St v R

Case •

[2022] NSWCCA 169

•

10 August 2022

Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: ST v R [2022] NSWCCA 169
Hearing dates: 28 March 2022
Date of orders: 10 August 2022
Decision date: 10 August 2022
Before: Ward P, Harrison J, Wright J
Decision:

1.   Grant leave to appeal from conviction and dismiss the appeal.

2.   Grant leave to appeal from sentence and dismiss the appeal.

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Whether loss of tooth amounts to grievous bodily harm

CRIME – Appeals – Appeal against sentence – Error in indicative sentences

Legislation Cited:

Crimes Act 1900 (NSW), ss 4, 35(1)(b), 59(1), 61, 61D(1), 61E(1A), 61I, 90A

Criminal Appeal Act 1912 (NSW), s 7(2)

Cases Cited:

AM v R (2012) 225 A Crim R 481; [2012] NSWCCA 203

Bugmy v R (2013) 249 CLR 571; [2013] HCA 37

Cherry v R [2017] NSWCCA 150;

GAX v R (2017) 344 ALR 489; [2017] HCA 25

Goodbun v R [2020] NSWCCA 77

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

Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209

Kentwell v R (2014) 252 CLR 601; [2014] HCA 37

Libke v R (2007) 230 CLR 559; [2007] HCA 30

M v R (1994) 181 CLR 487; [1994] HCA 63

Mehajer v R (2014) 244 A Crim R 15; [2014] NSWCCA 167

MM v R [2018] NSWCCA 158

Morris v R (1987) 163 CLR 454; [1987] HCA 50

Mundine v R [2017] NSWCCA 97

Patsan v R [2018] NSWCCA 129

Pell v R (2020) 268 CLR 123; [2020] HCA 12

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

R v JD [2018] NSWCCA 233

R v Kilic (2016) 259 CLR 256; [2016] HCA 48

R v Miller [1951] VLR 346

R v Perks (1986) 41 SASR 335

R v Todd [1982] 2 NSWLR 517

Raumakita v R (2011) 210 A Crim R 326; [2011] NSWCCA 126

SKA v R (2011) 243 CLR 400; [2011] HCA 13

Spies v R (2000) 201 CLR 603; [2000] HCA 43

Swan v R [2016] NSWCCA 79

Category:Principal judgment
Parties: ST (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:

Counsel:
C Norrie (Applicant)
C Curtis (Respondent)

Solicitors:
Ross Hill & Associates Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2019/00140944
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Sydney
Date of Decision:
24 August 2020
Before:
Huggett DCJ
File Number(s):
2019/00140944

HEADNOTE

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

On 18 September 2020, ST (a pseudonym) (the applicant) was found guilty of five offences related to domestic violence. Three offences comprised of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900 (NSW) (Crimes Act). The other two offences were, respectively, an offence of detaining for advantage contrary to s 90A of the Crimes Act, and an offence of maliciously inflicting grievous bodily harm contrary to s 35(1)(b) of the Crimes Act.

On 20 November 2020, the applicant was sentenced for the five offences, in addition to three related common law assault offences pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW), in the District Court. In accordance with s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge considered all possible alternative penalties and was satisfied that no penalty other than imprisonment was appropriate. The sentencing judge set an aggregate sentence of imprisonment of four years, with an aggregate non-parole period of two years and eight months. The sentencing judge also noted the indicative sentences that she would have imposed for each of the offences, had separate sentences been imposed.

The applicant sought leave to appeal against his conviction on the sole ground that the verdict in respect of the offence of maliciously inflicting grievous bodily harm was unreasonable or could not be supported having regard to the evidence. The applicant also sought leave to appeal against his sentence on three grounds; first, that the indicative sentences were manifestly excessive; second, that the sentencing judge failed to consider any penalty other than imprisonment; and third, that the indicative sentences for related offences 9 and 12 (being the common law assault offences) were contrary to law. The Crown conceded error in respect of the third ground, which required that the Court exercise the sentencing discretion afresh.

The Court held (Ward P, Harrison and Wright JJ), granting leave to appeal both from conviction and sentence, and dismissing the conviction and sentence appeals:

  1. It was open to the jury to be satisfied beyond reasonable doubt that the injury sustained amounted to grievous bodily harm. There was ample evidence that the applicant’s punch to the complainant’s face caused the loss of at least one front tooth, and it was open to the jury to conclude that the loss of a front tooth amounts to serious disfigurement: [66]-[70].

    Swan v R [2016] NSWCCA 79; R v Miller [1951] VLR 346; Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209, discussed with approval.

  2. It was common ground that there was an error in the specification of the indicative sentences for related offences 9 and 12, being an error of the kind that warrants re-sentencing. Thus, the Court was required to exercise the sentencing discretion afresh, noting that there is no requirement to re-sentence where the Court considers that the same or a greater sentence is appropriate: [108].

    Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [42]-[43] per French CJ, Hayne, Bell and Keane JJ; Mundine v R [2017] NSWCCA 97 at [19]; [21] per Basten JA; [92]-[93] per Adamson J applied.

  3. Having regard to the objective gravity of the offending, the applicant’s subjective circumstances, and the other relevant sentencing considerations and purposes of sentencing, and taking into account the corrected indicative sentences, it was concluded that no different sentence is warranted; hence the appeal against sentence is dismissed: [118].

Judgment

  1. THE COURT: The applicant was found guilty on 18 September 2020, following a trial by jury in the District Court before Huggett DCJ, on five counts of domestic violence offences against, variously, two former partners (VK and KR) and VK’s daughter (MK). The applicant was acquitted of another five counts and the jury was unable to reach a verdict in relation to one other count (count 6).

  2. The counts on which the applicant was found guilty were: count 1 (assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900 (NSW) (Crimes Act) (AOABH) against VK), count 4 (AOABH against MK), count 5 (AOABH against MK), count 7 (detain for advantage contrary to s 90A of the Crimes Act in respect of KR) and count 8 (maliciously inflict grievous bodily harm contrary to s 35(1)(b) of the Crimes Act upon KR).

  3. The counts on which the applicant was acquitted were five counts of sexual intercourse without consent contrary to s 61I and s 61D(1) of the Crimes Act. The jury was unable to reach a verdict in relation to count 6 (aggravated indecent assault contrary to s 61E(1A) of the Crimes Act in respect of MK).

  4. The applicant was sentenced on 20 November 2020 (for the offences for which the jury had found him guilty in addition to three common assault offences on a s 166 Certificate) to an aggregate sentence of four years with a non-parole period of two years and eight months. The sentence commenced from 6 May 2019 taking into account time served. The applicant became eligible for release to parole on 5 January 2022 but as at the time of the hearing the applicant had not yet been released to parole. The applicant’s next parole review date is 11 November 2022.

  5. The applicant seeks leave to appeal against his conviction on count 8 and leave to appeal against sentence on the grounds set out in his amended grounds of appeal filed on 25 March 2022. Those grounds of appeal are as follows:

Conviction

1.   The verdict in respect of Count 8 is unreasonable or cannot be supported having regard to the evidence.

Sentence

1.   The applicant contends that the indicative sentences were manifestly excessive and indicative of error in the sentence imposed.

