousness of count 34.

326. It is convenient to deal first with ground 8 because that determination is likely to assist in that part of the determination of ground 7 that involves count 34.

The offending

327. Count 34 (see above) was a charge of common assault for which the maximum penalty is 2 years’ imprisonment. It was also the fourth of four counts said to constitute episode 16 in the history of the offending (those other counts were counts 31-33).

Sentencing remarks

328. The sentencing judge noted that the Crown submitted that the count 34 offence fell at the mid-range of objective seriousness. The Crown submitted that the offence was highly distressing to the complainant and was made serious by having been committed in the doorway of the complainant’s home, in front of her two children and in the context of domestic violence of a persistent nature. The applicant submitted to the sentencing judge that the court would bear in mind that the offence occurred in a course of conduct.

329. The sentencing judge assessed the offence as falling at the mid-range of objective seriousness.

Submissions

330. The applicant submitted in this Court that, even accepting the context was a domestic one and the latitude afforded to sentencing judges in their determination as to objective seriousness, it was not open to the trial judge to find that this offence fell at the mid-range, particularly having regard to what the applicant actually did.

331. The Crown submitted that count 34 was the last offence committed by the applicant against the complainant after years of domestic violence. It was committed in front of the children, at the complainant's home, and the distress experienced by the complainant was shown on the BWV footage taken by the police.

Determination

332. In Salafia v R [2015] NSWCCA 141 Wilson J (with whom Hoeben CJ at CL and Hall agreed) said:

89.   In Ali v R [2010] NSWCCA 35, this Court said at [33]:

“This Court has emphasised that characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in finding facts and drawing inferences from those facts: Mulato v R [2006] NSWCCA 282 at [37], [46]. This Court is slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion, and the question must be whether the particular characterisation was open: Mulato v R, at [37], [46]-[47].”

90   A ground of appeal asserting error in the assessment of objective seriousness should be advanced only where specific error of the sort referred to in House v The King can be identified rather than, as seems to be commonly the case, a complaint routinely made. Assessment of gravity by a first instance judge is a process involving the application of principle to facts established by the evidence. It is a discretionary process that relies upon a judicial officer considering all relevant features, and making what in many regards is a value judgment. The conclusion reached is a discretionary one in a process where there is no definitively “correct” answer. Opinions can reasonably differ, but the availability of other differing assessments is not a basis upon which to discern error. There will be appealable error only where there has been a failure in the proper application of principle in making the assessment.

91   The ubiquity of a ground of appeal such as this does not suggest that the breadth of the discretion is well understood or, if it is, that it is properly acknowledged.

333. The sentencing judge had the very considerable advantage of having presided over the trial of the applicant who was charged and convicted of a large number of offences, many of which were offences of common assault. The sentencing judge was therefore well able to compare the relative seriousness of a number of different assaults perpetrated on the complainant by the applicant.

334. The offence constituting count 34 was not the first time the applicant had assaulted the complainant. It was, in fact, part of the final episode of intimidation and violence inflicted upon the complainant by the applicant, following nine years of domestic violence. The fact that it occurred at the complainant’s home and in front of the children were both aggravating factors. The assault was far more serious than some of the previous assaults including the two others committed in this final episode. The assault involved the applicant jamming the complainant in the door, having just threatened to throw her off the balcony he was preventing her from leaving. The extent of the complainant’s distress from the episode including count 34 can be seen in the police BWV which was Exhibit P.

335. For all of these reasons, it cannot be concluded that it was not open to the sentencing judge properly to conclude that the offence fell within the mid-range.

Ground 7

Ground 7: The aggregate sentence imposed for counts 3, 7, 9, 11, 16, 23, 26, 27, 33 and 34 is manifestly excessive.

336. Ground 7 of the appeal is that that aggregate sentence was manifestly excessive. The ground appeared to be put on two bases. First, the indicative sentences for the individual counts were themselves manifestly excessive. Secondly, independently of the indicative sentences, the aggregate sentence was manifestly excessive when the whole of the criminality was taken into account. That may have been because the notional accumulation was said to be too great, although the matter was not argued on that basis. To deal with the first of the bases, it will be convenient to refer to the individual counts for which that aggregate sentence was imposed and the indicative sentences for each such count.

