R v CBU[2017] QCA 227

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  I agree with the reasons for judgment of Morrison JA and the orders proposed by his Honour.
2. MORRISON JA:  The appellant and the complainant (M) met in 2002 and were married in 2004.  They had the care of a number of children, two from M’s first marriage (J and T) and two (E and C) from their own.  They separated in December 2008, then reunited.  They separated again in June 2013 after M said that she had been the subject of protracted domestic violence.
3. M described incidents of violent physical assaults and threats on a number of occasions, including: (i) in early 2006, threats with a rifle pointed at her head; (ii) in June 2008, assaults to her arm, throat and head, and then being raped; (iii) in August 2008, threats to cut her throat and “gut you like a pig”, with a knife held to her stomach and throat; and (iv) in June 2013, assaults to her arm and head with hands and a broom, threats to kill her and her family, and suffocation with a pillow.
4. Arising out of those allegations the appellant was charged with five counts as follows:

1. count 1: early 2006, common assault, a domestic violence offence;
2. count 2: June 2008, assault occasioning bodily harm, a domestic violence offence;
3. count 3: June 2008, rape, a domestic violence offence;
4. count 4: August 2008, common assault, a domestic violence offence; and
5. count 5: June 2013, assault occasioning bodily harm, a domestic violence offence; an alternative count of common assault being a domestic violence offence was left to the jury.

5. After a trial the appellant was found guilty of common assault on count 4 and on the alternative count 5, each on the basis of a domestic violence offence.  He was acquitted on counts 1, 2 and 3, and on the original count 5.  He was sentenced to six months’ imprisonment on each of counts 4 and 5, to be served concurrently.  A parole release date was fixed at 10 November 2017.
6. He has appealed against his convictions, and seeks leave to appeal against his sentence.
7. The grounds of appeal^[1] are that the learned trial judge erred by:
   1. ground 1: acting himself to exclude two admissions which had been made by agreement with the Crown;
   2. ground 2: excluding an admission as to J’s false complaint to the police about the appellant;
   3. ground 3: excluding an admission regarding C’s telephone conversation with the appellant on 29 September 2013; and
   4. ground 5: misdirected the jury in relation to whether M’s oral evidence established that the allegation in her affidavit sworn 12 January 2009 was a different allegation from that in count 4.
8. The grounds of the challenge to the sentence are that:

1. given the appellant’s demonstrated rehabilitation, the mitigating aspect of delay was not taken into account;

2. there was no moderation of the general deterrence factor on account of the appellant’s mental illness at the time of count 4; and
3. the sentences were manifestly excessive.

Background to the trial

9. The grounds of appeal do not include that the verdicts are unreasonable or cannot be supported by the evidence, nor that they are inconsistent.  It is therefore not necessary to review all the evidence in order to consider the issues in the appeal.  However some background to the trial and the way it was conducted is appropriate.
10. M and her four children gave evidence of the assaults they said they had experienced or witnessed.  A short synopsis of M’s evidence will suffice to reveal the character of the allegations.
11. Count 1 concerned events in early 2006.  The appellant got a rifle and pointed it at her head, saying he was going to kill her.  He then turned the gun on himself, talking about suicide.  No complaint about this event was made in any of M’s affidavits since that time and it was not corroborated by the children.  The appellant was acquitted on this count.
12. Counts 2 and 3 concerned events on one occasion in June 2008.  The appellant grabbed her by the arm, and threw her repeatedly against a wall in the bedroom.  He then took her into the ensuite bathroom by the throat, repeatedly and forcefully banging her head on a window.  At the same time he was yelling and screaming at her.  At that point he threw her on the bed and said he was going to have sex with her.  She said “no” but he proceeded to rape her, and ejaculated on her stomach.  M did not make any allegation of rape in any subsequent affidavits, and there were inconsistencies between what she said in court and what was in those affidavits.  Further, one child, E, claimed to have witnessed the assault in the bathroom, but M denied he was there.  The appellant was acquitted on both counts.
13. Count 4 concerned events in August 2008, when she was in the kitchen cooking and there was an argument.  The appellant took a knife, held it to her stomach and throat, and told her that he was going to “gut me like a pig and cut my throat”, and “I’ll cut your throat. I’ll gut you like a pig.  Shut your fucking mouth”.  All four children gave evidence of having witnessed this from the adjoining lounge room, though there were inconsistencies in the accounts.  The appellant was convicted on this count.
14. Count 5 concerned events on 6 June 2013, when M and the appellant argued over money which she had discovered hidden in a cavity in the bedroom.  She asked the appellant where the money was, and he said he would show her.  He then grabbed her by the arm and dragged her downstairs to the gun safe.  He picked up a broom, first threatening her with it, then hitting her with it.  She fell and he told her he was going to smash her head into a pulp.  He picked her up by the arm, dragged her to the gun safe, and pushed her head into it, saying “Fucking look where the money is”.  He punched her in the face.  He then dragged her back upstairs and picked up a bar fridge, threatening to smash up the house and kill the police if she called them.  He slapped her across the face then put a pillow over her face so she could not breathe easily.  During that time he threatened to kill her and her parents.
15. In the immediate aftermath E assisted M to find her earring which had been lost, and M took a photograph of her face which showed smeared makeup but no injury.  The injury particularised for this count was that caused by punching to the face.  There was no evidence of the bruising that M said she had.  There was some support about the assault from the evidence of two children: C, who heard the screams and heard the threat about shoving her head in the gun safe; and E, who heard the words about squishing her head in the gun safe, remembered the broom and saw makeup smeared over a pillow.
16. The appellant was convicted of common assault, the alternative left to the jury.
17. The defence case was conducted on the basis that:^[2]

