ANDERSON v REGINA

Court of Criminal Appeal (NSW)|2006-04-24|Before: McClellan CJ, James J, Hall J, Davidson AJ, Clellan CJ

CITATION: ANDERSON v REGINA [2006] NSWCCA 156

JUDGMENT OF: McClellan CJ at CL at 1; James J at 58; Hall J at 59

DECISION: Appeal against conviction and sentence dimissed

Jones v The Queen (1994) 191 CLR 439 CASES CITED: M v The Queen (1984) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 R v Anderson [2002] NSWCCA 194

PARTIES: Noelene Patricia Anderson The Crown

COUNSEL: Appellant in person P Miller (Crown)

SOLICITORS: Appellant in person Director of Public Prosecutions (Crown)

IN THE supreme COURT OF new south wales court of CRIMINAL APPEAL 2005/863

McCLELLAN CJ at CL JAMES J HALL J

TUESDAY 16 MAY 2006 ANDERSON, Noelene v REGINA Judgment

1 McCLELLAN CJ at CL: The appellant was convicted by a jury of the murder of her husband, Robert Keith Grosse at Rocky Point between 30 June 1995 and 31 July 1995. She appeals her conviction. She has also intimated an intention to seek leave to appeal against sentence but no ground of appeal has been directed to this issue.

2 The trial from which this appeal comes was the second trial of the appellant for the offence. The first trial was the subject of an appeal to this Court which was upheld and a new trial ordered (see R v Anderson [2002] NSWCCA 194).

3 The Crown case was the same at each trial. It was alleged that the appellant and the deceased were married and had lived together in a house at Rocky Point. The deceased was a bricklayer and the house was constructed on land owned by the appellant. The relationship between them had been turbulent and at various times the deceased had left the home to live in a caravan park. The deceased had a criminal record, including convictions for assaulting the appellant. During one of their physical exchanges the appellant had bitten the deceased's ear. The Crown also alleged that the appellant had, by means of false documents, secured a divorce from the deceased, of which he was unaware.

4 At some time before 1 July 1995, being the date upon which the Crown says the deceased was killed, the Crown alleged that the appellant decided that she would prefer a new partner and determined that it was necessary for her to kill the deceased.

5 On 30 June 1995 the deceased worked as usual for his employer. He was a reliable worker and the evidence disclosed that he drank little. On the following day, 1 July, the appellant drove the deceased to work where he appeared to other employees to be unwell and unable to walk unaided. He was not drunk. After discussion about taking him to Wyong Hospital, the appellant took the deceased away. The Crown alleges that the appellant took the deceased home where she took advantage of his weakened state, strangled him with a piece of cord or twine and buried him under a concrete slab under the house.

6 The appellant gave different accounts of the events of that day to different people. She did not acknowledge killing the deceased until much later.

7 On 3 July the appellant went to Goulburn where she met the man she proposed to live with, Mr Weaver, who was with his daughter, Carla. They stayed in a motel that night and on 4 July 1995 Mr Weaver and his daughter moved into the appellant's house. Mr Weaver remained for only a short period and on 19 July he left with his daughter and moved to a caravan park and then interstate.

8 The appellant gave a version of the events to the deceased's employer, Charles Frost. Frost reported the disappearance of the deceased and police inquiries were commenced. Of significance was the evidence of Margaret Blinman, who was a friend of the appellant.

9 In June 1995 the appellant told Miss Blinman that Mr Weaver was moving in on 4 July and that the deceased would have to go. On 2 July 1995 the appellant told Miss Blinman that she had driven the deceased to a medical centre and that he had then gone. The appellant gave a different version of the events to police. She told them that she had taken the deceased to Gosford railway station to enable him to go to a doctor in Sydney and that the deceased had telephoned her on 2 and 4 July 1995. Telephone records did not indicate that these calls had taken place and there is no evidence that medical assistance was sought.

10 On 24 July 1997 warrants were obtained, pursuant to the relevant provisions of the Listening Devices Act 1984, for the use of listening devices in the appellant's residence. On the same day a warrant was obtained to search the premises. The search was carried out and revealed the decomposed body of the deceased beneath a concrete slab under the house.

11 Thereafter in conversations which were recorded pursuant to the listening device warrants, the appellant admitted that the body the police had found was that of the deceased and that she had used some twine to strangle him. The appellant declined to be interviewed but made a handwritten statement to the police.

