Shahzad v The King

[2023] NSWDC 421

District Court

New South Wales

Medium Neutral Citation:

Shahzad v R [2023] NSWDC 421

Hearing dates:

9 October 2023

Decision date:

13 October 2023

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

1.    The appeal dated 15 December 2022 is dismissed.

2.    If necessary, I confirm the decision of Magistrate Boulos made 15 December 2022.

Catchwords:

CRIME – appeal from Magistrate: alleged errors in reasoning

Legislation Cited:

Crimes Act 1900, s 114(1)(a)

Crimes (Appeal and Review) Act 2001, s 18

Cases Cited:

Browne v Dunn (1893) 6 R. 67

Charara v R [2006] NSWCCA 244, and Wood v DPP [2006] NSWCA 240.

Fox v Percy (2003) 214 CLR 118

Hoffer v R [2021] HCA 36

R v Pakis (1981) 3 A Crim R 132

Liberato v R (1985) 159 CLR 507 at 520

Category:

Principal judgment

Parties:

Amir Shahzad (Appellant)
Rex (Respondent)

Representation:

Counsel:
A Norrie (Appellant)
H Buddin (Respondent)
Solicitors:
Nicopoulos Sabbagh Lawyers (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2020/334602
2020/334610
2021/234140

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Local Court, Burwood

Jurisdiction:

Criminal

Date of Decision:

15 December 2022

Before:

Magistrate Boulos

File Number(s):

2020/334610

JUDGMENT

Introduction

1. This is an appeal from a decision of Magistrate Boulos delivered on 15 December 2022, wherein her Honour convicted the Appellant of seven offences alleged to have occurred between 1 March 2019 and 22 November 2020.

Background

2. The Crown Summary of the case and the issues were largely uncontroversial. It helpfully frames the case and the issues before me. I will set them out in full:

“1.   The Appellant in this matter is Amir Shazad (DOB: 18/08/1978) (“the Appellant”). The victims in this matter are the Appellant’s former wife Ms Naomi Joseph, as well as his children Alannah, Shauna and Adrian.

2.   The Appellant pleaded not guilty in the Local Court to all matters and was convicted on 15 December 2022 of a total of seven offences in respect of two separate sets of charge numbers at Burwood Local Court.

3. In respect of charge number H77110056, the Appellant was convicted of five separate offences of common assault (DV) which occurred at the family home. The elements of an offence of common assault contrary to s61(1) Crimes Act 1900 are as follows:

(i) Assault another person, and

(ii) Assault is an act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence.

4. In respect of the charge number H82544172 the Appellant was convicted of two further offences. The first offence was contrary to s114(1)(a) Crimes Act, the elements of which are as follows:

(i)   armed with a weapon or instrument; and

(ii)    intention to commit an indictable offence.

5. The second offence was contrary to s13(1) Crimes Domestic and Personal Violence Act, the elements of which are as follows: i) Intimidate another person, ii) With intent to cause that person physical or mental harm, iii) A person intends to cause fear of physical or mental harm if they know that the conduct is likely to cause fear in that other person. However, the Prosecution is not required to prove the other person actually feared physical or mental harm.

Factual Summary

H77115006

6.   Sequence 5 is the first offence in time and occurred on 27 June 2017, shortly after the birth of the victim Ms Joseph’s youngest child, Adrian. The child had been born prematurely and was still in hospital at this time. The victim had been given a contraceptive impact which had been inserted into her arm shortly after she gave birth. The Appellant was present at the time of that procedure. The victim and the Appellant then returned home. Subsequently, the victim tried to return to the hospital to be with her newborn baby, but the Appellant grabbed hold of her by the bicep on her left arm where the insertion was located and prevented her from leaving.

7.   Sequence 2 is the second offence in time, occurring on or about March 2019 and relates to an assault against the Appellant’s daughter Shauna. The victim was coughing and the Appellant approached her and attempted to choke her by placing both of his hands around her neck. The Appellant was initially charged with an offence of choking for this conduct but was instead convicted on the back up offence of common assault.

