SC v R

[2019] NSWCCA 25

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

SC v R [2019] NSWCCA 25

Hearing dates:

11 February 2019

Decision date:

15 February 2019

Before:

Gleeson JA at [1];
Schmidt J at [2];
Adamson J at [3]

Decision:

(1) Grant leave to appeal against conviction and sentence.
(2) Dismiss the appeal.

Catchwords:

CRIMINAL LAW – application for leave to appeal against conviction – applicant acquitted of counts 1-5 and 9 but convicted of 6-8 – whether verdicts inconsistent – verdicts able to be reconciled on a logical and reasonable basis in accordance with Murray direction

 

CRIMINAL LAW – application for leave to appeal against conviction – whether reference to “pistol” in the evidence could be cured by direction or whether required discharge of jury – contribution made by applicant’s trial counsel

  CRIMINAL LAW – application for leave to appeal against sentence – alleged error in assessment of gravity of offending and alleged manifest excess – no rule that sex offences committed by an offender who is in a relationship with the victim are less serious – objective seriousness raises questions of fact and degree to be assessed by sentencing judge – breach of trust a factor in domestic violence offences

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 28(1)
Crimes Act 1900 (NSW), ss 59, 61I, 61J, 114
Criminal Appeal Act 1912 (NSW), s 8

Cases Cited:

Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Mulato v R [2006] NSWCCA 282
R v Birks (1990) 19 NSWLR 677
R v Markuleski (2001) 52 NSWLR 82
R v Murray (1987) 11 NSWLR 12
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42
The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category:

Principal judgment

Parties:

SC (Applicant)
Regina

Representation:

Counsel:
S Fraser (Applicant)
T Smith (Crown)

  Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2014/84090

 Decision under appeal 

Court or tribunal:

Armidale District Court

Jurisdiction:

Criminal

Date of Decision:

9 September 2016

Before:

Colefax SC DCJ

File Number(s):

2014/84090

Judgment

1. GLEESON JA: I agree with Adamson J.

2. SCHMIDT J: I agree with Adamson J.

3. ADAMSON J: The applicant seeks leave to appeal against both conviction and sentence. As there has been a non-publication order made in the trial which was continued by this Court, I propose to refer to the applicant and the complainant only by those descriptors and to their eldest son as “JC”.

Application for leave to appeal against conviction

4. The application for leave to appeal against conviction, which will be addressed first, relies on the following two grounds:

“1.   A miscarriage of justice has occurred in that the Judge erred in not discharging the jury following the admission of unfairly prejudicial evidence;

2.   The verdict in respect of Count 6 is inconsistent with the not guilty verdicts on Count 1-5 and 9 and cannot otherwise be supported by the evidence at trial.”

5. The first ground is discrete and requires consideration of particular evidence and the conduct of the applicant’s trial counsel with respect to that evidence. In order to address the second ground, it is necessary to review all of the evidence in the Crown case to determine whether it was reasonably open to the jury to differentiate between the counts in respect of which it returned verdicts of guilty and those in respect of which it returned verdicts of not guilty. For this reason the second ground will be considered first, in the context of the evidence in the whole trial.

Ground 2: alleged inconsistent verdicts

Summary of verdicts

6. The applicant was tried by jury on an indictment which charged nine counts. The complainant in each case was the applicant’s then wife. The counts, dates, underlying conduct and jury verdicts are summarised in the table set out below.

Count	Date	Offence/ conduct	Crimes Act 1900 (NSW)	Verdict
1	January 2010	Assault occasioning actual bodily harm (AOABH)/ Punch to the complainant’s face when she was five months’ pregnant.	s 59(1)	Not guilty
2	1 May 2013	Sexual intercourse without consent/ Forcibly held the complainant down and had penile/vaginal intercourse with her.	s 61I	Not guilty
3	7 September 2013	Aggravated sexual intercourse without consent – inflict actual bodily harm/ Forced anal intercourse	s 61J	Not guilty
4	November 2013	AOABH/ Head pushed against laundry wall	s 59(1)	Not guilty
5	January 2014	AOABH/ Pushed the complainant out the rear sliding door and onto a scooter causing a large bruise	s 59(1)	Not guilty
6	24 February 2014	Aggravated sexual intercourse without consent – inflict actual bodily harm/ After the applicant had crashed his ute, he returned home and wanted to have anal intercourse. After the complainant said that she did not want to, he forced his penis into her anus while she struggled. Bleeding from the complainant’s rectum ensued.	s 61J	Guilty
7	5 March 2014	AOABH/ Punched the complainant’s mouth which subsequently required six sutures.	s 59(1)	Guilty
8	19 March 2014	AOABH/ Grabbed the complainant by the ponytail and banged her head into the back of the lounge. Picked her up and threw her at the lounge, hitting her ribs and sternum. Later the applicant grabbed the complainant around the neck with both hands on two occasions which resulted in bruising.	s 59(1)	Guilty
9	19 March 2014	Armed with intent to intimidate/ Grabbed a knife from the knife block and threatened the complainant.	s 114(1)(a)	Not guilty

7. The applicant’s challenge to the verdicts on the basis of inconsistency is relatively confined. In essence, he submitted that there was evidence other than the complainant’s to support the convictions for counts 7 and 8 and no evidence other than the complainant’s in respect of counts 1-5 and 9, which was why he was acquitted. However, he submitted that the inconsistency arose from his conviction for count 6 in respect of which he contended that there was no evidence to support the complainant’s evidence and that he ought, therefore, have been acquitted on that count.

8. In light of the way the applicant has put the ground, it is necessary only to have particular regard to the evidence in support of count 6 to determine whether there is a basis on which the jury could reasonably have distinguished between that count and those on which it returned verdicts of acquittal. The Crown’s evidence on the other counts is included for the purposes of comparison. The applicant gave evidence and denied any wrongdoing. For the purposes of ground 2, it is not necessary to summarise his evidence, which was not accepted by the jury. I have not included the evidence of police officers, except in so far as it is necessary to indicate the dates of the statements made by the complainant to police, which are referred to below.

The evidence in support of the counts

9. The complainant gave background evidence as to the relationship between herself and the applicant, including that they had met at school and were married in 2002 and had three children, who were born in 2006, 2007 and 2010 respectively.

Count 1: punching the complainant’s face in January 2010

The complainant’s evidence

10. The complainant’s evidence was that the first incident of violence occurred in January 2010 when the applicant punched her face when she was five months’ pregnant with their third child. Her evidence was that she had been to the Tamworth Music Festival with the applicant, who had been drinking, and their two children. After they returned home they began to argue in the lounge room, which was close to where the children were sleeping. They moved outside and sat on the slab on which the extension to their house was to be constructed so that the children would not overhear their argument.

11. In the course of the argument, the applicant punched the complainant’s eye with a closed fist. Although she took a photograph of herself at the time, the applicant made her delete it. She stayed at home while it was visible and when her mother asked her what had happened, the complainant gave a false explanation about wrestling with the applicant so as not to incriminate the applicant. She explained that she had done this as she was “probably embarrassed and didn’t want to get [the applicant] into trouble with [the complainant’s mother].”