12 Relevant material in the statement is as follows: "I wish to make a statement regarding events on the Friday 11th July, I was making a sandwich & about to watch the Midday show, when Bob Grosse walked in the TV room door. He had a few whiska's and extremely shabby, he said he'd been riding the train and meals you could pick up, somewhere near Oxford St & Newcastle, he asked how the new boyfriend was. I said there was nothing great and it was going no where. He proceeded to undress and offered himself to me. I said, youre dirty and unshaven and I don't know where you've been & I'm no longer your whore of the day. An argument started & I moved into the kitchen & proceeded to cut some yellow cord and knot it to tie up my peach tree. He was drinking from a small bottle from his pocket & proceeded to tell me I wasn't worth having a good fuck (his words) with. because Jan (my first husband) had spoilt and over-protected me. He said I needed a few kinky ideas, as normal his ideas & mine didn't mix. He reminded me I had nothing anymore and no fellow would want me with half a tit. This hurt & was hard enough to accept, I was just beginning to move about & feel a little normal again. I was tired of his choice words to me when drinking such as Im only a fucken cunt bitch. No one had ever spoken like this ever to me & I loathed this frequent phrase - especially when he had a drink or two. He began to rubbish my son Brett he was a little smartarse, because he built his own steel shed & home. He thinks he's got it all with his fat black widow, meaning his wife Sue. I wasn't at all impressed Brett never did nothing to him nor Sue. Even on our last holiday with them, when an argument erupted Bob began throwing punches. Brett said I won't hit an old man like you Bob said are you gutless too, Brett said get out & off the property and ordered me to take him and don't come back. Perhaps the words were slightly different, but meant the same. We packed & moved. I had a great closeness with Brett, he was always their to check my car, the battery, tyres, the motor every time I visited I didn't like abuse about him. Bob was still half dressed & offering himself among his foul outbursts & I couldn't cope with sarcasimn of Jan - as he was remarried and even at family funerals, we have no communication to-gether and so slinging off about our marriage back in 50-70 was a cutting point I have five children to this marriage & there were certain precious moments that didn't need destroying & I chose to keep these memories to myself. This was quite different to the filthy whore type sex he was talking about. He suggested I watch good videos & do things which I dislike & then said he should tie me up, Fuck me up the arse & then P all over me. Because I screamed get out, he picked up the cord & was going to choke me, like he should I done to Margaret. (his former wife.) We struggled when free I went outside I was hurt, angry, fed up & sick of life hated my breast operation and myself, I felt incomplete as a woman unloved & alone, none of my children were close to me & I couldn't unwind to Craig at the caravan park. About half an hour later I came inside he was at the table the bottle almost empty & he had a cup of tea. He sarcastickly said, is the garden the same, my house and me were alike and he hoped I'd lose it & thats why he never intended helping to pay it off & finish it I was again like my smart arse son Brett who knew it all. I walked to the table, picked up the cord, threaded the end & put it over his head & said how do you like it? The bottle fell as he grabbed at me & I pulled the cord. We scuffled he fell & I ran outside. I went to the car & used my spare key I drove to Lakehaven shopping centre. I was gone about two hours I think. I didn't know what he was doing or what I should do perhaps he'd left, or would be waiting. When I returned Bob was still on the floor. He had the knee tucked under his knee & his head was pulled back, the cord was twisted on his arm and around the shoulder. I rolled him on the floor and I knew he was dead."

13 On 15 December 1997, in a telephone call, the appellant told Mr Weaver that she had poisoned the deceased and strangled him at the kitchen table on a date that was identified by him as 18 July 1995.

14 Post-mortem evidence from a forensic pathologist indicated that the circumstances of the death were consistent with strangulation by ligature. Because of the state of the deceased's body it was not possible to determine whether or not, as had been suggested, any poison or other substances had been ingested before he died.

15 On 4 November 2003 the jury found the appellant guilty of murder. On 19 December 2003 she was sentenced to imprisonment for 17 years commencing on 4 December 1999 and expiring on 3 December 2016 with a non-parole period of 11 years expiring on 3 December 2010.

16 When sentencing the appellant the trial judge accepted evidence that the deceased had conducted himself in a violent way towards the appellant. However, he found that "the only conclusion which can be arrived at on the basis of the jury's verdict, is that they rejected the prisoner's account of the events of 18 July 1995 and in my view did so on the basis that they were satisfied beyond reasonable doubt that the death of the deceased had occurred on 1 July and not 18 July and at a time when the deceased was unlikely to have been physically capable of the provocative conduct immediately preceding his death which the prisoner claimed."

