Houghton v The State of Western Australia [No 2]
[2022] WASCA 7
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HOUGHTON -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2022] WASCA 7
CORAM: BUSS P
MAZZA JA
HALL J
HEARD: ON THE PAPERS
DELIVERED : 3 FEBRUARY 2022
FILE NO/S: CACR 52 of 2019
CACR 168 of 2020
BETWEEN: DANIEL HOUGHTON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BIRMINGHAM DCJ
File Number : IND 1551 of 2017
Catchwords:
Criminal law - Appeal against conviction - Unlawful detention - Whether appellant unfit to be tried - Whether the appellant's legal representation was deficient - Whether trial judge erred by permitting inadmissible evidence to be adduced at the trial - Whether trial judge biased against the appellant - Whether verdict unreasonable or not supported by the evidence - Whether proposed new evidence establishes that the appellant is innocent or raises such a doubt that the court should be satisfied that the appellant should not have been convicted - Whether appellant pressured into pleading guilty to related summary charges - Whether any of the grounds has a reasonable prospect of succeeding
Criminal law - Appeal against sentence - Unlawful detention - Aggravated common assault - Obstructing public officers - Sentences of suspended imprisonment and fines imposed - Whether sentences manifestly excessive - Lifetime restraining order - Whether appellant denied an opportunity to oppose the restraining order - Whether the ground has a reasonable prospect of succeeding
Legislation:
Bail Act 1982 (WA), s 51(2a)
Criminal Appeals Act 2004 (WA), s 26, s 27, s 27(4)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 9, s 10
Evidence Act 1906 (WA), s 21
Restraining Orders Act 1997 (WA), s 4, s 63(1), s 63(4AA)
Sentencing Act 1995 (WA), s 32
Result:
CACR 52 of 2019
Extension of time to file application refused
Extension of time granted
Application to adduce additional evidence refused
Application for partial suppression order refused
Leave to appeal refused
Appeal dismissed
CACR 168 of 2020
Extension of time to file application refused
Extension of time granted
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Not applicable |
| Respondent | : | Not applicable |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decisions:
Beamish v The Queen [2005] WASCA 62
Borsa v The Queen [2003] WASCA 254
Dayananda v The State of Western Australia [2021] WASCA 11
DPJB v The State of Western Australia [2010] WASCA 12
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Houghton v The State of Western Australia [2021] WASCA 183
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Maxwell v The Queen [1996] HCA 46; 184 CLR 501
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
MEN v The State of Western Australia [2020] WASCA 118
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Morgan v The State of Western Australia [No 2] [2019] WASCA 185
NSE v The State of Western Australia [2020] WASCA 167
Pilkington v The Queen [1955] Tas SR 144
R v Birks (1990) 19 NSWLR 677
Rubin v The State of Western Australia [2016] WASCA 2
Snook v The State of Western Australia (No.2) [2015] WASCA 29
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Webster v The Queen [2015] WASCA 20
Wells v The State of Western Australia [2017] WASCA 27
Wharton v The Queen [2017] WASCA 164
Wilhelm v The State of Western Australia [2013] WASCA 188
Wright v McMurchy [2012] WASCA 257
JUDGMENT OF THE COURT:
On 20 September 2018 the appellant was convicted after a trial in the District Court of one count of unlawfully detaining another person, namely LR, contrary to s 333 of the Criminal Code (WA) (the Code) (the unlawful detention offence). He was sentenced to 18 months' imprisonment suspended for 18 months. A lifetime restraining order was made preventing the appellant from contacting or approaching LR.
Following his conviction of the unlawful detention offence, the appellant requested the trial judge to also deal with five pending summary charges pursuant to s 32 of the Sentencing Act 1995 (WA). Those charges related to the same incident as the unlawful detention offence. That request was granted, and the appellant pleaded guilty to those charges. The sentences imposed on the summary charges were as follows:
1.Common assault in circumstances of aggravation, contrary to s 313(1)(a) of the Code - a fine of $3,500.
2.Obstructing public officers, contrary to s 172(2) of the Code - 3 months' imprisonment suspended for 18 months.
3.Disorderly behaviour in public, contrary to s 74A(2)(a) of the Code - a fine of $750.
4.Breach of protective bail conditions, contrary to s 51(2a) of the Bail Act 1982 (WA) - a fine of $500.
5.Another breach of protective bail conditions, contrary to s 51(2a) of the Bail Act 1982 (WA) - a fine of $500.
All of the sentences were imposed on 29 March 2019. The last date for appealing against conviction and sentence was 19 April 2019. The appellant did not file his appeal notice in the conviction appeal until 23 April 2019. He did not file his appeal notice in the sentence appeal until 27 October 2020. He requires extensions of time for both his conviction appeal and his sentence appeal.
The delay in the conviction appeal is short. An extension in respect of that appeal should be granted. The delay in the sentence appeal is very much longer. No adequate explanation for that delay has been provided by the appellant. An extension of time to appeal may also be granted where the failure to do so would result in a miscarriage of justice. This requires consideration of the merits of the ground of appeal.
The leave of the court is also required for each ground of appeal, both on the conviction appeal and the sentence appeal. The court must not give leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding. Unless the court gives leave to appeal on at least one ground the appeal is taken to have been dismissed. The court may decide whether or not to give leave to appeal with or without written or oral submissions from the parties and before or at the hearing of, or when giving judgment on, the appeal.[1]
[1] Criminal Appeals Act 2004 (WA), s 27.
On 8 September 2020, Mazza JA made an order referring the application for leave to appeal against conviction to the hearing of the appeal. On 24 December 2020, Mazza JA ordered that the application for leave to appeal against sentence be referred to the hearing of the appeal. Both appeals were listed for hearing on 22 October 2021.
On 15 October 2021 the appellant applied for the appeal hearing to be vacated, essentially because he was out of the jurisdiction, unable to return due to travel restrictions, unable to properly prepare for the hearing if it were to proceed by video or audio link and needed medication for depression which he was unable to obtain until after the hearing date. On 18 October 2021, the court granted the application and vacated the hearing.
Further orders were made on 18 October 2021 to allow for the question of leave to appeal to be dealt with without the need for an oral hearing. Those orders included rescinding the orders of Mazza JA referring the question of leave to the hearing of the appeal and permitting the appellant to file written submissions in reply to the respondent's answer in the appeals. An order was also made that, pursuant to s 27(4) of the Criminal Appeals Act, the court would decide whether or not to give leave to appeal based on the record of proceedings in the District Court, the documents filed and served in this court and any additional written submissions that the appellant filed in accordance with the order permitting him to do so.
The appellant did not oppose the making of those orders. He filed written submissions in reply to the respondent's answer in each appeal by the required date. The appellant also sought to file, without leave, an affidavit made 2 December 2021. That affidavit was accepted for filing in his conviction appeal, but solely on the basis that the contents of the affidavit were submissions and not evidence. All of those submissions, together with the other materials referred to, have been taken into account in preparing these reasons.
For the reasons that follow, none of the grounds of appeal against conviction has a reasonable prospect of succeeding. Leave must be refused in respect of each of those grounds. As there is no ground of appeal that can be granted leave, the conviction appeal is taken to have been dismissed.
Also, for the reasons that follow, the single ground of appeal against sentence has no reasonable prospect of succeeding. Leave must be refused in respect of that ground. As there is no ground of appeal that can be granted leave, the sentence appeal is taken to have been dismissed.
Appeal against conviction - grounds of appeal
The appellant relies upon eight grounds of appeal in his appeal against conviction.
The grounds allege, in effect:
(a)Ground 1: the alleged offence of unlawful detention was trivial and there was no public interest in prosecuting the appellant for the offence.
(b)Ground 2: the appellant was medically and mentally unfit at the time of the trial.
(c)Ground 3: the appellant's legal representation at the trial was deficient.
(d)Ground 4: the trial judge permitted inadmissible evidence to be adduced at the trial.
(e)Ground 5: the trial judge was prejudiced against the appellant at the trial and consequently the appellant did not receive a fair trial.
(f)Ground 6: the verdict of guilty was unreasonable and not supported having regard to the evidence.
(g)Ground 7: proposed additional new evidence establishes that the appellant is innocent or raises such a doubt that this court should be satisfied that the appellant should not have been convicted.
(h)Ground 8: the merits of grounds 1 - 7 in combination establish that the appellant's trial was unfair and that a miscarriage of justice has occurred.
The appellant also raises another matter in his grounds under the heading 'Section 32 matters'. In effect, he alleges that he was pressured by the trial judge into requesting that the summary charges be dealt with and into pleading guilty to those charges.
Appeal against sentence - grounds of appeal
The appellant relies upon one ground of appeal in his appeal against sentence.
The ground alleges, in effect, that:
(a)the suspended imprisonment order for the unlawful detention offence was manifestly excessive;
(b)the fine imposed for the aggravated common assault offence was manifestly excessive;
(c)the suspended imprisonment order imposed for the obstructing public officers offence was manifestly excessive; and
(d)the lifetime restraining order imposed on the appellant should not have been made.
The application to adjourn the trial
The trial of the unlawful detention charge was due to commence on 17 September 2018. On 14 September 2018 the matter was listed because the appellant was unhappy with his legal representation and wished to vacate the trial. Counsel who was then representing the appellant on a grant of legal aid, Mr Jeremy Morris, advised the court that relations between himself and the appellant had 'markedly deteriorated' and that there was now an absence of mutual trust and confidence. The appellant had filed an application with Legal Aid to transfer the grant of aid to a different practitioner. Mr Morris was given leave to withdraw.[2]
[2] ts 25, 34.
The appellant sought that the trial be adjourned. He said that he had not yet secured alternate legal representation and also said that he was unwell. He said he had not been well for the previous six weeks and had a medical certificate from his general practitioner. A medical certificate dated 11 September 2018 from Dr Ghazala Nasim was produced.[3] The medical certificate was very brief. It stated in full:[4]
I am seeing [the appellant] for last six weeks. He suffers from mental stress. He showed mixed symptoms of depression and anxiety. He told me that he is going to face court trial next wek [sic]. I am just requesting you to delay this for a further four weeks so that we can start him on psychological therapies and medications. Once he feels better he will be fit for trial.
[3] ts 30 - 31.
[4] Combined Blue and Green Appeal Book, 133.
