Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Miscarriage of justice - Whether learned trial judge misdirected jury on secondary transference of DNA

Criminal law - Appeal against sentence - Threatening to unlawfully kill - Aggravated assault occasioning bodily harm - Deprivation of liberty - Whether total effective sentence of 6 years' imprisonment infringed first limb of totality principle

Cook v The Queen [2001] WASCA 16

Etheridge v The Queen [2004] WASCA 152

Iveson v The State of Western Australia [2005] WASCA 25

Juma v The State of Western Australia [2011] WASCA 54

KIP v The State of Western Australia [2013] WASCA 71

Kometer v The State of Western Australia [2005] WASCA 131

Miller v The State of Western Australia [2009] WASCA 79

Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193

Pollock v The State of Western Australia [2009] WASCA 121

Quigley v The State of Western Australia [2013] WASCA 9

Roffey v The State of Western Australia [2007] WASCA 246

Russell-Miles v The State of Western Australia [2012] WASCA 57

Snider v The State of Western Australia [2005] WASCA 61

The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137

The State of Western Australia v Cheeseman [2011] WASCA 15

The State of Western Australia v Turaga [2006] WASCA 199

Wallam v The State of Western Australia [2012] WASCA 115

Wilson v The State of Western Australia [2010] WASCA 82

1 REASONS OF THE COURT: Before the court are the appellant's applications for leave to appeal against conviction (CACR 68 of 2016) and sentence (CACR 69 of 2016).

2 The appellant (Andre Mariri Pureau) and Denis John Maher were charged on indictment as follows:

(1) On 23 July 2014 at Heathridge Denis John Maher unlawfully assaulted [SJM] and thereby did her bodily harm (contrary to s 317(1) of the Criminal Code (the Code)).

(2) On the same date and at the same place Denis John Maher unlawfully detained [SJM] (contrary to s 333 of the Code).

(3) On 23 July 2014 at Heathridge Andre Mariri Pureau made a threat to unlawfully kill [SJM] (contrary to s 338B(a) of the Code).

(4) On the same date and at the same place as in Count (3) Andre Mariri Pureau unlawfully assaulted [SJM] and thereby did her bodily harm.

And that Andre Mariri Pureau was in a family and domestic relationship with [SJM] (contrary to s 317(1)(a) and s 221 of the Code).

(5) On the same date and at the same place as in count (3) Andre Mariri Pureau unlawfully detained [SJM] (contrary to s 333 of the Code).

3 The appellant and Mr Maher were tried together before Goetze DCJ and a jury.

4 On 3 March 2016, Mr Maher was found not guilty of count 1, but guilty of count 2. The appellant was found guilty of counts 3, 4 and 5.[1] On 20 April 2016, the appellant was sentenced as follows:

• Count 3: 3 years' imprisonment (reduced from 3 years and 6 months' imprisonment for totality).
• Count 4: 2 years' imprisonment.
• Count 5: 3 years' imprisonment (reduced from 3 years and 6 months' imprisonment for totality).

5 The sentencing judge ordered that the sentences on counts 3 and 5 be served cumulatively, and the sentence on count 4 be served concurrently. Thus, the total effective sentence was 6 years' imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 1 February 2016.

6 It is unnecessary to set out the details of the sentence imposed upon Mr Maher.

7 The appeal against conviction relies upon a single ground of appeal which reads:

The trial judge misdirected the jury on the issue of transference of DNA resulting in a miscarriage of justice.

8 The appeal against sentence relies on three grounds. Grounds 1 and 2 allege that the individual sentences imposed for counts 3 and 5 were manifestly excessive. Ground 3 alleges that the total effective sentence infringed the first limb of the totality principle.

9 The question of leave to appeal in respect of the ground or grounds relied upon in each appeal was referred to the hearing.

10 In our opinion, each appeal should be dismissed. Our reasons for arriving at these conclusions are as follows.

Appeal against conviction - CACR 68 of 2016 The State's case

11 On 23 July 2014, the appellant and the complainant, SJM, had been in a relationship for about six weeks. Ms M was several weeks pregnant.[2] The appellant and Ms M shared a room in a house in the suburb of Heathridge. Three other people lived in the house: Mr Maher, Sandra Kezic and Benjamin Bond. Each had their own room.[3]

12 On the State's case, Mr Bond had come to Western Australia from the eastern states to manufacture methylamphetamine. On the night of 22 July 2014, the appellant, Mr Maher and Mr Bond each smoked methylamphetamine.[4]

