McGrory v The Queen

[2018] NSWCCA 226

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	McGrory v R [2018] NSWCCA 226
Hearing dates:	19 September 2018
Decision date:	12 October 2018
Before:	White JA at [1] Price J at [85] Wilson J at [86]
Decision:	Order that the applicant’s application for leave to appeal against conviction and sentence be refused.
Catchwords:	CRIMINAL LAW – Appeal – Application for leave to appeal against conviction and sentence – Assault occasioning actual bodily harm – Sexual assault – Influencing a witness – Judge alone trial – Where primary judge accepted evidence of complainant – Application for leave refused
Legislation Cited:	Crimes Act 1900 (NSW), ss 59, 61I, 323 Criminal Appeal Act 1912 (NSW), s 6 Criminal Procedure Act 1986 (NSW), ss 133, 293
Cases Cited:	Patsan v R [2018] NSWCCA 129 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 Skocic v R [2014] NSWCCA 225
Category:	Principal judgment
Parties:	Adam Troy McGrory (Applicant) Crown (Respondent)
Representation:	Counsel: N J Adams (Respondent)   Solicitors: Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/296088; 2014/50019; 2014/24271
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: n/a Date of Decision: 15 February 2016 Before: Wells SC DCJ File Number(s): 2013/296088; 2014/24271; 2014/50019

Judgment

1. WHITE JA: On 16 December 2015, the Crown presented an indictment against Mr Adam McGrory (hereafter “the applicant”) that charged him with four counts of assault occasioning actual bodily harm, five counts of sexual intercourse without consent, and two counts of persuading a witness to give false evidence or to withhold true evidence. On 15 February 2016 after a trial before her Honour Judge Wells SC sitting without a jury, her Honour found that the applicant was guilty on all counts.

2. On 20 June 2016, the applicant was given an aggregate sentence of imprisonment for nine years and six months with a non-parole period of 7 years.

3. The counts on the indictment were as follows:

“1 on or about the 30th day of September 2013, at North Boambee Valley in the State of New South Wales, did assault [the complainant] thereby occasioning to her actual bodily harm

S 59(1) Crimes Act 1900

2 on or about the 30th day of September 2013, at North Boambee Valley in the State of New South Wales, did assault [the complainant] thereby occasioning to her actual bodily harm.

S 59(1) Crimes Act 1900

3 on or about the 30th day of September 2013, at North Boambee Valley in the State of New South Wales, did attempt to have sexual intercourse with [the complainant] without the consent of [the complainant] and knowing that she was not consenting.

S 61I Crimes Act 1900

4 on or about the 30th day of September 2013, at North Boambee Valley in the State of New South Wales, did attempt to have sexual intercourse with [the complainant] without the consent of [the complainant] and knowing that she was not consenting.

S 61I Crimes Act 1900

5 on or about the 30th day of September 2013, at North Boambee Valley in the State of New South Wales, did assault [the complainant] thereby occasioning to her actual bodily harm.

S 59(1) Crimes Act 1900

6 on or about the 30th day of September 2013, at North Boambee Valley in the State of New South Wales, did assault [the complainant] thereby occasioning to her actual bodily harm.

S 59(1) Crimes Act 1900

7 on or about the 30th day of September 2013, at North Boambee Valley in the State of New South Wales, did have sexual intercourse with [the complainant] without the consent of [the complainant] and knowing that she was not consenting.

S 61I Crimes Act 1900

8 on or about the 30th day of September 2013, at North Boambee Valley in the State of New South Wales, did have sexual intercourse with [the complainant] without the consent of [the complainant] and knowing that she was not consenting.

S 61I Crimes Act 1900

9 on or about the 30th day of September 2013, at North Boambee Valley in the State of New South Wales, have sexual intercourse with [the complainant] without the consent of [the complainant] and knowing that she was not consenting.

S 61I Crimes Act 1900

10 between the 10th day of January 2014 and the 23rd day of January 2014 at Kempsey in the State of New South Wales, did write and send letters to [the complainant] with intent to persuade [the complainant], a person to be called as a witness in a judicial proceeding to give false evidence or to withhold true evidence, intending to procure the acquittal of Adam Troy McGrory of a seious [sic] indictable offence.

S 323(a) Crimes Act 1900

11 on the 11th day of February 2014, at Kempsey in the State of New South Wales, did write and send letters to [the complainant] with intent to persuade [the complainant], a person to be called as a witness in a judicial proceeding to give false evidence or to withhold true evidence, intending to procure the acquittal of Adam Troy McGrory of a seious [sic] indictable offence.

S 323(a) Crimes Act 1900”

Background

4. The applicant and the complainant were in a de-facto relationship for approximately seven years. They have two children together, and the complainant has another child from a previous relationship. The first nine counts concerned conduct that took place in a 24-hour period commencing in the morning of 30 September 2013. Counts 10 and 11 relate to letters sent by the applicant whilst he was awaiting trial, bail having been refused. The following is a brief summation of the background facts as found by the primary judge.

5. On the weekend before the date of the offences (Monday 30 September) the complainant had worked from 7am to 7pm (with a two hour break). When she returned that Sunday she went to bed before being woken at 4:30 am on Monday by the applicant. The complainant said something to the applicant which put him into an angry mood. This led to the applicant kicking the complainant at the top of her buttocks and punching her in the right jaw (Count 1). The applicant admitted slapping the complainant with an open hand to the side of her face and kicking her in the bottom. He said the slap was in self-defence after the complainant lunged at him with a pen.

6. The complainant drove the two older children to day care. At 10:06 am she sent a text message to the applicant: “I’m deeply sorry and hope you can accept this apology”. The complainant gave evidence that she did not have anything for which to apologise, but she sent the text to get the applicant out of his bad mood.

7. That night, the applicant expressed to the complainant a desire to have anal sex. The complainant refused before removing her clothing after insistence from the applicant and after he hit her with a walking stick (Count 2). The applicant denied hitting the complainant with a walking stick. He said the walking stick fell onto her.