1. counts 1–4 did not occur at all, and count 5 involved only an argument but no assault;

2. after separation in June 2013 the children had been poisoned against the appellant by M and her mother;
3. the children were coached to give the evidence they gave, by M and her mother; and
4. M’s complaint to the police was motivated by an application made by the appellant in the Family Court, in which he sought custody and property orders.

18. During the cross-examination of M it was repeatedly put to her that she was a liar who had fabricated the complaints, coached the children to give supporting evidence, and poisoned them against the appellant.  Cross-examination of the children included putting to them that events had not occurred, but more particularly that they had made them up and been coached, or were lying.^[3]

Discussion

19. I intend to deal with the relevant submissions as each ground is considered.

Grounds 1, 2 and 3 – exclusion of admissions

20. These three grounds can be conveniently dealt with together.  Ground 1 concerned a submission that the learned trial judge erred by acting on his own motion to exclude two admissions^[4] which had been made with the agreement of the Prosecutor and defence Counsel.  Reference was made to R v McBride^[5] and in particular a passage in the judgment of Holmes JA (as her Honour then was):^[6]

“[13] Counsel for the appellant contended that, notwithstanding the failure of experienced defence counsel to take any objection to the evidence, the trial judge should have investigated the tapes for himself and ruled them inadmissible.  In the circumstances of this case, that suggestion seems to me to envisage a remarkable level of intervention by the presiding judge into the responsibilities and the decision-making of defence counsel …

[14] I do not think that the duty to ensure a fair trial extends to unilateral exclusion of evidence in circumstances such as these, where the appellant is represented and there are legitimate forensic reasons for agreeing to the admission of the evidence.  This case is rather an illustration of what Gleeson J said of the judicial role in Crampton v R:

‘One of the objects of a system which leaves it to the parties to define the issues, and to select the evidence and arguments upon which they will rely, is to preserve the neutrality of the decision-making tribunal.  Courts are hesitant to compromise features of the adversarial system which have implications fundamental to the administration of justice.’”

21. The appellant’s contention was a simple one, namely that the Prosecutor and defence Counsel having agreed that the admissions could be made, the learned trial judge could not intervene to exclude the admission, even if it was technically inadmissible.  Reliance was placed upon McBride, and the passage cited above.  For the following reasons, I consider that submission should not be accepted.
22. The passage from McBride has to be understood in context.  That case involved convictions for sexual offences where the complainant had covertly recorded conversations between herself and the accused.  A number of tapes of those recordings were put into evidence.  The first six were intended to provide evidence of the nature of the relationship between the complainant and the accused, and the seventh recorded the occasion of an alleged indecent assault.  It was contended that the tape recordings said to amount to “relationship evidence” were wrongly admitted.  Holmes JA referred to them in some detail,^[7] observing that they consisted of “fairly obvious attempts by [the complainant] to obtain an admission from the appellant that he had touched her or was touching her in some way that she objected to”, but that the appellant had not made any such concession, but rather made his own accusations in return.  Of them Holmes JA said:^[8]

“It is hard to see how anything in those recordings could seriously have been regarded as probative, although there was no very substantial prejudice to the appellant in them.  The seventh tape at least covered the time at which the indecent assault was alleged to have occurred.  However, it consisted mostly of protestations by [the complainant], the answers to which could either not be heard or were not responsive, so its probative value was also dubious.”

23. In McBride an affidavit from the trial defence Counsel was put into evidence on the appeal, in which he explained his decision to let the tapes go into evidence, though he did not explain his reasons.
24. In that context, one has to consider the contention advanced in McBride, namely that notwithstanding the failure of Counsel to take objection to the evidence, the trial judge should have investigated the tapes for himself and ruled them inadmissible.  That is quite distinct from the situation in the present case where the contention is that a judge committed an error by holding that certain evidence was inadmissible.  A trial judge is obliged to ensure a fair trial, by ensuring that the trial is run according to law and that neither side is given an improper advantage by inadmissible evidence.^[9]  In my view, it is within a trial judge’s discretion to exclude an admission, even if accepted by a Prosecutor, if the trial judge decides that it is not admissible.  To do so is simply to exclude impermissible evidence, and avoid the risk of confusing the jury with that evidence.

Admission no. 19

25. Admission number 19 was in these terms:

“On 1 January 2015, [J] complained to police that he believed the defendant had been following him in the area of The Rabbit Hole Nightclub in Mackay.  [J] was intoxicated at the time he spoke to police.  Officers reviewed CCTV footage from the nightclub.  It did not show the defendant following [J] in the way he described.  Police did not charge the defendant with any offence from that date.”^[10]

26. Counsel for the appellant contended that the admission was made relevant by certain cross-examination of J, in which it was put to him that he had made a false complaint, and J denied it.  The passage of cross-examination is as follows:^[11]

“You made – on the 31^stof December 2014 you made a false complaint to police about my client, didn’t you?---No.