13 At about 6 am on 23 July 2014, the appellant drove to work. At about 8 am, he telephoned the house and said that he was feeling sick. He asked if someone could pick him up and bring him home. He was picked up from work and brought home. He then went to bed.[5]

14 At about 11.45 am, Ms M left the house, taking with her, with his permission, the appellant's mobile telephone. She then drove the appellant's car to a number of appointments that she had that day. She returned to the house at about 5.30 pm.[6]

15 When she arrived home, the appellant was waiting for her in the computer room. He was furious with her for being away for so long and taking his mobile telephone. The appellant swore at her and demanded to know where his mobile telephone was and where she had been. He accused her of going to the police.[7]

16 The State's case was that the appellant pushed Ms M into a bedroom, shut the door and behaved very aggressively towards her. In response to this behaviour, Ms M threw a mobile telephone charger at the appellant, cutting his face.[8] Ms M then yelled out for someone to call the police. The bedroom window was open when she did this. The other occupants of the house heard Ms M's call for help. Given the illicit drugs in the house, they did not want the police to attend the residence.

17 Ms M and the appellant left the bedroom where the confrontation had occurred. A short time later, the appellant left the house.[9] While the appellant was away, Mr Maher, Mr Bond and Ms Kezic assaulted Ms M and deprived her of her liberty over an extended period of time. It is unnecessary to describe in detail what allegedly occurred. It is enough to say that Ms M was detained by being bound with tape and beaten. Eventually, Ms Kezic took Ms M to the computer room where she was given a cup of tea. Mr Maher and Mr Bond tried to calm and console Ms M. After this, Mr Maher, Mr Bond and Ms Kezic engaged in a 'group hug' with Ms M.

18 About one and a half hours after the appellant left the house, he returned.[10] He entered the computer room wearing a pair of white latex gloves. He had a knife in a cover strapped to his hip and he was carrying a taser.[11] The appellant ordered Ms M into their bedroom. She did as she was told. Ms M's detention, the subject of count 5, began at this point. He closed the bedroom door and told her not to scream. He then made the threats alleged to constitute count 3. The appellant said he was going to kill her. He pressed the button on the taser a number of times and said words to the effect of, 'The more you scream the more pain I will inflict'.[12] The appellant then told Ms M that he would soak her body in acid to get rid of his DNA.

19 The appellant tried to taser Ms M in the face. As she raised her arms to protect herself, the taser split part of her right thumb. Count 4 concerns this incident.

20 The appellant pulled Ms M by her hair and dragged her out of the bedroom into the lounge room. By this time, Mr Maher, Mr Bond and Ms Kezic had gone to the back of the house. The appellant again told Ms M that he was going to kill her, at one point saying words to the effect of, 'Do you know what will happen if I put this [the taser] to your temple? It will make you a vegetable'.[13] Ms M asked the appellant what she had done to deserve such treatment. The appellant made some reference to her earlier absence from the house and that people had been unable to contact him while she had his mobile telephone. He referred to 'the Russian mob' and bikies.[14] In an effort to calm him down, Ms M told the appellant that she had paperwork evidencing her attendance at appointments that day. She offered to show it to him. As she went to their bedroom to fetch the documents, the appellant moved to various parts of the house. While the appellant was away from the bedroom, Ms M spotted a mobile telephone on the floor which, in fact, belonged to Mr Bond. At 11.11 pm, Ms M made a triple zero call. She dropped the mobile telephone on the floor in the bedroom so that the operator could hear what was going on. The appellant returned to the bedroom, unaware of what she had done. The triple zero call was recorded. The sounds that were recorded were unclear, but the State contended that the recording was of sufficient quality for the jury to conclude that Ms M was pleading with him.

21 Ms M sought permission from the appellant to go outside to smoke a cigarette. He gave her two minutes to do so. While smoking, Ms M heard Mr Bond say something like, 'Somebody called triple zero from my phone'.[15] She then saw the appellant and Mr Bond carrying duct tape and rope. Both men were wearing white latex gloves. Ms M then made her escape from the property. Ms M's detention the subject of count 5 ended at this point.

22 Ms M ran from the backyard to a neighbour's house. At about 11.15 pm, she banged on the front door. The neighbour was reluctant to allow Ms M to enter his house. Instead, she was permitted to go to the backyard. At 11.35 pm, a telephone call to emergency services was made. About 10 minutes later, two police officers arrived. A short time later an ambulance attended the scene.

23 In the early hours of 24 July 2014, Mr Bond, Ms Kezic and the appellant were arrested. Mr Maher left the scene before the police arrived. He was arrested on 7 August 2014.