2.   Her Honour failed to consider that any other sentence other than imprisonment was available in the circumstances.

3.   The indicative sentences which her Honour applied for related offences 9 and 12 were contrary to law.

  1. Leave is necessary for the conviction appeal (which relates solely to count 8) because the ground of appeal is that the verdict is unreasonable (and, as pleaded, does not raise a question of law alone). The applicant’s sole contention on this ground is that the relevant injury (see as described below) on the preponderance of evidence did not amount to “grievous bodily harm”.

  2. The grounds of appeal against sentence, as set out above, raise issues as to manifest excess; an alleged failure to consider any sentence other than imprisonment; and that the indicative sentences for related offences 9 and 12 (being offences of common assault contrary to s 61 of the Crimes Act against KR, as included on the s 166 Certificate) were contrary to law. As error is conceded on the third ground, requiring the fresh exercise of the sentencing discretion, it is not necessary to consider the first two grounds of appeal against sentence.

Trial

  1. Counts 1 to 6 involved offences against the applicant’s former partner (VK) and her daughter (MK) alleged to have occurred between 1987 and 1992. Counts 7 to 11 involved offences against the applicant’s former partner (KR) alleged to have occurred between 1995 and 2006.

Offences against VK (count 1) and MK (counts 4 and 5)

  1. The applicant and VK commenced a relationship in New Zealand when VK was 24. At the time, VK’s daughter (MK) was six or seven years old. The applicant and VK had three children together in the period from 1987 to 1992. Context and tendency evidence was led from VK, MK and other witnesses that the applicant was violent and controlling towards VK and MK. In her Honour’s remarks on sentence (ROS), her Honour noted that, after the applicant moved into VK’s home, the applicant acted in a violent and controlling manner towards her and that VK became fearful of him (ROS p 4); and that the deceased had assaulted VK in New Zealand before count 1 was committed (ROS p 13).

  2. In 1988, after the first of the three children VK had with the applicant was born, VK moved to Australia with her then two children, living first at VK’s sister’s house and then at a refuge. In the ROS, her Honour accepted that VK’s move to Australia was an attempt to sever ties with the applicant (ROS p 4). VK settled with her then two daughters in a house in Ingleburn and soon after the applicant moved into the house (VK said without her having any say in it – T 127.10-127.23). The applicant’s violent and controlling conduct continued after the applicant moved in with VK in Ingleburn (ROS p 4).

  3. Count 1 was committed before the applicant moved into the house at Ingleburn, on an occasion when the applicant came over to the house to look after the children so that VK could go to an event at the local RSL with her sister (T 140). As VK was leaving the house, the applicant pushed her back and hit her hard on the nose with an open hand, causing her nose to bleed and later swell (T 140.1-140.39; T 188; ROS p 5) (count 1 (guilty verdict): AOABH to VK). Her Honour accepted VK’s version of events (ROS p 4-5) and that throughout the relationship the applicant was “violent and verbally abusive” towards VK on occasions other than count 1 (ROS p 5).

  4. VK gave birth to the applicant’s son in December 1990 (T 128.8-128.13) and to their second son in 1992. Counts 2 and 3 (on which there were not guilty verdicts), were charges of sexual intercourse with VK without consent, in each case shortly after the birth of the couple’s sons.

  5. Counts 4, 5 and 6 related to allegations of conduct against MK (VK’s daughter). As noted above, the jury returned guilty verdicts on counts 4 and 5 but was unable to agree on count 6. In the sentencing remarks, her Honour accepted that counts 4 and 5 (assaults upon MK), were not the only occasions on which the applicant was “violent and physically abusive” towards her (ROS p 5).

  6. Count 4 related to an incident when MK was at home with the applicant, VK and MK’s younger sister, and MK complained to the applicant for telling her to answer a knock on the door. MK’s evidence was that she answered the door (to a neighbour) and that when she did so and let the neighbour in, the applicant “started bashing her” across the head and then “smashed” her on her face so that her nose bled (T 75.1-75.39; T 105.7-105.39). In the ROS, her Honour referred to the evidence that the applicant struck MK to the head and face area with one hand while holding her with the other; and that MK fell to the ground whereupon the offender continued to assault her (ROS p 5). The applicant ran a defence of lawful correction to this charge (T 105.41-106.10), which the jury must have rejected. There was a verdict of guilty on this count (AOABH upon MK).

  7. Count 5 (another count of AOABH upon MK), on which there was also a guilty verdict, related to another assault upon MK. This occurred on an occasion when MK was at home with the applicant and her baby sister; and MK refused the applicant’s request to take her baby sister with her when MK was about to go out. MK left the house but the applicant chased her and assaulted her by dragging her back to the house and hitting her on the face with an open hand multiple times, as a result of which MK sustained a bleeding nose and injury to her knee (T 77.3-79.1; ROS p 5).

  8. Count 6 (on which the jury was unable to agree not guilty verdict) was an allegation of indecent assault upon MK (T 83.19-85.17).

  9. VK told the applicant to leave when he assaulted her while she was heavily pregnant with their second son (T 141.36-142.30; T 159.6-159.33); after which the applicant moved out of Ingleburn (T 144.13-144.36), living first in a refuge and then in a house in Airds (T 138.46-139.3).

Offences against KR (counts 7 and 8, and sequences 9, 10 and 12)

  1. Counts 7 and 8 (and sequences 9, 10 and 12) related to the applicant’s former partner (KR) with whom he commenced a relationship when she was 17 and he was around 31 (T 259.33; ROS p 5-6). KR met the applicant when he was living in Airds and moved in with him shortly after (T 259.38-260.22).

  2. Count 7 (on which the jury returned a guilty verdict) (detain for advantage) related to an incident about a couple of weeks after KR moved in with the applicant (which was sometime between October 1994 and July 1995 – see ROS p 6), when KR woke up and found that she had been locked in the house with the telephone removed (T 260.24-T263.39; T 293.16-293.46) leaving her trapped in the house until the applicant returned at about 6pm (the same thing having happened the day before but the applicant on that occasion having told KR that what happened the first day was an accident and it would not happen again) (T 262.38). KR’s evidence is that after the second incident (which was the subject of the charge), the applicant told her that he did not want her to leave him. KR’s evidence about being locked in the house had been corroborated by her friend.

  3. Count 8 (the subject of the conviction appeal) (maliciously inflict grievous bodily harm) relates to an offence that was alleged to have occurred between June and August 1996, when KR was about seven months pregnant with her first child, and KR and the applicant went to visit the applicant’s friends in Wyong for the weekend (T 264.1-264.17). A former neighbour of the applicant, who was a friend of KR (Ms Sutton) was also there (T 265; T 295.34) (as was Ms Sutton’s mother who lived nearby). The group was drinking.

  4. KR’s evidence was that after everyone went to bed and Ms Sutton had left, the applicant was alone in the lounge room (T 266); that KR got up to have a drink of water; that the applicant was “loud and very intoxicated”; and that she did not know what she had said but the applicant “got up and punched me in the mouth” (T 266.27), using a closed fist (T 266.50); as a result of which she lost two teeth from the “side” (T 267.12) or “back” (T 300.13) of her mouth and that one tooth at the front “was hanging down and I had to pull it out” (T 267.13; 269.9). KR said that there was a fourth tooth that was damaged and that “started going grey”, which she eventually also had to have removed (T 270). KR said that the two teeth at the “side” fell out onto the floor while the front one was “hanging out of its socket and I just had to pull it out” (T 300.11-301.3); that she could not eat for five days as it was tender and sore (T 270.48); and that she saw a doctor at Airds shops who gave her some painkillers (T 270.45).