Count 2: forcibly holding the complainant down and having penile/vaginal intercourse with her without her consent in May 2013

The complainant’s evidence

12. On the complainant’s birthday in May 2013 she and the children went to bed earlier than the applicant did. The complainant fell asleep. When the applicant came to bed, he woke the complainant and intimated that he wanted to have sex. She responded, “No, I don’t want it.” The applicant put his forearm arm across her chest and throat to hold her down and pulled her pyjama shorts to one side and put his penis into her vagina and had intercourse against her will.

Count 3: forced anal intercourse in September 2013

The complainant’s evidence

13. The complainant’s and applicant’s middle son celebrated his birthday in September 2013 at a day-time event at Tingha, a small town near Inverell. That evening the complainant and the applicant went into town for a thirtieth birthday celebration for one of their friends which was held at the Tatts Hotel. The applicant had been drinking. The complainant did not drink as she was driving. Their three children were being looked after by others that night and were not at home.

14. When they were both in bed, the applicant suggested having sex. The complainant’s response was to roll away from him. He suggested that they have anal sex, to which she responded, “No” and rolled onto her side. He then rolled her onto her stomach and held his arm across her shoulder and neck area. The complainant tried to push him off and said “no”. The applicant inserted his penis into the complainant’s anus which caused her to tell him that it hurt. The intercourse was quick, following which the applicant went to the shower and the complainant went to the toilet. She was sore and discovered that she was bleeding from her anus. She also had a shower. When she returned to the bedroom, the applicant said to her, “You’ll sleep here tonight”.

Count 4: pushing the complainant’s head against the laundry wall in November 2013

The complainant’s evidence

15. The applicant used to play touch football on Thursday nights. One Thursday night the children wanted to go and watch their father play touch football. The complainant was happy to accompany them but the applicant did not want them to go. The applicant was annoyed that his family was going to watch him play touch football. After the children had been put in the car, the applicant and the complainant went into the laundry.

16. While they were in the laundry, the applicant grabbed the complainant’s face near her chin and pushed her head into the wall twice. The impact left two indents in the gyprock wall. The force caused the complainant to fall over and hit her left hip on the mop bucket. At some point, JC, their oldest child came into the laundry and said that he was going to ring “Moddy”, the complainant’s father. After this incident, the whole family went to the touch football match.

17. As a result of the complainant’s fall, a bruise developed on her left hip. The complainants’ Pilates instructor, Sally Sweeney, and at least one of the complainant’s friends who attended Pilates, Sarah Campbell, saw the bruise.

JC’s evidence

18. JC said that he recalled an occasion when his parents went into the laundry and closed the laundry door. JC could hear through the closed door that they were arguing but did not know what was happening. In his recorded interview he said:

“And they had a fight in the laundry and he went into the room and I said, ‘If you go in there, stay in there and don’t hit her again, because I’m not happy’ and he said ‘You always stick up for your mother again’ and that’s really all I remember.”

Count 5: pushing the complainant out of the rear sliding door and onto the scooter causing a bruise in late January 2014

The complainant’s evidence

19. The complainant and the applicant were arguing in the central area of the house near the lounge room and kitchen area. The applicant threw the complainant out the door. She landed on a scooter which was lying on its side on the concrete. As a consequence a bruise developed on the side of the complainant’s leg which lasted for a couple of months. The complainant generally kept the bruise hidden but it could be seen when she was wearing her Pilates pants. Ms Campbell and Ms Sweeney saw the bruise, as did a woman named Kim, who also did Pilates with the complainant.

20. The bruise was still detectable when Constable Jo Ireland came to the house in March 2014 “after the final incident” (on 19 March 2014) and photographed it.

The evidence of Ms Sweeney

21. Ms Sweeney gave evidence that she observed a bruise on the complainant’s thigh in early 2014 and recalled that the complainant told her that she had fallen over a scooter or a bicycle.

The evidence of Ms Campbell

22. Ms Campbell recalled that at some time in early 2014 she saw that the complainant had a big bruise on the side of her thigh. Ms Campbell recalled the complainant telling her that she was walking out to the clothes line with a basket of clothes and tripped over and fell.

Count 6: anal sexual intercourse without consent causing actual bodily harm on 24 February 2014

The complainant’s evidence

23. On the morning of 24 February 2014 the applicant had crashed his utility. The complainant picked him up and subsequently arranged a tow truck. The applicant returned home late that evening. The applicant became annoyed when he discovered that the complainant, who had assumed that he would already have eaten, did not have dinner prepared for him. The complainant went to bed before the applicant did.

24. When the applicant came to bed he wanted to have sex. The complainant agreed “’cause it was easier”. They had penile vaginal sex. The applicant then said that he wanted anal sex. The complainant said words to the effect that she did not want to because it hurt. At that time she was lying on her stomach. The applicant put his penis in the complainant’s anus. She resisted him but he continued. The complainant described him as “hard and rough”. The applicant ejaculated quickly and then went and had a shower. The anal intercourse had hurt the complainant who went to the other end of the house where the children slept and went to the toilet. She noticed that there was a significant amount of blood coming from her anus. She had a shower in the children’s bathroom and went to sleep in the children’s room with them.

25. Subsequently, when the complainant went to see Dr Palmer on 5 April 2014, she told him about the injury to her anus which she attributed to the anal intercourse on 24 February 2014 and gave a history of bleeding at the time and subsequently.

26. The complainant gave evidence that anal intercourse between applicant and herself occurred “very rarely” and denied that it had occurred on 18 March 2014, as was put to her by the applicant’s counsel in cross-examination.

Dr Palmer’s evidence

27. Dr Palmer gave evidence that he had seen the complainant again on 5 April 2014, having seen her on 19 March 2014. At that consultation the complainant told him that she had been sexually assaulted. Dr Palmer noted that the anal intercourse had caused “PR [per rectum] bleeding”. Dr Palmer said that the appearance of the anal fissure which he observed in the course of the examination of the complainant on 5 April 2014 was consistent with anal intercourse on 24 February 2014. He explained that a fissure is a superficial tear caused by trauma to the edge of the anus. Dr Palmer was asked whether it could have been caused by difficulty in passing stools. He answered:

“[B]ased on the history and what I knew that the only finding that I could find, it was from penetration.”

28. In cross-examination, Dr Palmer accepted that, because of the difficulty of timing such matters, the appearance of the anal fissure on 5 April 2014 was also consistent with anal intercourse on 18 March 2014, it being the applicant’s case at trial (and the effect of the applicant’s oral evidence) that he had had consensual anal intercourse, which she had initiated between his return from playing football on 18 March 2014 and his departure for a pig-hunting expedition.