8. Without warning the applicant rammed anal beads (a sex toy consisting of multiple spheres or balls to be inserted through the anus into the rectum) into her anus (Count 3). The complainant then went to the hospital from the pain before having to return home as the applicant telephoned her to say that he wished to leave the premises to speak to a neighbour. She then went to sleep near her daughter. Whilst the complainant lay in the bed the applicant called out to her. Not wanting to wake her daughter she went to his bedroom where the applicant demanded she remove her clothes which she did after persistence. He then digitally penetrated her with fingers from both hands and stretched her vagina before placing his fist inside her vagina. This caused pain for the complainant (Count 4). The complainant crawled across the bed and went to the bathroom in pain for fear of defecation. While the complainant was on the toilet the applicant punched her twice on the forehead (Count 5) and two or three times in the back of the head. This occurred in the early hours of Tuesday when she was rostered to work that day. He then cornered the complainant in the bathroom and punched her in the back of her ribs (Count 6). After the complainant went into the bedroom she went into a kneeling position and a dildo was inserted in her anus whilst she complainant was weeping and upset, before a second dildo was inserted. The applicant attempted to push his penis inside her anus while the sex toys were there (Count 7). The applicant pulled away leaving faeces in the vicinity. The complainant washed her hands and was crying. After the complainant returned the applicant demanded she perform oral sex which led to dry retching and coughing and cuts and red marks on the inside and outside of her lips (Count 8). The complainant then went to sleep with her daughter. The complainant was woken by the applicant calling her to the master bedroom to which the complainant responded stating “please don’t you know how sore I am”. They then had penile vaginal intercourse for 10 to 15 minutes before the applicant ejaculated (Count 9). The complainant then went to her workplace where she left her children before going to the police.

9. After the applicant’s arrest and while he was in custody at a Correctional Services Centre near Kempsey on January 2014 the complainant received a letter encouraging her to change her statement (Count 10). The complainant received another such letter in February 2014 (Count 11).

10. At trial, the applicant’s case was that sexual activity with the complainant on 30 September and 1 October 2013 was consensual and was normal sexual behaviour within the context of their relationship (counts 3, 4, 7-9). The applicant conceded that he assaulted the complainant by punching her to the forehead and ribs (counts 5 and 6). He initially denied that he kicked the complainant causing actual bodily harm (count 1) and denied that he hit her with the walking stick causing actual bodily harm (count 2). He admitted he sent letters to the complainant from custody, but maintained his intention was to encourage her to tell the truth (counts 10 and 11).

Appeal grounds

11. By way of notice seeking leave to appeal filed 6 December 2017, the applicant sought to appeal against conviction and sentence. The grounds of appeal state “in brief, the grounds of appeal primarily focus on the sexual assault convictions, but also cover the severity of the entire sentence”. The applicant has ten grounds of appeal which I quote:

“(1)   Mens Rea – Knowing the complainant did not consent to sexual relations. I will verily argue that the prosecution failed to establish actual knowledge, recklessness or mistake to the appropriate standard and thus, the prosecution’s conviction attempt should have failed. As such, the conviction was unsafe and should be quashed.

(2)   Alleged recklessness (either advertent or non-advertent recklessness of the accused was clearly not established in the circumstances thus the prosecution case fails on mens rea and, accordingly the prosecution’s case must fail at law

(3)   A history of previous sexual activity – the accused and the complainant have shared a full and consensual sexual together for many years. This sexual history has been very broad (including: role playing, sado-masochistic activities, etc). Accordingly, the conviction failed to fully incorporate these activities and the circumstances and thus, failed to adequately represented the complainant failed in the matter (arguably, consent by both parties was broadened)

(4)   The unreliability of the complainant – the inherent unreliability of the complainant was brought out in trial, but was not properly considered by the Court, leading to a miscarriage of justice. The complainant arguably gave untruthful testimony, had signed false statement declarations and undertaken other acts of deception, but this was not adequately accounted for at trial. This issue must be revealed further and is a compelling area of the appeal.

(5)   The inconsistency of the medical evidence – In a matter of sexual assault, medical evidence is essential. In establishing the physical evidence supporting the charge of sexual assault (i.e. actus reus). We contend that in this matter, the medical evidence has been inconsistent, has been subjected to change over time and needs to be properly reviewed on appeal).

(6)   The ‘alleged continuing series of a criminal acts’ the prosecution contend that the sexual assaults (alleged to were part of a series of criminal acts, commencing with an assault occasioning actual bodily harm to sexual assault), We contend that any link between any assault and the consensual sexual intercourse was broken, that is, there was no intermingling of separate acts. Each and every act was a stand-alone act, for just, the prosecution must provide for actus reus and mens rea. We contend they cannot and hence the conviction is unsafe

(7) Failure under s 133(2) of the Criminal Procedure Act 1986 and s 6(1) of the Criminal Appeal Act 1912 – we contend that a failure to comply with s 133(2) is to make a wrong decision on a question of law. In accordance with s 6(1) and may also amount to a miscarriage of justice. From our understanding of the judgment, the judge has arguably applied an erroneously formulated principle of law to the facts, amounting to an error of law in accordance with s 6(1). This contention needs to be fleshed out on appeal

(8)   Circumstantial evidence – reasonable hypothesis consistent with innocence – we contend that the decision maker at trial was erroneous, as sufficient weight was not given to the reasonable hypothesis that other existing circumstances would weaken or destroy the circumstances relied upon. The hypothesis argued by the accused of mutually consensual sexual activity was reasonably and must have raised doubt. This must be explored further on appeal

(9)   A fundamental sentencing error based on giving insufficient consideration and weight to the accused mental health and antecedents - I was a victim of terrible child abuse for my entire childhood, I was forced to leave home and fend for myself as a child and teenager, and I was only able to have limited education opportunities. Furthermore, I have and was diagnosed as suffering from medical illness. Accordingly, my sentence should have taken these factors into account and, arguably, should have been appropriately discounted, but was not. I will flesh this matter out further at my appeal

(10)   My sentence was manifestly excessive – it seems very clear to me that my sentence of 9 years and 6 months maximum and 7 years non-parole was/is manifestly excessive given my circumstances. I contend that sentencing for similar acts of sexual assault during a similar period of time to mine, attracted severe sentences. Accordingly, my sentence appears excessive in light of such statistics.”