You walked into The Rabbit Hole bar that night and you saw my client was there?---Yep.

And at the time there was a temporary protection order which banned him from going within 20 metres of you?---Yep.

You then left The Rabbit Hole?---Yep.

And you went to another venue, Movidas?---Yep.

And then you went to the police and you complained to them that after leaving The Rabbit Hole my client had immediately followed you into another – into that other venue, Movidas?---Yep, that’s true.

And that was a lie, wasn’t it?---No.

And you told police that he stood five metres away from you staring at you?---Yes, that’s correct.

And that was another lie, wasn’t it?---No.

And what you were doing is you were making a false complaint to the police so that my client would be arrested for breaching this temporary domestic violence order?---No, that’s not true.”

27. The appellant’s Counsel contended that the evidence in admission 19 was admissible because it fell within the bias or corruption exception to the collateral evidence rule.  It was contended that there was support for this proposition in R v Lawrence.^[12]  It was further contended that the importance of the evidence was demonstrated by the fact that J’s complaint could have resulted in the appellant being convicted of a criminal offence, namely breaching a domestic violence protection order, and that “the appellant was saved by the closed-circuit television footage reviewed by the police officers which established that [J’s] complaint was a false one”.^[13]
28. The principal difficulty with the appellant’s contention is that admission 19 does not establish the falsity of the complaint.  The admission contains several parts, each of which needs to be understood for what it actually conveys.  J said that he believed the appellant had been following him in the area of The Rabbit Hole Nightclub.  The evidence given at the trial, in response to questions put in cross-examination, was that J walked into the bar and saw that the appellant was there.^[14]  That answer was in response to a question predicated on the fact that the appellant was already in the bar when J arrived.  Then J said in his evidence that his complaint to the police was that “after leaving The Rabbit Hole [the appellant] had immediately followed [J] into another … venue”.^[15]  Therefore the evidence was that the following was from one venue to another.  That is consistent with what was said in admission 19, namely that the following had been “in the area” of the nightclub.
29. J’s evidence, again given in response to the question asked, was that he had told police that the appellant stood five metres away from him, staring at him.^[16]  That is not said in the admission.  In that respect there is no inconsistency between the evidence and the admission.
30. The admission refers to police officers having reviewed “CCTV footage from the nightclub”, which did not show the appellant following J “in the way he described”.  The difficulty with reliance upon that is that there is an underlying assumption, unproven, that the CCTV footage would have revealed the following which is referred to in evidence, namely from one venue to another.  In my view, one cannot draw from the terms of admission 19 the conclusion that the CCTV footage revealed the complaint to be false.
31. The evidence given at the trial by J was that he had complained to the police that the appellant followed him from one venue to another and had stood five metres away staring at him.  Admission 19 does not contradict that at all.  All it reveals is that CCTV footage from either the first or the second nightclub did not show the appellant following J “in the way he described”.  However there is no way of knowing what the CCTV footage showed, or whether it would have caught the following or standing and staring that was referred to in evidence.
32. Reliance on Lawrence is misplaced.  The court there referred to part of the reasons in Palmer v The Queen^[17] where McHugh J observed that if evidence going to credit has real probative value with respect to the facts-in-issue, it ought not to be excluded unless the time, convenience and cost of litigating the issue that it raises is disproportionate to the light that it throws on the facts-in-issue.  But the evidence from admission 19 had no probative value.
33. Before this Court, the appellant’s Counsel submitted that one of the disadvantages the defence suffered by the learned trial judge’s exclusion of admission 19, was that it came after he had cross-examined J, in the course of which the jury were told that the appellant’s conduct would have been a breach of a domestic violence protection order and a possible offence.  Essentially, Counsel submitted that he would not have cross-examined as he did had he been aware that admission 19 would not be included in the evidence.
34. By the time J was cross-examined evidence had already been adduced revealing that the appellant had domestic violence protection orders against him in 2008 and 2013:

1. when the appellant and M first separated on 24 December 2008 she obtained a domestic violence protection order against him;^[18]

2. when she left on 7 June 2013 she had a domestic violence order “put on to save us”;^[19] M was cross-examined about the application for that order,^[20] and that M had sworn affidavits in support of that application;^[21] and
3. alleged breaches of the domestic violence order made in June 2013 were the subject of cross-examination of M.^[22]