Punching the complainant’s mouth on 5 March 2014 (count 7)

The complainant’s evidence

29. On the morning of 5 March 2014 the complainant and the applicant, who had slept separately on the previous night, were in the kitchen preparing the children’s school lunches. The applicant complained that there was no food in the house for the children’s lunches although the complainant considered there to be plenty. She packed the children’s lunches and was about to take them into town. The applicant had gone back to bed in the spare room which was off the hallway which led to the children’s end of the house. The complainant went to that room and told the applicant to say goodbye to the children before they left for school. The applicant jumped up and pushed the complainant. She pushed back, following which the applicant punched her in the lip. The punch split her lip.

30. The applicant told her to get in the car because she was going to have to have stitches. The complainant did not want to go to a hospital or doctor and went and had a shower. The applicant and the complainant took the children to school. On the way the complainant telephoned Dr Palmer’s surgery and made an appointment to see him. The applicant drove the complainant to the surgery where six sutures were put in her lip. The complainant took photographs of her lip before and after it was sutured. These photographs were admitted into evidence. The complainant’s evidence was that she told Dr Palmer that she had split her lip when she slipped over in the bathroom. At the time she gave this history to Dr Palmer the applicant was standing next to her in the surgery. She said in evidence:

“I believed it would save more trouble later on if I didn’t tell the truth.”

JC’s evidence

31. JC gave evidence that he saw the applicant push the complainant up against a wall and punch her in the lip with his knuckle and that she had a “real big ...hole” in her lip as a result. JC was standing in the hallway just outside the room when this occurred.

Dr Palmer’s evidence

32. Dr Palmer examined the complainant on 5 March 2014 when she presented with a laceration to her right lower lip. He repaired it by suturing. The complainant told him that she had slipped at home and hit her face on the floor. He did not recall and had not recorded in his notes for the consultation on 5 March 2014 whether the complainant attended alone or with someone else.

33. Dr Palmer also saw the complainant on the following day, 6 March 2014, because he wanted to check that the healing was appropriate. She told him that the injury to her mouth had been sustained by a direct blow in the form of a punch although she did not identify who had punched her. In cross-examination he agreed that the injury was also consistent with a direct blow by an open palm but said that a significant force would have been required because there was an internal laceration, probably from a tooth. He recalled that he saw the complainant alone on 6 March 2014 because they spoke of private matters. He also saw the complainant on 12 March 2014 to have the sutures removed.

Ms Sweeney’s evidence

34. Ms Sweeney’s evidence was that Dr Palmer’s surgery was visible from the Pilates studio. She had to go to the reception area to speak with someone from the medical practice and encountered the complainant in reception on 5 March 2014. The complainant had her head bowed. Ms Sweeney greeted the complainant who looked up briefly before looking down again. Subsequently, Ms Sweeney sent the complainant a text asking her how she was. Later that day, the complainant rang Ms Sweeney and told her that her husband had hit her in the face. Ms Sweeney said that she was “positive” that the applicant was in the reception area with the complainant when she had seen her.

The complainant’s mother’s evidence

35. The complainant’s mother gave evidence that one of the complainant’s sisters had called her on 5 March 2014 and told her that the complainant had split her lip.

Assaulting the complainant (count 8) and grabbing a knife and threatening her (count 9) on 19 March 2014

The complainant’s evidence

36. The complainant gave evidence that on 19 March 2014 the applicant was sleeping on the lounge when she had got up to take the two older children to school (the youngest was staying with her parents who lived in the neighbouring property). The applicant had been pig-hunting with friends the night before. After the complainant had dropped the two children at school in the utility she noticed in the front of the utility a mobile phone which had a smashed screen. When the complainant turned on the phone the name “Rach” appeared on the screen. The complainant recognised the name as belonging to a woman whom the applicant had been seeing for about four weeks. The complainant returned home and woke the applicant, who was still asleep on the lounge, threw the phone at him and told him to pack his things and leave. They argued and the applicant walked outside.

37. The complainant went outside and spoke with two workers, Cody Hague and Robbie Porritt, whom she and the applicant had engaged to construct dog kennels not far from the house. She questioned them about the complainant’s relationship with Rachel. The complainant’s evidence was that when she returned inside, the applicant grabbed her pony tail and threw her against the lounge and used her ponytail to bang her head against the back of the lounge a couple of times. She grabbed his groin. He then picked her up and threw her at the lounge which caused her sternum and ribs to hit the back of the lounge.

38. The complainant followed the applicant into the kitchen where he grabbed a knife out of the knife block and told her that he was going to use it on her to cut and quarter her. They went into the bedroom at which point the applicant said, “Fine, I’ll pack,” to which the complainant responded, “Good”. The applicant then turned around and grabbed the complainant with both hands around the throat. She grabbed his shirt and he released her. She then picked up a cordless phone and returned to the kitchen. He knocked the phone out of her hands which caused the batteries to fall out of the handset. The applicant again put his hands around her throat. The complainant’s next recollection was of hearing the voices of the applicant and Mr Hague. She was dry-retching.

39. The complainant rang her father, who did not answer, and then rang her sister. Subsequently, the complainant’s father, mother and brother-in-law arrived at which point the complainant asked her brother-in-law to ring the school to ask them not to let the applicant pick the children up from school. The police then arrived at the property and the complainant was interviewed and made a statement.

The evidence of Cody Hague

40. Cody Hague arrived at the property where the complainant and the applicant lived at 8am on 19 March 2014 with Robbie Porritt to build dog kennels. He observed the complainant driving up the driveway towards the house and later heard an argument. Mr Hague and Mr Porritt were about 70-80m away from the house. Some time later, the complainant ran out of the house towards them and asked them who the applicant had been “fucking”. Mr Hague told her that he knew nothing about it. Shortly afterwards, the complainant returned to the house. Mr Hague heard “full on yelling” and decided to make sure that things were all right inside the house because he was concerned. He jogged over to the house. When he arrived the applicant told Mr Hague that it was “none of [his] business”.

41. Mr Hague saw the complainant lying on her side in the pantry, gasping for air. Her face was very red and she was struggling to breathe. Mr Hague asked the complainant whether she was all right. She did not answer but “just cried”. The applicant told Mr Hague to help the complainant. The applicant then started to scream, “where’s my phone?” The complainant said to the applicant, “Leave me alone, don’t touch me.” Mr Hague followed the applicant and watched him get into his utility. Later the complainant got up, went outside and sat at a table on the verandah. Mr Hague was interviewed by police and gave a statement to them on 19 March 2014. In cross-examination he denied speaking to the complainant about the contents of his statement.

The evidence of Robert Porritt

42. Mr Porritt’s evidence was that he saw the complainant return from dropping the children at school and heard an argument inside the house after her return. Mr Porritt recognised the voices as being the applicant’s and the complainant’s. When Mr Hague went inside the house, Mr Porritt stayed outside. When he saw the complainant again, he noticed that she had been crying.