17 The appellant gave evidence at her trial. She said that the deceased had returned to the house unexpectedly on 18 July (her statement had said 11 July) and had been abusive and offensive. He had put a rope around her neck and pulled it back and forth but he let it go and she went outside for a time. When she returned to the house she went to the bathroom and put some lanolin on her neck and then she returned to the kitchen and made a cup of tea. The deceased was sitting at the table drinking and was again verbally abusive and offensive. She threw the rope over his head, but he grabbed it, and then grabbed her, but she managed to escape and ran to the car. He was standing in the kitchen when she last saw him and she could hear him yelling at her as she ran away. She drove to a shopping centre but later returned to the house and found the deceased lying on the kitchen floor. She rolled him over and discovered that he was dead. She then buried him under a concrete slab under the house. The slab had been raised off the ground on wooden pegs. She knocked the pegs away and it fell onto the body. She said that she had forgotten what had happened but had begun to remember when shown a jumper belonging to the deceased which had been found under the house when the body was discovered.

18 She called evidence from a psychiatrist, Dr Hampshire, that what she had described was consistent with a condition known as psychogenic amnesia or repressed memory brought about by the trauma she had experienced and that seeing the jumper had triggered her memory of the events. The appeal

19 The appellant has filed a notice of appeal containing seven grounds. She has also provided extensive and comprehensive written submissions. They relate to the grounds of appeal but contain various other matters which seek to explain her actions and concerns in relation to the trial. Those submissions are sometimes difficult to relate to the grounds of appeal. However, I have considered all of the matters which she raises when considering the various grounds. Ground 1: "new evidence, miscarriage of justice, due to aggravating and exceptional circumstances."

20 This ground of appeal has not been made clear. However, at page 34 of the appellant's written submissions reference is made to "court evidence in Adelaide will prove that day, Thursday, he received custody of Carla and sold his furniture, some on that day." The person being referred to is Mr Weaver who had lived in Adelaide but moved to New South Wales to live with the appellant. He was accompanied by his daughter Carla who was ordered into his custody. The reference to the day upon which Mr Weaver obtained custody and sold his furniture may be relevant to the day upon which he left Adelaide to come to live with the appellant. However, there was no issue in relation to this day at the trial and although there may be additional information in relation to Mr Weaver's movements this would not constitute fresh evidence which could be relevant to the appellant's conviction and appeal. Ground 2: "Detective conspired and lied in the witness box - in assumptions and facts to coroner." Ground 3: "Invalid coroners reports and body parts not tested and identified, stating Clerke told him what to look for."

21 It is convenient to deal with these two grounds together. Senior Constable Clerke was in charge of the investigation which led to the appellant being charged and prosecuted. He retired on medical grounds prior to the trial and did not give evidence. Evidence of the investigation was given by Detective Senior Constable Bridges. This seems to have been by consent and in any event the evidence which he gave was not controversial.

22 It emerged in the cross-examination of Dr Oettle, the pathologist who performed the autopsy and prepared a report to the coroner that he had been provided with a document prepared by Detective Clerke on the circumstances of the deceased's death which said that the appellant was behind the deceased when she applied the ligature to his neck. In the evidence-in-chief, counsel for the appellant objected to a question based on an assumption that she was behind the deceased. There was evidence that she had said she was beside him. The question was recast to accommodate the factual situation. The scenario described by Detective Clerke was incorrect as to the position of the appellant. However, I do not understand that this could have made any difference to the Doctor's opinion.

23 The appellant also complains that Detective Clerke told the doctor to look for evidence of strangulation and that the doctor conspired with the detective to falsely report evidence which would support that assertion. Complaint is made that the document may have been, perhaps unconsciously, influenced by what he was told. However, to my mind there is nothing sinister in the pathologist being briefed by the police on the evidence relating to the circumstances surrounding a person's death. Neither of the pathologists called in the appellant's case suggested that this was in any way a concern to him. Any inaccuracy in the information which the doctor was given has not led to any difference in the evidence and there is nothing to suggest that evidence was falsified or inappropriately influenced.