35. J was cross-examined about the fact that M made an application for a domestic violence protection order in July 2014, and an affidavit he had sworn on 4 July 2014, “to be used in that application by your mother for a domestic violence protection order”.^[23]
36. For several reasons I reject the submission that relevant unfairness occurred because had defence Counsel known it would not be made he would not have adduced evidence of the 2014 domestic violence protection order.
37. First, no such submission was made to the learned trial judge.  The defence case having been conducted that way, such a complaint should not be accepted by this Court.
38. Secondly, there was already a body of evidence before the jury that the appellant was the subject of a number of domestic violence protection orders: see paragraph [34] above.
39. Thirdly, the central thrust of the defence case was that M had coached her four children into telling a set of fabricated stories about the appellant’s violence, or so poisoned their minds that they did so.  What was being put to J was that he aided M by giving an affidavit in July 2014, but that at that time they had not yet concocted the story about the incident with the gun being pointed at M’s head.^[24]  There was an obvious advantage to the defence from the fact that J’s affidavit omitted any reference to the gun incident, but another advantage if the jury understood that the affidavit told the truth (i.e. there was no gun incident) because it was made for a solemn purpose, namely obtaining a court order.  The solemnity of swearing the truth was emphasised to J.^[25]
40. Fourthly, at the time that cross-examination occurred, it cannot be assumed that the admissions had then been formulated.  After the cross-examination ended the Prosecutor made the first reference in the trial to formal admissions.^[26]  That statement was that he had “some formal admissions to make in the Crown case”.  Later that afternoon the first of the pre-recorded evidence (that of T) was played to the jury.  Then, in the course of playing the recording of E’s evidence, the learned trial judge asked that it be stopped and raised with Counsel (in the absence of the jury) the fact that the transcript contained the irrelevant matter.^[27]  In the course of the debate about the relevance of material in the pre-recorded evidence, Counsel for the appellant responded to a question by the learned trial judge, who made the point that the material seemed to manufacture a collateral issue, that whilst the pre-recorded evidence did not admit that things were said, “the prosecutor is going to make admissions about those things which were recorded”.^[28]  Then followed a debate about the question of the collateral evidence rule, and the exceptions to it.
41. In the course of the debate the appellant’s Counsel told his Honour that “we’ve proceeded on the basis that this evidence would be played, and some – indeed, some concessions made – some admissions made at the end of the trial regarding the statements in question”.^[29]
42. The following day the pre-recorded evidence of E and C were played to the jury.  Following that the Prosecutor told the learned trial Judge that there was “one final document to be tendered and it’s formal admissions made on behalf of the parties in the trial”.^[30]  When his Honour took issue with admissions 14 and 19 on the basis that they were in breach of the collateral evidence rule, the Prosecutor said:^[31]

“Your Honour, those are the admissions the Crown has agreed to make – paragraph 14, firstly, only for the inconsistency but if the original questioning your Honour deems was inadmissible in the first place, if we’re getting that self-serving account out, then, in those circumstances, the admission will not be made.”

43. In the course of the debate which followed, the Prosecutor accepted that admissions 14 and 19 did not come within an exception to the collateral evidence rule, and when only to credit.^[32]
44. The appellant’s Counsel ultimately conceded that it was not clear from the appeal record when the admission was formulated.^[33]
45. In my respectful view, the learned trial judge was correct to exclude admission 19 as being inadmissible and in breach of the collateral evidence rule.

Admission no. 14

46. Admission number 14 was as to the text of a telephone call made on 29 September 2013 between the appellant and C.  The admission was in this form:^[34]

“14. On 29 September 2013, during a telephone conversation between the defendant and [C], the following exchange occurred:

[C]: Hey I don’t ever want to talk to you again.  I think you ruined my mum’s life.  Goodbye.

Defendant: Yeah, well, tell grandma not to make you try and say those things, hey?

[C]: She didn’t.

Defendant: Who’s making you say that then?

[C]: No one.

Defendant: Okay well, who’s, why would you say that to Dad then?

[C]: Because you, you like Alicia.

Defendant: No, dad loves mum mate.  Mum’s made all the decisions, not dad.

[C]:  How come that mummy, you beat her up.

Defendant: That’s lies too, mate.  You want to tell grandma to stop telling you lies.

Later in the same conversation, the following exchange occurred:

Defendant: How come you’ve gone from loving dad with all the other conversations to this then?

[C]: Dunno.

Defendant: Don’t be influenced by your grandmother, mate. Trying to make you feel good to tell lies.  That’s the wrong thing to do.

[C]: She didn’t tell me.  I did-, I just remembered that.

Defendant: Well you know what mate?  It’s if that’s, that can only be nothing but a lie because that never happened and whoever’s telling you to say that is really bad for making you say that.

[C]: Why?

Defendant: Well, how come you’re only bringing it up now?

[C]: Because I remembered it in my head.

Defendant: What did you remember?

[C]: You bashing mum and mum told you that she wanted to go but you said you took Alicia.”

47. The contention at the appeal was that the admission indicated a sudden change in the relationship between C and the appellant, after separation between M and the appellant.  Reference was made to admissions 8-13,^[35] all of which were instances of admissions that in telephone conversations between the appellant and C, things were said contrary to the hostility indicated in admission 14.  The submission was that the evidence was admissible as giving rise to an inference of coaching.^[36]  It was also submitted the evidence was admissible as a prior inconsistent statement, demonstrated by reference to the evidence of C in cross-examination.
48. Counsel also submitted that an exchange in C’s pre-recorded evidence was relevant to the inference one could draw from admission 14, namely that of coaching of witnesses.^[37]  That exchange was as follows:^[38]

“So in August 2008 when this knife incident supposedly happened, you would have been two years old.  Do you accept that?---Yeah.