The judge dealing with the application noted that the letter from Dr Nasim did not say the appellant was not capable of going to trial. His Honour said that, in effect, it was merely a request from the doctor that the trial be delayed.[5]
[5] ts 30 - 31.
The appellant then said that he had not had time to see a psychologist and that he had another medical issue which had not yet been diagnosed and which caused him to go to the toilet every 10 minutes. He also said that he had approached another lawyer, Ms Patti Chong, but did not know whether she was available to represent him at the trial the following week. He voiced concerns about the time needed to properly prepare his case.[6]
[6] ts 27 - 32.
In dismissing the application for an adjournment, the judge said that the trial was listed for three days, that the facts were relatively straight forward and that this was a matter that could be mastered fairly quickly by any competent legal practitioner. His Honour mentioned that the possibility that the appellant may need to represent himself at the trial had been previously raised with him and that he had been provided with information by the court about how to do so. His Honour also noted that it was possible for the trial to start a day or two later to allow any new lawyer to complete their preparations.[7]
[7] ts 34 - 35.
One of the matters raised by the appellant was his wish to call character witnesses at the trial. The judge told the appellant that it was his responsibility to ensure that his witnesses were available at the trial. His Honour also said that the appellant needed to be aware that if he introduced evidence of his good character then the State may seek to contradict that character evidence; for instance, by cross-examining him about his criminal record. His Honour said that there may be good forensic reasons why a lawyer would not call character evidence, but that it depended on each case.[8]
[8] ts 36 - 37.
On 17 September 2018, the appellant was represented by Ms Chong. When asked if the trial was ready to proceed, Ms Chong said that she needed at least a day to finalise her instructions. The jury was empanelled and, after some general directions to the jury and brief legal argument, the matter was adjourned to the following day.[9]
[9] ts 42, 47 - 61.
No issue was raised as to the appellant's medical fitness to proceed with the trial, either then or at any other point in the trial. The only matter raised by Ms Chong regarding the appellant's health was a request that he have access to an asthma puffer, eye drops and medicated lip balm whilst in court. The trial judge said that that was not a problem, provided the appellant produced a medical note stating that he needed those items.[10]
[10] ts 55.
The ruling on the recordings
The legal issue raised on 17 September 2018 was as to the admissibility of a recording that the appellant had made on his mobile telephone of his interactions with police who attended at the scene of the incident and arrested him. The State was in possession of this recording and wished to adduce it as part of the prosecution evidence. It was conceded that the recording commenced after the unlawful detention offence had ceased. However, the State submitted that the behaviour of the appellant as shown in the recording was consistent with the behaviour described by the complainant, LR, and was relevant because it could rationally affect the probability that the appellant had acted as alleged.[11]
[11] ts 58 - 60.
Defence counsel objected to the recording on the basis that it did not relate to the elements of the offence charged. Counsel submitted that the appellant's conduct towards the police had a different basis and did not assist in determining what had occurred as regards the complainant.[12]
[12] ts 60 - 61.
At the commencement of the trial on the following day the trial judge made a ruling on the admissibility of the recording. His Honour treated the evidence as propensity evidence. He said that the evidence established the propensity of the appellant to be controlling in that it shows him obstructing the police in their attempts to move the complainant's car. He said that the probative value lay in its capacity to support the account of the complainant. He ruled that the police officers could give evidence of what they saw and what the appellant did, however he said that the recording could not be used, essentially because the appellant's abusive words and profanity were so extreme that they would prejudice him receiving a fair trial.[13]
[13] ts 63 - 65.
The prosecution case
The prosecution case was set out in detail in the prosecutor's opening address. That case was as follows.
As at 13 January 2017, the appellant and the complainant, LR, were in a relationship. The appellant was aged 39 years and LR was aged 21 years. They had been in a relationship for approximately 18 months. They lived separately; the appellant living with his mother at 8A Fletcher Street, Applecross (the Applecross house).[14]
[14] ts 72.
On Friday 13 January 2017 LR attended at the Applecross house with the intention that she would stay the night. She arrived at about 7.30 pm. The appellant and LR walked to a local restaurant for dinner. At the restaurant they had an argument. LR told the appellant that she wanted to leave and they did so shortly thereafter.[15]
[15] ts 72.
On the way back to the Applecross house, LR told the appellant that she was going to collect her belongings and return to her home. Upon hearing this the appellant threw a bottle of wine at a house that they were walking past. The bottle, which he had taken with him from the restaurant, landed in the front garden of the house but did not smash. He told LR that he wanted to talk and grabbed her by the arms to stop her from continuing walking. He said that he had done nothing wrong and that everything was her fault for not giving him enough attention. LR told the appellant to take his hands off her. She repeated this about three times before he let her go.[16]
[16] ts 72.
The appellant and LR continued walking to Fletcher Street, arriving at the Applecross house at around 10.00 pm. When they got inside LR went to the bedroom to collect her things. The appellant followed her and closed the door. He started yelling at her, calling her names, pulling at his own hair and banging his fists on the walls. LR gathered her bags from the bedroom floor and tried to move past the appellant to the door of the room. The appellant then grabbed her by the upper arms and pushed her into the wall. He did this twice.[17]
[17] ts 72.
LR started crying and told him that she wanted to leave and that she did not feel safe. The appellant grabbed one of the bags that LR was holding and threw it against the wall. When LR went to retrieve the bag the appellant again grabbed hold of her and pushed her onto the bed. He continued calling her names and said words to the effect, 'you're not leaving' and 'I haven't done anything wrong'.[18]
[18] ts 73.
LR told the appellant that she would call the police if he did not let her leave. She took out her mobile phone but the appellant grabbed it and tried to remove the SIM card. LR again tried to leave the room but the appellant physically prevented her from doing so and repeatedly told her that she was not allowed to leave.[19]
[19] ts 73.
At some point the appellant dropped LR's telephone onto the bed and she was able to retrieve it without the appellant noticing. She then went to a corner of the room and managed to send two text messages to her mother, SP. The first text message stated 'Jimmy won't let me leave. I'm at 8A Fletcher Street, Applecross'. Jimmy is a nickname used by the appellant. The second message stated, 'he's banging on the walls and pushing me'. These messages were sent at 10.00 pm.[20]
[20] ts 73.
A few minutes later SP telephoned and spoke to the appellant. His demeanour changed as he answered the call. He calmly told SP that everything was fine and that he was not having an argument with LR and was not pushing her around. At SP’s request the appellant passed the telephone to LR and as he did so he whispered to her that she should tell her mum that everything was fine. However, LR told her mother that if she did not message in five minutes to say that she was on her way home that her mother should call the police. The appellant then snatched the phone off LR and terminated the call.[21]
[21] ts 73.
SP immediately called LR's telephone. LR answered and, whilst crying, asked SP to call the police and said that 'Jimmy wouldn't let her go'. SP then heard LR scream, followed by a loud thud and the phone went dead.[22]
[22] ts 74.
SP immediately telephoned the emergency triple‑zero line, reported the matter and asked for police to attend the Applecross house.[23]
[23] ts 74.
Meanwhile in the bedroom, after terminating the call from her mother, the appellant screamed at LR, again calling her names and asking her why she had told her mother to call the police. LR again tried to leave but the appellant grabbed her and pushed her onto the bed. This pattern continued. Every time LR tried to leave the appellant would physically prevent her from doing so.[24]
[24] ts 74.
At some point the appellant left the bedroom and LR used the opportunity to try to lock herself into the toilet. She ran to the toilet but the lock was faulty. The appellant forced the door open and pushed LR against the toilet wall. He gave LR her telephone and demanded that she call her mother and let her know that she was okay. He then said that if LR talked to him for 15 minutes she could leave. He subsequently told her that she had to stay the night and could leave in the morning. LR continued to cry and to tell the appellant that she wanted to leave and did not feel safe. Each time she said this the appellant told her that she was not allowed to leave.[25]
[25] ts 74.
SP continued to call LR's telephone, both from her own mobile phone and from her home phone. Some of these calls connected without the appellant noticing. During one of them, SP told her daughter that she had called the police and that they were on their way. LR then put the telephone on speaker so that SP could hear what was occurring. SP was able to hear the appellant shouting and swearing at LR. She heard him telling LR that she was not going to leave and that she was not going anywhere. She heard LR saying that she did not feel safe and that the appellant was scaring her and that she wanted to leave.[26]
[26] ts 74 - 75.
At approximately 10.25 pm police arrived at the Applecross house and knocked on the front door. The appellant told LR that he was not going to answer the door and that she was not allowed to either. When the knocking continued, LR told the appellant that it was probably the police and that they would force the door if he did not answer. The appellant then began to move to the front of the house. As he did so, LR went to follow him however he put his hands on her chest and told her to stay where she was. This interaction was seen by a police officer through glass panels in the front door.[27]
[27] ts 75.
The appellant walked to the front door and after a few seconds LR followed him. When the appellant opened the door he told the police officers that everything was fine and he was just having an argument with his partner. One of the officers put his foot in the door to prevent the appellant from closing it and then asked LR to step out and speak to them. The appellant continued to stand in the doorway, holding the door and preventing LR from leaving. However, with the assistance of police, she managed to push past the appellant and leave the house.[28]
[28] ts 75.
The police officers spoke to the appellant and LR separately. The male officer who spoke to the appellant asked him what was happening. The appellant became irate and refused to answer any questions. He walked past the officer and towards where LR was standing with the female officer. As he did so, he said words to the effect that he wanted to hear what LR had to say. The male police officer moved to stand between the appellant and LR but the appellant tried to push past so the officer placed his hands on the appellant's shoulders and pushed him backwards, moving him out of the way. The appellant became angry and said that he would record the incident. He walked back inside, returning shortly after with a mobile telephone which he held out towards the male officer's face and said he was going to record everything. He continued to argue with the male officer in the driveway.[29]
[29] ts 76.
Whilst this was occurring LR asked the female police officer to move her, LR's, car from the carport as she did not want to have to return the next day to retrieve it. When the officer went to move the car the appellant walked to the middle of the driveway and sat down behind the vehicle, effectively preventing it from being reversed out. He was requested to move a number of times but refused. He was eventually forcibly removed by the male police officer. At this point he started yelling and thrashing his arms around. He refused to comply with instructions from the police. He was told that if he did not comply he would be arrested. He continued to yell abuse at the officers and to hold his telephone in the male officer's face.[30]
[30] ts 76.