12. The applicant’s conviction on counts 10 and 11 was not the subject of a ground of appeal, but in written submissions the applicant stated:

“1.   The charge of ‘attempting to interfere or influence a witness’. I was wrongly charged with attempting to influence the complainant in the matters referred to above. Any such charge (I cannot relay the precise nature at the moment) is unfounded. The charge came out of a number of breach of AVO charges that were placed on me. Whilst I readily admit to writing to my partner in order to reach out for support and reconciliation, the charge of ‘attempting to interfere with a witness’ was unrealistic, unproven and should have failed. I had no intention of seeking to interfere with any witness.”

Primary judge’s reasons for convictions

13. The primary judge described in more detail the complainant’s evidence in relation to each of the first nine counts of the indictment. Her Honour also summarised the evidence the applicant gave in relation to each of the counts. Her Honour noted that it was conceded by counsel for the applicant that the Crown had made out the elements of the offences in counts 5 and 6. Those were the counts of punches to the forehead and later punches to the left ribcage at the back. In relation to count 5 the applicant had initially raised self-defence as a lawful excuse, but the primary judge recorded that he conceded in cross-examination that given their disparity in size and strength there was no need for him to defend himself in the way he did. The primary judge recorded that the applicant also resiled from his contention that the assault the subject of count 6 was in self-defence.

14. The primary judge accepted the complainant’s evidence in respect of all of the counts. In relation to count 1 the applicant said that the complainant had said to him that “I’m going to fucking kill you” and thrust a pen at him. That evidence was not accepted. The complainant said that she was awoken at 4:30 am by the applicant who wanted her to help him clean the house before they went out for the day. She made a remark that made the applicant angry. There was an argument. She gave evidence that when she was near the bathroom door the applicant kicked her from behind in the buttocks area near her tailbone causing her so much pain that she fell to the floor. She had trouble getting up but when she did so, the applicant punched her in the right jaw, but not with full force. The applicant said that the complainant lunged at him with the pen that she had so he grabbed her arm, slapped her in the face with his right hand and kicked her up the backside. He was a large powerfully built man. The primary judge said that she was satisfied beyond reasonable doubt that there was no pen thrust at the applicant and the defence of self-defence did not arise.

15. In relation to Count 2, the primary judge was satisfied beyond reasonable doubt that the applicant intentionally struck the complainant with the walking stick. It did not fall from the bedhead. The complainant was struck in the course of an argument with the applicant that the primary judge summarised as follows:

“At around 9.30 or 10.20pm, the complainant gave evidence that the accused told her ‘that he was going to fuck her up the ass’. She said that she told him that if he did that, he would be ‘divorced by the morning’. She did agree that these were words, that is, ‘the divorced by morning’, were words that they jokingly had said to each other in the past. She told him that she did not want to do that because she was still in a great deal of pain as a result of the kick he delivered to her buttocks. She said that he told her a number of times to get her clothes off, and she repeatedly refused, telling him that she was in a lot of pain. He tried to remove her clothes, and in the end she took her clothes off, because she said he was obviously getting angry and agitated.

She said that in the course of the dispute about whether or not they were going to have sexual intercourse, he struck her on the elbow or upper arm with a walking stick that was hanging on the bedhead in his room. That striking of her elbow, or upper arm with the walking stick, is relied on by the Crown for the basis of count 2, assault occasioning actual bodily harm.”

16. In relation to the charges of sexual intercourse without consent, the primary judge noted that there was very little factual dispute about the sexual acts that took place between the complainant and the applicant. There were some discrepancies as to how many vibrators or dildos had been used in various acts and where they had been placed. There was an issue as to whether the act of “fisting” had occurred, but otherwise there was substantial agreement about the acts the subject of those charges. The principal issue was whether the sexual acts were consensual.

17. It was the applicant’s case that the complainant was a willing and at times demanding sexual partner who enjoyed engaging in a range of sexual conduct, including bondage, sadomasochism, hair pulling and rough sex, anal and oral intercourse, and the use or insertion of objects in her vagina and anus. The primary judge referred to the applicant’s evidence that he and the complainant had used ropes and whips and a bike pump (matters which she denied) and his evidence that she was interested in seeing pornographic DVDs (again, a matter she denied).

16. The complainant’s evidence, which the primary judge accepted, was that she was not interested in exploring the boundaries of sexual experience, but that the applicant wanted to show her things that he was “into”, but she was not “into the extreme stuff that he was”. She said that the applicant had shown her things on the internet that showed sex involving pain, but she did not watch that willingly. She denied ever coming home with a black leather whip and a pink whip with feathers. She agreed that she purchased a couple of the dildos at a sex shop, but said she did so when she was on the phone to the applicant to get the “right things that he wanted”. She said “I’m pretty sure I bought the anal beads that night and I bought one of the dildos.” She said that she did so on the applicant’s instruction.

17. The primary judge noted the complainant’s evidence that she denied having any enthusiasm for exploring sexual boundaries or that she ever had demanded sex from the applicant or that she had willingly bought sex toys. The primary judge accepted the complainant as a credible witness.