So you have this – this memory back from when you were two, do you?---No.

… But I remember, sort of.

But do you really, though, or is this something that’s – a story which has been told to you and now you think you remember it, but you’re not sure?---Yeah.

Would that be right?---Yep.

It’s just a story you’ve heard so many times and that people have told you that’s happened, that you think you might remember it, but - - -?---Yep.”

49. The contention that the evidence was admissible as a prior inconsistent statement depended upon a passage of C’s pre-recorded evidence:^[39]

“You know it – you understand it’s very important to tell the truth, don’t you?  In these proceedings?---Yeah, I’m telling the truth.

Do you think you’re just really confused?---No.

Because you’ve been told all these bad things about your dad?---No, I’m not confused.

So you say that – I asked you this before, you remembered the whole time along, did you, that your mum used to do bad things – your dad used to do bad things to your mum?---Yep.

It’s not something that just popped into your head one day?---Nope.  You would just hear all the screaming.

See, it – can I suggest this to you?  You had happy conversations with your dad, but then your grandmother or your mother started saying all these awful things about him and that’s why you decided, in late September, you didn’t want to speak to him ever again, because you he’d ruined your mum’s life?---No, … they didn’t tell me any of that.  I just never wanted to see him again.”

50. There are a number of difficulties confronting the appellant’s contention.  First, nothing in admission 14 compels the conclusion or inference that he was describing or revealing a recently formed memory or one the product of coaching.  Accepting that it reveals a change in attitude not reflected in the previous telephone calls, the change in attitude was evident from a comparison of admissions 8-13, and the evidence referred to in paragraph [49] above.
51. In the first part of admission 14, C denied being coached by the grandmother, denied that anyone had made him say what he had said and then proffered two reasons why he had formed the attitude he had.  One was because the appellant liked the person Alicia, and the other was that the appellant had beat up M.
52. In the second part of admission 14, C again denied coaching and said he “just remembered that”.  That statement does not bear any inference other than he was saying it was his own memory, not someone else’s, or recently formed.  Further down in response to a question as to why he was only bringing it up now, C’s answer was “because I remembered it in my head”.  That does not say or infer that it was recent memory or that he had only just remembered it.
53. Secondly, as Counsel for the appellant accepted,^[40] the first part of admission 14 was not inconsistent with the evidence.  It could be characterised as an illegitimate attempt to get in statements by the appellant favourable to him.
54. Properly construed, admission 14 is consistent in this respect, the appellant constantly attempted to persuade C that others (specifically M and her mother) had been telling him to tell lies, and C constantly disagreed with that proposition.
55. Thirdly, admission 14 is not inconsistent with the evidence given by C, excerpted in paragraph [49] above.  In that passage of cross-examination, C said that he was telling the truth and was not confused,^[41] and denied the suggestion that it was recent invention or that he was repeating what he had been told to say by M or M’s mother.
56. Fourthly, bearing in mind that C was just under eight years old when the conversation was held, one cannot read the second half of admission 14 as indicating that C had only just then remembered what he was saying, or was repeating what he had been coached to say.
57. Fifthly, there was no evidence at the trial of any change in circumstance between separation on 7 June 2013, and the conversation on 29 September 2013, that might provide an evidentiary basis to explain the change in apparent attitude and link that to poisoning the mind or coaching.  As the respondent submitted, the conversation in admission 14 was being viewed in something of a vacuum, where there was a timeframe, but simply no evidence as to what was happening otherwise.  To reason that the change was necessarily because of coaching or poisoning of the mind by M or her mother was to speculate impermissibly.  It would not be beyond human experience that in the aftermath of a separation, those that were left behind in the one household, M and her children, would have discussed what had happened from time-to-time, but not in any way that involved poisoning of the mind or coaching.  Absent some evidentiary basis to link it to poisoning of the mind or coaching, the evidence sat squarely as a collateral challenge to the credit of C.
58. In my respectful view the learned trial judge correctly ruled admission 19 inadmissible.
59. There is no merit in any of grounds 1, 2 or 3.

Ground 5 - misdirection

60. This ground concerned a passage of M’s evidence where she was cross-examined about part of an affidavit sworn by her on 12 January 2009.  At the centre of the contention was whether what was being described in that affidavit was an incident different from count 4, or not.
61. Count 4 was concerned with the events in August 2008, where the appellant held the knife to M’s stomach and throat and threatened to “gut her like a pig”.  The essential elements of M’s evidence were that:^[42] (i) she was in the kitchen cooking tea; (ii) the appellant and the children were in the lounge room; (iii) from the kitchen one could see the lounge room and vice versa; (iv) she and the appellant were arguing; (v) the appellant came into the kitchen and took a knife from the knife block, and put it knife to her stomach and throat, saying that he would cut her throat and gut her like a pig; and (vi) at the end he put the knife down and walked back to the lounge room.
62. In later cross-examination M added some points.  She said the knife had been taken from a knife sharpener rather than the knife block.^[43]  She said that she was not threatened with or hit by any other objects.^[44]
63. M was cross-examined about her affidavit sworn on 12 January 2009 where she said:

“There was an incident on March of 2008.  We were in the kitchen of the house … [the appellant] and I were having an argument.  He became upset about something.  He picked up an incense stand, which was a long wooden oblong with holes in it to hold incense sticks.  He hit me with the incense stand around the head and shoulders, and then smashed the incense stand by hitting it against something else in the kitchen.  He then pulled a knife out of the knife stand in the kitchen, held it to my stomach and throat and threatened me with it.”^[45]

64. When asked about that incident, M’s answer was “That might be another incident” and it was “not in my police statement”.^[46]  She was then questioned several times about whether it was the same incident and on each occasion she said it was not.  She denied that she had made up the incident “just in the space of 30 seconds” or that she had just invented the incident in the course of giving evidence.^[47]
65. She was also cross-examined about the fact that she had sworn a second affidavit on the same day (12 January 2009) in which she had referred to the incident in March 2008, but in slightly different terms.^[48]  The differences were that the appellant “talked about the incense stand again”, took the knife out of a kitchen drawer, rather than the knife stand, and the threat was “I’ll gut you right now and end it now”.
66. In the summing up, the learned trial judge dealt with the fact that there was a reference to two affidavits both executed on 12 January 2009, each of them containing a description of count 4, but in slightly different terms.^[49]  The jury were told that they were not to speculate about what might lie behind the affidavits in terms of other court proceedings, but the jury were to consider whatever the explanation might be for why there were slightly different versions in two affidavits prepared by the same lawyer.
67. Then the learned trial judge turned his attention to the cross-examination on the affidavit of 12 January 2009, and in particular the passage set forth in paragraph [63] above.  Because of the complaint that his Honour misdirected the jury, what his Honour said should be set out in full:

“Now, that is something which was not – an aspect of the incident in count 4 which was not mentioned at all by the complainant in her evidence and, indeed, in other accounts given of it and, indeed, was not mentioned by any of the children.^[50]  And the complainant was asked about this, and her reaction when she was asked about this, she said there were lots of incidents that happened and suggested that that might have been a different incident.  That – again, the Defence say that this is inconsistent, that it shows that she is making up a story because, on this occasion when it was put in an affidavit, she had embroidered the story by referring to this incense stand, but that there had not been any reference to it in any – on any other occasion, and that if, in fact, this had happened in conjunction with the knife incident in the kitchen, it would have been – emerged in other references in the evidence, and it would have been referred to by the children if the children’s evidence was true.  And that is a matter for you to consider.

It does occur to me that if, as the complainant suggested, it was something that happened on a different occasion, it might have happened on a different occasion when the children were not there; that would provide an explanation for the children not having referred to it.  But the point about that is that it just illustrates another example of the – of inconsistency in the accounts that have been given over the years about these various different matters, so they are matters for you to consider.  Another matter which is relevant is the consistency or otherwise between the accounts given by the complainant and the accounts given by the children to the extent that they are speaking about things.  There was – for instance, in the evidence of [J], he spoke about an incident which was, I think, identifiably count 4, where he was describing the incident in the kitchen.  He was in the lounge room:

[The appellant] and mum were fighting.  He had her by the throat against the kitchen – the kitchen knife, and they were yelling at each other.

And he recalled, later, that he heard her yell – he heard the defendant yell, “I’m going to gut you like a pig.”  He spoke about that and I think that that is identifiably count 4, if you accept that evidence.”^[51]

68. Counsel for the appellant submitted that M’s evidence that she was not hit by any other object in respect of count 4, then had to be explained away by her falsely suggesting that the affidavit referred to a different incident.  It was said that the summing up effectively endorsed the explanation, which was highly damaging to the appellant’s chances of acquittal.^[52]  It was pointed out that M did not mention, in her police statement, a second near identical incident, and none of the children had given evidence that they saw a knife held to their mother on more than one occasion.  It was contended that the direction was far stronger than the facts warranted, was therefore misstated and would have left the jury overawed.
69. In my respectful view, the learned trial judge’s directions were unexceptional.  The jury were told, in plain terms, that the matters to do with the inconsistency between the versions, whether they were the same incident or different incidents, whether M had embroidered the story by referring to the incense stand, and whether it was untrue because the children would have referred to it, were all matters for the jury to consider as part of their deliberations.  It is true that the learned trial judge postulated that if the second event happened on a different occasion it might have been a different occasion when the children were not there, but once again emphasised that if that were so, it was just another inconsistency which was a matter that the jury had to take into account in their consideration.
70. I do not consider that the incidents referred to are so necessarily close in the recounting, that they must necessarily have been taken to be the one incident, with the conclusion that M was embroidering in her evidence.  The incident the subject of count 4 included evidence that the children were in the lounge room at the time,^[53] the knife was held to M’s stomach and throat,^[54] and it was in August 2008.  M specifically denied that on that occasion she was threatened or hit with any other object.^[55]  By contrast, the incident referred to in the affidavit of 12 January 2009, was said to have occurred in March 2008, involved the use of the incense stand and the threat was in different words.  Further, Counsel for the appellant accepted that he had not cross-examined any of the children about the incident referred to in the affidavits of 12 January 2009, but rather only in respect of count 4.^[56]
71. Counsel for the appellant ultimately submitted that the learned trial judge endorsed M’s explanation that it was a separate incident, going so far as to submit that the direction was “essentially a rubber stamp of … the complainant’s explanation”.^[57]
72. I reject that characterisation of the learned trial judge’s summing up.  His Honour did not endorse the explanation, but identified the explanation, telling the jury that it was a matter for them to consider and to decide if they accepted it or not.
73. A redirection was sought from the learned trial judge, focussing on the fact that M said that the second incident also occurred when the children were in the lounge room at the time, and that his Honour had said otherwise about that to the jury.^[58]  The learned trial judge’s response was that he doubted that the evidence demonstrated that the children would have seen that incident or at least would have seen the part where she was hit with the incense stand.^[59]  His Honour reiterated that he had left it on the basis that there were different explanations for it and it was a matter for the jury.^[60]
74. In the course of submissions on the redirection, Counsel for the appellant referred to his cross-examination where he had put to M that she had made up or invented the second incident.  The passage is as follows:

“You’re just making this up now as you go along, aren’t you?---No, I’m not.

You’ve just - - - ?---I’m telling you the truth.

You’ve just in the space of 30 seconds invented another incidence [sic]- - -?---No - - -

- - - where you say my client held a gun to you and – held a knife to you in front of the children?---No, I’m not.  I’m telling you the truth.  It’s not something that you make up.”^[61]

75. Insofar as the last question in that passage put that it was an incident where a knife was held to M in front of the children, thereby implying that the children must have seen it, M’s answer does not necessarily accede to that.  The question had two parts and it is not immediately apparent that the answer went beyond asserting a denial of the suggestion that she had invented a second incident.
76. The learned trial judge made it plain to the jury that the matters to which he referred raised inconsistencies that the jury had to consider, including whether they impacted adversely on M’s credit.  That the jury paid attention to the learned trial judge’s directions can be inferred from the fact that they acquitted on some counts and convicted on others.
77. In my view there was no merit in this ground.

Sentence application

78. On each of counts 4 and 5, the appellant was sentenced to serve concurrent terms of six months’ imprisonment, with a parole release date fixed at 10 November 2017, after serving three months imprisonment.  The learned sentencing judge took the following matters into account in approaching the question of the sentence to be imposed:

1. that the conviction followed a trial;
2. that the maximum penalty on each offence was three years imprisonment;
3. the nature of the offences of which he had been convicted, and that they were domestic violence offences which took place in front of the children; weapons were used, being a knife in the case of count 4, and a broom and pillow in the case of count 5; count 5 involved a fairly prolonged incident;
4. that they were not isolated examples of domestic violence in an otherwise good relationship;
5. each of the offences would have been quite frightening and distressing to M and the children;
6. there had been no indication of remorse;
7. the appellant’s personal circumstances, he being 36 or 40 at the time of offending, and 45 at the time of sentence; he had a good employment history which included working for the West Australian police force; he had the support of his parents, though not of his children; he had references which spoke well of the appellant outside the domestic context;
8. the violence displayed towards him was “specific to the domestic relationship between you and her”, but involved domestic violence which was a serious aspect;
9. that the appellant had suffered depression at the time when count 4 was committed; that depression had included some hospitalisation in 2006 and treatment from a psychiatrist; in 2009 the appellant had been able to change his behaviour and sustain that change; he ceased medication in 2011 and remained “both objectively and subjectively well” thereafter; the mental health considerations were not relevant at the time of count 5;
10. the delay between arrest and the trial, and the fact that other indictments were pending and necessitated court proceedings;
11. the offending “arose in the context … specifically out of a domestic relationship with [M]”, and therefore his Honour doubted that there was any particular significance in the absence of further offending; the appellant had been away from M when count 5 occurred; “there is no particular concern, in your case, about personal deterrence”;
12. his Honour accepted that the appellant was not a violent person otherwise than in the specific context of the domestic relationship; and
13. the purposes relevant to the sentence were punishment, general deterrence particularly in the context of domestic violence, and denunciation.

79. The learned sentencing judge considered that the use of the knife and pillow, and the fact that children were present and witnessed count 4, and heard what happened on count 5, compelled the imposition of a term of imprisonment to achieve the purposes identified in respect of the sentence, namely punishment, general deterrence and denunciation.  His Honour went on to say that there were “no particular mitigating circumstances which would justify my ameliorating the ordinary consequence and I will fix a parole release date, which is half way through the sentence”.

Submissions

80. For the appellant it was submitted that the learned sentencing judge focussed only on the cause of the delay and not whether rehabilitation had been demonstrated as a consequence.  Accordingly, it was said, principles in R v Illin^[62] were not followed.  It was also contended that his Honour’s reference to “no particular significance in the absence of further offending, unfairly diminished any demonstrated rehabilitation”.
81. The appellant also contended that there was a failure to moderate the factor of general deterrence in respect of count 4, on account of the appellant’s mental illness at the time.  That was reflected, it was said, in the fact that there was no difference in the sentence on counts 4 and 5.
82. Finally, it was contended that the sentence was manifestly excessive when regard was had to comparable cases such as R v Taylor^[63] and R v Ward.^[64]
83. For the Crown, it was submitted that there was no error in approach and no reason to conclude that the sentence was manifestly excessive, even if it was at variance with so-called comparable cases.