The appellant was then arrested and placed in handcuffs. He was put into the rear of the police vehicle in a secure police pod. Inside the pod he continued yelling and screaming, kicking at the sides of the pod and rocking the vehicle from side to side. A second police vehicle was requested to attend and arrived a short time later. The appellant was then conveyed to the Fremantle Police Station where he was subsequently charged.[31]
[31] ts 76.
Prosecution evidence
LR
LR said that she was in a relationship with the appellant from about August 2015 to January 2017. As at January 2017, she was 21 years old. In the preceding months she and the appellant had been having arguments.[32]
[32] ts 86.
At about 7.00 pm on 13 January 2017, LR drove to the appellant's mother's house in Applecross. She and the appellant had arranged to go out for dinner and for her to stay the night. She had not previously been to the Applecross house. It was the rear unit of two on the block and she had to drive down a fairly long driveway to park in the garage. She arrived at the house at about 7.30 pm.[33]
[33] ts 86 - 87.
LR said that she and the appellant sat in the lounge room for about half an hour before walking to the restaurant for dinner. At the restaurant the appellant was using his mobile telephone and LR asked him who he was messaging. After some prompting, he told her that he was messaging other girls to try to 'hook-up' with them. At that point LR said that she wanted to go home, get her bags and leave. They then left the restaurant to walk back to the house.[34]
[34] ts 89.
LR said that while they were walking the appellant kept saying that he had done nothing wrong and that if LR had given him more attention he would not have had to message other girls. He said that she was being crazy and that he loved her. He grabbed her by the upper arms. She repeatedly asked him to let her go. When he did release her he threw a wine bottle that he had carried from the restaurant at a house that they were walking past. She believes the bottle landed in a bush because she did not hear it break.[35]
[35] ts 89.
LR said that she and the appellant arrived back at the house around 10.00 pm. She went to the bedroom to collect her bags. The appellant followed her and shut the door behind him. When LR picked up her bags and went to walk out of the bedroom door the appellant blocked her by placing himself between the bed and the wall so that she could not move past him. When she tried to get past him he put his arms out and said 'you're not leaving, we're going to talk about this'. She told him that she did not want to talk about it and that she wanted to leave. He repeated 'you're not leaving' and then started being 'really frantic', pulling at his hair and screaming at LR that she was being crazy and that she was not going to leave. He started banging on the walls with his fists.[36]
[36] ts 90, 96.
LR said that she was 'really terrified'. She had never seen anyone so angry and frantic. She was crying, felt really scared and wanted to leave. When LR went to walk past the appellant again he grabbed her by her upper arms. He then turned her so that her back was against the wall and slammed her against the wall two or three times. Her upper back connected with the wall. She said 'let me go, you're scaring me, I want to leave'. At that point LR had one bag over her shoulder and another bag over her right elbow. The appellant grabbed the bag off her shoulder and threw it against the wall on the other side of the room.[37]
[37] ts 90 - 91.
At this point LR said that she started to scream 'let me go, let me go, I want to leave'. She also said, 'I'm going to call the police if you don't let me leave'. LR then took her telephone out of the bag that was still around her arm and said, 'I'm going to call the police if you don't let me leave'. The appellant then took her telephone and said, 'I'm going to take the SIM card out'. He attempted to remove the SIM card but was not able to do so.[38]
[38] ts 91 - 92.
LR then went to the window in the bedroom and opened it because she was hyperventilating and wanted to get some fresh air. The appellant came over and slammed the window shut. LR said, 'please, I need fresh air, I can't breathe' and the appellant screamed at her, 'I don't fucking care if you can't breathe' as he continued to hold the window shut. LR tried to open the window but the appellant was stronger than her.[39]
[39] ts 92.
LR said that when the appellant moved to close the window he dropped her telephone onto the bed. She grabbed the phone and sat on the ground with her knees against her chest. She was wearing a long skirt and had the phone where the appellant could not see it. She then sent a text message to her mother. She was concerned because no one knew where she was and that made her feel really hopeless. She sent two text messages to her mother at 10.00 pm. A photograph of those messages was produced at the trial.[40] The first text message was 'Jimmy won't let me leave, I'm st 8A Fletcher Dtreat Applecross'. LR said that this was meant to say 'Jimmy won't let me leave, I'm at 8A Fletcher Street, Applecross', but there were mistakes because she was typing in a hurry. The second message was 'he's banging on the walls and pushing me'.[41]
[40] Exhibit 2.
[41] ts 93 - 95.
LR said that a few moments later the appellant received a telephone call on his own mobile telephone from her mother. She knew this because before he answered he said, 'your Mum's calling me'. When he answered the phone his demeanour changed immediately. He was really calm and said that everything was fine. He then handed LR his mobile phone and whispered, 'tell your Mum everything's okay'. She said that he was quite angry as he said it. LR told her mother that she was not okay and said, 'if I haven't messaged you in a few minutes to say that I'm leaving can you please call the police'. At that point the appellant snatched the phone out of her hand and said, 'You fucking idiot. Why the fuck would you say that'?[42]
[42] ts 96.
LR said that the appellant started pacing up and down the room screaming things like 'you're being crazy'. He kept pulling at his hair and still being 'really frantic'. LR got up from the ground and said that she was leaving. She picked up her bags and the appellant moved into the hallway where he blocked her from going any further. LR went into a toilet which came off the hallway and tried to lock the door. The lock was not working. Whilst she was there her mother called her to tell her that the police were on their way. The appellant opened the door, pushed into the toilet and asked her what she was doing. At her mother's suggestion, LR had left her phone connected and on loudspeaker so that her mother could hear what was happening.[43]
[43] ts 97.
The appellant left the toilet and went back to stand in the hallway. LR went out to the hallway to try to leave again. She felt that there was no point in staying in the toilet since she could not lock the door. The appellant was sitting in the hallway leaning against a feature wall. When she went to walk past him he got up and put his arms out blocking the hallway and said 'no you're not leaving'. He then said that they could talk about it for 10 minutes and that she could then leave. LR told him that she wanted to leave 'right now'. He then said 'no, you can stay for half an hour and we can talk about it and then you can leave after half an hour'. She repeated that she wanted to leave immediately. The appellant then said that she could spend the night and leave in the morning. LR repeated that she wanted to leave now, that she did not feel safe and that the appellant was scaring her. She said that she would call the police if he did not let her leave.[44] At that point he walked down the hallway through the lounge room into the kitchen and locked the door which they had used to leave and enter the house. He also turned off the light in the kitchen. He then came back to the hallway, snatched LR's phone from her and tried to take the SIM card out again. She was able to retrieve her telephone by telling him that she would call her mother and tell her that she was okay.[45]
[44] ts 98.
[45] ts 99 -100.
LR said that at that point she went back to the toilet so that the appellant would not be able to hear her. She spoke to her mother who said that the police should not be too long. She went back to the hallway to try and leave again but the appellant kept saying that she was not allowed to. Every time she tried to push past him he would stop her; he would grab her arms or would block her. After pleading with him that she needed fresh air he said that she could leave only if she went to the back garden not the front. He said he would walk her out to get fresh air if she left her telephone, keys and bags inside, because she was not allowed to try to leave.[46]
[46] ts 100.
A few moments later LR saw flash lights through the glass of the kitchen door. LR feared that the police would leave and so she attempted to leave again. They were still in the hallway at this stage and the appellant stood up and blocked her again. A few minutes later there was a knock on another door. The appellant asked LR if she knew who it could be. As the knocking continued the appellant sat down and said he did not think he would answer. LR then said to him 'if you don't answer the door they're just going to kick the door down and that's not fair for your Mum if they, like, ruin her door'. The appellant then got up and went to the door.[47]
[47] ts 100 - 101.
LR moved to follow the appellant. After she had taken two or three steps he turned around and put his palm in the centre of her chest, pushed her back and said, 'no you have to stay here'. He then walked to the front door where the knock was coming from. He opened the door and LR could see that it was the police. She heard a police officer say they got a call from LR and they were enquiring if everything was okay. The appellant said that LR had not called. He had opened the door only just enough for his face to be seen by the police. LR then came up behind the appellant and said to the police 'please can you help me get out of here'.[48]
[48] ts 101.
The male police officer then asked the appellant to step outside to talk to them. He did step outside and LR followed immediately behind him and accompanied the female police officer. As they were talking the appellant approached and was asked to go back to the male officer but said 'no, I want to hear what she has to say'. He was again told to return to the male officer, which he did. She then heard him start to scream at the male police officer. This included things like, 'I've done nothing wrong', 'get your hands off me you filthy animal, how dare you touch me'. He repeatedly called the police officer a filthy animal.[49] LR then heard the appellant say that he was going to get his telephone and record the police. This continued for two or three minutes before the appellant was placed in the back of the police car.
[49] ts 103.
Whilst speaking to the female police officer, LR asked if the officer could move her car, which the officer did. She was in the police car whilst this was done.[50]
[50] ts 104.
LR continued to sit in the police car whilst she gave a statement. At this time the appellant was in the back in the secure section of the vehicle. She said that she could hear him screaming 'let me out of here, let me out of here, I can't breathe, let me out of here, I've done nothing wrong'. She said that he was jumping up and down such that the whole car was moving.[51]
[51] ts 105.
LR said that after returning to the house following dinner she did not want to be in the house with the appellant. She felt trapped. She was in the house for approximately 40 minutes before the police came. During that entire time she was trying to leave. She could not estimate the number of times she tried to leave, but she was constantly trying.[52]
[52] ts 112 - 113.
Ten photographs of the Applecross house that had been taken by police were shown to LR. She identified the front door, the kitchen, the bedroom and the toilet. She identified the kitchen door that she and the appellant entered the house through, the wall against which she was pushed, the wall against which her bag was thrown and the window that she tried to open.[53]
[53] ts 106 - 112; Exhibits 3.1 - 3.10.
In cross-examination it was put to LR that prior to attending the Applecross house that day she had had a fight with her mother. She agreed that that was so, but denied the fight was a serious one or that she had told the appellant that her mother was crazy or violent. She also denied that it was because of the fight with her mother that she had asked the appellant if she could stay. She said her staying over had been planned.[54]
[54] ts 120.