The offending

Count 3

337. Count 3 was the offence of intimidation contrary to s 13(1) of the CDVP Act. The circumstances of the offending and the sentencing judge’s assessment of its seriousness has been set out above. The indicative sentence was 2 years 6 months.

Count 7

338. Count 7 was the offence of common assault, and it formed part of what the sentencing judge described as episode 4, consisting of two common assaults and one count of intimidation. The sentencing judge indicated a sentence of 9 months for that common assault.

Counts 9 and 11:

339. Count 9 was an assault occasioning actual bodily harm. It was part of what the sentencing judge described as episode 5, involving count 10 (damage to property) and count 11 (intimidation). It occurred on 2 November 2013. The sentencing judge indicated a sentence of 18 months for count 9 and 3 years for count 11.

Count 16

340. Count 16 (the offence of intimidation) formed part of episode 7 on 26 January 2016.

341. The sentencing judge assessed the intimidation offences falling well above the mid-range of objective gravity by reason of the way the applicant used the car in an extremely dangerous way. The sentencing judge said that the presence of the child in the car was an aggravating feature and the threat to remove the child from the complainant was an example of the applicant using the children to manipulate and control the complainant. The sentencing judge held that the very dangerous act caused the complainant to fear she would be crushed between the car and the gate. The sentencing judge indicated a sentence of 18 months’ imprisonment.

Count 23

342. This was the offence of choke and render incapable of assistance contrary to s 37(1) of the Crimes Act. This was the most serious offence with which the applicant was charged. The offending occurred on 30 January 2018. The Exhibit G photographs show bruising and marking around the complainant’s neck.

343. The sentencing judge said that the offence was a serious one and that the objective gravity fell well within the mid-range. Her Honour was careful not to breach the De Simoni principle by taking into account any aggravating factor that would render the applicant liable for an offence under s 37(2), but her Honour observed that being rendered incapable of resistance might in the circumstances elevate the terror of the complainant.

344. Her Honour indicated a sentence of 4 years 6 months’ imprisonment.

Counts 26 and 27

345. These were both offences of intimidation and formed part of what the sentencing judge described as episode 13, consisting also of count 24 of common assault, and count 25 of common assault in respect of which the applicant was found not guilty. The offences occurred on 14 July 2019.

345. The sentencing judge found that count 26, by reason of the combination of all of the circumstances, fell well above the mid-range of objective seriousness. Her Honour indicated a sentence of 3 years’ imprisonment. For the offence constituting count 27, the sentencing judge found that it fell within the mid-range of objective gravity and indicated a sentence of 12 months’ imprisonment.

Counts 33 and 34

347. The facts of these offences constituting, with counts 31 and 32, episode 16, have been set out above. Her Honour found that both offences fell at the mid-range of objective gravity and, for reasons given earlier, there was no error on her Honour’s part in respect of count 34 in that regard. No challenge is made to the finding of objective gravity for count 33.

348. Her Honour indicated a sentence of 12 months’ imprisonment for count 33 and 9 months for count 34.

349. A table setting out the counts, the charges, the maximum sentences, the objective seriousness and the indicative sentences, is set out below for convenience:

Count	Charge	Maximum	Objective seriousness	Indicative
3	Intimidation s 13(1) CDPVA 1 Feb 2013 to 15 March 2013	5 years	Well above mid-range and towards upper range	2 years 6 months
7	Common assault s 61 CA 30 March 2013 to 2 April 2013	2 years	Mid-range	9 months
9	Assault occ/ ABH s 59 CA 20 Nov 2013 to 24 Nov 2013	5 years	Mid-range	18 months
11	Intimidation s 13(1) CDPVA 20 Nov 2013 to 24 Nov 2013	5 years	Well above mid-range and towards upper range	3 years
16	Intimidation s 13(1) CDPVA 26 Jan 2016	5 years	Well above mid-range	18 months
23	Intentionally choke render incapable of resistance s 37(1) CA 30 Jan 2016	10 years	Well within mid-range	4 years 6 months
26	Intentionally choke s 37(1A) CA 14 July 2019	5 years	Well above mid-range	3 years
27	Intimidation s 13(1) CDPVA 14 July 2019	5 years	Mid-range	12 months
33	Intimidation s 13(1) CDPVA 29 August 2020	5 years	Mid-range	12 months
34	Common assault s 61 CA 29 August 2020	2 years	Mid-range	9 months