24 The deceased's body was not discovered until two years after his death and there was a significant amount of decomposition. Nevertheless some bodily samples were taken for analysis. The appellant referred in her submission to a black granular substance found in the mouth and oesophagus. There was no evidence that it had been tested to identify it. Dr Oettle thought it was possibly part of the decompositional changes or blood.

25 The only significance which the material had in the Crown case was that there was a break in it consistent with the application of a ligature but was in a different position to the groove under the mandible said to be consistent with application of a ligature from above which was the Crown case. Ultimately no real reliance was placed on it and neither of the pathologists called in the appellant's case seemed to think that it had significance.

26 In her oral submissions the appellant drew attention to the fact that there were three possible locations which had been identified for the application of the ligature. However, each location is consistent with the application of a ligature to the deceased which the appellant admitted she applied.

27 In her oral submissions the appellant also made reference to the medical evidence which suggested that the deceased was suffering from arterial disease and may have died of natural causes. At the trial there was a difference of opinion between Dr Oettle and Dr Collins about whether there should have been further examination of certain organs under a microscope. Dr Collins said that given the extensive decomposition of all tissues it would still have been difficult to ascertain whether disease was present under microscopic examination. Dr Oettle was an experienced pathologist and it was for the jury to assess any criticism made of his evidence. This judgment was to be made by the jury in determining whether the Crown had excluded the possibility that the deceased had died solely from natural causes.

28 Having regard to the jury's verdict it must be accepted that the Crown had satisfied the jury to the appropriate standard that the deceased had not died solely from natural causes. In my opinion the appellant has not identified any reason why this finding was not open to the jury and was not properly made. Ground 4: "Judge biased, stating forensic were not at death scene, yet two qualified forensic men from two different states - quote death is unascertained."

29 During the course of his summing up the learned trial judge dealt with the way in which the jury must, as a matter of law, deal with any conflicts between the evidence of expert witnesses, in particular between on the one hand Dr Oettle called by the Crown and on the other hand Doctors Duflou and Collins called by the appellant. He concluded by saying: "And where you have conflicting expert evidence from apparently well qualified experts within the field - and I do not think anybody in this case has challenged any of the qualifications of any of the doctors who gave evidence to give the evidence that they gave - then you would only be justified in acting on the evidence of the Crown's witness when in conflict with the accused if you for good reason both positively rejected the accused's evidence and positively accepted the evidence of the Crown. If you are of the view that there is a reasonable possibility that the evidence of the accused's expert witnesses is correct on an issue favouring the accused, you should act on that evidence."

30 One point of conflict was whether one of the post-mortem photographs, exhibit G, depicted a mark which Dr Oettle had said he had observed when he had examined the body where it had been discovered under the appellant's house. He gave evidence that: "Facial grooves present about the neck possibly due to posture, possibly due to clothing, and with one high one under the mandible - that's high up on the neck - possibly due to a ligature."

31 His Honour dealt with this evidence in the course of which he said: "Both Doctors Duflou and Collins were of the view that the conclusion that this was a ligature mark could not be arrived at, but by reference to this photograph, not by reference to what they had seen with their own eyes. What they are telling you is not what could not have been a ligature mark on the body, because they never saw the body. What they are telling you is that if you look at this photograph, Exhibit G, then they would not agree that this photograph depicts a ligature mark."

32 He had earlier said of Dr Oettle that he was the only doctor called to see the corpse.

33 In my opinion a careful reading of his Honour's summing up makes plain that he was not summarily dismissing the evidence of Doctors Duflou and Collins. Dr Duflou accepted that attending the crime scene and conducting the autopsy provided the pathologist who did it with a significant advantage. Ultimately the evidence of Doctors Duflou and Collins was that they could not exclude causation of her death by ligature strangulation although in their opinion the autopsy finding did not exclude other causes of death.

34 In relation to Dr Oettle his evidence at the trial did not express a concluded view as to the cause of death. He did indicate that he observed a mark which was possibly due to a ligature and that the position of the tongue was what he would expect if someone had been standing beside a person seated at a table and applied a ligature to their neck.

35 However, a finding as to the ultimate cause of death in a medical sense was not possible on the evidence and in my opinion was not necessary. Although his Honour gave detailed directions on the law in relation to causing the death of another person the jury had available to it both the material from the listening devices, the admissions made to George Weaver and her own statement to the police. Those conversations included the following: "He called me (inaudible) I was half a woman because I had one and a half tit off and I was his. But, beggar's had to be choosers and things like that, you know. And when he talked about the way I looked shit. He came around and had a go at me and I was getting on (inaudible) why I was (inaudible) mixing it up with the one you tie up the custard apple. … (inaudible) and put it round the tree and pull it like I usually do and he come around (inaudible) there at me. And I just went off the deep end and (inaudible) called me a bitch (sounds like) strangled me (inaudible)."