8.   Sequences 4 and 6 occurred on a date between 1 May 2020 and 30 September 2020, at the family home. These offences relate to the use of a slipper to slap each of the victims Alannah and Shauna on the head. The final offence resulting in a conviction on this charge number, namely sequence 10, involved the Appellant biting his youngest child Adrian on 22 November 2020.

H82544172

9.   The victim Ms Joseph, was at home one evening on an unknown date in 2020 with two of her children (Alannah and her young son Adrian) and the Appellant. There was an argument between the victim and the Appellant relating to the payment of a water bill. The victim was standing at the dining table in the living room when the Appellant took a 13 inch butter knife from the kitchen and held it to her throat (S114(1)(a) offence). The Appellant demanded money from the victim while holding the knife close to her throat and stated ‘I will kill you if you don’t. I will kill you.’ The victim stated ‘I don’t have the money’. (s13(1) CDPVA offence).

Evidence in the Crown Case which established the elements of the offences proved

Sequence 5 in H77110056

10.   The Crown submits that the evidence of the victim Ms Joseph by way of the DVEC dated 24 November 2020 (T 5-8) and her evidence in Court, satisfies the elements of this offence namely a common assault. She gave evidence that:

“On the argument day, my husband was grabbing me back and forward when he didn’t want me to go to the hospital to be with my son.” (T7:45, 25/2/22)... “He was pulling me back and I was pulling myself away from him to go to the hospital, and this is when he bruised it and the Implanon started breathing and the bandage in the picture is full of blood.” (T8:25-29, 25/2/22). The victim gave evidence that the Appellant did not want her to go to the hospital because the food routine would be disturbed (T8:10-11, 25/2/22).

11.   The victim was tested under cross examination by the Appellant’s counsel at (T64:47 25/2/22) and remained unshaken:

“Q. Insofar as there was blood and you decided to take a photograph, you took a photograph not because of an alleged event with your husband, but simply because it was bleeding and you took a photograph, I suggest, because nothing happened?

A.   Not true.”

12.   The victim was further tested as follows at (T65:39 25/2/22):

“Q. At no stage were you grabbed by the arm as you claim you were?

A.   Not true.”

13.   The victim’s evidence is corroborated by the photograph in Exhibit 6 which shows bruising to her left bicep area. The victim gave evidence in her DVEC (pg 8) that the photograph was dated on her phone which enabled her to pinpoint the precise date, in circumstances where the complaint was made to police approximately three years after the incident.

Sequence 2 in H77110056

14.   The Crown submits that the evidence of the victim Ms Shauna Amir by way of her recorded interview (Exhibit 4) and her evidence in Court, satisfies the elements of the back up offence of common assault. Ms Amir stated in her interview that on one occasion she was at home in her bedroom and was “really sick and I was coughing” and the Appellant told her to stop coughing, however she could not and so he “started choking me to, so I could stop coughing” (Exhibit 4 – T3, 28-29). The victim stated that the Appellant used ‘both hands’ and that ‘my mum stopped him’. The choking was not long and occurred only for a few seconds.

15.   The victim was tested under cross examination by the Appellant’s counsel at (T57:12 24/2/22):

“Q. What I’m suggesting is the only reason your father touched your throat was he was rubbing it with eucalyptus oil to try and help you because you weren’t well.

A. I was – I was talking back to him and he…(not transcribable)…

A…So he told me that he was going to choke me until my eyes pop out and I would stop…

…

Q. Well, that never happened, did it? You’ve made that up; isn’t that the truth?

A. No.”

16.   The victim’s evidence is corroborated by the evidence of her sister Alannah who recalled that her sister was coughing on one occasion and her father went inside the bedroom, held her against a wall and was choking her (T22:25 24/2/22).