  5. KR also said that, after punching her, the applicant led her back to bed, covered her mouth and had sex with her while she asked him to stop (T 268.17) (which was the subject of count 9, on which the jury returned a not guilty verdict).

  6. KR agreed in cross-examination that she had provided a different version of the event in an affidavit filed in the Federal Circuit Court; namely, that when she came out into the lounge room she saw the applicant “trying to kiss a woman”; that she had asked the applicant what he was doing and that he had punched her, causing “a tooth” to fall out (T 297.25-299.30).

  7. Ms Sutton broadly corroborated KR’s account of events, giving evidence that she had left her mother at the house that night but went back to get her as her mother was drunk and that, as she walked back through the open front door, she saw the applicant (T 436.10-436.15):

… laying on the lounge, and [KR] was, like, over the top talking to him. And then – and then I, like, go in, they were having an argument, and then I just seen [the applicant]’s hand – like, fist just come straight up in the air and just punch her straight up in the face, and the whole tooth fell out, which shocked the shit out of me.

  1. Ms Sutton said that the punch was “like, an uppercut. Straight in the mouth, it was” (T 442.44); that the “whole tooth fell out”; and that KR put her hand up and the tooth fell into her hand (T 436.46; T 443.48). Ms Sutton also said that KR complained that the applicant “was trying to get onto my mum” (T 437.15) (which is consistent with the account given by KR in the Family Court proceeding).

  2. KR said that, about a week after the incident, she ran into her mother at Airds shops; and that her mother noticed that she had a tooth missing and told her to move back home as she was pregnant (T 333.35; see also T 269-270). This account was corroborated by KR’s mother, who said that KR moved back home after she ran into her at Airds shops with a missing tooth while she was about five or six months pregnant (T 342.19-342.25; T 345.14-345.26). A long time friend of KR (Ms Akaiti) gave evidence about witnessing violence from the applicant and of seeing injuries to KR, one of which was a missing tooth, which was something she noticed “just before or just after her [KR’s] firstborn” (T 376.17).

  3. The applicant’s case on count 8 was that KR had caught him kissing Ms Sutton’s mother and had attacked him; that he got up and went to bed; and that KR was “in a rage” and was hurting him. The applicant said that, to defend himself, he “put” his “hand up and hit her on the face” and that was how her tooth (a single tooth) came out (T 600.15-605.13).

  4. In cross-examination it was put to KR that her teeth were grey at that time and in such terrible condition that it was a mere “bump” that had caused her tooth or teeth to fall out. KR denied both propositions (see T 311.14-311.18).

  5. KR did not obtain dental treatment for her missing teeth until 12 years later. KR’s evidence was that she had sought treatment after her daughter was born (i.e., a few months after the incident) but that the cost was too high so she was placed on a waiting list (T 271.13-271.15). Evidence was given by the dentist who first saw KR on 26 March 2008 to the effect that: on examination, KR’s teeth were badly decayed; a number of teeth had to be removed and a number of fillings were required (T 404.27-405.42); and there were six teeth missing, including one at the front and five towards the back of the mouth (see Ex 3; T 413.34-414.26; T 421.21). The dentist had no explanation for the poor state of KR’s teeth other than a failure to care for them (T 421.50). Asked in cross-examination if a badly decayed tooth could fall out if bumped, the dentist gave evidence that a hard enough hit to a badly decayed tooth was likely to cause it to break (as opposed to knocking it out at the root), saying (T 422.20-422.23):

A.   Well, wait a minute. If – it won’t fall out totally. If it’s badly decayed, it’s likely it’s going to break at the gingival margin – at the gum line. If you hit it hard enough it will break at the gum line and the roots will remain, most probably.

  1. After the events giving rise to count 8, KR moved back home but maintained her relationship with the applicant (T 271.49-272.4). KR alleged that there were two further occasions during this time when the applicant had had sex with her against her will (counts 10 and 11, on which the jury returned not guilty verdicts).

  2. In her ROS, her Honour said (ROS p 6):

When she [KR] got up to get a drink of water she saw the offender on the lounge. He was very intoxicated and “mumbling” and said something to [KR] which she was unable to hear. The offender then punched [KR] in the mouth with a closed fist, causing two teeth to be knocked out and dislodging a third tooth.

Directed verdict refused

  1. On 14 September 2020, defence counsel made application for a directed verdict on count 8 on the basis that the evidence did not disclose grievous bodily harm (T 627.49-628.48). That application was rejected, her Honour holding that the question was for the jury to determine (see her Honour’s judgment of 14 September 2020).

Direction to jury as to grievous bodily harm

  1. Following the refusal to withdraw count 8 from the jury, her Honour indicated that she had drafted a draft definition of “grievous bodily harm” for the jury, based on the cases discussed during the application for the directed verdict (T 643); and a copy of that draft direction was handed down to the parties after the Crown’s closing address (T 670). The draft definition was (MFI 19):

Grievous bodily harm means really serious bodily injury. Such injury need not be permanent nor that its consequences be long-lasting or life threatening (however they may be).

Whether the injury relied upon to prove Count 8 constitutes grievous bodily harm is a question of fact for you to consider and determine.

  1. Defence counsel, in closing address, submitted to the jury that the evidence, on balance, only made out the loss of one tooth and that that injury did not fall within the definition of grievous bodily harm, saying that (T 685.26-685.34):

And there’s another point – grievous bodily harm. Grievous bodily harm is not serious bodily harm. Serious bodily harm could be all sorts of things. Grievous bodily harm is very serious bodily harm, and although very serious bodily harm does not have to be permanent or – it has to be really serious, such as, you know, a paraplegic. That’s really serious bodily harm. Quadriplegic, brain damage, multiple lacerations to the face, something requiring operative treatment. Serious fractures, like a fracture of the vertebrae, a minor fracture of the vertebrae, not requiring treatment other than rest, but maybe requiring some hospitalisation: not really serious bodily harm.

  1. Following defence counsel’s closing address, and before adjourning for the day, her Honour indicated to counsel (having regard to the reference that the defence counsel had made in closing to “something requiring operative treatment”) that she proposed adding to the definition of grievous bodily harm that it did not have to require operative treatment (T 687.3) and asked counsel to consider an amended definition (T 687.9). The amended definition amended the first paragraph of the proposed definition to read (MFI 21):

Grievous bodily harm means really serious bodily injury. Such injury need not be permanent nor have long-lasting or life-threatening consequences (however it may have) nor be something requiring operative treatment.

  1. The following day, defence counsel argued that the amended definition “does tend to downplay it”, submitting that whether or not medical treatment was required was a relevant consideration (see her Honour’s summing up at p 45) and questioning the reference to “operative treatment” (see at her Honour’s summing up at p 46). Her Honour said that this had been inserted “because you, in your closing, submitted to them there was no operation, which in my view suggested there needed to be an operation” (see her Honour’s summing up at p 46), to which defence counsel responded that his submission had been limited to the proposition that it was something for the jury to take into account. Her Honour then suggested that the direction include in brackets at the end of that sentence the words “(but any medical treatment or lack thereof would be relevant consideration)”, with which defence counsel said he was “happy”.