24 The appellant was taken to the Joondalup police station. Later that day, at 8.15 pm, he was interviewed by the police. An edited version of the interview was tendered at trial and played to the jury.

25 The appellant told the police how he went to work early on 23 July 2014, but came home because he was feeling unwell and went to sleep. He said that when he woke up, he discovered that his mobile phone and his car had gone. He told the police that Ms M came home sometime between 5.30 and 6.00 pm and that they had a heated argument. The appellant admitted that he was furious with Ms M. He said that she threw a telephone charger at him. The appellant told the police that he left the house for about an hour and a half.

26 According to the appellant, no one was around when he returned to the house. He said that he grabbed a blanket, watched a movie and fell asleep. The appellant said that he did not see anyone. He denied threatening to kill Ms M and unlawfully detaining her. He denied causing the injury to Ms M's thumb.

27 The State's case relied primarily upon the evidence of Ms M. The State also adduced evidence from the neighbours, a paramedic who examined Ms M, a medical practitioner who spoke to the notes compiled in relation to Ms M's treatment at the Joondalup Health Campus and the testimony of a DNA expert, Dr Christine Chin. Of these witnesses, it is only necessary to refer in detail to the evidence of Dr Chin.

28 On 24 July 2014, the house occupied by the appellant and Ms M was forensically examined. Among the items seized by the police were some tape and a pair of white latex gloves. These items were found in two separate rubbish bins.

29 With respect to Mr Maher, a DNA profile which matched his profile was found on the tape.

30 Each white latex glove was given a separate label, LW 13 and LW 14, and separately examined.

31 With respect to LW 13, a mixed DNA profile, with at least three contributors, was found on the outside of the glove as presented to Dr Chin.[16] Two of the contributors to that profile matched DNA profiles provided by the appellant and Ms M. Based on the Australian population database, it was greater than 100 billion times more likely that the appellant and Ms M contributed to the DNA profile than any unknown individual unrelated to either of them.[17]

32 From the inside of the glove as presented to Dr Chin, a single source DNA profile was obtained which matched the profile taken from Ms M.[18]

33 Dr Chin also found on the inside of the glove as presented to her, a mixed DNA profile. Dr Chin testified that Ms M was a likely contributor to this mixed profile, and there were at least two other contributors, but the profile was unsuitable for further interpretation.[19]

34 With respect to LW 14, on the outside of the glove as presented to Dr Chin was found a mixed DNA profile with at least four contributors. Two of those contributors had DNA profiles which matched the DNA profiles of the appellant and Ms M. The statistical likelihood that each of them had contributed to the profile was greater than 100 billion times more than an unknown, unrelated individual having contributed. Mr Maher was excluded from the mixed profile.[20] A profile consistent with Mr Bond was part of the mixed DNA profile, but the probability that Mr Bond had contributed to it was such that Dr Chin considered the alleged match to be 'limited evidence' or 'coincidental'.[21] The inside of the glove as presented to Dr Chin revealed a mixed DNA profile, of which one of the contributors had a DNA profile that matched Ms M's DNA profile.[22] Dr Chin was unable to identify any other contributor because the profile was not suitable for further interpretation.[23] Another mixed profile found on the inside of the glove as presented to Dr Chin was assessed to have at least four contributors. One of those contributors had a DNA profile which matched the appellant's, with the same statistical likelihood that he was a contributor as the statistics cited earlier for Ms M. Dr Chin was unable to ascertain the DNA profiles of the other contributors.[24]

35 In the course of her evidence-in-chief, Dr Chin described the processes of 'primary transfer' and 'secondary transfer' of DNA. She said:[25]

So when I touch this surface and if I leave my skin cells behind and a DNA profile is recovered - so it's a primary transfer because I, myself, have left my skin cells there. However, if my - someone comes along, touch [sic] the same area and went off to another area, touched that and a sample is taken from that area and my DNA profile is shown to be present in that area, that's considered as a secondary transfer, even though I, myself, have not actually touched that area itself. So what happens is it has gone from this area to that area, what we call 'via an intermediary'. So it's like A to B via another - you know, C or something like that.

36 Dr Chin accepted that secondary transfer of DNA was possible. She was unable to say how likely such a transfer would be, or how easily it occurs, other than to say that some material facilitates transfer better. She said that it was easier for an intermediary in a case of secondary transfer to pick up cells from a smooth surface, and also that transfer is probably better via a wet surface.[26]

37 Defence counsel for each of Mr Maher and the appellant cross-examined Dr Chin with a view to showing that profiles consistent with each of their clients found on the items seized by the police may have been deposited by secondary transfer.