36 The appellant later said: "You know. (inaudible) the way I talk to men, so I just sat there and the rope was still out the back on the (inaudible) chair and I was (inaudible) picked it up, wrapped it round his neck (inaudible). And I just said how do you like it? That's what you've done to me a few times. Didn't like it back. And of course (inaudible). He fell on the floor and I went and got (inaudible) and picked up out the front of (inaudible) underneath that hole, put him in there and (inaudible)."

37 There was another conversation which was recorded when the appellant's mother was present, as were a number of other persons. One person is recorded as asking the appellant: "Did you do it?" Another person says: "No, you're not". The first person says, "Why not? You shouldn't have told me. I never wanted to know."

38 The appellant says, "You have to know. Wayne knows." Another speaker: "You shouldn't have told me. You can't lie now." The appellant says: "I'm not going to lie, I'm admitting it." Another voice says: "Why didn't you tell me ages ago?" The appellant says, "How could I?"

39 The appellant then says, "I did it, mum." The mother asks whether there was a reason and says, "I know you probably had a reason for it." The appellant said, "I did have a reason: he was so abusive that day. I've written a thing out and Clerke told me last night."

40 Another speaker said, "Did you tell Clerke?" The appellant said: "Wouldn't let me home - no. I didn't want to talk to anyone till I told youse myself. He gave me till Monday and the weekend to work it out. I rang a priest last night: he was so fucking rude. He says, 'What are you doing ringing me at this hour?' and this morning I told him he was rude and I asked him who he was and he said, 'You're so evasive I don't know.'"

41 There was then a discussion about the circumstances followed by this statement by the appellant: "He come in here and he threatened me. And he was going to strangle me and do things. He was forever telling me about Ian, how Ian protected my sex life, he didn't have kinky ideas and things; he rubbished Brett and he went on and on. He picked up a piece of cord that I was going to tie a peach tree up with; he was going to strangle me. I got away from him and went outside, and when I came back he was drinking at the table and the cord was there and I went over and I thought, 'I'm sick of this, I'm sick of everything.' I put the cord, looped the cord and I shoved it round his neck and I said, 'How do you like this?' and he was drinking and in between drinking and everything - and I pulled it hard, and he fell on the floor, and I ran out the door and went to Lakehaven. When I came back he was on the floor."

42 In these circumstances there was more than adequate evidence to support the jury's conclusion that the acts of the appellant had caused the deceased's death. Ground 5: Provocation ignored demoralising the appellant and ignoring witnesses, AVOS, former wife's statements and AVOs and medical reports from appellant.

43 The original trial of the appellant failed because of the directions given by the trial judge in relation to provocation. At the second trial the judge gave extensive directions on provocation and analysed the appellant's case at length in relation to relevant factual matters. With the assistance of the Crown's submissions it is possible to identify the following complaints which the appellant now makes in relation to matters of provocation: (a) the trial judge should have directed the jury to find that the issue had been decided in favour of the appellant or at least make a special recommendation that they do so; (b) his failure to do was because he was biased against her; (c) the jury erred in disregarding provocation; (d) the judge erred in ignoring the deceased's crude sexual assaults.

44 The appellant's submission appears to be based on an erroneous premise. The trial judge has no power to direct a jury to make particular findings or make any special recommendations in the circumstances of this case. There was cogent evidence which the jury could accept that there was no relevant provocation which occurred on the day the deceased met his death. The appellant's credibility was in issue having regard to the fact that she had concealed the body and told the police that she did not know where the deceased was. If the jury was satisfied, as it plainly was, that the appellant had killed the deceased on 1 July it was open to the jury to conclude that he was suffering from significant physical disability on that day and the allegations of his conduct made by the appellant were false. The failure of the judge to act as requested by the appellant does not indicate bias.

45 There are difficulties in identifying the substance of submission (c). However, it may be that the appellant maintains that it was not open to the jury to be satisfied that the appellant was not provoked, the onus being on the Crown. Put another way the appellant submits that the verdict of guilty of murder found by the jury is unreasonable or cannot be supported by the evidence: see M v The Queen (1984) 181 CLR 487; Jones v The Queen (1994) 191 CLR 439 and MFA v The Queen (2002) 213 CLR 606.