LR agreed that prior to 13 January 2017 the appellant had talked about renting a place and them moving into it together. However, she said that she was happy to remain living at home with her mother. She denied signing a joint application for an apartment. She said that the appellant signed the application and that she told him she would not be moving in. She denied that on the night of the incident she had begged him to hurry up and find an apartment so that they could both move in together.[55]
[55] ts 122.
It was put to LR that before they left for the restaurant she had had three glasses of champagne. She said that she 'was not really a big drinker at that time' and did not remember having any alcohol at all. She thought that the appellant might have poured her a glass and 'if [she] had any it would have been a sip'. She agreed that when she arrived at the house the appellant gave her a brief tour but denied that he showed her the entry and exit doors. She denied that he had shown her where the spare key was kept.[56]
[56] ts 123.
It was put to LR that at the restaurant she had three and a half glasses of wine. She denied this and said that she did not have any wine at the restaurant. She agreed that the appellant probably had two glasses of wine. They were not there very long and he took the wine bottle when they left because it was not empty.[57]
[57] ts 124.
It was put to LR that she had an eating disorder and that at the restaurant she had gone to the toilet eight times in the first hour. She denied having an eating disorder and said that she had been to the toilet only once. She denied that the appellant had raised an eating disorder or that she had become argumentative and verbally abusive to him. It was put to LR that she had accused the appellant of infidelity. She agreed she had and that this was because she had seen him messaging other women while at the restaurant. She said that he initially denied it but then admitted it. She said that she could see the messages and the names of the women who he was communicating with. She denied that she had knocked over a glass of wine and stormed out of the restaurant. She said they left the restaurant together after he paid and that they walked together because she did not know the way back to the house.[58]
[58] ts 127.
When challenged as to what happened at the house, LR maintained her evidence. She denied that she was drunk and that all the appellant had tried to do was express concern about her driving while intoxicated. She denied suggestions that she was the aggressor and had slapped and hit the appellant.[59]
[59] ts 139 - 140.
In cross-examination LR said that she also recalled that the appellant had thrown her onto the bed. In re‑examination she said that this occurred after he took the bag from her shoulder and threw it against the wall. He swung her back around and threw her onto the bed.[60]
[60] ts 145, 149.
The trial judge asked LR a number of questions for the purpose of clarification. As a result of these questions, LR said: that she did drive home that night in her own car and that the police allowed her to do so; that there were spelling errors in her text messages because her hands were shaking and she was in fear for her life; that she gave the police her car keys and that she got them from her bag, where they had been the whole time; that she believed that a glass on the kitchen table depicted in one of the photographs was the appellant's; that she is 174 cm tall and around 60 kg in weight; that the appellant was about 176 cm tall and of medium build; and she confirmed that she had never been to the house on any previous occasion and that she understood that the appellant had only recently moved there.[61]
SP
[61] ts 150 - 151.
SP is the mother of LR. She was at her home on the evening of 13 January 2017 when she received two text messages from LR. She then telephoned the appellant. She said that when he answered he sounded normal. He told her that everything was good, that he and LR had been out for dinner and had just got back to his house. SP asked the appellant whether he was arguing with LR and he said no. She then asked him if he was pushing her around and he said no. She then asked if she could speak to LR.[62]
[62] ts 157 - 158.
SP said that when LR came on the phone she sounded 'quite frantic'. She could hear from LR's voice that it sounded like she was going to break into tears. LR said, 'if I don't call you in five minutes can you please ring the police, he won't let me leave'. The phone was then disconnected.[63]
[63] ts 158 - 159.
SP said she was worried so she rang LR's telephone. When LR answered she asked again for her mother to call the police in five minutes if she did not hear from her. SP said that she could hear the appellant saying something but could not make out what it was. She then heard LR scream and there was a thud which sounded quite heavy. She did not know what the thud was, but the phone line went dead.[64]
[64] ts 159.
SP then called triple-zero. After giving the operator the details and asking for someone to attend as quickly as possible, SP called LR's telephone again. It took a couple of phone calls for LR to answer. When she did SP told her not to say anything, that she had called the police and that they were on their way. She left the telephone line open. That call was open for a good 20 minutes. During that time SP was able to hear 'a lot of arguing'. She heard the appellant screaming at LR that she was not going to leave and that she was not going anywhere. She heard LR say that he was frightening her and she was scared. The appellant was very angry and speaking in a very loud voice. LR sounded frightened and like she was speaking through tears.[65]
[65] ts 160.
LR said that she heard a knock at the door and then voices that she believed were the police officers talking. She heard the appellant tell the people at the door to get off his property and that they had no right to be there. He said that there was nothing going on and no problems. She said he called the people at the door 'dog cunts' and was telling them to 'fuck off, get off his property'.[66]
[66] ts 161.
SP said she could hear the police directing LR to come out of the house and then a man's voice say, 'no, you stay there'. She then heard the appellant say 'no, I want to hear what she has got to say'.[67]
[67] ts 161.
In cross-examination it was put to SP that she and LR had had a fight that day. She did not recall that there had been a fight but did agree that it was a fairly stressful time because she was trying to sell her house. She denied that in the phone call the appellant had told her that LR had had too much to drink and that he was objecting to her driving whilst intoxicated. She said that nothing like that was said at all. She confirmed that LR did drive home that night and got home at about 12.30 to 12.45 am.[68]
Kevan Wayne French
[68] ts 163 - 165, 167.
Acting Sergeant French was one of the police officers tasked to attend at the Applecross house on 13 January 2017. He attended with Constable Natasha Haynes. They arrived at the house at approximately 10.25 pm.[69]
[69] ts 168.
Upon arriving, the police officers walked to the front doors and knocked several times trying to get a response from inside. The front doors had glass inserts through which Acting Sergeant French was able to see inside. After a couple of minutes of knocking he saw a male person followed by a female come out of a back room. The female appeared to be upset and crying. The male had his hands on her, standing between her and the front door.[70]
[70] ts 168 - 169.
The male then came to the front door and opened it. Acting Sergeant French said that the police had been called with regards to a domestic incident. The male said that he had had an argument with his partner but everything was fine. As they were speaking, the female came to the front door and Acting Sergeant French placed his foot in the threshold to prevent the door being shut. He then asked the female if she would step outside to speak to Constable Haynes. He later learnt that the female was LR and that the male was the appellant.[71]
[71] ts 169 - 170.
LR then pushed past the appellant and walked up the driveway about five metres with Constable Haynes. Acting Sergeant French asked the appellant what was going on and if he could tell him what had happened. The appellant appeared quite irate and was trying to talk over the officer as he was being asked questions. He pushed past to walk towards where Constable Haynes and LR were talking. The appellant said that he wanted to hear what she was saying.[72]
[72] ts 170 - 171.
Acting Sergeant French followed the appellant and stood between him and LR. The appellant tried to push past to get towards LR and Constable Haynes. Acting Sergeant French then placed his hands on the appellant's shoulders and pushed him backwards. The appellant became angry, continued to argue and said he did not want to listen to instructions or questions. He said that the police could not tell 'taxpayers' what to do. Acting Sergeant French continued to try to elicit information from the appellant for about five minutes.[73]
[73] ts 171.
LR was walked further away from the house and placed in the back of the police vehicle. Arrangements were made for her vehicle to be moved away from the premises. At this time the appellant was arguing with the police officers saying that he wanted the mobile telephone that LR had because it was his property. He then started saying that the car was also his property. He was told that the car was in LR's name and that as a result it would be removed from the premises to avoid it being damaged.[74]
[74] ts 171 - 172.
The appellant then sat down in the middle of the driveway behind LR's car to prevent it being removed from the premises. He was told that it would be in his best interests to get up and move out of the way to avoid being run over. He then stood up but still refused to move or comply with instructions to move. Acting Sergeant French then placed his hands on the appellant's shoulders and directed him towards the front of the car. The appellant again became argumentative and started thrashing his arms around and yelling.[75]
[75] ts 172.
A statement was obtained from LR and she drove herself home after contact had been made with her family. The appellant was taken to the police station and charged.[76]
[76] ts 173.
In cross-examination Acting Sergeant French maintained his evidence. He denied a suggestion that he had taken the appellant by the throat and choked him. He also denied that the appellant had collapsed on the driveway rather than sitting down to obstruct the movement of the vehicle. In re-examination he said that LR did not appear to be affected by any alcohol, she just appeared to be visibly upset and shaking.[77]
Natasha Sue Haynes
[77] ts 175 - 176.
Constable Haynes was the other police officer who attended at the Applecross house. Her recollection was that they arrived at about 10.15 pm.[78]
[78] ts 181.
Constable Haynes did not see anyone inside the house before the front door was answered. When the appellant opened the door he said that he did not call the police and they were not needed. Constable Haynes then saw LR walk towards the door. LR looked distressed and was crying and shaking. As she walked forward the appellant put his right arm out to block her way. Constable Haynes stepped forward and asked him to move out of the way. She took LR by the arm and guided her out of the door. She took her to the driveway.[79]
[79] ts 182 - 183.
A few seconds later the appellant approached LR saying words to the effect 'let's go back inside the house, we can sort this out' and that 'the police weren't needed'. Constable Haynes then took LR further up the driveway and put her in the rear seat of the police vehicle. LR was very upset, crying uncontrollably and still shaking.[80]
[80] ts 183 - 184.
LR asked Constable Haynes if the police could move her car because she was too afraid to go back to the house. She gave Constable Haynes her keys for that purpose. When Constable Hayes went to move the car she could hear Acting Sergeant French and the appellant speaking. The appellant was saying words to the effect that the police were corrupt and that they were not allowed to take the car out of the driveway. He was shouting and screaming and seemed agitated and aggressive. He said that the police were not allowed to move the car and he then laid down on the driveway behind the car. He was asked several times by Acting Sergeant French to move and that if he did not he would be arrested for obstructing police. The appellant then jumped up and ran towards Acting Sergeant French, who moved the appellant to the side of the driveway. Constable Haynes took that opportunity to reverse the car out of the driveway. The appellant was arrested and placed in the back of the police van.[81]
[81] ts 184.
A statement was obtained from LR. By that time, she had calmed down and had spoken to her mother on the telephone. LR said she felt okay to drive home and she drove away in her own vehicle. In re-examination Constable Haynes said that LR did not appear affected by alcohol and did not smell of alcohol.[82]
[82] ts 188.
In cross-examination it was put to Constable Haynes that the appellant was on the ground having trouble breathing at the time she attempted to move the car. She said that it did not appear that he was having trouble breathing and that he was being very loud and shouting.[83]
Ryan Leonard Mason Brown
[83] ts 187.