Sequences 4 and 6 in H77110056

17.   These charges relate to the Appellant using a slipper to hit each of Shauna and Alannah over the head. Ms Shauna Amir’s evidence contained in her recorded interview at Exhibit 4 (T4:Q+A 46-51) is that she and her sister were supposed to take care of her brother. However Shauna concedes that she was ‘not really doing that’ because she was on her phone. The victim’s brother then fell off the sofa and the Appellant heard a crash. The victim stated in her evidence that the Appellant ‘got really mad so what he started to do was hit us with a slipper, both of us, and then he kicked us out of the house’. She further stated that ‘he hit us before and after pushing us out of the house’ she and her sister were hit on the head. The victim was cross-examined on the topic and agreed that she could not remember when the incident occurred but maintained that it had occurred (T57:46-50 24/2/22).

18.   Ms Alannah Amir also provided evidence on the topic in her recorded interview at Exhibit 1 (T6:Q+A 59-74). She recalled that her brother fell off the sofa, the Appellant then formed the view that she had dropped him and so he ‘got quite violent’. Ms Alannah Amir stated that he ‘kicked me out of the house immediately after’…and then immediately called us back in…”he calls us back in, he takes off his plastic white slipper, and then he hits me on the head and hits my sister on the head” (T6:Q+A 64). Ms Alannah Amir confirmed that she observed her sister being hit on the head and stated “she was present with me and she was also blamed for it, like I mentioned before she was the one actually supervising my dad and both of us were in the same place” (T6:Q+A72). She went on to state ”‘he took a slipper off and he hit us both one time.”

19.   Ms Alannah Amir was cross-examined on the topic and maintained that the event did occur. She stated that she was initially in her bedroom studying but that she later came out to grab some water when she heard a thump and crying and she went up to her brother who was on the floor (T42:37-40 24/2/22). It was put to the victim that nobody was then kicked out of the house and nobody was hit on the head. Ms Amir rejected these assertions (T43:24-29 24/2/22).

20.   Their mother Ms Joseph also gave some evidence on the topic during cross examination and stated that she observed the incident “I saw that in front of me” (T77:27, 25/2/22). It was put to Ms Joseph that the Appellant ‘took Adrian to the bedroom and nobody was hit over the head and nobody was ejected from the house’, to which she answered ‘not true’. It was further put to her that these were ‘some things that the children have made out and what I’m suggesting at your bequest?’, to which she also answered ‘not true’ (T77:39-45), 25/2/22).

Sequence 10 in H77110056

21.   Ms Joseph provided evidence in her DVEC of an incident whereby the Appellant had bitten her young son Adrian. She maintained (DVEC pg 2) that two days prior to that interview took place (22 November 2020), “I did see him bite him”. In her evidence she confirmed that fact but stated that she did not see Adrian bite the Appellant on his leg (T76:19-29, 25/2/22). Two photographs of Adrian were tendered (Exhibit 15) at the hearing which she said had been taken by Alannah Amir on the Monday, namely the day after the incident (T82:49, 25/2/22). Those photographs clearly depict a mark on Adrian’s left elbow.

H82544172

22.   The two offences under this charge number were referred to as the ‘water bill incident’ during the proceedings.

23.   Ms Joseph gave evidence that an argument commenced in the kitchen concerning the payment of a waterbill (T9:35, 25/2/22). The victim stated that all children were at home and that Alannah and Adrian were present and watching television at the time. The victim described standing in the kitchen before the Appellant grabbed a 13 inch butter knife (T10:45, 25/2/22) and placed it to her throat.

24.   The victim gave evidence that she didn’t feel the touch of the knife but that “it was so close to it that I could actually feel it close to me.” (T11:6-9, 25/2/22). The victim gave further evidence that the Appellant said to her “I will kill you if you don’t, I will kill you” and that this was said numerous times. (T12:1-2, 25/2/22) Moreover, she also stated that he said “I will kill you and I will kill myself.” The victim stated that she said she did not have the money to pay the bill. (T12:16-19, 25/2/22). The victim was cross examined in relation to the incident and remained unshaken in contending that the incident did in fact occur (T58-59, 25/2/22).