The complainant’s mother’s evidence

43. The complainant’s mother gave evidence that her husband received a call from one of the complainant’s sisters on the morning of 19 March 2014 as a result of which the couple drove to the complainant’s home. They encountered one of their sons-in-law (the man whom JC referred to as his uncle) in the driveway. He had parked his car in front of the applicant’s vehicle with a view to preventing the applicant from leaving. The applicant drove around this car and left the property.

44. When they arrived at the home, the complainant was very distressed and was on the phone. The complainant’s mother noticed that her hair was pulled out of its usual bun and she had red marks on her neck which were starting to bruise. The complainant told her mother that she had discovered the applicant’s phone and told him to pack his bags and leave. He had grabbed her and thrown her across the back of the lounge. The complainant’s mother saw police interviewing her daughter. She subsequently took the complainant to Dr Palmer for examination and x-rays.

The evidence of the complainant’s sister

45. One of the complainant’s sisters gave evidence that on 19 March 2014 the complainant had phoned her at 8.35am. The complainant was “quite upset” and said: “Get Dad, get Dad, I need Dad.”

The evidence of the complainant’s brother-in-law

46. The complainant’s brother-in-law gave evidence of the encounter in the driveway with the applicant on 19 March 2014. He said that when he arrived at the property, the complainant was crying and lying on her side outside their bedroom door. He said that she was “really terrified” and her face was bruised. These observations were made from a distance of 4-6m.

Dr Palmer’s evidence

47. Dr Palmer recorded a history from the complainant when she presented on 19 March 2014 that she had been thrown over a couch, punched and held by the throat. His examination of the complainant revealed bruising over the right lower tenth rib region. He also noted tenderness over the right sternocostal region below the collar bone and bruising on the right side of the neck.

Statements made by the complainant to police

48. The complainant was asked why she did not go to the police after the conduct in count 1. Her response was:

“There was a few reasons. We had - when it started then we had two kids and I was pregnant with our third. We had debt, we had a business, we had a house, and then it was - got to the point where I was probably too scared to as well. To start with, I thought it would just get better and then obviously on the last occasion it came to a point where it wasn't going to get any better and I guess I was a bit embarrassed about it as well, yeah.”

The first statement on 19 March 2014

49. On 19 March 2014, the complainant gave her first statement to police (the first statement). There was a number of police officers, of whom only one was female. After she had given the statement she went to see her general practitioner, Dr Rob Palmer, who had been her doctor since she had her first son, JC, in 2006.

50. The applicant was arrested on 19 March 2014 and charged. He was refused bail. On 20 March 2014, the complainant told her children that the applicant had hurt her the previous day and that she had called police.

51. The complainant’s evidence was that, after she made the first statement, she started making notes which she subsequently gave to Senior Constable Scott Wilcox, the detective in charge of the investigation.

The second statement on 2 April 2014

52. The complainant gave evidence that when she gave the first statement to police she was very emotional and not very thorough. She was encouraged by police to return to the station to give a more detailed and comprehensive statement than she had given on the first occasion.

The third statement on 4 April 2014

53. The complainant gave evidence that she made a third statement on 4 April 2014. This was the first occasion on which her statement had been taken by a female police officer, Detective Ireland, and no male police officer had been present. Detective Ireland was the only female police officer at the Inverell Station. This was the first occasion on which the complainant had told the police of the conduct in count 1 or the conduct in counts 2 and 6, both of which involved sexual assaults. Neither of the earlier statements had included allegations of sexual assault.

The summing up

54. The trial judge gave a so-called Murray direction before turning to the question trails for each count, which are not the subject of challenge. In R v Murray (1987) 11 NSWLR 12 Lee J said at 19E:

“In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness’ evidence is unreliable.”

55. R v Murray has been cited with approval by the High Court, including in Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42 at [21]. The trial judge’s direction, which was in accordance with the Criminal Trials Bench Book, was as follows:

“Wherever the Crown seeks, in any case, seeks to establish the guilt of an accused person with a case based largely or exclusively on a single witness, every jury is told that they should exercise caution and that is what I am going to tell you now. You must exercise caution before you convict [the applicant] because the Crown case, as I said, largely depends on you accepting the reliability of the evidence of a single witness, [the complainant]. That being so, unless you are satisfied beyond reasonable doubt that she is both an honest and an accurate witness in the account she has given you, you cannot find the accused guilty of any count on the indictment.

Before you can convict [the applicant], you should examine the evidence of [the complainant] very carefully in order to satisfy yourselves that you can act safely on that evidence to the high standard required in a criminal trial. That caution, members of the jury, is not based on any personal view that I have of [the complainant]. I told you just a few moments ago that I would not express my personal opinion and I am not. But in any criminal trial, where the Crown case relies solely or substantially upon the evidence of a single witness, the jury must always approach that evidence with particular caution because of the onus of proof and the standard of proof placed on the Crown.

Please do not misunderstand me. I am not suggesting to you that you are not entitled to convict [the applicant] on the evidence of [the complainant]. Clearly, you are entitled to do so, but only after you have carefully examined the evidence and satisfied yourself that it is reliable beyond reasonable doubt.

In considering the complainant's evidence, and whether it does satisfy you of the accused's guilt, you should, of course, look to see if it is supported by other evidence.”

56. In his Honour’s summing up, the trial judge referred to the evidence in support of each count. In relation to counts 1-5, the trial judge referred to the complainant’s evidence and the applicant’s evidence, their evidence being the only relevant evidence.

57. In relation to count 6, the trial judge summarised the evidence of the complainant and of the applicant. In addition, the trial judge referred to the evidence of Dr Palmer in the following terms:

“In the Crown's case, you have been reminded of Dr Palmer's evidence that, on 5 April, he examined her and saw a healing anal fissure, which could have been caused either by the trauma of penile penetration or from difficulty in passing a stool, and he said the trauma was likely to have been effected a number of weeks before the examination.

. . .

There was no evidence from Dr Palmer as to whether the healing anal fissure was consistent with or inconsistent with lack of consent. Nothing was asked of the doctor one way or the other on that topic.”

58. In relation to count 7, the trial judge summarised the evidence of the complainant and the applicant. His Honour continued:

“There is, unlike some of the other counts, some independent evidence in relation to this.

First, there is Dr Palmer, who says the blow is consistent with a fist. He also says it is consistent with a very forceful shove with the open palm of the hand.

In addition to Dr Palmer's medical opinion about the cause or potential cause of the blow, we do have a complaint. A day after he first saw her, [the complainant] told the doctor that it had been as a result of a punch. She did not nominate her husband, but she did say the mechanism was not as she said the day before, not falling over, but she had been punched. In a telephone conversation on that day after the incident with Sarah [sic, Sally] Sweeney, she repeated that allegation, "[the applicant] hit me in the face."

The third piece of corroborative evidence is JC . . . His evidence was unambiguous. In both the record of interview when he was seven and in his evidence before you, he said it was a punch with a knuckle.”