Detective First Class Constable Brown was the investigating officer. Amongst other things he had obtained telephone records.[84]
[84] ts 193.
Detective Brown gave evidence that the two text messages sent by LR to SP were sent at 10.00 pm on 13 January 2017. A telephone call from SP's mobile phone to the appellant's mobile phone was made at 10.02 pm. The duration of that call was 1 minute and 24 seconds. A call from SP's mobile to LR's mobile was made at 10.04 pm for 7 seconds duration. The triple‑zero call made by SP was made at 10.05 pm. A call from SP's phone to LR's phone at 10.08 pm was for 4 minutes and 44 seconds. There were then three further calls from SP's home phone to LR's mobile telephone at 10.13 pm, 10.16 pm and 10.40 pm with durations, respectively, of 2 minutes 19 seconds, 22 minutes 29 seconds, and 2 seconds.[85]
[85] ts 197 - 198.
Use of the recording
Following the evidence of Constable Haynes, the prosecutor raised an issue arising out of cross-examination of Constable Haynes and Acting Sergeant French. In cross-examination it had been put to both witnesses, in effect, that the appellant had not deliberately obstructed movement of the vehicle but had had difficulty breathing which led to him sitting down. This was not consistent with the recording. The trial judge accepted this and said that if the appellant elected to give evidence to the same effect then the recording could be used to cross-examine him on that issue.[86]
[86] ts 190.
Defence evidence
The appellant
The appellant gave evidence that in January 2017 he was living at his mother's house in Applecross while he looked for an apartment. He was in a relationship with LR that had commenced in about August 2015.[87]
[87] ts 200.
The appellant said that LR had occasional work as a model and he became aware that she had not been getting much work and was very concerned about her figure. He said he eventually realised that she had problems with eating. This had become apparent when they were in Europe together in 2016 and she would often go to the bathroom, especially at restaurants. He said that she told him that she was 'throwing up' after meals. He said she was also depressed and struggling because she was unemployed.[88]
[88] ts 200 - 201.
In January 2017 the appellant and LR had been looking for a place to live together. They had attended inspections over the previous months. They had also put in applications for properties. He said LR was very keen to move out of her mother's house and be closer to the city.[89]
[89] ts 201.
The appellant said that during the day on 13 January 2017 he had had a number of messages and telephone calls with LR. She had been very distressed because her mother had been yelling at her. He said that LR asked if she could stay at his mother's house. He was hesitant because they had been having problems, however he asked his mother and then told LR that she could stay over. LR had not been to the house previously.[90]
[90] ts 201 - 202.
On that day the appellant was feeling quite sick. He had a cold which made his chronic asthma worse. He said he had been to a chemist and obtained medication for his asthma and some cold tablets. The bag containing the medication was identified on one of the photographs of the house.[91]
[91] ts 202 - 203.
The appellant said that LR arrived at the house at about 7.30 pm. She was still pretty distressed. She said that she and her mother had been fighting all day, that she hated her mother and could not wait to move out. She said she needed a drink and the appellant opened a bottle of champagne. They were talking about making a fresh start. He said LR had about three glasses of champagne and he had one or two.[92]
[92] ts 204 - 205.
The appellant showed LR around the house. He said that there are four entrance/exit doors and that none of them had locking mechanisms on the inside. He said he showed LR where the spare key was kept because she was going to be staying for at least a night and he would be leaving very early the next morning to open the café he owned. He thought that they stayed at the house for over an hour, perhaps an hour and 15 minutes. He said that by the time they left LR was 'pretty perky'. It seemed to him like the champagne had 'done its job' and she was happy.[93]
[93] ts 210 - 211.
The appellant said they had plans to go to a Nepalese restaurant that was a five‑minute walk away. They arrived at about 8.45 pm. He said at the restaurant he had about two glasses of wine and LR had about three. He said he remembered this because he was pouring. He said that LR went to the bathroom a few times in the first 15 minutes. Over the entire period that they were at the restaurant she went to the bathroom eight or nine times. He said that initially they joked about her having a weak bladder but after three or four times she started acting strangely. At some point he hinted that something was wrong. He said words to the effect, 'you're not doing it again, are you?'. He said that this was a reference to her being bulimic; that is vomiting after eating food. He said that LR became indignant, very defensive and tried to change the topic. When he tried to be more direct she said something along the lines of 'none of your business asshole'. He said it was like a switch had been flicked and she immediately became angry and vicious. He said he reminded her that they had previously discussed not overreacting to things and he tried to calm her down. He told her not to speak to him like that and that it was no way to speak to anyone.[94]
[94] ts 211 - 212.
The appellant said he was not able to calm LR down and she then started accusing him of infidelity. She said that he had been receiving messages from girls and that she had seen them. He said he did not know what she was talking about. He said that he was not communicating with any other girls during the dinner. He denied admitting to her that he was.[95]
[95] ts 212 - 213.
The appellant's evidence was that LR was angry and swearing. It seemed to him that she had lost control and was not making sense. He thought she might have been a little bit drunk. Whilst she was talking, she was gesticulating and knocked over her wine glass. She was momentarily embarrassed and then stood up and walked out of the restaurant. He remained in the restaurant for about five minutes and apologised to a waiter who cleaned up the wine. He then paid the bill and left. He said he was not carrying a bottle when he left the restaurant. The bottle of wine that they had been drinking from had been bought at the restaurant and was finished.[96]
[96] ts 213.
The appellant said that he could not see LR when he left the restaurant and assumed that she had walked home. He began to walk slowly back the way they had come and saw LR standing on the other side of Canning Highway. He asked her why she had left the restaurant and she said, 'because you were being an asshole'. As they continued to walk she accused him of infidelity. He denied it. She denied that she had been doing anything in the bathroom and asked if he believed her. When he said he did not know she became angry. He denied grabbing her by the arms on the walk back to the house. He denied throwing a bottle into the front yard of a house. [97]
[97] ts 214 - 215.
As they got closer to the house LR said she was going to drive home. The appellant told her that she was too drunk to drive. She then started walking down the street faster and arrived at the house before him. When he got to the house the side door was open and he could hear her in the toilet. It sounded like she was vomiting. This would have been just before 10.00 pm. He said he asked her if she was okay and she told him to go away.[98]
[98] ts 216.
The appellant said that he took his shoes off and sat on the bed briefly. He thought that at that point he asked LR if she was all right and that he was worried about her. She responded by saying he never cared about her. She was still in the toilet at this time and he was in the bedroom. The bedroom door was open the whole time. As he sat on the bed he opened his laptop. After about 20 - 30 seconds LR came out of the toilet and went into the bathroom. When she came out it looked like she had washed her face. When she came into the bedroom she seemed irritated and continued to abuse him. She said, 'you're a cheating asshole' and other things of that sort.[99]
[99] ts 217 - 218.
LR repeated that she was going to drive home and the appellant responded by saying that she had had way too much to drink. She seemed to be looking in her bag and then asked the appellant where her keys were. He believed her keys were on the kitchen bench but did not tell her this as he did not want her to drive. He told her that she had to calm down otherwise he would call her mother. She responded by saying that she would call her mother and tell her that he had been yelling at her and would not let her leave. Whilst this was happening the appellant remained sitting on the bed. At some point he closed his laptop, walked to the kitchen, got a bottle of wine out of the fridge and a glass out of the cupboard and walked back to his bedroom with it and sat on the bed again. He left the bottle next to the bed. A bottle of wine can be seen in one of the photographs of the bedroom.[100]
[100] ts 218 - 219.
The appellant said that at some stage he saw LR using her telephone. He then received a call from SP who told him that she had received a text message from LR regarding an argument. He told SP that everything was okay and that LR had had a little bit too much to drink and he did not want her to drive. He said that he would send her home in an Uber if it came to that. He said that he had also offered to LR that she could sleep in the spare room and drive home in the morning. The appellant said that during the brief conversation he had with SP, LR grabbed his telephone and screamed something to the effect 'he won't let me drive'. There was then a struggle over the phone and it dropped.[101]
[101] ts 224.
The appellant said that he tried to calm LR down and said, 'maybe you should wait half an hour before you drive' or 'why don't we just talk about this for a little while and then if you still want to drive home you can'. He said he believed that she was not in a fit state to drive because she had had too much to drink and was 'flipping out'.[102]
[102] ts 221.
The appellant denied that he had pulled his hair or touched LR. He denied grabbing her bag and throwing it against the wall. He agreed that she was going to call her mother or call the police, but he denied that she said this in order to leave. He denied grabbing her telephone and trying to remove the SIM card. He said that she did complain about needing some fresh air and walked out of the bedroom at one point. This was not said in the context of wanting to open the window and he denied ever touching the window.[103]
[103] ts 222 - 223.
The appellant said that LR slapped him a few times to the body. She also did this when he tried to take his phone back. She accused him of having the keys and tried to reach into his pocket. He blocked her. He said that she slapped him five or six times at that point. She slapped him over 20 times in total.[104]
[104] ts 225.
The appellant denied locking the kitchen door in order to prevent LR from leaving. He said he would have locked the door on the way in. He denied blocking her from proceeding along the hallway or pushing her into the toilet while she was calling her mother. He denied ever doing anything to prevent LR from leaving the house.[105]
[105] ts 225 - 226.
The appellant said that LR continued to look for her keys and he assumed that she had found them. A short while later she came back into the bedroom and sat on the edge of the bed. She seemed quieter and stayed for a minute or two before leaving the bedroom again. She returned to say that she thought that there was someone at the door. She said it in a tone that seemed 'sort of guilty or apologetic'. She then said that the police were at the front door and that she was sorry. At this time, he was sitting on the bed drinking a glass of wine. He walked out of the bedroom with the glass in his hand and placed it on the kitchen bench. A photograph of the kitchen showed a glass on the kitchen bench.[106]
[106] ts 227 - 228.
The appellant said that as he approached the front door he could see flash lights. He opened the door slightly and saw that it was the police. He said there were two police officers shining torches in his face. He told them that everything was under control and that they did not need the police. LR then walked past him and out of the door. He denied blocking LR with his arm.[107]
[107] ts 229 - 231.