18. The primary judge considered the applicant’s submission that the complainant was a practised liar and deceiver. She took into account the complainant’s admissions that she had told a number of lies and practised deceptions when she was legally obliged to be truthful. These included lies in statutory declarations and affidavits in relation to claims she made on the Commonwealth regarding family support payments and income tax, and an affidavit made in connection with civil proceedings in the District Court in order to obtain a higher damages award where she falsely described her relationship with the applicant. The primary judge noted that the complainant had falsely told her son’s doctor that she had lost Ritalin medication when in fact it had been taken by the applicant. The primary judge noted that these matters also reflected adversely on the credibility of the applicant who conceded that he knew of them and that he had benefited by the complainant’s deceptions. The primary judge accurately noted that the relevant difference was that the applicant had no onus of proof.

19. The complainant’s evidence, if accepted, negated consent and demonstrated that the applicant knew that she did not consent to the sexual intercourse in which he engaged.

20. In relation to Count 3, the complainant’s evidence was that she had expressly refused consent to anal intercourse and had told the applicant she was still in pain from the kick he had given her earlier in the morning. She was forced into a kneeling position, where the applicant inserted anal beads inside her anus.

21. The complainant went to hospital at about 11.30 pm where she was seen by a triage nurse whom she told she had pain in her tailbone area as the result of a fall. She returned on the applicant’s demand and went to bed with her daughter. In relation to Count 4, the complainant’s evidence was that the applicant demanded she return to the bedroom. She acquiesced to avoid a scene that would wake up her daughter. She said:

“Adam got me to lay on the bed. He wanted me to take my clothes off. I really didn’t want to and I kept asking him not to do it and to please stop, he didn’t know how much pain I was in. In the end, I’m sure that I ended up taking my clothes off.”

24. The complainant had previously told the applicant that she did not like his putting his fingers in her vagina. She was sobbing and crying.

25. In relation to Counts 7, 8 and 9 the violence already inflicted on the complainant, including the assaults when she was on the toilet, would negate any question of consent and would establish the applicant’s knowledge of lack of consent. But there was further evidence from the complainant. The primary judge recorded that the accused called her again into his room telling her that he had not even started on “her ass” and she made it clear to him that she did not want to return to the bedroom. He kept on demanding and she complied. That led to the sexual intercourse the subject of Count 7. The complainant was crying and weeping the whole time, but the applicant demanded that she give him a “head job” and she complied. She said that the applicant rammed his penis into her throat. It was so uncomfortable she tried to push the applicant away or pull away herself. She was dry retching and coughing but the applicant overpowered her. This was the subject of Count 8.

26. It was after this and when the applicant had fallen asleep that the complainant sent a text message to a fellow employee referred to at [29] below. The complainant gave evidence that she fell asleep in her daughter’s bed but the applicant called her into his bedroom in the early morning. She said that she unwillingly did so and said to the applicant, “Please don’t make me do it”, or “Please don’t, you don’t know how sore I am”. The applicant told her to hop into bed and take her clothes off which she did “because Adam would make me”. They had sexual intercourse the subject of Count 9 during which the complainant told the applicant she was in pain and wanted him to stop, which he did not.

27. If the complainant’s evidence were accepted, convictions on counts 3, 4, 7, 8 and 9 were inevitable. The applicant must have known that the complainant did not consent to the sexual intercourse he was forcing on her.

28. The primary judge’s acceptance of the complainant as a credible witness was well open to her Honour. In part it was based on her demeanour. Her Honour added:

“... not only do the demeanour and the answers of the complainant satisfy me of her credibility in relation to the complaints that she makes, but the evidence of injuries, complaint and distress support the central allegations in relation to the elements of the offences, the issues of consent and the accused’s knowledge as to consent.”

29. There was powerful objective evidence in support of these matters. The complainant worked in a nursing home. At 2:30 am on Tuesday, 1 October she sent a text message to a fellow employee as follows:

“Sorry if u get a call in the morning to work 7-12. Its because of me. Dont say any thing but adam hit me + lots more. Going to cops. Sorry but please dont write back as adam ma[y] find it.”

30. Two ladies with whom the complainant worked at the nursing home gave evidence of her distress and evident injuries on the morning of Tuesday, 1 October. The complainant removed the children from the house and took them to her place of work before she went to the police. One witness said that the complainant returned her phone call at about 8:52 am and was crying hysterically and was extremely upset, almost hyperventilating. The witness could not understand what she was saying. Another witness who worked with the complainant at the nursing home saw the complainant at the nursing home and said that she was hysterical, was shaking and sobbing and in distress. She also observed a lump on the complainant’s forehead. The complainant told her that the applicant had hit the complainant and forced her to have sex.

31. The complainant made an immediate complaint to the police. She was seen by a Dr Kramer on the afternoon of 1 October 2013. As the primary judge recorded, the complainant gave a history to Dr Kramer that was very detailed and was largely consistent with the evidence that she later gave at trial. The primary judge summarised the extent of the injuries that Dr Kramer identified. There were 22 different injuries, some at least of which the primary judge said were very significant bruises that would have caused her substantial pain.

32. The primary judge found that the number and severity of the injuries supported the complainant’s account in demonstrating that they were all deliberately inflicted and, in addition, the number and severity of the injuries, particularly to the tailbone, supported the complainant’s account that she was in no fit state, nor likely to agree freely and voluntarily, to sexual intercourse, particularly of the kind that occurred. Those findings were well supported by the evidence.

33. In relation to the kick to the tailbone area Dr Kramer identified two bruises (with no yellow) on the buttock, four pinpoint red abrasions on the buttock with no scabs or surrounding abrasions, and tenderness over the tailbone. The two bruises were on the top of the natal cleft (butt crack) mirroring each other in position. The bruises and abrasions indicated blunt force trauma to the region. A directed blow, such as a kick, was a more medically plausible explanation than a fall.

34. There was swelling and a bruise over the jawbone on the right side of the complainant’s face indicating blunt force to that region. There was also a bruise just to the right of the mouth indicating blunt force trauma to the region which could have occurred as a result of a punch to the jaw or during oral sex, although another traumatic event could not be excluded. That bruise appeared during the course of the consultation indicating that the injury was recent.