59. In relation to count 8, the trial judge summarised the evidence of the complainant and the applicant and referred to the other evidence which supported the complainant’s version as follows:

“There are some witnesses to some aspects of what happened that day in relation to count 8. Cody and Rob heard the argument from across the paddock, so it was pretty vigorous. After [the complainant] returned to the house, each of them could still here [sic, hear] what was going on. Whatever it was that they heard, Cody was so concerned that he jogged back to the house and, when he got there, he said he saw [the complainant] laying on the pantry floor, gasping for air with marks on her and that [the applicant] said to her, "Go help her." [The applicant] said that Cody was lying when he said he saw her laying on the floor. You will also remember, at another point, [the applicant] said that he thought she was having a panic attack.

Immediately after this incident, whatever occurred, there was immediate complaint. The complainant rang her sister and said, "He's got me." She rang the Inverell Police using their direct line. She was seen quite soon afterwards by her brother in law and her mother, both of whom noticed that she was highly distressed. Highly distressed is equally consistent, you might think, with the charged argument about infidelity, but the mother also noticed that her hair had been pulled out and that she had bruises.

Quite soon afterwards, [the complainant] complained to the police, who quickly turned up at the scene, following that phone call. Later that day, she was examined by Dr Palmer. She had given him a version that she had been thrown over a couch, punched, and held by the throat. He found bruising on her ribs, on her collarbone, and found bruising on the right side of her neck.”

60. In relation to count 9, the trial judge summarised the evidence of the complainant and the applicant. His Honour did not refer to any supporting evidence as there was none. The trial judge reminded the jury that they could bring in verdicts of guilty on some counts and not guilty on others “if there is a logical reason for it.”

Consideration of ground 2

61. The applicant submitted that there was an illogicality, or inconsistency between the jury’s verdicts. Mr Fraser, who appeared on behalf of the applicant in this Court, contended that there was no evidence to support the complainant’s version of the conduct for count 6 and therefore no reason for the jury to distinguish between count 6 on the one hand and counts 1-5 on the other. He argued that, in order to be satisfied that the applicant was guilty of count 6 the jury had to be satisfied that the complainant was a “reliable and accurate witness” but that it was plain when one had regard to its verdicts on counts 1-5, the jury did not find her to be such a witness.

62. Mr Fraser also submitted that it was illogical of the jury to return a verdict of guilty for count 8 and a verdict of not guilty for count 9 since the conduct on 19 March 2014 comprised a “single narrative” with the consequence that it was not open to the jury rationally to distinguish between the verdicts for these two counts. He argued that the different verdicts on these grounds showed that the jury had doubts about the complainant’s evidence.

63. He submitted that if ground 2 were made out the appropriate orders for this Court would be to quash the conviction on count 6 and enter an acquittal for that count.

64. When the evidence in support of the counts for which the verdicts of not guilty were returned is compared with the evidence in support of the counts for which the verdicts of guilty were returned there is an obvious distinction, which the jury appears to have consistently drawn. For counts 1-3 and 9, the only evidence in support of the count was that of the complainant. For count 4, JC heard the argument between his parents through the laundry door but could not see what was happening inside. Although for count 5, Ms Sweeney and Ms Campbell gave evidence of seeing the large bruise on the complainant’s thigh, the complainant gave explanations for her injuries to each of them which did not incriminate the applicant and which were inconsistent with her evidence at trial. For the remaining counts, the evidence of the complainant was supported by the other evidence set out above.

65. The applicant accepted that there was a distinction between the evidentiary support for counts 1-5 and 9 on the one hand and the evidentiary support for counts 7 and 8 on the other. However, the applicant contended that count 6 should have fallen in the first category and should, accordingly, have resulted in a verdict of not guilty. It is, accordingly, necessary to examine the evidence in support of count 6 in a little more detail.

66. The complainant’s evidence was that her anus bled immediately after non-consensual anal intercourse with the applicant on 24 February 2014 and that the pain and the bleeding continued for some time. The healing anal fissure was observed by Dr Palmer on 5 April 2014 who considered it to be consistent with the history of anal intercourse on 24 February 2014. The applicant’s case was based on his evidence that the complainant had initiated anal intercourse with him on 18 March 2014 and Dr Palmer’s opinion that the appearance of the fissure was consistent with anal intercourse on 18 March 2014 as well as on 25 February 2014. The jury can be taken to have rejected the applicant’s evidence generally and therefore not accepted his evidence of consensual anal intercourse on 18 March 2014. The jury was entitled to rely on Dr Palmer’s evidence as corroborating the complainant’s version, particularly as there was no evidence that she had previously suffered an anal fissure as a result of a stool passing. In addition she made a report of the conduct comprised by count 6 in her third statement to police the day before she saw Dr Palmer and only ever gave one explanation for the anal fissure to Dr Palmer.

61. The matters referred to above could rationally be regarded as supporting the complainant’s version and providing a proper basis, together with her evidence, for the jury to be satisfied beyond reasonable doubt of the applicant’s guilt on count 6.

62. As referred to above, it was submitted on behalf of the applicant that the jury did not find the complainant to be a “reliable and accurate witness” on the majority of counts. No such conclusion can be drawn. A verdict of “not guilty” does not necessarily imply any “want of confidence” in the complainant but “may simply reflect a cautious approach to the discharge of a heavy responsibility”: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (Gleeson CJ, Hayne and Callinan JJ). See also R v Markuleski (2001) 52 NSWLR 82 at [219]-[221].

63. I am persuaded by the Crown’s submissions, together with a consideration of the evidence at the trial that there is no inconsistency between the jury’s verdicts of not guilty in respect of counts 1-5 and 9 on the one hand and its verdicts of guilty in respect of counts 6, 7, and 8 on the other. To the contrary, the verdicts reflect the availability of supporting evidence in counts 6, 7 and 8 and its absence in respect of the other counts. The jury’s verdicts are consistent with the approach which was the subject of the Murray direction given by the trial judge in the summing up set out above.

64. Ground 2 has not been made out.

Ground 1: alleged miscarriage of justice occasioned by the refusal to discharge the jury

71. Mr Fraser contended that if ground 1 were upheld, then this Court ought quash the convictions in respect of counts 6, 7 and 8 and remit them for trial pursuant to s 8(1) of the Criminal Appeal Act 1912 (NSW).

72. Ground 1 relates to evidence given by JC, the complainant’s and applicant’s eldest son. As JC was a minor, his interview with police on 15 April 2014 was filmed and tendered as his evidence in chief, together with a transcript which was distributed to the jury to be used as an aide memoire which was not to be substituted for the evidence on the DVD.

73. After the DVD was played, the applicant’s trial counsel, in the absence of the jury, informed the trial judge that both he and his junior had heard the word “pistol” used in answer to question 393. The relevant portion of the transcript was:

“Q393   Ah hmm. So can you tell me what’s happened to dad?

A393   Um he was arrested on Wednesday. My uncle told me that he had . . . and that’s all.”