The appellant said that he also walked outside and was talking to the male officer. He said he had not been given any instructions at all but that the male officer jumped forward and placed his arms on his neck and put him in a choke hold for a few moments. He said the officer was bigger than him and it hurt. He said that he could not breathe. He told the officer to get his hands off his neck and the officer did.[108]
[108] ts 231 - 232.
The appellant agreed that he was in the driveway standing behind LR's car at one stage. He said at this point he was suffering breathing difficulties due to being grabbed around the throat. Due to these difficulties he had to sit down and then lay down on the ground. He said he was not deliberately preventing Constable Haynes from reversing LR's car out of the carport. He said that the police were not communicating with him and he was being treated like an animal.[109]
[109] ts 233.
In cross-examination the appellant said that he was 175 cm tall and about 72 kg at the time of the incident. When asked about the interaction with LR after the police arrived at the door and his having allegedly told her not to follow him, the appellant said that the police would not have been able to see that section of the house from the front door.
Given that the appellant said in evidence that he had not deliberately obstructed the police, the prosecutor proposed putting the recording to him as a prior inconsistent statement.[110] The trial judge ruled that the approach to be taken was for the prosecutor to ask the appellant whether he admitted saying each relevant statement.[111] Only if he denied making them would there then be a need to play the recording. The prosecutor then put to the appellant the details of what he said to the police.[112]
[110] ts 301.
[111] See Evidence Act 1906 (WA), s 21.
[112] ts 304 - 320.
The appellant agreed that he had accused the police of touching his neck and that he had abused them. He agreed that he had been told to walk away a number of times and that he had 'regretfully' responded by saying that the officers were disgusting. He agreed that he had said something like, 'You are filthy. You are a waste of taxpayers' money, you filthy piece of shit. Fuck you'. He agreed that he refused to move when the car was being shifted and thought that he said words to the effect of 'get my property, I'll get out of the way'. He agreed that he made demands for the return of a mobile telephone and claimed that the car was his and that the police responded by saying that the car was in LR's name and that she uses the telephone. He said that he was 'negotiating' with the police but accepted that they repeatedly told him to move and that he would be charged with obstruction if he did not. He said that the male police officer then 'tackled' him and that he abused the officer. The car was then moved.[113]
Robyn Ann Houghton
[113] ts 309, 312, 318.
Mrs Houghton is the appellant's mother. She gave evidence about the general layout of the Applecross house. There are four entry or exit doors. These are the front door, a door adjacent to the carport that gives entry to the kitchen, a door from the laundry that exits to the back yard and sliding doors from the family room that also exit to the back yard. None of the doors have deadlocks. The front door is rarely used. The door most commonly used is that which enters into the kitchen.[114]
[114] ts 341 - 344.
The appellant was staying with Mrs Houghton in January 2017 and used bedroom 3, which is at the rear of the unit. She was absent on the night of 13 January 2017, but aware that the appellant had plans to meet with LR and go to a restaurant with her.[115]
[115] ts 345.
The trial judge's summing-up
The grounds of appeal against conviction do not allege any specific errors of law in the trial judge's directions to the jury. However, the appellant's written submissions do refer to parts of the directions in support of the allegation that the trial judge was biased (ground 5). The part of the directions dealing with the interaction with the police is also relevant to the allegation that the trial judge permitted inadmissible evidence to be adduced (ground 4).
Those parts of the directions that are referred to by the appellant will be summarised or referred to. In doing so it must be acknowledged that directions should always be seen in context.
The trial judge gave standard directions regarding the presumption of innocence, the onus and standard of proof, the requirement to only rely on the evidence and not speculate, the drawing of inferences and the need to avoid taking into account any sympathy or prejudice. He explained to the jury the elements of the offence and told the jury that the critical issue was whether the appellant detained LR, that is did he deprive her of her personal liberty.
His Honour summarised the prosecution and defence cases. In doing so, he said the following about the prosecution case:[116]
The State says that if you look at all of the evidence, you can be satisfied beyond reasonable doubt as to the guilt of the accused. They say you should reject the evidence of the accused, in that his testimony - as to what he said in his evidence before you and indeed what was put to the police officers was later recanted by him in cross-examination and he accepted in essence that the points that he had made in evidence‑in‑chief in relation to the events with the police were not as he had first stated. The State says that you can take that into account when you assess his credit.
[116] ts 363.
His Honour said that the jury might like to consider the sequence of events by reference to the objective independent evidence, such as the undisputed time of arrival at the restaurant of 8.45 pm and the time that the first text message was sent at 10.00 pm. He then gave a summary of what the accused had said as to what occurred in that one and a quarter hour time period and suggested that when dealing with that account the jury could have regard to the objective facts he had referred to. He prefaced these remarks by saying that this was only a comment and the jury were not obliged to accept his observations.[117]
[117] ts 365 - 366.
His Honour said that one of the issues that may not be controversial is where the car keys were. He said that LR did not claim to have been detained through the absence of keys. He reminded the jury that LR must have had her car keys after she left as she provided them to the police. The real issue was whether she was detained by conduct of the appellant.[118]
[118] ts 367.
His Honour gave the jury a direction that the evidence elicited in cross‑examination of the appellant relating to his interaction with the police was relevant only in assessing the appellant's credibility:[119]
The conduct of the accused immediately following [LR] leaving the house in company with the police is not evidence upon which he's charged - or is not conduct upon which he's charged. The evidence that relates to the accused's conduct towards the police that night and when they attended at the premises following the receipt of the 000 call, the evidence of what the police saw and did at the time until [LR] departs the property and is released, effectively, what the State says, from detention, is that period [is] relevant to the charge.
The conduct of the accused after that, and what was directed towards the police when they first sought to speak to the complainant and recover the complainant's vehicle to enable her to leave the premises, falls into a different category.
You can't use that evidence of his subsequent behaviour in substitution of evidence of the charge on the indictment, that is did he detain her inside the building? It's only relevant in your assessment of the accused as a credible witness, and whether you accept his evidence.
The State says that what the accused, through his counsel, put to the police officers when cross‑examining them in their evidence, and what he later said to you when first giving his evidence to you, is inconsistent with the evidence he later gave in cross‑examination, in essence, that what he'd first said to you was untrue.
The evidence of his conduct subsequent to the events elicited through cross‑examination and given by the police officers in relation to the events afterwards, is only relevant in relation to the assessment of the accused's credibility as a witness in this case.
It's obviously a matter for you to make as you will of the evidence, including the evidence of the accused. I remind you that you're to consider the evidence in relation to the charge against the accused, however, and you cannot find the accused guilty unless you're satisfied beyond a reasonable doubt of that evidence.
The evidence in relation to the conduct of the accused elicited in cross‑examination is, therefore, only available to you for a limited purpose, as directed by me, that is the assessment of his credibility and the assessment of his evidence. It's for that specific purpose only, and this is a direction I give you as a matter of law, and you must follow that direction.
[119] ts 367 - 368.
His Honour told the jury that the State relied on LR's distressed state as described by SP and the police witnesses as supporting the case that she had been unlawfully detained. He directed them that they could only use that evidence in that way if they were satisfied that LR was distressed and that it was the result of being unlawfully detained and not some other issue. His Honour then said:[120]
When considering her state, you will no doubt have regard to the evidence that's been given in relation to alcohol said to have been consumed that night. You will recall that the accused said that she'd consumed a significant quantity of alcohol, something that is rejected by [LR]. The accused said that she had drunk I think three glasses of champagne, or three to four glasses at the unit before going to the restaurant, where she'd consumed a further three glasses of wine.
This is seemingly at a very short period of time, the wine at the restaurant being consumed obviously in less than an hour when allowing for the attendance to the toilet, the service of the food and the journey between the restaurant back to the unit before the first text message at 10 o'clock.
[LR] denies the allegation when put to her and said she only sipped the wine and that she is not a drinker.
You also have the evidence of [SP] as to her daughter's habits, and you have the evidence of the attending police officers as to her state of sobriety. You will recall that Constable Haynes said that [LR] didn't appear to be affected by alcohol and that she didn't smell alcohol during the time when she obtained her statement and didn't have any problem with her driving home after she'd given her statement.
These are matters for you and you will no doubt consider them when you have regard to the whole of the evidence and whether or not the complainant was in fact distressed.
[120] ts 369 - 370.
The appellant's trial counsel made no complaint about the trial judge's directions.[121]
[121] ts 370.
Sentencing
The appellant was found guilty by unanimous verdict of the jury and sentencing was adjourned to enable a victim impact statement to be prepared and to obtain a psychologist's report. The trial judge also asked whether it would be convenient for him to deal with the pending summary charges which arose out of the same incident. Defence counsel's initial response was that the appellant wished those matters to be dealt with separately but said she would take further instructions from the appellant. The matter was then adjourned to 20 December 2018.[122]
[122] ts 415 - 416, 419.
On 20 December 2018, the trial judge noted that he had received a letter from the appellant that had been sent directly to the court.[123] In that letter the appellant described his actions on the night of the offence as 'appalling' and said that he was 'deeply remorseful'. He said that he accepted that he had scared LR and that he should have let her do what she wanted. He said that this was not how he usually conducted himself and that he thought alcohol was a contributor. He said that his 'later behaviour towards the police was completely disgusting too' and that he had sent them a letter of apology. He said that he intended to plead guilty to the charges relating to that behaviour. He said that he had attended an anger management program, was seeing a psychologist and had reduced his alcohol intake.[124]
[123] ts 424.
[124] Combined Blue and Green Appeal Book, 129.
Given that the appellant had expressed an intention in the letter to plead guilty to the summary charges, the trial judge said that he would give the appellant the opportunity to have the matters dealt with by him on a s 32 list. Defence counsel said that her instructions were not to follow that course and to seek a further adjournment of the sentencing for two reasons. The first reason was that he took issue with some of the contents of the psychological report obtained by the court. The second reason was that the appellant had ongoing bladder problems that required attention from a specialist. There was no medical report in regard to the latter issue.[125] After some discussion, the appellant indicated that he wanted to speak. He said, 'I think it's in my best interests to have you deal with all the matters'. His Honour queried whether that included the two breaches of protective bail that had occurred after the incident. The appellant stated, 'I'd like you to deal with those, please.' In order to facilitate the preparation of a s 32 list the matter was then adjourned to 1 February 2019.[126]
[125] ts 424 - 426.
[126] ts 437 - 439, 441.