  2. The definition that went to the jury thus read (MFI 22):

Grievous bodily harm means really serious bodily injury. Such injury need not be permanent nor have long-lasting or life-threatening consequences (however it may have). Such injury need not require operative treatment (however any medical treatment or lack thereof would be a relevant consideration). [Emphasis added]

Whether the injury relied upon to prove Count 8 constitutes “grievous bodily harm” is a question of fact for you to consider and determine.

Section 166 Certificate

  1. There were three further offences of common assault on a s 166 Certificate that her Honour found proved, namely: Sequence 9: an occasion between December 1996 and December 1998 when the applicant struck KR, “completely unprovoked”, causing her to “black out” (ROS p 7) (an offence witnessed by Ms Akaiti (ROS p 7); Sequence 10: an occasion, some months later, when the applicant picked KR up and “pushed her against the wall, causing her head to hit the wall” (ROS p 7) (an offence witnessed by Ms Akaiti and her partner); and Sequence 12: an occasion between November 2000 and January 2001 when KR was seven months pregnant with her daughter and the applicant “grabbed [KR] by the legs and pulled her down the stairs” (ROS p 7).

  2. Her Honour accepted that the applicant was “violent and physically abusive” towards KR on occasions other than those charged (ROS p 7).

Conviction appeal – Ground 1

  1. The sole ground on the conviction appeal, as extracted above, is that the verdict in respect of count 8 is unreasonable or cannot be supported having regard to the evidence.

Applicant’s submissions

  1. The applicant contends that the evidence did not establish the element of grievous bodily harm, noting that the question for this Court is whether, as observed by Hayne J in Libke v R (2007) 230 CLR 559; [2007] HCA 30 (Libke v R) at 596 [113], “the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt”; and that it is not sufficient to determine that there was evidence to support the jury’s verdict as a matter of law.

  2. Having regard to the definition of “grievous bodily harm” (see s 4 of the Crimes Act extracted below), and noting that the offence is to be distinguished from an offence of “actual bodily harm”, the applicant points out (with which the Crown does not cavil) that grievous bodily harm refers to a more serious form of injury than actual bodily harm (the latter meaning any hurt or injury that has more than a fleeting or trivial effect that interferes with the health or comfort of a person).

  3. It is noted that in R v Perks (1986) 41 SASR 335, King CJ said at 337 that, in attempting to explain the phrase “grievous bodily harm” to a jury, a trial Judge should not use merely the word “serious” but the words “really serious”. Reference is made to Swan v R [2016] NSWCCA 79 (Swan), where Garling J, with whom R A Hulme J agreed, said (at [58]ff) that:

58.   The phrase “really serious bodily injury” has its genesis in the English courts. In Director of Public Prosecutions v Smith [1961] AC 290, the Lord Chancellor, Viscount Kilmuir said at 334:

“I can find no warrant for giving the words ‘grievous bodily harm’ a meaning other than that which the words convey in their ordinary and natural meaning. ‘Bodily harm’ needs no explanation, and ‘grievous’ means no more and no less than ‘really serious’.”

The Lord Chancellor expressed his agreement with the judgment of Martin J in the Supreme Court of Victoria in R v Miller [1951] VLR 346 at 307.

59.   In Miller, Martin J (with whom Smith J and Coppel AJ agreed) held that it was an error for the trial Judge to have directed the jury that grievous bodily harm meant “some serious interference with bodily health or comfort”. At 356, Martin J said:

“A black eye, or a sprain or any considerable bruising will quite commonly amount to a serious interference with bodily comfort, and the same is true of the normal results of an ordinary caning of a schoolboy. But such matters cannot be brought within the ordinary and natural meaning of the expression ‘grievous bodily harm’.”

  1. In Swan, his Honour referred (at [63]) to Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209 (Haoui) where the necessity for the injury to be a “really serious one” was noted at [162] by Johnson J; and (at [64]) to AM v R (2012) 225 A Crim R 481; [2012] NSWCCA 203 at [70] where “grievous” was said to mean “really serious” (per Johnson J, with whom McClellan CJ at CL and Garling J agreed). Garling J went on to say (at [65]) that:

65.   It is clear from the authorities that in ascertaining what constitutes really serious bodily injury, questions of fact and degree are involved. In R v Overall (1993) 71 A Crim R 170, Mahoney JA (with whom Allen J agreed) considered the difference between actual bodily harm and grievous bodily harm. At 174, his Honour said:

“The difference between actual bodily harm and grievous bodily harm is ... one of degree. Actual bodily harm if ‘really serious’ (cf DPP v Smith at 335; 291) may constitute grievous bodily harm. Each is ‘harm but the one is more serious than the other."

  1. The applicant also points to the summary given by Garling J at [71] of the relevant principles with respect to the phrase “grievous bodily harm” as being:

(a)   It is to be interpreted according to its natural and ordinary meaning;

(b)   On its natural and ordinary meaning, the phrase means not just serious bodily injury, but really serious bodily injury;

(c)   there is no bright-line by which an injury can be classified as really serious bodily injury; it is always a question of fact and degree;

(d)   not every injury is capable of amounting to grievous bodily harm;

(e)   only the injury itself and its direct physical effects, not its personal, social and economic consequences, can be taken into account in deciding whether an injury amounts to really serious bodily injury. [emphasis as per original]

  1. The applicant accepts that no challenge was made to the ultimate direction of the trial judge to the jury with respect to what constituted “grievous bodily harm”. However, the applicant contends that the reference in the direction that was given to the jury to the effect that it was not necessary that such an injury require operative treatment though any medical treatment or lack thereof would be a relevant consideration (see above) had the effect of detracting and minimising the most salient concept (that being “really serious bodily injury”).

  2. Further, it is said that in the present case there was a real question as to whether the injury was the loss of one, two or three teeth (noting that the only evidence of more than one tooth was from KR and it being said that all other corroborative evidence supported only the loss of one tooth, including KR’s former affidavit in the Family Court). It is noted that the jury did not convict the accused in relation to any offence where there was not corroboration of KR’s evidence.

  3. The applicant says that the evidence was moot as to whether the loss of the tooth was caused solely by the blow by the applicant or general decay (here emphasising the later observations of the dentist as to the overall condition of KR’s teeth and the fact that there were no remaining roots of the teeth that it is said would be expected if the tooth or teeth were fractured with a blow). Further, the applicant says that KR sought no immediate medical treatment and ultimately the injury was treated with Panadol.

  4. Thus, it is submitted that the evidence does not answer the description of “really serious bodily injury”. It is noted that the jury was not invited to consider any alternative gradation of the characterisation of the injury and that it is said that this further left the direction absent any other useful reference point as had occurred in relation to the AOABH offences.

  5. The appellant seeks that a verdict of acquittal be entered.

Crown submissions

  1. As to the submission by the applicant that her Honour’s direction as to grievous bodily harm had the effect of detracting from and minimising the concept of “really serious bodily injury”, the Crown points out (as set out above) that the definition to be given to the jury was settled having regard to the manner in which defence counsel had addressed in closing and was ultimately acceded to by defence counsel. It is submitted that no miscarriage of justice arose from the nature of direction, nor does this direction inform the applicant’s ultimate contention that the verdict was unreasonable.