35. There was a tender area over the right elbow and a large bruise on the outer aspect of the right upper arm. The bruise indicated blunt force trauma. The tenderness was consistent with the history of blunt force trauma. The bruise was less than a few days old placing it within the timeframe of the alleged assault of a blow with a walking stick to the right elbow.

36. Dr Kramer recorded the complainant’s history that she said that her partner had at one stage physically prevented her from leaving the bedroom and that he positioned her body to suit sexual acts he performed. There were “grab marks”, that were roughly finger-shaped and roughly finger-width apart, and parallel to each other on the soft fleshy part of the outer side of the right arm. The marks could not be aged. They were consistent with the complainant’s evidence of being grabbed and manipulated with force.

37. Dr Kramer reported that the complainant’s head was sore on the left hand side and there was an area of swelling on the right hand side. The injuries were consistent with the application of punches to the head.

38. There was evidence of blunt force trauma to the back that could be explained by a blow or blows. Dr Kramer could not say when that happened or exactly what happened.

39. The applicant’s vagina was normal on examination. Dr Kramer said that a normal genital examination is a neutral finding that did not indicate one way or another whether the alleged assaults occurred. She cited literature that reported a study of 440 sexual assault cases where there was injury to the body other than the genitals, indicating lack of consent and sperm in the vagina, indicating that sexual intercourse had occurred. More than two-thirds of the women had no visible genital injury. She said that a fist and part of a forearm could be inserted into the vagina without causing injury.

40. Dr Kramer reported that there were no injuries to the anus. She said that as with the genital examination, that was a neutral finding that neither confirmed nor undermined the complainant’s allegations. She cited literature that reported that anal injury was uncommon after anal assault.

41. Dr Kramer’s evidence amply supported the primary judge’s findings.

42. In relation to count 9 on the indictment, which was a count of penile/vaginal intercourse, the applicant said that it was “make up sex”. The primary judge accepted the complainant’s evidence that she had been woken up early in the morning by the applicant who demanded penile-vaginal intercourse. It was not disputed that this occurred. The primary judge said:

“Bearing in mind again the events that preceded, and the fact that the accused, on the complainant’s evidence, demanded that she return to the bedroom against her wishes, I accept what she says beyond reasonable doubt, and I am satisfied that it is proven beyond reasonable doubt, and that in the circumstances, having rejected the accused’s version and accepting the complainant’s version, it is clear that the accused would have known that she did not consent.”

43. The last two counts on the indictment related to letters written by the applicant to the complainant when he was on remand in which he sought to persuade the complainant to change her statements as to the evidence that she would give at trial. Section 323 of the Crimes Act 1900 (NSW) relevantly provides:

“323   Influencing witnesses and jurors

A person who does any act:

(a)     intending to procure, persuade, induce or otherwise cause any person called or to be called as a witness in any judicial proceeding to give false evidence or withhold true evidence or to not attend as a witness or not produce any thing in evidence pursuant to a summons or subpoena, or

...

is liable to imprisonment for 7 years.”

44. In January 2014, when the applicant was on remand, he wrote a letter to the complainant in which he said, inter alia:

“IF you did have a change of hart there are things you can do you can talk to my solicitor at legal aid. Supplamentry statement Affidaved or Retract revoke AVO change conditions if you hate me and do nothink i will get 14 years with maybe 8 or 10 on bottom. [sic]”

45. A month or so later the applicant wrote to the complainant in terms that professed his love for her and for their children, including a statement that he had been charged for two earlier letters he had sent, one of which was said to be an attempted breach of an apprehended violence order and the other “trying to influence a witness”. The applicant said:

“i am sure if you new the truth you would feel diffrent towards me i miss you and the kids so much I also can imagine how angry and trapped you must of felt. I wont you to know that i am not trying to influence you in any way by writing this letter i just wan’t you to know the truth about that phone call and now i really feel I miss you and the kids everyday and I love you more than any man ever will ...

I hope you can realise the seriousness of my charges and the great length of time i am looking at spending in jail if convicted i am looking att 10 years jail you are the only person that can help me Its not to late to change statements. You can revoke withdraws avo’s you can also put in supplementry statements as well no one is going to beleive what I have to say. So if you had a change of hart its not too late! my Solicitor is at legal aid if you need some legal advice. Its all up to you babe if this is what you wan’t than I will have to aceppt it ...

This will probly cost me another charge but your worth the risk any ways they charge me for things i didn’t even do so what does it matter. ... [sic]”

46. In relation to these counts the primary judge relevantly found:

“It must be proven that he had intent to persuade her, a) to give false evidence, or b) to withhold true evidence. Again, that much is clear in the words that he wrote in the letter.

It has been asserted by him and on his behalf that he was simply asking her to tell the truth and that was an honestly and reasonably held view that he had. Again, in all of the circumstances, I reject the assertion that he has made in that regard and I find that the words speak loudly for themselves and he did indeed intend to persuade the potential witness, [complainant], to either give a new account or to retract the account that she gave so that the charges would not proceed and he would be acquitted of these serious indictable offences. Consequently, I find that each of the elements of charges 10 and 11 have been proven beyond reasonable doubt.”

47. The applicant’s convictions on these counts are not the subject of grounds of appeal. But in his written submission the applicant contended that the charges were unfounded and came out of a number of alleged breaches of AVO orders that had been placed on him. There was no evidence about the AVO orders. The applicant gave evidence in cross-examination that he thought that “maybe the police were using the children to intimidate her and force her to continue on with these proceedings.”. He said that the reason he thought the police were intimidating the complainant to continue a false claim was that he was charged with offences against his stepson and he felt as if the police were using the children against the complainant. He was charged with four assaults on his stepson but was acquitted on those charges. In oral evidence the applicant said that his intention was to encourage the complainant to tell the truth as he understood it. The primary judge did not accept that evidence.