74. The applicant’s trial counsel foreshadowed an application to discharge the jury on the basis that the jury may have heard the word “pistol” in the answer to Q393. The trial judge asked the applicant’s trial counsel whether there was any impediment to the cross-examination of JC proceeding, to which the applicant’s counsel indicated that there was no impediment to his cross-examining JC but that he would make an application for discharge after JC had been cross-examined.

75. During JC’s cross-examination, the following exchanges occurred:

“Q. On that night, did your mum talk to you about what happened on the Wednesday?

A. She briefly said that he was arrested because he did something wrong but I wasn't exactly sure what happened until my uncle told me.

Q. So are you saying that your uncle is the one who told you about what happened on the Wednesday?

A. He told me that [the applicant] had a pistol but Mum told me exactly what happened. She just didn't tell me, like, that he had a pistol.”

[Emphasis added.]

76. JC was asked about seeing his mother writing notes. In his interview, JC was asked about notes that he himself had made. The cross-examination continued as follows:

“Q. Where did you get the idea to write the notes that Jo, the lady who was interviewing you, was reading to you? Where did you get that idea?

A. Well, I realised that he was arrested and I just thought maybe it would help if I had my opinion on what he did as well, like, I writ - I wrote down what he did as well.

Q. Did you do that after you'd spoken to your mum?

A. No.

Q. Did you do that after you'd spoken to your uncle?

A. Yes. But I didn’t put anything that he told me into it. Because I didn’t know if it was the truth or not.”

[Emphasis added.]

77. JC’s evidence was that on Wednesday [19 March 2014] he was met after school and taken to his grandparents’ property, which was next to his parents’ property. This was the day on which the applicant was arrested. There had been a plan to go to the circus that night with JC’s cousins but JC did not want to go so he stayed at his grandparents’ home with his uncle (who was married to the complainant’s sister) and the complainant.

78. The applicant’s trial counsel argued that the jury should be discharged because there were three references to a pistol in JC’s recorded interview and cross-examination. He described the evidence as highly prejudicial and without probative value. He submitted that the reference to firearms was a topic which would “raise grave concerns in the minds of ordinary members of the community”. The trial judge refused the application for discharge and gave the following direction:

“Members of the jury, just before the next Crown witness is called, I've got to give you an important direction. I'd be grateful if you could follow what I'm saying. When JC was giving evidence this afternoon, he was being asked some questions about what happened on the night that he went to Pop and Nan's place, the night of the arrest. You'll remember that there was reference to some of the cousins going to the circus, and he wasn’t sure, but he didn’t think his mother went to the circus. But what he was clear about was that he'd had a conversation with his uncle.

JC told you that his uncle had told him that [the applicant] had a pistol. Members of the jury, you will notice that on the counts in the indictment, there is no allegation of any criminality about any firearms offences. You will know, and if you don’t know, I will fill in the gap, that many members of our community are entitled to hold all sorts of firearms, including pistols, quite lawfully. So you won't speculate adversely to [the applicant] about that hearsay evidence, and that’s all it was. It's not evidence that [the applicant] actually had a pistol at all. It's what the uncle said to the boy. But as I say, many people in our community are perfectly entitled to hold firearms with licenses including pistols. So don’t speculate adversely to the accused on that topic. Your next witness, Mr Crown.”

79. No criticism of this direction was made by the applicant’s trial counsel or by his counsel on appeal. However, Mr Fraser submitted that no direction would have been sufficient to cure the prejudice created by the reference to “pistol” in JC’s evidence in the context of the applicant’s arrest.

80. It is significant to note that, after the jury was empanelled but before the Crown opening, there was a discussion about what evidence the Crown would lead. The Crown informed the trial judge that the issue about the pistol had been resolved and that the Crown would not lead any evidence of a pistol. The applicant and his legal representatives had access to the recorded interview of JC and the transcript as part of the brief of evidence and did not object to the recorded interview being played to the jury or the transcript being distributed to them. Moreover, two out of the three references to a pistol were elicited by the applicant’s trial counsel in cross-examination of JC. It would have been open to the applicant’s trial counsel to raise the issue in such a way that JC would not have referred to the pistol. However, he did not do so.

81. It may be accepted that, as a general proposition, evidence that an accused was arrested in connection with a pistol would be prejudicial to the accused. However, the question of prejudice is to be assessed in context. The relevant context is summarised below.

82. The applicant’s trial was conducted in the rural centre of Armidale. JC had given evidence in the recorded interview (which stood as his evidence in chief) that his father “always” went pig-chasing, a night-time activity which the jury may have inferred would involve the use of firearms. The complainant had given evidence that the applicant would hunt pigs with a view to killing them. Her evidence was to the effect that she and the complainant lived on a rural property near Inverell. She also referred to the presence of a “gun safe” in the kitchen. The Crown asked her, without objection, whether the gun safe contained rifles for which “you” (the applicant and/or the complainant) had licences. She answered in the affirmative. The “uncle” to whom JC referred in the evidence set out above was called as a witness in the Crown case. He did not give any evidence of a pistol.

83. The applicant is bound by the way in which his counsel conducted the trial on his behalf: Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55 at [77] (Hayne J), citing R v Birks (1990) 19 NSWLR 677 at 683 (Gleeson CJ). This is not an inflexible rule and must yield to the need to avoid and correct a miscarriage of justice. However, even leaving aside the part the applicant’s trial counsel played in allowing the first reference to “pistol” to be heard by the jury and, in the presence of the jury, asking the questions of JC which elicited the two subsequent references to a pistol, it is difficult to see how there was any actual prejudice created. The jury knew that the applicant used guns and had a gun safe. It also knew, as a result of the trial judge’s direction, that there was no charge on the indictment relating to firearms. Further, the jury could readily infer from JC’s evidence that JC himself did not believe the explanation given by his uncle as to why the applicant had been arrested. The trial judge’s direction was careful, detailed and given at a time when it was likely to have the greatest effect, namely, immediately after his Honour had rejected the application for discharge.

84. It is well-established that the trial judge ought be allowed some leeway in the discretionary judgment whether a particular matter ought lead to a discharge of the jury or whether any prejudice to the accused can be cured by a direction: Crofts v The Queen (1996) 186 CLR 427 at 440-441 (Toohey, Gaudron, Gummow and Kirby JJ); [1996] HCA 22. The question for this Court is whether the result of the trial judge’s refusal to discharge the jury gave rise to the risk of a substantial miscarriage of justice.

85. In my view, the trial judge’s direction would have been effective to overcome the potential prejudice, if any, arising from the suggestion in the evidence that the applicant had been arrested in connection with a pistol. This Court is entitled to assume that the jury understood and complied with the trial judge’s direction: The Queen v Glennon (1992) 173 CLR 592 at 603 (Mason CJ and Toohey J); [1992] HCA 16. I am not satisfied that there was any miscarriage of justice occasioned by the three references to a pistol. This ground has not been made out.

Application for leave to appeal against sentence

86. The applicant seeks leave to appeal against sentence on two grounds: that the judge erred in his assessment of the gravity of the offending in count 6 (ground 3) and that the sentence is manifestly excessive (ground 4).