  2. As to the applicant’s submission concerning the question as to whether the injury was the loss of one, two or three, the Crown submits that little turns on whether KR lost one, two or three teeth, given that one of those teeth was a front tooth. It is said that it was the loss of a front tooth that is likely to have been persuasive on the question whether the injury amounted to grievous bodily harm.

  3. Further, the Crown says that, while it is true that the jury generally only convicted where KR’s evidence was corroborated (and having noted the inconsistency in the evidence on the issue as to the number of teeth that fell out at the time), it was still open to the jury to accept KR’s evidence that she lost three teeth (and later a fourth). It is submitted that the corroboration of at least the loss of the front tooth may well have been sufficient for the jury to accept her evidence that two other teeth also fell out.

  4. In any event, the Crown says (and the applicant here accepts) that the relevant question is what it was open to the jury to accept (which it is said the applicant here accepts) and maintains that it was open to the jury to accept (as her Honour did in the ROS), that KR had lost three teeth (citing M v R (1994) 181 CLR 487; [1994] HCA 63 (M v R)). Moreover, the Crown says that even if only a single front tooth had been lost, that would not compel a conclusion that grievous bodily harm was not made out.

  5. As to the expert evidence, and the applicant’s submission in relation to the evidence of the dentist “that there were not remaining roots of the teeth that would be expected if the tooth or teeth were fractured with a blow”, the Crown submits that this misstates the dentist’s evidence; noting that the dentist said that “a badly decayed tooth” would “likely” break at the gum line rather than be knocked out at the roots; and that there was no evidence as to the state of the KR’s teeth when the alleged offence occurred (12 years before seeing the dentist). It is submitted that the fact that KR was missing six teeth, including a front tooth, when she was examined by the dentist in 2008 was consistent with her evidence about the loss of the teeth in the circumstances giving rise to count 8.

  6. As to the applicant’s submission that the conservative treatment of the injury is suggestive of one that does not fall into the category of grievous bodily harm, the Crown submits that whether or not the loss of the tooth (or teeth) constituted grievous bodily harm was a matter for the jury and contends that it has not been shown that the jury must have had a doubt about that.

  7. However, in the event that the applicant’s conviction appeal were to be upheld, the Crown submits that this is a case where it would be appropriate for the Court to exercise its power under s 7(2) of the Criminal Appeal Act1912 (NSW) to substitute a verdict for AOABH, that offence being one “wholly within the ultimate facts of the offence” of which the applicant was convicted (the Crown here referring to Spies v R (2000) 201 CLR 603; [2000] HCA 43 at [23] per Gaudron, McHugh, Gummow and Hayne JJ, with whom Callinan J agreed at [136]; see also Mehajer v R (2014) 244 A Crim R 15; [2014] NSWCCA 167 at [138] per Bathurst CJ, with whom Johnson and R A Hulme JJ agreed; MM v R [2018] NSWCCA 158 at [10] per Walton J, with whom Hoeben CJ at CL and R A Hulme J agreed).

  8. The Crown submits that the critical question is whether it was available to the jury to bring in the verdict that the Crown seeks to be substituted, and that this question ought to be answered in the affirmative, given that AOABH was a common law alternative to grievous bodily harm. It is submitted that the Court is not being asked to make a finding that was not necessarily made by the jury, insofar as each of the elements of AOABH were here made out (see at T 13.24-34). The applicant did not make any submissions in response to this contention in the course of the hearing (see at T 15.12-14).

Determination

  1. It is not in dispute that, where it is contended that a verdict is unreasonable, the question is whether the appellate court thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (see M v R at 493 per Mason CJ, Deane, Dawson and Toohey JJ; SKA v R (2011) 243 CLR 400; [2011] HCA 13 (SKA) at [11]-[14] per French CJ, Gummow and Kiefel JJ); or, whether “the jury must, as distinct from might, have entertained a doubt about the applicant’s guilt” (Libke v R; Pell v R (2020) 268 CLR 123; [2020] HCA 12 at [44]-[45]); and see also Hamilton (a pseudonym) v R [2020] NSWCCA 80 at [66] per Macfarlan JA, with whom Adamson and Beech-Jones JJ agreed at [80] and [126] respectively). SKA was reaffirmed in GAX v R (2017) 344 ALR 489; [2017] HCA 25 at [20] per Bell, Gageler, Nettle and Gordon JJ.

  2. The court’s assessment is thus not simply as to the sufficiency of the evidence but also as to its quality (see SKA at [14], there citing Deane, Toohey and Gaudron JJ in Morris v R (1987) 163 CLR 454; [1987] HCA 50 at 473). The question is one of fact “which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’” (M v R at 492-493; see also SKA at [14]).

  3. The Court is thus required, in relation to this ground, to make an independent assessment of the evidence both as to sufficiency and quality to determine if it was open to the jury to conclude beyond reasonable doubt that the applicant was guilty (Raumakita v R (2011) 210 A Crim R 326; [2011] NSWCCA 126 at [31] per Johnson J, with whom Macfarlan JA and Garling J agreed).

  4. It is also worth noting, as to the advantage that the jury had of seeing and hearing the witnesses give their evidence, in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 the High Court emphasised (at [65]-[66]) that, given the centrality and importance of the jury’s role in the administration of the criminal justice system, setting aside a jury’s verdict on the ground of unreasonableness is a serious step “not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”, there referring to what was said in M v R at 494-495 by Mason CJ, Deane, Dawson and Toohey JJ, to the effect that a doubt experienced by the appellate court is a doubt that ought to have been experienced by a jury (saying that “where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced”).

  1. In the present case, the question turns on essentially whether the jury must have entertained a reasonable doubt as to the injury suffered by KR, namely whether the injury amounted to grievous bodily harm (as that term is defined in the Crimes Act), having regard to the meaning that has been accorded to the concept of “really serious bodily injury” in the authorities to which reference has been made above. In that context, the definition of “grievous bodily harm” includes (b) any permanent or serious disfiguring of the person.

  2. There is no doubt that the evidence of KR at the trial (saying that two teeth fell out immediately and that a third – that being at the front – was left “hanging by a thread”, which she then pulled out; and that an adjacent tooth went grey and later had to be removed) was inconsistent with the affidavit that had earlier been filed in the Federal Circuit Court in which KR referred only to the loss of one tooth. However, critical in this context is that Ms Sutton said that she saw the punch and that she saw a “whole tooth” fall out at the time. KR’s mother corroborated this evidence in that she noticed KR was missing a tooth when she saw her in Airds (and it would be inherently more likely that one would notice a missing front tooth than other side teeth, for example). Ms Akaiti also noticed a missing tooth at around the relevant time.

  3. When KR saw a dentist in 2008, six teeth were missing, including one at the front and five towards the back; and the dentist observed that the state of KR’s teeth was generally very poor. Further, as noted above, the dentist gave evidence that a hit to a badly decayed tooth that is “hard enough” is likely to cause it to break (as opposed to knocking it out by the root). However, whatever the state of decay as at the time the dentist examined KR, that does not cause a reasonable doubt as to the evidence of Ms Sutton that when the applicant punched KR in the face her front tooth flew out.