On 24 January 2019, a request that the pending charges be dealt with, pursuant to s 32 of the Sentencing Act, was lodged with the District Court. The appellant's new counsel, Ms Wendy Hughes, signed that request. On 25 January 2019 the matter was listed on the court's motion as a consequence of previous counsel ceasing to act. Ms Hughes appeared for the appellant on that occasion and confirmed that a s 32 list would soon be in play and that his Honour would be able to deal with the matter on 1 February 2019. Ms Hughes stated that she had had robust discussions with the appellant and that her advice had been accepted in its entirety. The appellant was present on this occasion.[127] On 31 January 2019, the prosecutor signed the list of pending charges and on 1 February 2019 the appellant signed that list. The section signed by the appellant stated, 'I intend to plead guilty to any of the pending charges against me listed below that I have not been convicted of, other than those indicated; and I want the court to deal with me for the pending charges against me listed below, other than those indicated'. The list included all five of the summary charges and none were indicated as not to be dealt with.[128]
[127] ts 445 - 446.
[128] Combined Blue and Green Appeal Book, 2.
As regards the bundle of images from social media (item 4), they each depict LR, generally socialising with others, with a glass of what is presumably alcohol in her hand or close by. The dates of these images are not recorded. The appellant says that the relevance of this is to disprove LR's claim that she was a light drinker at the time and drank very little on the night of the incident.
LR did not claim that she was a person who completely abstained from alcohol. In response to an assertion in cross-examination that she had three and a half glasses of champagne prior to going to the restaurant, she replied that she was not a big drinker at that time of her life and if she had any it would have been a sip. She was not cross‑examined to the effect that she regularly drank alcohol or drank it in the sort of quantities that were alleged. If she had been cross‑examined about alcohol consumption on other occasions the answers she gave would have been final as this is a matter that went only to her credibility. Evidence in the form of the social media images would not have been admissible.
In any event, the material put forward is incapable of establishing that LR was a regular drinker or that she drank to excess. Far less could it prove that she drank more than she said she did on the night of the incident. The fact that she may have drunk alcohol on other unspecified occasions is irrelevant in determining whether she drank on the night of the offending, or how much she drank that night. The evidence of LR was, in any event, supported by the evidence of the police officers who said that she did not appear to be affected by alcohol. This is not evidence that establishes that the appellant is innocent or is capable of raising such doubt that the court can be satisfied that he should not have been convicted.
As regards the Facebook messages (item 5), the dates of most of them are not apparent but they include some that bear dates in August 2016, December 2016 and January 2017. They are not continuous, and some are cut-off or incomplete. It is not apparent that any of them relate to the day of the incident. The appellant submits that the relevance of these is that they show LR complaining about her mother, giving a different reason for not attending Christmas with the appellant's family in 2016 to that she gave in evidence and displaying sensitivity and a tendency to overreact.
The Facebook messages are not in admissible form and their relevance to the matters at issue in the trial is, at best, peripheral. Assuming, favourably to the appellant, that the messages are accurately reproduced and include some from LR, their only relevance would be as to her credibility in respect of matters that were collateral or only indirectly related to what occurred on the night of the incident. As to collateral issues, such as why LR did not attend the appellant's family Christmas, her answers in evidence were final and could not have been contradicted by other evidence. As to indirect issues, such as LR's relationship with her mother, the messages are not inconsistent with the evidence she gave at the trial. LR gave evidence that earlier on the day of the incident she had had an argument with her mother, but it was not serious, and her mother had never made her feel afraid for her safety. This is not evidence that establishes that the appellant is innocent or is capable of raising such doubt that the court can be satisfied that he should not have been convicted.
As regards the eight affidavits (item 6), they are from Robyn Houghton, Tim Houghton, Darryl Houghton, Emily Ashton, Daniel Marslen, Zachary Ford, Stefan Gavlak and Renee Troedson. These affidavits contain much that is irrelevant, inadmissible opinion, inadmissible hearsay or relates only to collateral issues. None of the deponents of the affidavits is able to give direct evidence of the incident. To the extent that the affidavits contain anything that is arguably relevant it is to the effect that LR had been seen drinking alcohol on other occasions, that the appellant was otherwise a person of good character who had not behaved in this manner before and that there is no line of sight from the front door to the rear section of the house.
As to the first matter, as previously noted, LR did not deny ever drinking alcohol. As to the second matter, the appellant could, if he wished, have called evidence of good character at the trial. Character evidence by definition is not fresh. Nor is it capable in itself of establishing innocence. Furthermore, for the reasons given at [167] there were sound forensic reasons for not adducing good character evidence in this case. As to the third matter, the evidence does not advance the appellant's case for the reasons given at [186].
The proposed additional new evidence, neither in its individual parts nor in aggregate, establishes that the appellant is innocent or is capable of raising such a doubt that this court can be satisfied that the appellant should not have been convicted. This ground has no reasonable prospect of success. The application to adduce additional evidence should be refused. Leave to appeal on this ground should also be refused.
In the application to adduce additional evidence on the appeal filed on 22 September 2020 the appellant also sought an order suppressing any press reporting of his medical conditions. The general rule is that court proceedings, including appeal hearings, are conducted in open court and that the court's reasons for decision are publicly available. This general rule is only departed from where the court is satisfied that it is in the interests of justice for the court to be closed or a suppression order to be made. The supporting affidavit of the appellant provided no grounds for making such an order. It is commonplace for court proceedings to include reference to personal details, including details of medical conditions. The interests of justice do not require that a suppression order of the type sought by the appellant be made in this case.
Ground 8 - miscarriage of justice
This ground relies on the cumulative effect of one or more of the other grounds. Since none of the other grounds have merit there is no substance to this ground.
'Section 32 matters' - was the appellant pressured into pleading guilty to the summary charges?
The appellant claims that he was pressured into pleading guilty to the summary matters which were dealt with by way of the s 32 list. He claims, in particular, that there was no evidence of an assault and he should not have been convicted of that charge.
An accused person may enter a plea of guilty for reasons other than a belief as to his or her guilt. For example, a person may plead guilty to avoid worry, inconvenience or expense; to avoid publicity; to protect family or friends; or in the hope of obtaining a more lenient sentence than he or she would if convicted after trial. The entry of such a plea is valid.
An appellate court will not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred.[158] There are three well recognised grounds for allowing an appeal in such circumstances:
(1)where the appellant did not understand the charge or did not intend to plead guilty;
(2)where on the admitted facts the appellant could not in law be guilty of the offence; and
(3)where the plea of guilty has been obtained by inducement, fraud or intimidation.[159]
[158] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 (Dawson J), see also Wilhelm v The State of Western Australia [2013] WASCA 188 [51] (Mazza JA), Snook v The State of Western Australia [No 2] [2015] WASCA 29 [106].
[159] Borsa v The Queen [2003] WASCA 254 [20]; Webster v The Queen [2015] WASCA 20 [57].
The courts treat claims that a plea was not properly entered with caution. This is because there is a strong public interest in the finality of proceedings and a plea of guilty is taken to be an admission by the person of the necessary ingredients of the offence. This is all the more so when the person has had the benefit of legal advice.[160]
[160] Pilkington v The Queen [1955] Tas SR 144; Wright v McMurchy [2012] WASCA 257.
The circumstances in which the appellant came to enter pleas of guilty to the summary charges is set out at [137] to [142]. Materially, prior to entering his pleas of guilty:
1.In the letter to the trial judge dated 18 December 2018 the appellant expressly accepted responsibility for his offending and an intention to plead guilty to the offences relating to his interactions with the police.
2.In proceedings on 20 December 2018 the appellant interrupted discussions between his counsel and the trial judge to say that he wanted the trial judge to deal with all of the summary charges.
3.After Ms Hughes was retained, the appellant received legal advice as to the operation of s 32 and she confirmed in court, in his presence, that he had accepted her advice.
4.A list of the summary offences pursuant to s 32 was prepared for the purpose of having them dealt with by the trial judge, and the appellant signed that notice on 1 February 2019. The section signed clearly states that the appellant intends to plead guilty to the charges on the list, including the assault charge.
5.When arraigned on the charges on 1 February 2019 the appellant pleaded guilty to each of them. There was no indication of any reluctance or equivocation. The facts of the summary offences were admitted on his behalf and in his presence.
The trial record does not support the appellant's contention that he was pressured into pleading guilty to the summary charges. He had the benefit of legal advice from an experienced practitioner and time to consider his position. He made a considered decision to plead guilty to the charges, including the assault charge. He took advantage of the procedure to have the summary charges dealt with at the same time as the indicatable offence. There were obvious advantages for him in doing so, particularly since all of the charges arose out of the same incident. Contrary to the appellant's submission, there was evidence of an assault.
To the extent that this is intended to be a separate ground of appeal, there is no merit in it. It has no reasonable prospect of succeeding and leave in respect of it should be refused.
Conviction appeal - conclusion
There is no ground of appeal against conviction that has a reasonable prospect of succeeding. No ground can be given leave. Unless the court gives leave on at least one ground the appeal is taken to have been dismissed. Accordingly, leave to appeal on each ground must be refused and the appeal against conviction dismissed.
Sentence Appeal
Ground 1 - manifest excess
The appellant seeks leave to appeal the sentences imposed for the unlawful detention offence, the assault offence and the obstruction of public officers offence on the ground that those sentences are manifestly excessive. He also claims that the lifetime restraining order should not have been made.
The appellant submits that the trial judge's findings of fact were in error and inflated the seriousness of the incident. He also asserts that it was relevant that the appellant was sick at the time of the incident and was assaulted by a police officer, that he was 41 years old at the time of sentencing with no significant criminal record, and that he was a high achiever with a good reputation. The appellant asserts that he should have been sentenced on a different factual basis including that there was, in his view, a complete absence of the use of force on his part.
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. A sentence will only be manifestly excessive if it shown to be plainly unreasonable or unjust.
It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive.
If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly excessive. It merely has the consequence that the court has no directly comparable cases to provide a yardstick against which to assess the sentence. However, previous sentencing ranges are only one pointer to the adequacy of a sentence.
The discretion conferred on sentencing judges is, of course, of fundamental importance. This court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
An appellant can only succeed on a ground alleging manifest excess as to the type of sentence if it can be shown that the type of sentence imposed was not reasonably open to the sentencing judge in the exercise of sound discretionary judgment. Simply showing that a lesser type of sentence was also reasonably open is insufficient to establish error.[161]
[161] Rubin v The State of Western Australia [2016] WASCA 2 [48].