48. The primary judge rejected the applicant’s evidence that the complainant had consented to sexual activities on the night in question. Her Honour also rejected the applicant’s contention that he did not know that the complainant did not consent to that sexual activity. Her Honour found that it was clear that the applicant would have known that the complainant did not consent.

49. There was no evidence as to what the applicant knew of the statements made by the complainant to the police at the time he wrote the two letters. There was evidence from the letters themselves that at the time of writing the letters the applicant knew that a statement had been provided. It can be concluded beyond reasonable doubt that the applicant knew that the complainant had complained of assault and sexual intercourse without consent and had given a statement to the police that she did not consent to the sexual activities on the night. The primary judge’s findings establish that the applicant knew she had not so consented. His attempt to make her change her story would necessarily imply his intent that she give false evidence or withhold true evidence, unless, at the time he wrote the letters, he had persuaded himself that the complainant had in fact consented. The primary judge’s finding that she was satisfied beyond reasonable doubt that the applicant sought to induce the complainant to give false evidence or withhold the evidence negates that possibility.

50. It follows that there is no basis on which to overturn these convictions. I will deal with each of the grounds of appeal quoted in [11] above.

The proposed grounds of appeal against conviction

51. The grounds of appeal upon which the applicant would rely if leave to appeal against conviction were given are set out at [11] above. Having regard to the above reasons those grounds can be dealt with shortly.

52. Grounds 1 and 2 assert that the Crown failed to establish beyond reasonable doubt that the applicant knew that the complainant did not consent to sexual intercourse or was recklessly indifferent to whether she did. For the reasons above, those grounds cannot succeed having regard to the primary judge’s acceptance of the complainant’s evidence.

53. Ground 3 asserts that the primary judge failed to have regard to the accused’s and the complainant’s sexual history. The primary judge granted leave pursuant to s 293 of the Criminal Procedure Act 1986 (NSW) for evidence to be adduced of the prior sexual relationship between the complainant and the accused. The primary judge recorded that the applicant’s submission that the sexual history would make the accused’s case that the intercourse on the night in question was consensual more plausible. The sexual history was addressed in the primary judge’s reasons. It is obvious that consent to previous sexual activity, even of a similar nature to that which occurred on the night in question, does not indicate consent to the acts of sexual intercourse with which the applicant was charged. It might make it more plausible that the complainant would consent, but the evidence accepted by the primary judge referred to earlier in these reasons established beyond reasonable doubt that she did not.

54. Ground 4 asserted that the complainant was an unreliable witness and gave untruthful testimony. As indicated above, the matters relied upon by the applicant were fully considered by the primary judge. In written submissions prepared by a solicitor for the applicant, the applicant contended that the primary judge had admitted that the complainant was unreliable. The applicant quoted the following passage from the judgment where the primary judge was reminding herself of the principles of law to be applied as applicable to the facts of the case. Her Honour said:

“I bear in mind that, given there are 11 separate charges, that each charge must be considered separately, with consideration given to the elements of the individual charges, and whether or not the Crown has proven those charges.

Giving separate consideration to the individual charges means that I am entitled to bring in verdicts of guilty on one count and not guilty of the others, or vice versa, if there is a logical reason for that outcome. If I were to find the accused not guilty of any count, particularly here counts 1 to 9 that rely substantially on the evidence of the complainant, and particularly if that was because I held doubts about her reliability, her credibility, I would necessarily have to consider how that conclusion affects consideration of the remaining counts.”

55. The applicant misconstrues this statement as being a finding that the primary judge did have doubts about the complainant’s reliability and credibility. That is untenable. The primary judge was using the past subjunctive. She was addressing a hypothetical case where caution would be needed if she were to find the accused not guilty of one count because of doubts about the reliability and credibility of the complainant. The primary judge was giving herself a direction in accordance with R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 that a reasonable doubt with respect to a complainant’s evidence on any count should be taken into account in assessing the complainant’s credibility generally. Her Honour was not expressing doubt as to the complainant’s credibility. The primary judge went on to address in detail the attacks made on the complainant’s credibility and explained why she found the complainant a credible witness as to the events the subject of the charges.

56. Ground 5 alleged that medical evidence was essential and in this case the medical evidence was inconsistent and had changed over time. In his written submissions the applicant contended that the medical evidence seemed to have been inconsistent and arguably varied over time. No attempt was made to identify the basis for this submission.

57. The applicant submitted that there was a time lag between the alleged sexual assault and the first forensic medical examination. The complainant was examined in the afternoon after the night of the sexual assaults.

58. The applicant submitted that the “initial medical record” tended to indicate there were only a few minor bruises and abrasions, this being consistent with a minor physical confrontation or assault but definitely no sexual assault. The applicant submitted that if, being a powerful man, he had sexually assaulted the complainant, injuries would have been present almost immediately. He submitted that the findings in relation to the complainant’s inner legs and genital area were inconsistent with sexual assault and the overall strength of the medical evidence was questionable.

59. The applicant also submitted that Dr Kramer was overly sympathetic towards the complainant rather than being strictly neutral and at arm’s length.

60. At trial no attack was made on the independence, impartiality, competence or diligence of Dr Kramer. The primary judge considered that Dr Kramer had taken a good deal of care, both with her opinion and her original notes that she took on an examination of the complainant.

61. The applicant’s contention that greater injury would have been demonstrated than was identified by Dr Kramer, including to the complainant’s genital area, had the complaints been true, is unsubstantiated. It is contrary to Dr Kramer’s evidence.

62. No explanation was provided as to how it was said the medical evidence varied over time. In its submissions the Crown hypothesises that the applicant’s submission in this regard was based on a misunderstanding of Dr Kramer’s evidence as to the making of a record of injuries to the complainant’s face that were denoted as injuries 19 and 20. Dr Kramer explained that in carrying out her examination of the complainant she used and followed a standardised Sexual Assault Investigation Kit (“SAIK”). She denoted on stylised drawings of the human form injuries that were noted on examination which were numbered. Dr Kramer said that:

“These injuries I found during my initial examination of [the complainant] and these are documented in the SAIK. After we’d completed the examination and packaged up the SAIK I went on to attend to [the complainant’s] general medical care, some fresh injuries became visible on her face and these – that explained the leap to injury 19 and injury 20. 19 and 20 will not appear on the original SAIK because that had already been completed and packaged before these injuries appeared.”