  4. Here, there is ample evidence on which it was open to the jury to have been satisfied beyond reasonable doubt that the applicant’s punch to KR’s face caused the loss of at least one tooth (and that it was the front tooth). Ms Sutton’s evidence graphically corroborated the evidence of KR on this issue (and the jury had the benefit of seeing her as a witness in the trial); and there was other corroboration from KR’s mother and Ms Akaiti. The existence of a doubt as to whether the loss was of one tooth or more does not in the circumstances lead to the conclusion that the jury must have entertained a reasonable doubt as to the loss of that one front tooth. And it was open to the jury to conclude beyond reasonable doubt that the loss of a front tooth amounts to serious disfigurement (even if it was capable of being remedied by cosmetic dental surgery – which KR could not afford at the time; and even if the injury was only managed at the time by conservative treatment, namely Panadol). As noted by Garling J in Swan v R, it is not necessary that the injury be permanent (though in passing it may be observed in the present case it clearly did have a degree of permanence because KR was not for some time able to afford dental treatment for that injury – that said, we note Garling J’s further remarks that the personal and economic consequences of an injury are not to be taken into account – see at [71]).

  5. The fact that 12 years after the event KR’s teeth were in a poor state of decay does not mean that the jury must have experienced a reasonable doubt as to whether the loss of at least one tooth (and particularly the front tooth) was a really serious injury when sustained. As adverted to above, while the extent of any medical or operative treatment can be a relevant consideration, here KR did seek treatment from a doctor shortly after the injury and her evidence was that she consulted the dentist for treatment but was unable to afford it.

  6. This is hardly the case of a black eye or sprain or bruising, to use the examples in R v Miller [1951] VLR 346 (see above), the effects of which would be transient even though it was recognised that these may amount commonly to a serious interference with bodily comfort.

  7. In Haoui, the majority (Johnson J, with whom McCallum J, as her Honour then was, agreed; Beazley JA, as Her Excellency then was, dissenting on this issue) found that it was open to the jury to be satisfied beyond reasonable doubt that a fracture of the cheekbone which required surgery was “grievous bodily harm” though “very much at the low end of that scale”. In Swan, a stable fracture of a vertebra not requiring operative treatment was not. That illustrates the proposition recognised in the authorities that there is no bright-line in this regard.

  8. In the present case, given that there was corroboration as to the immediate loss of at least one tooth as a result of the applicant’s punch to KR’s face, the overwhelming likelihood that it was the front tooth (given the witnesses who observed the loss of a tooth in the following days); and given the disfigurement that loss of a whole front tooth must necessarily have comprised, it was open to the jury to be satisfied beyond reasonable doubt that the injury sustained amounted to grievous bodily harm. No issue arises out of her Honour’s direction to the jury as to the meaning of “grievous bodily harm” (which was settled in debate with the applicant’s then counsel and which, read in context, did not detract nor downplay the concept of “really serious bodily injury”) nor was there any appeal from her Honour’s ruling that this was an issue that was to be left to the jury.

  9. Therefore, leave should be given to bring the conviction appeal and that appeal should be dismissed.

Sentence Appeal

  1. As adverted to above, three grounds were raised on the sentence appeal as set out in the amended grounds of appeal:

  1. The applicant contends that the indicative sentences were manifestly excessive and indicative of error in the sentence imposed.

  2. Her Honour failed to consider that any other sentence other than imprisonment was available in the circumstances.

  3. The indicative sentences which her Honour applied for related offences 9 and 12 were contrary to law.

  1. It is only necessary to consider the third of those grounds. The trial judge specified the indicative sentence in relation to related offences 9 and 12 as being (for related offence 9) a sentence of imprisonment of 15 months and (for related offence 12), a sentence of imprisonment of 18 months. However, as at the time of the offences (1996 through to 2001), s 495(2) of the Crimes Act imposed a maximum period for those offences of 12 months imprisonment and/or a fine not exceeding 20 penalty units.

  2. The Crown concedes that this amounted to error of the nature that would require resentencing in relation to the related offences 9 and 12 (the Crown having drawn this to the applicant’s attention) (T 3.2). The Crown’s concession is given (although indicative sentences are not sentences themselves) having regard to what was said in Mundine v R [2017] NSWCCA 97 (Mundine v R) at [92]-[93] per Adamson J and [19] per Basten JA, where it was held that it is an error requiring re-sentencing where an indicative sentence has been specified that exceeds the jurisdictional maximum. That said, the Crown submits that no lesser sentence would be warranted on re-sentence.

Trial judge’s findings on sentencing

  1. There was no challenge to any of the findings made by the trial judge on sentencing.

  2. As to the objective gravity of each offence, the trial judge noted that all of the offences occurred in a domestic context and in circumstances where they were not isolated. Her Honour noted that: counts 1, 8 and the related offences involved an assault by a male upon a female and counts 4 and 5 involved assaults upon a female child (which factor increased the objective gravity of those offences); counts 1, 4 and 7, and sequences 10 and 12, occurred in the homes of the victims (and count 5 close to the victim’s home); counts 1, 4, 5 and 8, and sequence 9, involved the application of force to the victim’s face or head area; at the time count 8 and sequence 12 occurred the victim (KR) was heavily pregnant with their child; and that count 1 involved one action by the applicant but counts 4 and 5 involved, to varying extents, repeated and sustained conduct by the applicant. Her Honour noted that each offence was unprovoked (and that, while the applicant may have been aggrieved at some aspect of the victim’s behaviour, such conduct was in no way proportionate to what occurred thereafter).

  3. Her Honour concluded that the actual bodily harm caused by the applicant in counts 1, 4 and 5) was not the most serious example of such harm and that, likewise, although the grievous bodily harm occasioned in count 8 involved the permanent loss of natural teeth, such injury was far from the most serious type of harm encompassed by this offence.

  4. As to count 7, her Honour noted that the detention of KR lasted several hours and its purpose was to enable the applicant to control the movements of KR (it being early in their relationship when she was aged 17) but that it did not involve features such as threats of harm or physical restraints such as ties or bindings.

  5. Her Honour noted that one of the purposes of sentencing is to recognise the harm done to the victim and/or the community; and that each victim had prepared a victim impact statement detailing the ongoing impacts of the offending.

  6. As to the applicant’s subjective case, a psychological report dated 6 November 2020 from a forensic psychologist, Mr Bradley Jones, was tendered; as well as a report dated 2 November 2020 from Associate Professor Peter Middleton, Director, Cystic Fibrosis Specialist Service, at Westmead Hospital, relating to a chronic illness suffered by the applicant’s cousin (for whom the applicant was a carer), and multiple character references (see Ex B).

  7. Her Honour said that “to the extent that aspects of the offender’s childhood were deprived and dysfunctional, I have taken the enduring effects of such an upbringing into account in sentencing him” (see Bugmy v R (2013) 249 CLR 571; [2013] HCA 37).

  8. Her Honour noted that the applicant was born in the Cook Islands in 1963 and was aged 57 as at the date of sentence; that the applicant was adopted by his paternal great uncle and aunt at the age of 5 and they raised him until the age of 18, when he returned to New Zealand to reside with his biological parents for three years; and that the applicant immigrated to Australia in 1988.