38 Defence counsel for the appellant cross-examined Dr Chin as to the possibility that an individual's DNA found on an item taken out of a rubbish bin may have deposited on it as a result of secondary transfer by other individuals who had touched the rubbish bin.[27] Consistently with the testimony she gave in evidence-in-chief, she said that she was unable to say how likely secondary transfer would be, but it would be more likely if the rubbish bin had not been cleaned and it was the same person using the bin, or if the inside surface of the bin had been wet with biological fluid.[28]

39 The appellant did not give evidence in his defence. In effect, he relied upon his video record of interview.

The closing addresses The State's closing address

40 The prosecutor told the jury that the State's case rose or fell on the evidence of Ms M.[29] He submitted that while there was 'some supporting evidence, such as the triple zero call and the forensic evidence about the tape and gloves', Ms M was 'an essential State witness' and that the jury would need to accept her evidence, or at least the critical parts of her evidence, in order to deliver a verdict of guilty.[30]

41 With respect to the DNA evidence, the State prosecutor addressed the issue of secondary transfer, first with respect to Mr Maher,[31] and later with respect to the appellant. The State's case was that the gloves found in the bin were worn by the appellant while he committed the offences against Ms M and that he left his DNA on the gloves (LW 13 and LW 14) during the commission of the offences. The State prosecutor accurately summarised the evidence of Dr Chin with respect to the DNA profiles found on the gloves and submitted, in effect, that the presence of DNA profiles matching the appellant and Ms M on those items was not a result of secondary transfer.

42 The focus of defence counsel's closing address was upon the credibility of Ms M. He submitted that the jury could not be satisfied of the appellant's guilt in respect of any of the offences because her evidence was unreliable. As he put it at the beginning of the closing address:[32]

Ladies and gentlemen, in some ways the trial that you're serving on is a relatively straightforward one. Now, I say that because in many respects it comes down to whether you accept or reject crucial parts of the evidence of [Ms M]. So in that sense, it's fairly straightforward.

43 Defence counsel addressed the DNA evidence.[33] His submissions did not dispute Dr Chin's DNA analysis or her calculations of the statistical likelihood regarding possible contributors. He submitted that secondary transference was 'possible'. He urged the jury to look at the photographs taken by the police of the inside of the bin. He said that they showed that the gloves in the bin were 'sitting right next to a puddle of water' and that 'the whole of the bottom of the bin is damp'.[34] He noted that the photograph showed the gloves were sitting next to a milk carton and that anyone in the household could have picked it up to 'make themselves a cup of tea'. He also noted that the gloves were 'next to a stubby of an alcoholic drink'. Defence counsel suggested 'there are some [sic] many ways that everyone in the household may have had DNA in that bin'.[35] He submitted that the glove was a smooth surface and that the bin was not clean. The effect of defence counsel's submissions was to suggest that secondary transference was a real and not fanciful possibility in this case and that the DNA evidence did not, in fact, support the State's case.

44 The only aspect of the summing up which is challenged by the appellant concerns his Honour's direction on secondary transference of DNA.

45 In respect of the appellant, his Honour said:[36]

As to the DNA, what [defence counsel] says is that the gloves were found in an outside bin. There was moisture at the bottom of that bin, and you know that that assists in the transfer - or makes it easier for transfer to occur of DNA. It wasn't a clean bin and anyone in the house could have thrown objects in that bin, and in that way, [the appellant's] DNA could be in that bin to be the subject of secondary transference.

46 After summarising the appellant's case his Honour then gave the following direction on the potential relevance of the DNA evidence and the issue of secondary transference:[37]

In terms of DNA you were given evidence that a buccal swab is taken from various people, including the two accused. That's then used as a reference sample to test DNA extracted from the tape and the gloves and hair.

Contrary to what you might think from TV shows, it can't be said that DNA found at a crime scene belongs to a particular person, but it can be said that profiles can be obtained and then the scientists can by statistics look to the likelihood of that DNA having come from a particular person, and here by reference to the buccal samples.

Sometimes you get a full profile of the 21 points, sometimes you get a partial profile, sometimes you get a mixed profile. I don't think it's necessary for me to explain those matters, but the scientist Dr Chin can then only tell you what the profile tells the scientists according to their statistics.