25.   The victim’s evidence is supported by the evidence of her daughter Alannah Amir who said in her recorded interview dated 8 August 2021 (Exhibit 2) that the Appellant was pointing the knife at her mother (i.e. her mother) and that he was extremely close to her (Ex 2 T:17-18). Ms Amir stated that she thinks she heard the Appellant say ‘I will kill you’ and that the incident related to a water bill. Ms Amir was then cross examined and it was suggested to her that there was no knife and that the introduction of a knife was false. Ms Amir rejected that proposition and maintained that the incident did occur (T45-46, 24/2/22).

26.   It is respectfully submitted that these constitute a powerful combination of various pieces of evidence which supported the Crown case.

Defence Case

27.   The Appellant gave evidence at the hearing and was cross examined. In short, he denied the allegations. The Appellant was first asked questions in respect of H82544172, the water bill incident. He stated that he had returned home at 5:30pm that evening and his wife was laying on the bed but not sleeping. The water bill was on the fridge and the victim stated that he had to pay the bill. He said that his wife commenced yelling which didn’t stop for ten minutes.

28.   The Appellant then stated that he then went to the bedroom. He stated that his wife came into the bedroom and his wife flicked the bill onto the bedside table and said ‘you have to pay the bill.’ Later he stated that he went to Woolworths with his son and when he returned, his wife was packing and leaving the house. She then left shortly after. (T18-19, 17/11/22). He denied picking up a knife and threatening his wife. The Appellant stated that he did pay the bill.

29.   In relation to the allegations concerning H77110056, the Appellant denied those allegations as well. Regarding the incident where Shauna stated she was choked, the Appellant gave evidence that the incident was fresh in his memory, despite the fact it had occurred in 2019 (over three years before he was giving evidence in court). He stated that his daughter was coughing a lot, so he massaged mustard oil and cough medicine into her throat (T84, 17/11/22). The Appellant also denied any suggestion that he hit his daughters with a slipper following the incident where his son Adrian fell from the sofa (T81, 17/11/22). Rather, he merely enquired with his daughters as to what had occurred.

30.   The Appellant maintained that regarding the incident with his wife in June 2017, his wife was upset. He accepted that he did grab her left hand but stated that was the extent of the interaction. He stated that she had surgery implants and it was bleeding, he said, the day before. He stated that he did not assault her. (T44-45, 17/11/22).

31.   In relation to the biting incident with his son in November 2020, the Appellant stated they were playing with a ball. He stated that his son hit him with a ball and kept running so he put the ball under his right thigh. The Appellant asserted that he was bitten by his son and there was a photo of a bite mark (Exhibit 19) tendered in the course of the proceedings. However, he stated that he had “never bit Adrian”.”

Section 18

3. The Appellant appeals against both conviction and penalty, thus invoking the jurisdiction of this Court pursuant to s 18 of the Crimes (Appeal and Review) Act 2001 which, is a “rehearing” in the sense explained in cases such as R v Pakis (1981) 3 A Crim R 132, Charara v R [2006] NSWCCA 244, and Wood v DPP [2006] NSWCA 240.

4. What I take from those authorities is that the appeal does not concern the identification of error in the decision of the magistrate but rather, whether I am satisfied beyond reasonable doubt of the guilt of the Appellant.

5. However, the principles in cases such as Fox v Percy (2003) 214 CLR 118 have a significant part to play in this process. This is because I only have before me the transcript of the evidence of the various witnesses and yet the magistrate had the considerable advantage of seeing and hearing those witnesses as they gave their evidence. Accordingly, I should approach the matter by giving appropriate weight to that advantage the magistrate had in hearing the evidence of the witnesses, in particular as to the magistrate’s assessment of the credit and/or reliability of witnesses.