  9. Her Honour noted that the applicant reported to Mr Jones that he suffered physical abuse from both adoptive parents and that he never developed a good relationship with his adoptive mother, stating that she was unloving and strict and used corporal punishment; and that the applicant reported an on/off relationship with his adoptive father who was less violent in comparison with his adoptive mother.

  10. Her Honour noted that the applicant described himself as the “family slave” and reported that his adoptive family were impoverished and that a lack of clothing and food were recurring issues. Her Honour noted that, after reuniting with his biological parents when he was 18, the applicant enjoyed a very good relationship with each of them until their deaths in 1990 and 2013, respectively. The applicant reported that he had developed a much closer relationship with his adoptive siblings in adulthood; his biological and adoptive siblings currently residing in New Zealand.

  11. The applicant finished school (to the Australian equivalent of Year 12) in the Cook Islands, recalling school as being a relatively enjoyable period of his life and describing himself as a below average student who was generally well behaved. Her Honour noted that Mr Jones assessed the applicant’s cognitive function as being “below average range with a limited insight and judgment”. Following school, the applicant had been employed in unskilled positions, including assembly lines, as a storeman, scaffolder and loader/unloader of shipping containers.

  12. Her Honour noted that in terms of personal relationships, the applicant reported involvement in three long term relationships, the first with someone (from which relationship a daughter was born), who died at the age of 22, the other two with the victims VK and KR.

  13. The applicant reported that he drank large quantities of alcohol during his first relationship, drinking frequently to the point of intoxication until he was gaoled for manslaughter in 2006 but that after his release from that sentence and prior to his arrest for the present offences his drinking had reduced to two to three times a year only. The conviction for manslaughter was after the offences the subject of the present proceedings had been committed. (While the applicant’s criminal history indicates that it is a conviction for causing grievous bodily harm it is noted that the parties informed the Court that this was an error.)

  14. Her Honour noted that for that manslaughter offence, the applicant was sentenced to 7 years imprisonment with a non-parole period of 4 years and 6 months, commencing in 2006.

  15. After the applicant’s release from custody (and before being arrested on the present offences), the applicant became a full-time carer for his cousin, who suffers a severe lung disease.

  16. Her Honour noted that at the time of the offending for which the applicant was now standing to be sentenced, the applicant had no criminal record; however, her Honour said that his present offences were not isolated and her Honour was satisfied beyond reasonable doubt that the applicant had assaulted VK in New Zealand before the commission of count 1; and said that the present offending was ongoing over a number of years.

  17. Her Honour noted that a number of references were before the Court (see Ex 2) that, among other things, described the present offences as “out of character” and inconsistent with the man known by the referees. Her Honour considered that assertions such as these were of no weight, noting that they were inconsistent with the evidence called at the trial and accepted by the jury; and that in these circumstances the applicant’s lack of relevant criminal contentions as a matter potentially entitling him to leniency assumed less weight. However, her Honour accepted that the evidence established that in more recent years, and following his release from gaol for manslaughter, the applicant had been “perceived by others to be kind-hearted, generous and of good nature”.

  18. Her Honour noted that the psychologist (Mr Jones) had opined that as a result of his arrest and incarceration, the applicant was suffering from “adjustment disorder with mixed anxiety and depressed mood” and accepted that this condition might make custody more onerous. As noted above, the psychologist assessed his cognitive function as “below average” with “limited insight and judgment”. In terms of his physical health, her Honour noted that the applicant was suffering from high blood pressure and diabetes.

  19. Her Honour accepted that the offences were stale offences, in that many years had passed since their commission (and that they had occurred when the applicant was a much younger man – 24-33 years – and at a period of time when he was drinking to excess).

  20. Her Honour said that a number of consequences flowed from the fact that the offences were stale.

  21. First, that the applicant had demonstrated that, following his release to parole he had not reoffended. Her Honour was prepared to find that there had been some rehabilitation to date and that his risk of reoffending was small (and agreed with Mr Jones that that risk could be further reduced by continued engagement in courses such as the Remand Domestic Violence course and therapy to address his depression and anxiety).

  22. Second, that beyond the anxiety caused by the delay between the time when he was charged in 2019 and the finalisation of the charges in 2020 (which her Honour had taken into account and afforded some weight) there was no evidence that the delay had caused the applicant any detriment of the sort referred to in R v Todd [1982] 2 NSWLR 517.

  23. Third, that the applicant would be serving his sentence as an older man, which would be more onerous than it would have been when he was younger (although, balanced against that, was the fact that he had been able to enjoy years of his younger life living in the community).

  24. Fourth, that her Honour was required to sentence the applicant in accordance with sentencing patterns and practices in existence at the time of his offending (as best that could be ascertained) and that at the time of counts 1, 4 and 5, sentencing practices were “somewhat more liberal insofar as the type of sentence imposed and as regards considerations of concurrence versus accumulation”.

  25. Her Honour then returned to some of the purposes of sentencing, noting that general deterrence and denunciation were very important sentencing considerations in the context of offences against “partners and children in a domestic context”; the need for recognition of the harm caused by such offences to the victims and the community; and said that, to the extent that there is a need for specific deterrence, that could be addressed by imposing a sentence which would have real consequences should it be the case that the applicant did reoffend.

  26. Her Honour also took into account that the then restrictions operating in NSW prisons as a result of the COVID-19 pandemic were likely to endure at least for the foreseeable future.

  27. Her Honour was satisfied that no penalty other than imprisonment was appropriate; had regard to the principles applicable as to concurrency or accumulation of sentences; and concluded that there should be relatively modest accumulation because otherwise the aggregate sentence would be unduly excessive.

  28. Her Honour had regard to the fact that the sentence imposed would have tangible effects on the applicant’s cousin but said that this did not constitute exceptional hardship as that term is understood by the law. Her Honour indicated that her principal reasons for finding special circumstances were that the applicant would need assistance on his release to reintegrate into the community and, in relation to counts 1, 4 and 5, because of the different sentencing practices in place at the time each of those was committed.

  29. The applicant was arrested on 6 May 2019 and was thereafter remanded in custody. There is no issue raised as to the dating of the sentence. An aggregate sentence of imprisonment was imposed of 4 years to date from 6 May 2019 and to expire on 5 May 2023 with an aggregate non-parole period of imprisonment of 2 years and 8 months to date from 6 May 2019 and to expire on 5 January 2022. The ratio of the sentence is 66% and the applicant accepts that this is available within the sentencing discretion afforded.

Applicant’s submissions

  1. In the context of the submissions made in relation to ground 1, the applicant contended that the indicative sentences in relation to counts 1, 4 and 5, and related offences 9, 10 and 12, were in relation to counts that would have normally been expected to be dealt with in the Local Court and that they were dealt with in the superior jurisdiction because of their relationship to the matters for which the applicant was acquitted; and submitted that, against a criminal history of no prior convictions, the circumstances of the offences and the historical sentencing patterns in the Local Court at the time when the offences were committed, a non-custodial penalty was appropriate. In particular, the applicant pointed out that there were no injuries detailed in relation to offences 9, 10 and 11 and contended that, given the facts and circumstances and particularly the demonstrated rehabilitation and delay, a penalty other than imprisonment was appropriate in relation to the offences on counts 7 and 8.