The scientists can't factor into statistical calculations that whoever put the human tissue on the various items also has to have been someone who was connected to those items in a physical sense, subject to what counsel have pointed out to you about transference. So the statistics don't tell you realistically how many people had the opportunity to come into contact with the various items or what their profiles were.

So the DNA evidence and the statistics on their own can never prove to you conclusively that human tissue found on the various items belongs to one or other of the accused, so don't therefore attempt to determine the case solely on DNA evidence and statistics. It would be wrong of you to do that.

But in a circumstantial case, you don't consider the evidence in isolation. You can look at all of the evidence and you can then draw whatever inferences you consider to be appropriate to draw. So you can combine the DNA evidence and the statistics with any other evidence accepted by you.

And of course, it's entirely a matter for you to determine what evidence you accept as being proven, but you may wish to consider the circumstantial DNA evidence together with [Ms M's] direct evidence of what she says happened, and that's a matter for you to determine.

If the DNA found on these samples is not the accused's DNA or [Ms M's] DNA, it would logically have to be someone else who has had access to those various items. And those other people who would have had to have been in touch with those items would have had to have had the same DNA profile as the accused's DNA profile.

And then you can see that by combining the DNA evidence with other evidence, you may or may not draw any inference. If you consider it appropriate to draw it, then you can, and if there's another reasonable inference which the defence say is, 'Well, this DNA didn't get there from these acts. It got there from transference', then you couldn't draw that inference if that is your finding, but it's a matter for you.

But the State asks you to draw the inference that the DNA of the accused is on these various items, as is [Ms M's], because it's consistent with [Ms M's] evidence and you can therefore use that DNA evidence to support her credibility as a witness of truth and reliability.

But remember the defence of transference, and in this particular case, you've got evidence of [Ms M's] DNA and Mr Pureau's DNA, so the two of them, both in contact with the gloves. You've got evidence of [Ms M's] DNA and Mr Maher's DNA on the tape. So it's not just one person but the two persons, and if it's not their DNA, it has to be someone else who's got their DNA profile, not just one person but two people.

But bear in mind, they were all living in this house. Their DNA is likely to be within the house at various places, on couches where they sat watching TV, on things they've used and put into the kitchen drawer or whatever. And bear in mind what counsel has said to you about transference.

Dr Chin gave expert evidence. Experts can give their evidence by reason of two things. One is formal academic qualifications, the other is by training and also then, you can have both. Expert evidence is just evidence. You are the judges of the facts, not the expert. It's for you to decide whether you accept or reject the evidence.

And both counsel for defence criticised [sic] Dr Chin about transference and remind you that she said she accepted that transference is possible but she couldn't tell you how transference may or may not occur. She just doesn't have that information. (emphasis added)

47 Neither defence counsel took exception to this direction.

Appellant's submission - appeal against conviction

48 The appellant submitted that the alleged miscarriage of justice the subject of ground 1 arose from the part of his Honour's summing up which we have emphasised.

49 In her oral submissions, counsel for the appellant explained that the miscarriage of justice was that this statement was misleading because of the risk that it would have led the jury to think that secondary transference was not an important issue, but rather the issue with the DNA evidence was whether someone other than the accused had the same DNA as Mr Maher and the appellant.[38]

50 The appellant's submissions cannot be accepted. The proper approach to the alleged miscarriage of justice in this case is to consider what his Honour said in the context of the real issues to be decided at trial, the evidence relevant to those issues and the cases put by the parties. Further, the summing up must be considered as a whole. It is for this court to decide the question of whether a miscarriage of justice has occurred, having regard to the overall effect of the whole of the summing up. The impugned direction cannot be read in isolation: Murray v The Queen.[39]

51 The primary factual issue for the jury to decide was whether the State had proved beyond reasonable doubt that the appellant had threatened to kill Ms M, assaulted her with the taser and deprived her of her liberty. The State's case depended upon the jury being satisfied beyond reasonable doubt that Ms M was a reliable and truthful witness. The presence of DNA matching the profiles of Ms M and the appellant on the gloves confirmed her evidence to the extent that she stated he was wearing white latex disposable gloves and that he made contact with her during the period that he kept her against her will. The evidence also had the capacity to undermine his case that after he came home he had no contact with Ms M.

52 It is clear from the way in which the appellant's counsel cross-examined Dr Chin and from his closing address to the jury that there was no dispute that the DNA profiles found on the gloves matched the reference DNA profiles of Ms M and the appellant. Nor was there any issue taken with the statistical evidence given by Dr Chin. The defence case sought to explain the presence of the DNA on the gloves as an example of secondary transference.