The Appellant’s account

6. The Appellant gave sworn evidence in his defence wherein he denied the various alleged assaults and provided his own account of the circumstances of what occurred. The common theme of his defence was that the allegations arose in circumstances of a catastrophic marital breakdown between him and his wife that he did not commit any of the assaults, albeit he accepted that he was angry and there were significant arguments. In relation to the assault involving the grabbing of his former wife’s arm, he denied the allegation and said that any bleeding occasioned was as a result of an earlier medical procedure, in relation to what is described as the “Water Bill” episode he accepted that there was a significant argument between him and his wife but denied that there was any knife or threat involved, and in relation to the alleged choking incident, he explained his conduct by saying that he was performing a massage at the time which did involve the neck but that there was no actual choking or intent to choke.

The Magistrate’s approach

7. The magistrate, albeit not persuaded in relation to all the matters which were the subject of charge, gave a relatively lengthy and considered judgment wherein she reminded herself impeccably of the various legal directions that would be given to a jury in this sort of matter, including what is known as a Liberato Direction (Liberato v R (1985) 159 CLR 507 at 520).

8. In the context of that Liberato direction, the magistrate dealt with the Appellant's account as follows (at lines 3 – 45 TS 15/12/22) (my emphasis):

“But in relation to his evidence, there were matters that he said in his evidence that were never put to any of the complainants. The shoulder charge by Alannah to him during the incident where - the shoulder charge, firstly. The allegation of - there’s a number of propositions that were not put. The shoulder charge by Alannah, but more importantly, that water bill incident.

That fanciful evidence that he gave before the Court that after an argument, he then went to the bedroom to lie down and she flipped the bill - took the bill off the fridge, flipped it on the side of the table, and after some time came to lie beside him between - on the bed and the child in between. That proposition was never put to Naomi at any stage. It is clear that his evidence was scripted. It was clear that his evidence was - he was giving evidence to tailor the prosecution case. He was precise in detail for matters that occurred some time ago.

And for that reason, given the version that was put before the Court, a number of propositions that were never put to the respective witnesses - the lying down in the bed; the flipping of the bill on the bedside table; the grabbing - “I was shocked”, “I grabbed her by the shirt”, this was not put to Alannah; the massage of the mustard oil with cough medicine, he initially said it was eucalyptus oil. There was never any proposition put to Shauna that she was massaged and it was only rubbed.

There was the implants. In relation to those implants, he actually contradicted himself in relation to that evidence and, in fact, he supported the complainant's version because in relation to those - just one moment. First of all, there was some consistency in his evidence with the complainant's version. (1) Mum had pinned the bill on the fridge and this is what initiated the fight. That’s consistent with the accused’s evidence and consistent, not only with Alannah’s evidence but also consistent with Naomi’s evidence and consistent with the accused. He supports that too. Then we’ve got the implant where the accused gave evidence, and he says he was present at the time that the implant was inserted on Naomi and it was shortly after giving birth. Although, initially he said it had started bleeding the day before in cross-examination. He then said that it was bleeding all the time which was inconsistent with his initial evidence.

Given the number of inconsistencies, given the number of propositions that were not put to the witnesses, given that my impression of his evidence as being fanciful, I can comfortably reject his evidence outright. Now, as we know, and Liberato tells us, that that in itself does not prove a case or the charges before the Court beyond a reasonable doubt. I must still be satisfied beyond a reasonable doubt with respect to each individual charge that is before the Court.”

9. Mr Norrie, who appeared for the Appellant before me, criticises the magistrate's reasoning in the above passage, in three ways. He says:

1. Firstly, the account dismissed by the magistrate was not “fanciful”.

2. Second, he says that the magistrate's reasoning based on a failure to “put” various proposition to the two various Crown witnesses was legally erroneous.

3. Third, that the inconsistencies identified by the magistrate were in fact on proper analysis not inconsistencies at all.

10. Whilst reminding me that it was not necessary for him to demonstrate such errors, the point of the submissions was to seek to persuade me that if the magistrate had made errors in her reasoning leading to her rejection of the Appellant’s sworn evidence, that ought cause me to not give any particular weight to the magistrate's assessment on that evidence.