Crown submissions

  1. The Crown says that: there were multiple offences before the Court and those offences were not isolated; the offences occurred in domestic settings and were committed by a male upon a female or a female child (elevating their seriousness); having regard to the applicant’s prior conviction for manslaughter and the number of offences before the Court, it was by no means obvious that election would not have been made on the assault occasioning actual bodily harm offences, even if they had not been committed for trial with the sexual assaults of which the applicant was acquitted; the fact that no injuries were occasioned as a result of sequences 9, 10 and 12 did not reduce their seriousness (they being serious examples of common assault – noting that sequence 10 involved the victim blacking out and sequence 12 involved the applicant pulling her down the stairs by her legs); and that the delay and the applicant’s demonstrated rehabilitation in that time were matters to take account in his favour but could not have made non-custodial sentences appropriate for sequences 7 (detain for advantage) and 8 (maliciously inflict grievous bodily harm) (those offences carrying maximum penalties, respectively, of 14 and 7 years).

  2. It is noted that there were eight offences of domestic violence, two being serious offences of kidnapping and maliciously inflicting grievous bodily harm; that on two occasions, the victim was heavily pregnant and on two occasions, the victim was a child. The Crown says that none of the offences was isolated; all occurring in the context of controlling and abusive relationships. The Crown contends that the domestic context of all of the offences both increased their objective seriousness and demanded that significant emphasis be placed on general deterrence (Goodbun v R [2020] NSWCCA 77; R v Kilic (2016) 259 CLR 256; [2016] HCA 48; Cherry v R [2017] NSWCCA 150; R v JD [2018] NSWCCA 233; Patsan v R [2018] NSWCCA 129). The Crown notes that, although the applicant had demonstrated some rehabilitation after his release from gaol, since the offences had been committed he had been convicted of manslaughter.

  3. The Crown submits that, in all the circumstances, a non-custodial sentence would not reflect the objective seriousness of the multiple offences and the need for the sentence to emphasise general deterrence; and that no lesser sentence is warranted.

Determination

  1. Given that it is conceded that there was an error in the specification of the indicative sentences for related offences 9 and 12, and the Crown’s quite proper concession that this amounted to an error of the kind that warrants re-sentencing, it follows that this Court should exercise the sentencing discretion afresh in accordance with Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [42] per French CJ, Hayne, Bell and Keane JJ. It is relevant, however, to note that in that case their Honours held (at [43]) that the Court is not required to re-sentence where it considers that the same sentence or a greater sentence is appropriate (see also the observations of Basten JA at [21] in Mundine v R). In performing the task of exercising afresh the sentencing discretion, it should be noted that none of her Honour’s findings (which have been broadly summarised above) was challenged in this Court.

  2. As to the objective seriousness or gravity of the offences, it will be recalled that the relevant counts involved the following (as described in more detail earlier when considering the conviction appeal):

  • count 1 was the assault striking VK on the nose as she was leaving the house (causing the nose to bleed and later swell);

  • count 4 was the assault on VK’s daughter (MK) striking her across the head and face and causing her nose to bleed;

  • count 5 was again an assault committed on MK by dragging MK back to the house and hitting her on the face multiple times, causing her nose to bleed and an injury to her knee;

  • count 7 was the detain for advantage count relating to KR, trapping her in the house for the day;

  • count 8 was the malicious infliction of grievous bodily harm in which the applicant punched KR in the mouth using a closed fist and causing the permanent loss of at least one tooth (at a time when KR was pregnant);

  • related offence sequence 9 involved force to KR’s head or face;

  • related offence sequence 10 involved KR blacking out during the assault; and

  • related offence sequence 12 involved pulling KR down the stairs by her legs, again while KR was pregnant.

  1. All of the offences occurred in a domestic context; and none was an isolated offence. All involved assaults (or, in one case, detention) by a male of a female (and counts 4 and 5 involved assaults on a female child, which increased the seriousness of the offence). As her Honour concluded, none of the offences fell within the most serious category of such an offence. Rather, in our opinion the objective seriousness of the offences fell towards the mid-range of offences of this kind, but with the additional factor that the offences occurred in or near the victim’s home. Each victim had prepared a victim impact statement as to the impact of the offences on her.

  2. As to the subjective considerations, the applicant’s background has been noted above. Aspects of that background were dysfunctional (involving reported physical violence) and deprivation (his adoptive parents being impoverished). The psychologist’s report noted the applicant’s cognitive function as being “below average range with a limited insight and judgment” and that, since his arrest and incarceration, the applicant was suffering from “adjustment disorder with mixed anxiety and depressed mood”. It is accepted that the applicant’s adjustment disorder was a factor that might make custody more onerous for the applicant.

  3. As to the applicant’s criminal history, as noted already, prior to the offences in question the applicant had no criminal record (though the trial judge was satisfied beyond reasonable doubt that, prior to count 1, the applicant had committed domestic violence on VK in New Zealand). Since the offences, the applicant had been convicted and gaoled for manslaughter.

  4. The applicant’s prospects for reoffending were found by the trial judge to be small (and manageable by way of interventions of the kind referred to in the reports referred to above) and we have reached the same conclusion, though also noting that the trial judge concluded that the applicant had no insight into his offending and showed no remorse.

  5. The applicant’s education was average (to year 12 standard) and the applicant prior to offending had been employed in unskilled jobs.

  6. The applicant suffered stress as a result of his arrest and incarceration (and it is noted that he was bail refused for some time).

  7. It is accepted that the applicant had demonstrated an ability to rehabilitate himself after his release from gaol for the earlier manslaughter conviction; had produced character references (as already noted); and was the carer for his cousin prior to sentence for the present offences (which means that a custodial sentence has inevitably caused hardship in the family context, though not exceptional hardship).

  8. The observations by the trial judge as to the need for general deterrence and denunciation of domestic violence are here endorsed. As to specific deterrence, the applicant’s lack of insight into the offending makes this also an important consideration.

  9. Having regard to all of the above matters, and taking into account the corrected indicative sentences, this Court has concluded that no different sentence is warranted. In particular, this Court has concluded that no sentence other than a custodial sentence was warranted and that (even apart from the fact that an intensive corrections order is precluded by the term of the sentence to be imposed) the purposes of sentencing would not be met other than by a custodial sentence; but that there should be partial accumulation of the sentences (as the trial judge concluded) since otherwise the aggregate sentence would be excessive. Accordingly, this Court is not required to re-sentence the applicant.

Conclusion

  1. For the above reasons, the following orders will be made:

  1. Grant leave to appeal from conviction and dismiss the appeal.

  2. Grant leave to appeal from sentence and dismiss the appeal.

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Amendments

12 August 2022 - Coversheet - representation

Decision last updated: 12 August 2022

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Cases Citing This Decision

4

Police v Taylah Blake [2023] NSWLC 12
Reyne (a pseudonym) v R [2022] NSWCCA 201
Director of Public Prosecutions v Hagen [2024] ACTSC 360
Cases Cited

4

Statutory Material Cited

2

Swan v R [2016] NSWCCA 79
Haoui v R [2008] NSWCCA 209
Kentwell v The Queen [2014] HCA 37