A survey of cases considered by this court involving offences of unlawful detention does not reveal any useful comparators. This is because the circumstances in which this court has usually considered this offence is in in conjunction with other serious offences such as robberies, burglaries, wounding and sexual penetration without consent. However, the sentences imposed in those cases were also of a different type; that is immediate imprisonment and of greater length.
The maximum penalty for the offence of unlawful detention is 10 years' imprisonment. Circumstances that are relevant in assessing the seriousness of such an offence include the length of time that the unlawful detention continued, whether physical force was used, whether express or implied threats were used, whether the offender voluntarily desisted or was compelled to do so, whether the offence occurred in the context of a domestic relationship, the vulnerability of the victim and the impact of the offending on the victim.
In this case the detention was for a relatively short period, approximately 30 minutes, though that must be attributed to the fact that the police attended promptly. Before the police arrived there was nothing to indicate that the appellant intended to cease detaining LR. Both physical force and implied threats were used to compel LR to remain at the house. The offence occurred in the context of a domestic relationship. LR was vulnerable, both because she was physically weaker than the appellant and because she was held in a house that was unfamiliar to her.
The sentencing remarks of the trial judge are referred to at [152]. His Honour's findings and his assessment of the seriousness of the offence were open on the evidence and consistent with the verdict of the jury. The appellant's claim that there was a complete absence of force is inconsistent with LR's evidence and his own plea of guilty to assaulting her.
It was open to the trial judge to come to the conclusion that a sentence of imprisonment was the appropriate disposition. He ultimately concluded that that sentence could be suspended, having regard to the appellant's acceptance of responsibility (at least at that stage) and his efforts towards rehabilitation.
The appellant has not established that the sentence of suspended imprisonment imposed for the unlawful detention was not reasonably open to the trial judge in the exercise of sound sentencing discretion. The sentence was not plainly unreasonable or unjust.
As regards the sentence for the assault offence, it is significant that this was an offence that was aggravated by reason of it occurring in the context of a domestic relationship. The maximum penalty for common assault is 18 months' imprisonment and a fine of $18,000, whereas the offence of aggravated common assault carries a maximum penalty of 3 years' imprisonment and a fine of $36,000.
This was not a case where the plea of guilty to the assault charge was entered at an early opportunity. Furthermore, at trial, the appellant denied assaulting LR. As late as 20 December 2018 his counsel advised that that charge was still disputed. The fact that no injury was caused to LR did not mean that an assault had not occurred, though it was a relevant consideration in assessing the seriousness of the offence. On the other hand, LR was extremely vulnerable, not least because at the time of the assault she was being held against her will in the appellant's mother's house, with which she was unfamiliar. She was both forced against the wall and pushed onto the bed.
Given the nature of the acts constituting the assault, LR's vulnerability and the fact that the offence occurred in the context of a domestic relationship, a fine of $3,500 when measured against the yardstick of the maximum statutory penalty of 3 years’ imprisonment and a fine of $36,000 does not suffer from implied error. That sentence was not plainly unreasonable or unjust.
As regards the sentence of 3 months' imprisonment, suspended for 18 months, for the offence of obstructing the police, that sentence was ordered to be served concurrently with the term imposed for the unlawful detention offence. The maximum penalty for the offence of obstructing a police officer is imprisonment for 3 years. The summary conviction penalty is 18 months imprisonment and a fine of $18,000.
The appellant submits that his obstruction consisted of him doing nothing more than sitting in his own driveway and having an argument. That clearly is not an accurate characterisation of his conduct. The appellant sat in the driveway in order to prevent police from moving LR's car and refused repeated requests to move. His behaviour during these events was highly abusive and threatening. The trial judge commended the police for acting with patience and restraint. The appellant's own description of his conduct towards the police (in his letter of 18 December 2018) was that it was 'completely disgusting'. In these circumstances, a suspended term of 3 months' imprisonment could not be manifestly excessive. That sentence was not plainly unreasonable or unjust.
Ground 1 - the lifetime restraining order
The appellant claims that he was not given a chance to challenge or address the imposition of the restraining order.
Pursuant to s 63(1) of the Restraining Orders Act 1997 (WA), a court before whom a person charged with an offence is appearing may make a restraining order against that person. Section 63(4AA) of the Restraining Orders Act provides that, in the absence of exceptional circumstances, a court is taken to have grounds for making a family violence restraining order in circumstances where an offender is convicted of one of the specified offences. Those offences include the offence of unlawfully detaining a person contrary to s 333 of the Code. The court must also be satisfied that a family member of the convicted person wishes to be protected by the order. A family member includes a person who has, or had, an intimate personal relationship with the offender.[162]
[162] Restraining Orders Act1997 (WA), s 4.
The prosecutor informed the trial judge that LR desired that a restraining order be made. That assertion was not challenged by the appellant. It was plain from her victim impact statement that LR suffered consequences as a result of the incident and continued to fear encountering the appellant or being approached by him. Also, as we have mentioned, on two occasions the appellant breached protective bail conditions in relation to LR.
In his letter to the trial judge of 18 December 2018, the appellant said that he had withdrawn his opposition to restraining order proceedings then pending in the Armadale Magistrates Court to spare LR any more pain, and that he had expressed his absolute remorse in correspondence with her lawyer. At the hearing on 20 December 2018, the sentencing judge acknowledged the appellant's letter and stated that he nonetheless intended to impose a lifetime restraining order. The appellant's counsel did not raise any objection to this course of action. At the sentencing hearing on 1 February 2019, the prosecutor raised the matter of the lifetime restraining order. The appellant's counsel did not seek to be heard in opposition to that application.
The lack of any opposition to the making of an order and the contents of the appellant's letter of 18 December 2018 support a conclusion that the application was not opposed by the appellant. Accordingly, the complaint by the appellant that he was not given an opportunity to challenge or address the application is without merit.
The appellant also claims there were exceptional circumstances as to why an order should not have been made. He refers to the seriousness of the offending and that LR is protected by a two‑year violence restraining order made by the Magistrates Court. His view of the seriousness has been previously canvassed and the fact the Magistrates Court made a two‑year violence restraining order did not preclude the trial judge from making the lifetime restraining order.
Sentence appeal - conclusion
The single ground of appeal against sentence has no reasonable prospect of succeeding. Leave in respect of that ground should be refused. Unless the court gives leave on at least one ground the appeal is taken to have been dismissed. Accordingly, the appeal against sentence should be dismissed. Furthermore, as there is no merit in the ground of appeal and the delay in bringing the appeal against sentence is gross and not adequately explained, an extension of time in respect of this appeal should be refused.
Postscript
On 24 January 2022 the appellant sought to file an application in respect of both the appeal against conviction and the appeal against sentence. The application was accompanied by an affidavit sworn by the appellant. The application seeks that:
1.The materials filed on 2 December 2021 be taken into account in the sentence appeal.
2.An application to issue a witness summons to SP be 'reinstated'.
3.A hearing be listed for the appellant to address the court on other witness summonses not accepted for filing.
4.A hearing be listed to schedule a 'final hearing' of the appeals.
As to the first matter, an affidavit filed by the appellant on 2 December 2021 was accepted for filing on the basis that it was part of the submissions that the appellant had been given leave to file. The affidavit only bore the file number for the conviction appeal and, thus, was only accepted for filing in that matter. Notwithstanding this, to the extent that it contains any submission of relevance to the sentence appeal, it has also been taken into account in that appeal.
As to the second matter, the position is as follows. By an application in the conviction appeal dated 3 November 2020 the appellant applied for leave to issue a witness summons to SP to give oral evidence at the hearing of the conviction appeal. SP had, of course, given evidence at the trial and was cross-examined at that time. On 5 November 2020 Mazza JA ordered that the application be adjourned to a date to be fixed and that the appellant have liberty to relist the application, provided that he did so within 7 days of the issue of the notice of hearing date for the conviction appeal. On 2 July 2021 the parties were informed that both appeals were listed for hearing on 22 October 2021. The appellant did not relist the application for a witness summons addressed to SP within 7 days, as required by the order made on 5 November 2020. By letter of 12 January 2022 the appellant was informed that if he wished to apply for an extension of time to relist the application he must do so by filing an application for an extension of time together with a supporting affidavit. An order was made requiring that any such extension of time application be filed by 4.00 pm on 23 January 2022.
The application and affidavit filed on 24 January 2022 were late and the affidavit does not provide any adequate explanation for the failure to comply with the order of 5 November 2020. The affidavit makes a number of unsubstantiated assertions about SP, including that she has brain damage and was under the influence of drugs at the time of the incident. The material before this court does not indicate that SP may be able to give relevant and admissible evidence in relation to any of the grounds of appeal in the conviction appeal, apart from or in addition to the evidence she gave at the trial. The appellant apparently wishes to use the appeal to put his unsubstantiated claims to SP without any reason for believing that she would concede them. The application for the issue of the summons is speculative. It is an attempt by the appellant to discover whether SP might be able to give any additional evidence which might hopefully support some of his arguments in the conviction appeal. In these circumstances an extension of time to relist the application should be refused and that application dismissed.
As to the third matter, the appellant has not been granted leave to issue any other witness summons. An application in that regard was dismissed on 12 October 2021 – see Houghton v The State of Western Australia [2021] WASCA 183.
As to the fourth matter, a hearing of the appeals would only be necessary in the event that one or more of the grounds in the conviction appeal or the ground in the sentence appeal was granted leave. For the reasons given, no ground of appeal on either appeal has a reasonable prospect of succeeding. No hearing is required.
Orders
CACR 52 of 2019:
1.An extension of time to file the application received on 24 January 2022 is refused.
2.An extension of time to appeal against conviction is granted.
3.The application to adduce additional evidence on the appeal against conviction filed on 22 September 2020 is refused.
4.The application for a partial suppression order to keep details of the appellant’s medical condition from being reported filed on 22 September 2020 is refused.
5.Leave to appeal on each of the grounds of appeal is refused.
6.The appeal against conviction is dismissed.
CACR 168 of 2020:
1.An extension of time to file the application received on 24 January 2022 is refused.
2.An extension of time to appeal against sentence is refused.
3.Leave to appeal on the ground of appeal is refused.
4.The appeal against sentence is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
3 FEBRUARY 2022
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