11. I will deal with each point in turn, although I think that there is overlap between the “fanciful” ground and the “inconsistency” ground.

Inconsistency

12. The magistrate identified two aspects of the Appellant’s evidence which she felt were inconsistent. The first concerned whether his former wife's arm had been persistently bleeding since a recent medical procedure, or whether it was only the day before the alleged incident that it had been bleeding.

13. Mr Norrie has taken me to the relevant passages in the transcript. Whilst there is force in his submissions that perhaps there is some ambiguity in what the Appellant was saying, there is certainly a fair reading of the transcript that allows the conclusion that what he said when he first mentioned the bleeding was limited to bleeding the day before, and that under cross examination when the topic was returned to, his evidence changed and became that there had been bleeding for many days on a consistent basis.

14. I think the magistrate, having heard the evidence out of the mouth of the Appellant, was in a much better position than me to judge as to whether there was inconsistency, and the significance of such an inconsistency. In those circumstances I am not satisfied that the magistrate was wrong to conclude that the inconsistency was made out. Paying due deference to the advantages the magistrate had in assessing the evidence, I do not think it appropriate for me to come to a contrary view.

15. The second matter identified by the magistrate as inconsistent was an alleged inconsistency between, on the one hand, something that was put to one of the Crown witnesses by counsel then appearing for the Appellant, to the effect that the massage was carried out with using “eucalyptus oil” but that when the Appellant gave evidence in relation to the same conduct, he referred to “mustard oil”.

16. I really don't think such an inconsistency could fairly be attributed to the Appellant in those circumstances. It’s important to emphasise that it is not suggested that the Appellant actually gave inconsistent evidence on this topic, rather, the point is that what he said was inconsistent with the basis that his barrister cross- examined one of the witnesses. In my opinion, in circumstances where it was never put to the Appellant that he had somehow given different instructions to his counsel prior to cross examination, it not fair or appropriate of the magistrate to find inconsistency. I therefore accept that she made an error in taking that matter into account.

17. There is a third inconsistency identified by the Crown on this appeal which was not referred to by the magistrate.

18. This alleged inconsistency is as to the manner of the massaging of the neck. A comparison between page 31 and page 84 of the transcript does satisfy me that the specific description the Appellant gave as to the manner he was massaging, did change significantly between his evidence in chief and cross-examination. Whilst the magistrate did not take this matter into account by me, to my mind, it being on a topic absolutely central to one of the charges, it is a matter that can properly be taken into account by me when determining whether to accept the Appellant’s account of the relevant events or, when considering whether his account “might be true”.

The failure to “put”

19. Mr Norrie, in reliance on what was said by the High Court of Australia in Hoffer v R [2021] HCA 36, and in particular at [34], submitted that the magistrate was wrong to take into account when assessing the reliability of the Appellant’s evidence the fact that various statements contained in his evidence had not been put to the relevant Crown witnesses. I am not so sure that in a judge alone (or magistrate alone) hearing what the High Court said has very much part to play. It seems to me the High Court was concerned as to the prejudicial nature of such submissions in the context of a jury trial.

20. Nonetheless, it does seem to me to be entirely unfair to hold against an accused the fact that his or her barrister did not “put” something to witnesses in circumstances where that proposition is not itself “put” to the accused during the hearing, so that he or she has an opportunity to respond to it, for example, by tendering material to rebut any presumption of recent invention.

21. Whilst in written submissions the Crown sought to support the magistrate's reliance on this matter, in oral argument it was conceded that the magistrate was wrong to take that matter into account when assessing the Appellant’s evidence.

Fanciful

22. As I said at the outset, I think the criticism of her Honour’s description of the Appellants evidence as “fanciful” is in part another way of indicating that she did not accept the evidence of the Appellant, insofar as it conflicted with the Crown case, for the reasons identified by her (viz inconsistencies and the Browne v Dunn point). However, a fair reading of the judgment shows that the magistrate also made it entirely clear that her overall impression of the Appellant’s evidence was that it was fanciful. To put it bluntly, it is clear to me that the magistrate’s overall impression of the Appellant, having heard his evidence, was extremely negative. She did not believe him. I have read the transcript of his evidence and think such a conclusion was well open to the magistrate.