Submissions

350. The applicant submitted regarding counts 3 and 11, that the sentencing judge found that the objective gravity of count 3 was well above mid-range towards the upper range for the offence, but also found that it was objectively the most serious offence of intimidation before the Court in the proceedings. Count 11 was described in almost identical terms as being well above the mid-range and towards the upper range, but the applicant submitted that count 3 had already been described as the most serious offence of intimidation. The applicant submitted that it was difficult to understand how an indicative sentence of 3 years was reached in relation to count 11 when count 3 (described as the most serious), had an indicative sentence of 2 years and 6 months.

351. In relation to counts 3 and 11, the Crown submitted that what was asserted by the applicant to be a finding by the sentencing judge (that count 3 was “objectively the most serious offence of intimidation before the court in the instant matter”) was in fact a submission made on behalf of the applicant. The Crown submitted that her Honour’s assessment was that the objective gravity fell well above the mid-range. The Crown submitted that the sentencing judge’s finding in relation to count 11 was that the offence fell well above the mid-range and towards the upper range. In that way, an indicative sentence of 3 years for count 11 (6 months higher than that indicated for count 3) was entirely explicable.

352. In relation to count 7 (slapping the complainant across the face causing her to fall onto the bed), although the sentencing judge found that the offence fell at the mid-range, the applicant submitted that the s 5 threshold was not crossed in relation to that offending. Further, it was submitted that an indicative sentence of 9 months was excessive.

353. In relation to count 7, the Crown submitted that the finding that the slap to the complainant’s face had enough force to knock her to the bed entirely justified the finding that the offence fell at the mid-range. In the circumstances, an indicative sentence of 9 months on a maximum sentence of 2 years could not be said to be excessive.

354. In relation to count 23, the sentencing judge found that the offence fell well within the mid-range. The applicant submitted that an indicative sentence of 4 years and 6 months where the statutory maximum was 10 years suggested that little if any weight was attributed to other sentencing considerations, including the subjective circumstances of the applicant.

355. In relation to count 23, the Crown submitted that an indicative sentence of 4 years and 6 months for an offence found well within the mid-range, where the maximum penalty was 10 years, was within the broad range available to the sentencing judge.

356. In relation to count 27, the applicant submitted that the threat, which was a qualified threat (“If I was going to choke you… If I was going to hurt you…”) was not dissimilar to the threats constituting counts 14 and 15 where the applicant threatened in the same way, saying, “If I could, I would throw you off the balcony”. Counts 14 and 15 were punished by community correction orders whereas count 27 was held to have crossed the s 5 threshold and a sentence of 12 months’ imprisonment was indicated.

357. In relation to count 27, the Crown submitted that this offence occurred in the same episode as counts 24-26. Count 26 involved the applicant putting his hand over the complainant’s mouth and nose so that she could not breathe. The threats that constituted the offence in count 27 had to be seen in that context, being described by the sentencing judge as a “chilling threat to the victim” in the context of counts 24 and 26. A determination that the offence fell within the mid-range of objective gravity entirely justified an indicative sentence of 12 months’ imprisonment.

358. In relation to counts 33 and 34, the applicant submitted that the Crown did not submit to the sentencing judge that those counts crossed the s 5 threshold as the trial judge ultimately found. Whilst accepting that the sentencing judge was not precluded from adopting a different position from that of the Crown, the applicant submitted that it was difficult to see how a sentence of imprisonment was the only appropriate outcome for these offences. In that regard count 33 was a similar threat to what was made that constituted counts 14, 15 and 27, even though it was not qualified by “If I could” or “If I was going to”. The challenge to count 34 particularly related to the assessment of its objective seriousness which has been determined against the applicant.

359. In relation to counts 33 and 34, the Crown submitted that the findings of mid-range of objective gravity for the threat and the assault by jamming the complainant in the door were open to the sentencing judge, particularly when seen in the context of the two earlier assaults that occurred in the same episode. In that way, the indicative sentences of 12 months and 9 months respectively were not excessive.

360. The applicant submitted that the aggregate sentence was manifestly excessive, first by examining the indicative sentences for the specified counts, and secondly, by asserting that the aggregate sentence in any event was manifestly excessive. The applicant accepted that, given the number of offences and the circumstances, it is not possible to identify any meaningful comparative cases so as to establish a range.