The proceedings on sentence

87. The sentence hearing took place over two days, 22 September 2016 and 12 December 2016. On the first day of the sentence hearing, the complainant read her victim impact statement. It included the following descriptions of the effect of the offending on the complainant and her children:

“. . . Two and a half years ago on 19 March 2014 my life changed as did the life of my three children . . .  Afterwards it didn't get worse and it didn't get better straight away but it changed.  We couldn't stay at our house as I didn't feel safe.  I was on antidepressants and started taking sleeping tablets after weeks of no sleep and nightmares.  I had never taken either of these before.  It was a massive effort for me to get out of bed and every morning I'd be physically sick with worry and fear.  I didn't want to leave the house and if I did I couldn't go anywhere alone.  I cannot be touched around the neck or grabbed even if it's just when the kids are playing because of the flashbacks I get and I am now claustrophobic.

[JC] told me one day that he can look after me now and began and continues to think of himself as the man of the house.  He was 7 years old.  He became extremely attached to me and didn't like not being with me.  To this day [JC] always needs to know where I am, what I'm doing and when I'll be home.  If I'm late he panics, gets really upset and can take hours to calm down.  He's then anxious for days after.  He's the bravest ten year old boy that I know.  He suffered from terrible nightmares and would take hours to settle.  No child should have to live with what the three boys did but add to that being called as a witness against your father, that takes courage.

. . .

The emotional abuse for me was far more overpowering than the physical.  I was made to feel worthless, I was isolated from my family and friends, and manipulated to feel like I was the one in the wrong.  He never said sorry for anything he said or did and he always told us that we deserved it because of the things he said or did I've lost a lot of my self-confidence and faith in people.  I used to be a person who saw the good in people, now I find it hard to trust them.  I used to love meeting new people and having conversations but find that my lack of self-confidence hinders this.  This has also affected my capacity to work as I don't feel confident in my ability to work effectively and productively.

It has taken a long time for me to realise that not all relationships are like what [the applicant] and I had.  It has taken even longer to realise that I deserve to be loved and respected and that being treated the way I was treated was not normal.  If someone tells me something nice my immediate reaction is to think that they are saying it because they need me to do something for them not because they are genuinely complimenting me.  I hate being called a victim but what I hate more is that my kids were victims and it was not by choice or any decision that they made.  I like to say that instead of victims we are survivors because even after everything we went through we still got up and wanted to be better than that. 

. . .

To the Police and the DPP, thank you does not feel like enough.  Words cannot express how grateful I am to know that you fought so hard for four people to show us that what we went through was not our fault and that we did not deserve what happened.  I do not ever expect [the applicant] to say sorry or admit that what he did was his fault or that it was the wrong thing to do.  He never did, regardless of the circumstances.  It was always someone else's fault and therefore he was never sorry.  This time 12 people decided that what he did was wrong.  It wasn't my fault, it wasn't the kids' fault, it was his fault and as much as I feel relief for his being found guilty, it will never change the fact that any of this happened."

88. The sentencing judge (who was also the trial judge) was entitled to receive and consider the victim impact statement before his Honour sentenced the applicant: Crimes (Sentencing Procedure) Act 1999 (NSW), s 28(1).

89. The Crown tendered the applicant’s criminal and custodial history. The applicant gave evidence of his subjective circumstances, including his childhood and contact with his parents, his work history and his businesses. He also gave evidence of his marriage to the complainant, their children, the subsequent break-up and his relationship with Rachel. The sentence hearing was adjourned part-heard. On its resumption, the applicant continued to give evidence.

90. The applicant’s trial counsel contended that the applicant ought be sentenced on the basis that counts 6, 7, and 8 were isolated acts. He also submitted that there were strong prospects of rehabilitation and that this ought be taken into account in mitigation. He argued that there were special circumstances which warranted a significant departure from the statutory ratio for two reasons: first, that it was the applicant’s first time in custody; and secondly, accumulation.

91. The Crown submitted that the gravity of the offending was not mitigated by reason of its having occurred in the context of a pre-existing relationship. The Crown submitted that, for count 6, the physical hurt inflicted, the form of the forced intercourse and “the circumstances of humiliation” were significant and that the offence lay in the middle of the mid-range of objective seriousness. The Crown submitted that counts 7 and 8 were aggravated by having been committed at home and in the presence of a child. The Crown relied on the victim impact statement to support the submission that the applicant had a “complete lack of remorse”. The Crown described the victim impact statement as “almost a classic statement of the impact domestic violence has”. Both the Crown and the applicant relied on written submissions, to which they spoke at the sentence hearing.

The sentencing judgment

92. The sentencing judge imposed an aggregate sentence of 10 years with a non-parole period of 7 years and 6 months. The indicative sentences are summarised in the following table.

Count/ date	Offence/ provision of Crimes Act 1900 (NSW)	Maximum penalty/ Standard Non-parole Period, if applicable	Indicative sentence/ parole period, if applicable
6/ 24.2.14	Aggravated sexual intercourse without consent/ s 61J	20 years’ imprisonment/ 10 years’ imprisonment	8 years/ 6 years
7/ 5.3.14	Assault occasioning actual bodily harm/ s 59(1)	5 years’ imprisonment	2 years 6 months
8/ 19.3.14	Assault occasioning actual bodily harm/ s 59(1)	5 years’ imprisonment	3 years 6 months

93. In the sentencing judgment, the sentencing judge said that he was impressed with the reliability of the complainant’s evidence but found the applicant to be “a most unreliable witness” who was a “skilled and practised liar”. His Honour made findings as to counts 6, 7 and 8 which reflected the complainant’s evidence summarised above.

94. In respect of count 6, the sentencing judge said:

“The degree of violence used, the physical hurt inflicted, the form of the forced intercourse, the abuse of trust which should exist between a husband and wife, and the circumstances of humiliation are significant. The offence is aggravated by the fact that it occurred in the victim’s home.

In my opinion, this offence is slightly above the middle of the range of objective seriousness for an offence of its type.”

95. His Honour found that count 7 was aggravated by the fact that it occurred in the victim’s home and in the presence of one of her children, JC. His Honour assessed its objective seriousness as slightly below a mid-range offence.

96. The sentencing judge also found that count 8 was aggravated by the fact that it was committed in the victim’s home. He found it “slightly above a mid-range offence”.

97. His Honour noted that the victim impact statement was not confined to the jury’s findings of guilt and that therefore “considerable caution” was to be exercised in taking it into account when sentencing the applicant. However, his Honour said that the three incidents (counts 6, 7 and 8) “must have been deeply terrifying for her”.

98. The sentencing judge recounted the applicant’s subjective circumstances and recorded that his parents had separated when he was very young and he was brought up by his mother, who frequently moved around New South Wales and Queensland. The applicant left school in Year 11 and married the complainant when he was 19 and she was 18. He was a hard-working man and had been a successful builder. His Honour referred to the applicant’s criminal history (for which a bond and a small fine had been imposed) and considered that the applicant’s record did not disentitle him from leniency.