Resolution

23. The magistrate, elsewhere in her reasons identified why it was that she was comfortably satisfied as to the reliability and credibility of the Crown witnesses. After determining that she rejected the Appellant’s account, she then appropriately returned to the Crown case and considered whether there was sufficient evidence to satisfy her beyond reasonable doubt of the matters alleged.

24. As I have said in relation to some of the matters, there was an acquittal but in others she was satisfied. This demonstrates a careful discernment by the magistrate of all of the evidence against the specific charges.

25. Mr Norrie has criticised her Honour’s assessment of the Crown witnesses in his written submissions and again orally.

26. Having considered those criticisms, I am not satisfied that I ought not come to the same conclusion as the magistrate, that is, on the evidence adduced by the Crown, the convictions are justified.

27. To resolve the matter, I return to the magistrate's assessment of the Appellant’s evidence in the context of the test described in authorities such as Liberato.

28. Whilst I have identified a number of what might be described as errors in the magistrate's reasoning process ultimately, having considered the totality of all the evidence in the light of the submissions made by the parties before me, I have come to the same conclusion as the magistrate. Indeed, having read the transcript, I would reject his evidence even without knowing the magistrate’s impression of the Appellant. I am satisfied beyond reasonable doubt that the offences for which the Appellant was convicted were committed by him. When I consider the totality of the evidence and give due weight to the magistrate’s impression of witnesses, I think the Appellant’s account has to be rejected. In that circumstance, I think the evidence adduced by the Crown proves the convictions beyond reasonable doubt.

Sentence

29. Turning then to the sentences imposed by the Appellant.

30. Mr Norrie’s submissions can be summarised as follows. First, the Appellant, who is in his mid-40s, has no prior convictions and therefore I shall conclude that the conduct was out of character.

31. Second, the conduct occurred over a relatively short period of time in the context of what seems to be a catastrophic marriage breakdown which seems to have driven the Appellant into an uncontrollable rage, and it is therefore unlikely that he will reoffend.

32. Third, the Appellant currently has no contact with his former wife or children. This reduces the prospect of reoffending.

33. Fourth, the Appellant currently works as a taxi driver and has a relevant licence. It is conceded by the Crown that the inevitable consequence of the convictions is that he will lose that licence and thus his primary livelihood.

34. Against that, must be said the following.

35. First, objectively, the offences are extremely serious. There were at least two aggravating factors to most of the offences, that is, they occurred in the presence of children and they occurred in the home of the wife and children.

36. The offences were violent and left some injuries. They were against his own wife and young children, who must have been terrified. The community and the courts in recent times have come to appreciate that domestic violence offences are extremely serious and need to be treated as such by the courts. The conduct of the Appellant is entirely inexcusable. It is certainly no excuse that he was angry. Thus, general deterrence is extremely important, as is specific deterrence and retribution for the victims. The Appellant, as he is entitled to do, maintains his innocence, I have nothing upon which I could conclude that he has any genuine regret, remorse or insight into his offending, and its seriousness, which weighs against me being confident as to rehabilitation or reoffending. It is all very well to say that he has no contact with his family. The question remains he will he behave towards his next partner/children when he gets angry. As things stand, I am concerned that he may be tempted to reoffend.

37. Taking all those matters into account, I am not satisfied that any lesser penalties than those imposed by the magistrate are appropriate.

Conclusion

38. For those reasons, I have decided to dismiss the appeal against both conviction and sentence.

Orders

39. The orders are:

1. The appeal dated 15 December 2022 is dismissed.

2. If necessary I confirm the decision of Magistrate Boulos made 15 December 2022.

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Decision last updated: 13 October 2023