46 When summing up to the jury the trial judge clearly accepted that the conduct of the deceased, alleged by the appellant to have occurred, could well have amounted to provocation in the relevant sense. However, critical to this issue was whether or not the jury accepted the appellant's word that these events occurred as she related them. The jury's verdict can only be explained on the basis that the appellant's evidence was rejected.

47 In relation to para (d) above there was no evidence given by the appellant of sexual assaults by the deceased. However, there was evidence of assault and violence and evidence of sexual behaviour which the appellant found unpleasant or distasteful. His Honour reminded the jury of these matters. There is no basis for the appellant's complaint. Ground 6: "Depression and illness as per Dr Hampshire. Pursuant to Mental Health Act."

48 Dr Hampshire, a psychiatrist, gave evidence that in his opinion the appellant's claimed loss of memory of the death of the deceased and of her concealment of his body until it was discovered by police was consistent with a condition known as psychogenic amnesia or repressed memory brought about by the trauma of the events she described as occurring on 18 July 2005. Also consistent with this condition was her re-remembering which commenced when she was shown a jumper belonging to the deceased on the day his body was exhumed. The point of this evidence was to explain why she had told police in August 1995 that she did not know where the deceased was. He was also of the opinion that she had a borderline personality disorder and had previous dissociative states and probably a conversion disorder. These conditions were apparently frequently found in people who suffered psychogenic amnesia. He did not, in the evidence he gave, diagnose depression or any other mental illness. The appellant's written submissions also refer to automatism but Dr Hampshire made no mention of that.

49 His Honour dealt with Dr Hampshire's evidence during his summing up. There was evidence that conflicted with the claimed loss of memory. Mr Weaver gave evidence that on 19 September 1995 the appellant told him that she had received a telephone call from the deceased. If this evidence was accepted it would suggest that she had not been suffering a loss of memory but inventing a cover story. The jury was not bound to accept her evidence or Dr Hampshire's evidence. In relevant respects the appellant's evidence must have been rejected. Ground 7: "Appellant gave her home temporarily for Grosse to recover debts to his caravan and not guilty of murder or harm as accused."

50 This ground of appeal is unclear. It may, as the Crown suggested, be a reference to the appellant's previous good character. However, this matter was dealt with by the trial judge in his summing up.

51 As the Crown acknowledged, in her written submissions the appellant stated that "Mr Bellanto (who was her counsel) failed to allow self defence or seek duress and stress." This may be understood as a further ground of appeal, namely that senior counsel for the appellant at her trial was negligent in failing to raise self defence as an issue and in failing to raise duress and stress.

52 During a break in the summing up his Honour asked counsel whether self defence was an issue because of something said in defence counsel's address to the jury. However, defence counsel indicated that his remarks had been directed to the question of provocation and he had never approached the case on the basis that self defence was available. Certainly, the appellant's own account of what occurred did not raise this issue. Although she alleged the deceased had used a rope around her neck she did not, at that stage, respond by attacking the deceased. Instead, she said she went outside and returned later when although she said the deceased was angry and offensive she did not suggest that he was violent.

53 In these circumstances I do not believe it can be suggested that counsel in any way failed to competently conduct the appellant's defence. There was no basis for a claim of self defence. Application for leave to appeal against sentence

54 I have already remarked that although an appeal on this ground was suggested no submissions were made in relation to it.

55 A review of the trial judge's remarks on sentence makes plain, in my opinion, that the sentence which his Honour imposed was appropriate. His Honour was mindful of the fact that the appellant had undergone multiple trials which included a trial between the first and second jury verdicts which was aborted. He also allowed for her advanced years and the deterioration in her health.

56 However, he found that the murder was premeditated from the early hours of 1 July 1995 and was explained by the appellant's desire to make way for Mr Weaver to reside in the house. Having regard to the objective circumstances of the offence as found by the trial judge and in respect of which no error has been demonstrated, I am satisfied that notwithstanding the appellant's subjective circumstances no other sentence was warranted in law. ORDERS:

57 In my opinion the appeal against conviction should be dismissed. The application for leave to appeal against sentence should be granted but the appeal dismissed.

59 HALL J I agree with McClellan CJ at CL.

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