63. Dr Kramer was of the view that the appearance of the injuries at that time was consistent with the history given by the complainant.

64. The applicant did not seek to identify how the medical evidence is said to have changed over time. It does appear that the assertion was based upon a misunderstanding of the evidence.

65. In ground 6 the applicant alleged that between each assault and each act of sexual intercourse there was a reconciliation such that the complainant consented to the sexual intercourse. The primary judge’s acceptance of the complainant’s evidence and her Honour’s rejection of the applicant’s evidence means that that ground must fail.

66. Ground 7 alleged a failure to comply with s 133(2) of the Criminal Procedure Act 1986 and that this was an error of law within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). Section 133(2) of the Criminal Procedure Act provides:

“133   Verdict of single Judge

...

(2)     A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.”

67. The applicant did not identify any respect in which the primary judge misdirected herself.

68. Ground 8 asserted that the convictions rested on circumstantial evidence and that there was a reasonable hypothesis consistent with innocence.

69. The applicant submitted that:

“My reasonable hypothesis was that the complainant consented to consensual sexual relations (as explained in detail above). The prosecution did not prove recklessness at the appropriate standard, so the question remains – why was my reasonable hypothesis of a consensual sexual relations not given due and sufficient consideration at the trial of first instance? Was there a preconceived bias against me? Was a lack of procedural fairness forced upon me? Was I denied natural justice?”

70. There is no substance to this ground of appeal. First, the applicant’s convictions did not rest on circumstantial evidence. They were based on direct evidence of the complainant, supported by the complainant’s text message to her co-worker, the extent of her injuries as evidenced in the report of Dr Kramer, her immediate complaints to her co-workers and to the police, and her evident distress. Once the complainant’s evidence of events was accepted and the applicant’s evidence that the complainant consented was rejected, there was no reasonable hypothesis consistent with innocence.

71. The answers to the rhetorical questions asked in the applicant’s submissions are that his “reasonable hypothesis of consensual sexual relations” was given due and sufficient consideration, but was rejected. There was no preconceived bias against him. There is no basis for saying that he did not receive a fair trial. There was no lack of procedural fairness and he was not denied natural justice. Nor does he appeal on that basis.

72. For these reasons the application for leave to appeal against conviction should be dismissed.

Application for leave to appeal against sentence

73. On 20 June 2016 the applicant was sentenced to imprisonment for nine years and six months with a non-parole period of seven years. The primary judge held that the offences of sexual intercourse without consent fell at the high end of the mid-range of objective seriousness. Her Honour concluded that an aggregate sentence was appropriate. She specified indicative sentences for each count as follows. The indicative sentence for Count 1 was assault occasioning actual bodily harm 18 months, Count 2 assault occasioning actual bodily harm nine months, Count 3 attempted sexual assault, two years six months, Count 4, sexual assault five years six months, a total term of seven years six months, Count 5 assault occasioning actual bodily harm 18 months, Count 6 assault occasioning actual bodily harm nine months, Count 7 sexual assault, a standard non-parole period of five years, six months with a total term of seven years six months. Count 8, sexual assault, a non-parole period of four years with a total term of five years six months, Count 9 sexual assault, non-parole period four years, total term of five years, six months, Counts 10 and 11, do act with intent to interfere with witness, 12 months imprisonment.

74. In the first ground of appeal against sentence (appeal ground 9) the applicant contends that the primary judge did not take into account his mental health, that he had been a victim of child abuse and had only limited educational opportunities, and was suffering from mental illness.

75. After summarising the circumstances of the offences the primary judge addressed the applicant’s subjective background. Her Honour noted that the applicant had been on remand for a long time, from 1 October 2013, and acknowledged that periods on remand were more difficult, but considered that this factor would only mitigate the sentence to a most limited degree. Further, to some limited degree, her Honour said she would take into account that he had suffered a degree of hardship in custody. Her Honour noted that the applicant had a criminal record but it was quite old and did not involve offending as serious as the offending for which he was to be sentenced. Her Honour noted that the offences were consistent with his having a predilection towards anger and violence. Her Honour said:

“There are presentence reports and a psychological report tendered in evidence. The reports are quite consistent in that they describe his upbringing as being marred by psychological, physical abuse, exposure to alcohol and drug abuse by his step-father and neglect by his stepmother [(scil.) mother]. More significantly there was exposure to adult sexual acts when he was young. In the psychological report he said that his mother and step-father would hold ‘swinger parties’ and that his older brother would set up video equipment to film their sexual exploits. He and his brother were aware of the activity and witnessed such incidences first-hand. He claimed he was the victim of sexual abuse from his older brother who penetrated his anus with his penis. He has had no contact with any family members and the pre-sentence report notes that none of these claims could be substantiated from any other source. Though relevantly they note that they were consistent with what he said in a pre-sentence report in 2004. To that extent I accept what has been said about his dysfunctional upbringing and the impact that has had on him in terms of developing a rather maladjusted outlook throughout his adult years.”

76. The applicant left home at the age of 13. He commenced drug use from the age of 12. The primary judge found that that drug use had become problematic by the age of 20 and recorded that he said he had used alcohol and cannabis excessively. That drug use had escalated to methamphetamine, ephedrine, and heroin in his mid-20s. The primary judge recorded that the applicant had a prior serious suicide attempt about six years previously and that the psychological reports diagnosed him as having alcohol dependence, substance dependence, major depressive order, and post-traumatic stress disorder. She noted that he had been diagnosed with an intermittent explosive disorder along with borderline personality disorder. The primary judge also said:

“It is said that his sensitivity and hostility in social interactions probably serves as a formidable obstacle to the development of close relationships. It is likely, the psychologist concludes, that there is significant impairment in social role performance that has resulted from his substance abuse. That is probably a relatively accurate observation of what occurred on the particular night.”