Discussion

84. At the sentencing hearing, Counsel for the appellant had contended that the significance of the delay was that it was sufficient to see that the appellant had become rehabilitated, or at least that the rehabilitation process was well underway, and the charges had been hanging over the appellant’s head for some time.^[65]  Both delay and rehabilitation formed part of the submissions on sentence.  It is difficult to conclude that those matters were forgotten when, immediately following the end of submissions, the learned sentencing judge gave his reasons which included taking into account delay and rehabilitation.
85. The difficulty confronting the appellant’s contention in this respect is the finding by the learned sentencing judge that the violence which was displayed was specific to the appellant’s domestic relationship with M and that the appellant was not a violent person outside that specific context.  For that very reason, the fact that the appellant had not offended since separation lost some significance.
86. His Honour accepted that the appellant was of good character apart from his conduct in the relationship, had good references and had recovered, in a sustained way, from the depressive illness he suffered earlier in his life.  In those circumstances there was no rehabilitation that might be demonstrated by the delay, such as to bring into account the principles in Illin.  His Honour made that plain by stating, on more than one occasion, that there was “no particular concern about personal deterrence”.  Further, his Honour expressly excluded personal deterrence which he listed the purposes relevant to the sentence.  It was those purposes which were of particular focus in the imposition of the sentence.
87. In my view, there is no merit in this point.
88. There are difficulties confronting the appellant’s contention that there was a failure to moderate the factor of general deterrence on account of the appellant’s depressive illness at the time when count 4 was committed.  On the contrary, the learned sentencing judge expressly acknowledged the fact that the appellant was suffering depression at the time of count 4, had undergone hospitalisation and psychiatric treatment, and had recovered in a way that was sustained.  Further, as the learned sentencing judge acknowledged, mental health considerations were not relevant at the time of commission of count 5.  Having identified those matters expressly, it is, in my view, plain that they were taken into account to when his Honour factored in general deterrence in the sentence.
89. The fact that the same sentence was imposed in respect of each of count 4 and 5 says little, in my view, about the contended failure to moderate general deterrence.  Each count involved domestic violence of a serious nature, carried out in front of children, and carried out with the use of weapons.  In respect of count 4, the weapon was a knife, and in respect of count 5, it was a broom and pillow.  Count 5 did not have the moderating effect of the appellant’s suffering a depressive illness at the time.  All those matters being so, count 5 could have attracted a higher sentence than count 4, but did not.  However, that does not bespeak a failure to moderate the factor of general deterrence.
90. This point lacks merit.

Manifest excess

91. When considering this question one must bear in mind what was said in R v Tout:^[66]

“[A] contention that the sentence is manifestly excessive is not established merely if the sentence is markedly different from sentences in other cases.  It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is ‘unreasonable or plainly unjust’: Hili v The Queen (2010) 242 CLR 520 at [58], [59].”

92. Further, there is no one single correct sentence.  Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the relevant statutory regime.^[67]
93. I have sufficiently identified the nature of the offences, and the objective seriousness of the conduct above.  Neither Taylor nor Ward compels the conclusion that the sentence is manifestly excessive.  In Taylor there was a plea of guilty to assault occasioning bodily harm, by a much younger offender.  In the course of an argument the offender threw a pie at the complainant and when she responded by biting him on the ear, he punched her in the face causing injuries to her nose.  The offender had a history which included violent offences, one of which attracted a sentence of imprisonment, albeit suspended.  The sentence of nine months was not varied, except to suspend it forthwith, the offender having then served all but two weeks of the period which had to be served before suspension.  That review is sufficient to demonstrate that Taylor lends no support that the sentence imposed here was manifestly excessive.  One might also observe that Taylor is now of some antiquity.
94. Even less relevant is the decision in Ward.  That involved a plea of guilty to a charge of assault occasioning bodily harm, committed by a 49 year old offender.  During an altercation the offender pushed the complainant against the vehicle and struck her several blows to her hands and arms, and face.  She sustained bruising and swelling.  There was no suggestion of any history of prior violence.  The offender was aware that the complainant had vulnerability in relation to her spine and assaulted her notwithstanding that.  The sentence of nine months’ imprisonment, to be suspended after three months, was varied only to suspend it forthwith.  The offender had then served five days.
95. Unlike the present case, Ward involved a short period of violence, isolated within that domestic relationship and out of character.  That distinguishes it, if nothing else does, from the present case.  I also note that McPherson JA specifically added that the variation of the penalty “should not be viewed as a precedent for regarding assaults of this kind as of little or no consequence”.^[68]  In the time since Ward, the community’s view of domestic violence offences has, if anything, sharpened.
96. I am unable to conclude that the sentence imposed on the appellant was manifestly excessive.

Disposition

97. For the reasons I have outlined above, the appeal against conviction should be dismissed, and the application for leave to appeal against sentence should be refused.  Those are the orders I propose.
98. BOND J:  I agree with the orders proposed by Morrison JA and with the reasons given by his Honour.