361. The Crown submitted that the aggregate sentence was not manifestly excessive, considering the number of offences, the period over which they were committed, the seriousness of a number of the offences, that they involved domestic violence and coercive control, the harm done to the complainant, particularly as evidenced in her Victim Impact Statement, and the significance of general deterrence and denunciation.

Determination

362. In XY (A Pseudonym) v R [2023] NSWCCA 50 Wright J (Kirk JA and Harrison J agreeing) summarised the principles applying to a ground alleging manifest excess in the context of an aggregate sentence as follows:

65   The principles relating to manifest excess are well established and were recently summarised by Bell P (as the Chief Justice then was) with Gleeson JA agreeing in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 (He v Sun) at [41]-[42]. It is not necessary to repeat here all of what was said there. It is sufficient to observe that intervention by this Court on a ground that a sentence is manifestly excessive is only warranted where it can be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. Generally, for an applicant to succeed on a ground asserting manifest excess, it must be established that the sentence was unreasonable or plainly unjust.

66   Where an aggregate sentence is imposed, as in this case, the operative sentence is the aggregate sentence and it is this sentence which must be shown to be manifestly excessive if an applicant is to succeed on such a ground of appeal. Indicative sentences are not themselves amenable to appeal but they may be a guide as to whether the aggregate sentence reflects error: Benn v R [2023] NSWCCA 24 (Benn) at [81] (Gleeson JA, N Adams and Ierace JJ agreeing) citing JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40].

67   In an appeal from an aggregate sentence on the ground of manifest excess, a principal focus is whether the aggregate sentence appropriately reflects the totality of the criminality involved: Aryal at [49]-[50], citing JM v R at [14].

68   As to reliance on sentencing statistics and previous cases, it is important to bear in mind that a history of sentencing can establish a range of sentences that have in fact been imposed but that history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. Nonetheless, past sentences can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed or impugned sentence: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) expressly approving Simpson J’s comments in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]‑[305].

69   Most importantly, however, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 (Wong) at [59] (Gaudron, Gummow and Hayne JJ). The “unifying principles” are to be discerned in light of the whole of the circumstances that have given rise to the past sentences that are being considered: Hili at [54].

363. In Kirby v R [2021] NSWCCA 162, Beech-Jones J (Harrison & Cavanagh JJ agreeing) said at [45]:

In the case of an appeal from an aggregate sentence, the indicative sentences are not appellable in their own right but they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CL and Adamson J agreed and cases cited thereat; “JM”) although, even if an indicative sentence is considered excessive, that is not determinative (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The ultimate question will be “whether [or not] the aggregate sentence reflects the totality of the criminality involved” (JM at [40]).

364. In relation to counts 3 and 11 and the relativity between them, a reading of the ROS makes clear that, when the sentencing judge said “It is objectively the most serious offence of intimidation before the Court in the instant matter”, the sentencing judge was repeating what appeared in the written submissions provided to her on behalf of the applicant. In those written submissions under the heading “The Suffocation Offences” the following appears:

Count 3 is significantly aggravated by the use of tape and a plastic bag. That it is charged as an offence of intimidation causes some difficulty in placing it on the scale of objective seriousness. It is objectively the most serious offence of intimidation before the Court in the instant matter, but the Offender must be sentenced for the Offence of Intimidation. [emphasis added]

365. After her Honour had quoted from the applicant’s submissions, her Honour went on in the following paragraph commencing “In the Court’s assessment” to determine that the objective gravity was well above the mid-range towards the upper range.

366. In those circumstances, there is no basis to the applicant’s complaint about the relative indicative sentences for counts 3 and 11. It was certainly not unreasonable that the indicative sentence for count 11, being the second offence involving similar suffocation behaviour, should carry a slightly increased sentence.

367. In relation to count 7 the sentencing judge assessed the objective gravity at the mid-range, and there is no challenge to that assessment. An indicative sentence of 9 months imprisonment on a maximum sentence of 2 years’ imprisonment was open to the sentencing judge, even in circumstances where an offender had a strong subjective case.