77. The primary judge found that the applicant remained in denial. There was no remorse. The prospects of rehabilitation were dim.

78. The applicant submitted that his rehabilitative qualities were substantial. In the written submission prepared by a solicitor for the applicant it was put that he had a strong likelihood of rehabilitation and this should have been reflected in the sentence. I see no error in the primary judge’s assessment of the applicant’s prospects of rehabilitation. His absence of remorse, his inability or failure to appreciate the seriousness of his conduct and his tendency to explosive violence tell against it. There was no error in the primary judge failing to find special circumstances.

79. On the question of the applicant’s subjective circumstances the primary judge said (at 73 and 74):

“There are the reports that he had a dysfunctional upbringing, particularly in terms of the earlier exposure to sexual activity and that he was once sexually abused by his brother, in combination with longstanding ongoing mental health issues, including personality disorder, post-traumatic stress disorder, anxiety and depression. It is not accepted and was frankly conceded that there was no causative link. On the material before this Court it is not at all clear that he suffered anxiety or depression at the time of these offences. Further, a diagnosis such as personality disorder does not have any mitigating impact on consideration of his moral blame.

The post-traumatic stress disorder together with the aspects of his early dysfunction may provide a basis for the submission that he had some maladjustment issues. However, he was at the time of these offences of an age that he had plenty of prior opportunities to seek help during the relationship. Certainly he would have known that what he did was entirely unlawful and immoral.”

80. It is clear that the primary judge did take into account the applicant’s reported troubled upbringing and abuse as a child, his resort to drugs and the resultant impairment in social role performance, and his diagnoses of alcohol dependence, substance dependence, major depressive disorder, post-traumatic stress disorder, intermittent explosive disorder and borderline personality disorder. The primary judge did not reject these matters as irrelevant to the sentencing exercise. Her Honour’s finding that there was no causative link between the applicant’s dysfunctional upbringing in combination with ongoing mental health issues and the offending on the night in question, was not a finding that those matters were irrelevant to the sentencing discretion. The primary judge’s finding that the applicant would certainly have known that what he did was entirely unlawful and immoral was a finding well open to her Honour who had seen the applicant when he gave evidence at the trial.

81. Contrary to the last ground of appeal, the sentence imposed was not manifestly excessive. But for the subjective factors to which the primary judge referred, it could be considered to be lenient. The multiple sexual assaults were violent, sadistic and brutal. They called for condign punishment. The primary judge correctly said that in considering the appropriate penalties for the offences, general and personal deterrence were significant factors, taking into account the severity of the offences and that they took place in a domestic setting. In Patsan v R [2018] NSWCCA 129 Adamson J, with whom Bathurst CJ and Leeming JA agreed:

“[39]     ... While every sentence imposed must have regard to all the circumstances particular to the specific case, individualised justice does not require sentencing judges to ignore patterns of behaviour which are repeated all too frequently before them. The experience of this Court and the statistics relied upon by the Crown indicate that domestic violence offences not infrequently conform to the following pattern, to which the applicant’s conduct in the present case conformed: a male attacks (or kills) a woman with whom he is, or has been, in an intimate relationship when she expresses a wish to leave that relationship. Typically, the male is physically stronger than the female. The male is thus generally in a position to inflict considerable harm to the female and there is no real prospect of spontaneous physical retaliation because of the disparity between their respective strengths.

[40]     In R v Edigarov [2001] NCWCCA 436; (2001) 125 A Crim R 551, Wood CJ at CL (Studdert and Bell JJ agreeing) said at [41]:

[V]iolent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.

[41]     The High Court in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 recognised the role of the criminal law in the context of domestic violence and authorised the giving of significant weight to specific and general deterrence, denunciation and community protection. The High Court referred, at [54], to:

the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community.

[42]     Recently the High Court in R v Kilic (2016) 259 CLR 256; [2016] HCA 48 said at [21] that:

current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of the offence because of change in societal attitudes to domestic violence.

[43]     The approach sanctioned by the High Court in Munda v Western Australia and R v Kilic has frequently been applied by this Court: see, for example: Cherry v R [2017] NSWCCA 150 at [78]–[79]; and Director of Public Prosecutions v Darcy-Shillingsworth [2017] NSWCCA 224 at [83]–[84]. I regard her Honour’s approach in the present case as entirely appropriate and in accordance with the above authorities.”

82. In the last ground of appeal the applicant also contended that the sentence imposed was manifestly excessive by reference to Judicial Information Research System data that it was said would demonstrate that:

“The sentence was approximately 13 per cent firmer than would otherwise have to be the case ...”

83. The data referred to was not provided to the Court. Nor did the applicant elaborate on his interpretation of the data. There are in any event well-known limitations to the value of sentencing statistics (Skocic v R [2014] NSWCCA 225 at [19] per Bellew J; Patsan v R at [45] per Adamson J). There is no ground to interfere with the sentence imposed.

Conclusion and orders

84. For these reasons the applications for leave to appeal against conviction and sentence should be refused. I propose the following order:

1. Order that the applicant’s application for leave to appeal against conviction and sentence be refused.

85. PRICE J: The relevant facts and issues in this appeal are comprehensively covered in White JA’s judgment and I gratefully adopt them.  I agree with his Honour’s reasons and orders proposed. I would add that the primary Judge gave careful and detailed reasons for finding that the applicant was guilty on all counts and for the aggregate sentence that was imposed.  There is no substance in any of the grounds of appeal, whether against conviction or sentence.

85. WILSON J: I agree with White JA, and also with the additional observation of Price J.

Amendments

15 October 2018 - Correction to Coversheet - Counsel

Decision last updated: 15 October 2018