95. The sentencing judge considered the offences of which the applicant to have been convicted to be highly suggestive that he has “anger management issues” and noted that the applicant did not accept that he had such issues and had not sought treatment. His Honour was not satisfied that counts 6, 7 and 8 were isolated acts and noted the applicant’s failure to express remorse. His Honour considered that the applicant continued to minimise his offending and sought to displace responsibility to the complainant. The sentencing judge referred to his apparent lack of community support and found his prospects of rehabilitation to be guarded. His Honour refused to find special circumstances. His Honour did not find that the difficulties the applicant had encountered while on bail amounted to extra-curial punishment.

Ground 3: alleged error in the assessment of the gravity of count 6

100. Mr Fraser, in his written submissions in support of this ground, extracted passages from decisions of this Court which could be read as implying that domestic violence was of itself not as serious as a sexual assault committed by a stranger. He submitted, in writing:

“Whilst anal intercourse might in some circumstances suggest a more serious offence, in the circumstances of the relationship between the complainant and the appellant, in which such intercourse had occurred with consent previously, that would not be so in the present case.”

101. In oral argument, Mr Fraser appeared to eschew reliance on those decisions in support of any such implication. It is not necessary to repeat those passages in these reasons since the proposition that domestic violence, of itself, is less serious than sexual assault by a stranger only has to be stated to be rejected.

102. Just as it is inappropriate to seek to envisage the “worst” case for the purposes of taking into account the guidepost of a maximum penalty (Veen v The Queen (No 2) (1988) 164 CLR 465 at 478 (Mason CJ, Brennan, Dawson and Toohey JJ); [1988] HCA 14), comparisons between cases for the purposes of deciding whether a category of particular conduct is worse than another category by reference to a generic description is an arid exercise which is inimical to the process of sentencing.

103. Section 61J of the Crimes Act 1900 (NSW) covers offences committed against victims who are in a pre-existing relationship with the offender as well as offences where the victim and offender have had no contact at all prior to the offence. Generalisations about seriousness cannot be made by reference to this factor alone.

104. Offences committed in the context of a pre-existing relationship where the offender and victim live under the same roof, as in the present case, are commonly referred to as “domestic violence”. Such offences may, as in the present case, involve a substantial breach of trust. The victim may sleep in the same bed as the offender and be in a particularly vulnerable position, if assaulted in that context. The victim may lie about the conduct to children, general practitioners, friends and relatives who observe visible injuries either out of fear of the offender or hope that the conduct will not be repeated. The offending conduct may lead to the break-up of the relationship, the loss of the home and the disruption of the lives not only of the victim but also of any children who live in the household. A victim in that situation may also fear that if she (or he) tries to leave the relationship as a result of the assaults, she (or he) will be killed by the offender, this being a not uncommon scenario in murder trials heard in the Common Law Division of this Court.

105. Offences committed by strangers, for example, when the victim is walking home from the train station or bus stop, may lead the victim to mistrust every stranger, and become scared of going out and fearful of the world in general.

106. These two scenarios are sufficient to indicate that whether there is a pre-existing relationship between the offender and the victim is merely one of many factors to be taken into account in determining the circumstances of the offending conduct to assess its objective seriousness.

107. The assessment of objective seriousness is pre-eminently a matter for the sentencing judge: Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ) and [46] (Simpson J). This is particularly the case where the sentencing judge has also been the trial judge and has, as in the present case, heard not only the complainant’s evidence but the evidence of her family and her friends and those whom she encountered at the time (including Mr Hague) as well as the applicant’s evidence.

108. Mr Fraser contended that it was significant that the complainant had consented to penile-vaginal intercourse shortly before the applicant had anal intercourse with her without her consent. I reject this submission. His Honour accepted the complainant’s evidence that when the applicant had proposed anal intercourse she had said “No”. She had told him that she did not want to engage in anal intercourse because it would hurt her. When, notwithstanding her explicit refusal to give consent, he began to have anal intercourse with her, she resisted, trying to avoid penetration. The more she struggled the more he forced himself and the “rougher” he became with her, causing her pain, bleeding and injury. His Honour noted that the applicant was a strong man who not only worked a farm but was also a builder and a rugby league player. In this context I fail to see how the complainant’s consent to the earlier penile/vaginal intercourse could be taken into account in mitigation of the applicant’s conduct in count 6.

109. In my view, the assessment by his Honour that the offending in count 6 was “above the mid-range” was open to his Honour, for the reasons given in the sentencing judgment. There is no appeal against the indicative sentence as such since it is not a sentence that has been imposed. It is permissible, however, to consider the indicative sentence to determine whether any alleged excess in the aggregate sentence (from which an appeal with leave does lie) may arise from excess in the indicative sentence. I am not persuaded that the indicative sentence for count 6 is excessive, having regard to the maximum penalty and the standard non-parole period, which are both significant guideposts in sentencing. Ground 3 has not been made out.

Ground 4: alleged manifest excess

110. Mr Fraser accepted that ground 4 depended in part on the fate of ground 3. However, he also submitted that the indicative sentences for all three offences were excessive and that the level of accumulation was too great.

111. In order to establish ground 4, the applicant must establish that the sentence imposed was unreasonable or plainly unjust, having regard to the principles that there is no single “correct” sentence and that judges at first instance are to be allowed as much flexibility in sentencing as the application of principle and consistency of approach allow: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J); Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Whether a sentence is manifestly excessive is a conclusion. The applicant is not required to establish any particular error in the process undertaken by the sentencing judge; it is a review of the result that must lead to the conclusion.

112. I do not regard any of the indicative sentences as excessive in themselves, having regard to his Honour’s findings and assessment of their seriousness. All three involved a grave breach of trust and were aggravated by having occurred in the complainant’s home. Count 7 was also aggravated by having been committed in the presence of JC, who was then seven years old. Count 8 involved a prolonged attack on the complainant who, after the applicant put his hands around her neck, was left dry-retching, gagging and gasping for air. There was little in the way of mitigating factors, save for the leniency given for the effective absence of criminal history. His Honour found no remorse and that the prospects of rehabilitation were guarded. Although the offences occurred within a period of less than a month, each occurred on a separate day, approximately a fortnight apart, in the course of a discrete episode. In the circumstances the degree of accumulation was open to the sentencing judge.

113. Although Mr Fraser’s submissions in respect of ground 4 were not confined to the misapprehension on which ground 3 was founded (that domestic violence is somehow less serious than offences where the offender and victim do not know each other), this misapprehension also appeared to influence the allegation of manifest excess. I am not persuaded that the aggregate sentence imposed on the applicant was manifestly excessive. The purposes of general and specific deterrence and denunciation required a lengthy custodial sentence. Ground 4 has not been made out.

Proposed orders

114. I propose the following orders:

1. Grant leave to appeal against conviction and sentence.

2. Dismiss the appeal.

**********

Decision last updated: 15 February 2019