368. It could not be concluded that the applicant had a strong subjective case. He had no prior criminal history, but there was nothing in his background and upbringing that could provide any explanation for the offending. The sentencing judge noted that he continued to deny the offending with the result that a finding of remorse could not be made. Whilst he started with good character, that diminished over the period of the offending. The sentencing judge found that there were circumstances that favoured his prospects of rehabilitation but those prospects were guarded for the reason of the repeated offending over a significant period and the unknown position as to the applicant’s insight into the offences. Her Honour further found that his risk of reoffending was guarded.

369. Count 9 was an offence of assault occasioning actual bodily harm. It involved the applicant grabbing the complainant by the shoulder and head and ramming into the tiled wall. She was dazed and there was a laceration to her shoulder. The offence was found to fall at the mid-range and there is no challenge to that assessment. An indicative sentence of 18 months on a maximum sentence of 5 years in the context of a more prolonged episode of domestic violence involving other counts (counts 10 and 11) cannot be considered as excessive as being outside the appropriate range for the sentence.

370. Although count 16 was one of the counts in respect of which an aggregate sentence was imposed, no submissions were made in relation to the indicative sentence for count 16. It was assessed by the sentencing judge at well above the mid-range, and a sentence of 18 months was indicated. In the circumstances of the offending, the indicative sentence can only be seen as lenient.

371. In relation to count 23 the sentencing judge found that the objective gravity fell within the mid-range. There was no challenge to that assessment. An indicative sentence of 4 years and 6 months where the statutory maximum was 10 years is not outside the broad range available to the sentencing judge, particularly when there was nothing in the applicant’s subjective case which could mitigate the sentence to any significant degree.

372. In relation to count 27, the point made by the applicant is that the threats made that constituted this count were no different from those that constituted counts 14 and 15, and those offences were punished by community correction orders. That is to ignore, however, the context of the threat constituting count 27. The threats constituting counts 14 and 15 occurred, first, just after the time that the applicant had kicked the complainant out of bed, and secondly, at a time later that evening, referring back to what he had earlier said. By contrast, at the time of the threat in count 27, the applicant had intentionally suffocated the complainant whilst he said that he would stop her breathing. The threat that was subsequently made, constituting count 27, made reference to the fact that he had just intentionally suffocated her, and was likely for that reason to have significantly increased the complainant’s fear that he would do it again.

373. The sentencing judge found that the choking offence was well above the mid-range of objective seriousness. There was no challenge to that assessment, nor to the assessment that count 27 fell at the mid-range.

374. The circumstances in which the offence constituting count 27 was committed meant that it was entirely open to the sentencing judge to consider that the s 5 threshold had been crossed. Further, an indicative sentence of 12 months’ imprisonment on a maximum penalty of 5 years where the offence was found to fall at the mid-range, could be considered a lenient sentence.

375. In relation to counts 33 and 34, the complaint made was similar to that in relation to count 27, namely that the threats were similar to those in counts 14 and 15 which were found not to exceed the s 5 threshold. Again, the context of the threats must be considered. At the time the threats in count 33 were made, the applicant and the complainant were on the balcony and the applicant had already assaulted the complainant on the balcony by pushing her. A threat to throw her off the balcony in those circumstances would have engendered much more fear and concern than a similar threat made when the parties were in the bedroom or another room of the house as they were for counts 14 and 15. The sentencing judge found that count 33 fell within the mid-range of objective gravity and there is no challenge to that assessment.

376. In our opinion, the applicant’s challenge on the basis of the indicative sentences for the specified counts fails for the reasons given.

377. In our opinion, the aggregate sentence of 10 years with a non-parole period of 6 years, whilst a stern sentence, is not manifestly excessive. The offending involved domestic violence over a nine year period. Two of the offences were suffocating or choking offences contrary to s 37 of the Crimes Act, 15 of the offences were intimidation offences contrary to the CDPV Act, two of which involved acts of suffocation, and a number of other offences of common assault. The applicant received a generous adjustment to the statutory ratio from 75% to 60%. The aggregate sentence is not plainly unjust.

Conclusion

378. In our opinion the following orders should be made:

1. In relation to the conviction appeal:

1. Leave is refused in relation to each of the grounds of appeal.

2. Dismiss the appeal.

2. In relation to the sentence appeal:

1. Grant leave to appeal.

2. Dismiss the appeal.

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Decision last updated: 15 December 2023