53 The trial judge's summing up on the issue of the DNA evidence and, in particular, the secondary transference, was fair, balanced and accurate.

(a) the jury could not determine the case solely on the DNA evidence;

(b) it was open to the jury to consider the DNA evidence together with Ms M's 'direct evidence of what she says happened';

(c) if the jury was satisfied that the DNA profiles found on the items tested by Dr Chin matched the DNA profiles of the accused, it was open to the jury to infer that the appellant touched the items;

(d) before coming to that conclusion, the jury needed to consider whether the presence of the appellant's DNA was due to secondary transference;

(e) as to the question of secondary transference, the jury was required to bear in mind that Mr Maher, the appellant and Ms M were all living in the one house and that their DNA was likely to be within the house in common areas such as on couches and kitchen drawers;

(f) it was open to the jury to consider the evidence of Dr Chin that secondary transference was possible, even though she was unable to say how that transference may or may not occur.

55 The impugned statement was a non-binding comment on the evidence. It was directed to the unlikelihood of the DNA profiles that were found on the gloves and tape examined by Dr Chin belonging to someone other than the appellant, Mr Maher and Ms M and concerned a matter which, having regard to the way in which the defence case had been run at trial, was uncontroversial. The comment was not inapt or unfair. In the overall context of his Honour's direction on DNA and secondary transfer, there was no risk that the comment misled the jury in the way claimed by the appellant's counsel or at all.

56 Although not decisive, the failure of either experienced defence counsel to take any exception to his Honour's direction indicates that in the context of the atmosphere of the trial it did not seem to those present that there was any reasonable ground for concern regarding the adequacy and fairness of the summing up: see Russell-Miles v The State of Western Australia.[40]

57 For these reasons, the ground supporting the appeal against conviction has not been made out. Leave to appeal should be refused.

58 Although the grounds of appeal challenge the individual sentences imposed on counts 3 and 5, at the hearing of the appeal the appellant's counsel accepted that the real issue in the appeal was captured in ground 3, namely, did the total effective sentence of 6 years' imprisonment infringe the first limb of the totality principle?

59 The legal principles applicable to an appeal against sentence are well known and uncontroversial. They were described by McLure P and Owen JA in Wilson v The State of Western Australia[41] and do not need to be repeated.

60 The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the relevant offences, viewed in their entirety, and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia.[42]

61 An allegation that the total effective sentence imposed offended the first limb requires the court to examine the seriousness of the appellant's offending, mitigating factors and comparable cases: Pollock v The State of Western Australia[43] and Juma v The State of Western Australia.[44]

62 His Honour sentenced the appellant and Mr Maher at the same time. He made the following detailed findings of fact with respect to all of the offences they committed. These findings have not been challenged by the appellant:[45]

Now, the facts as they seem to me to be after trial, and based on the verdicts of the jury, are these: you two, Ms [M] and Mr Bond, and Ms [Kezic], were all living in the one home. The home was owned by Mr Maher's cousin, who was an absent landlord, and Mr Maher had moved in to keep an eye on the premises.

It seems that Ms [Kezic] was the first tenant, then Mr Maher. Ms [M] came to visit a man named Hectic, but he moved out, and then Mr Pureau moved in, and she and Mr Pureau formed a relationship, and along the way Mr Bond came to the house. Ms [M] and Mr Pureau shared a room.

On the day in question Mr Pureau had gone to work, but you telephoned later requesting that the others come and pick you up and drive you home from work because you were feeling unwell.

Mr Maher and Ms [M] went to collect him. The two of them went because one of them had to drive Mr Pureau's car back.

Upon returning home Mr Pureau went into his room. Ms [M] borrowed your car, your mobile phone, as she had things to attend to, and those things were that she had to go and see her doctor by reason of pregnancy. She needed to see MAX Employment, and Centrelink. Now, on the evidence, these places seem to be in the same street as the Joondalup Police Station.

It took Ms [M] quite a few hours to attend to her requirements. When she returned you, Mr Pureau, were angry with her for having been away for so long. In your bedroom you abused her and you spat in her face. She looked for something to throw at you. She found the phone charger, and she struck you with that below the eye. That caused you to bleed.

There was a tussle, and during the course of that she called out the window for neighbours to contact the police. You walked out of the room, saying you were off to see the Russian mob, and then you left the premises.

Now, what happened next is that there was an incident between Mr Bond, Mr Maher, Ms [Kezic], and Ms [M]. In the course of that, Ms [M] was taken from - or near the doorway of her bedroom, up the hallway, towards the front door.

Mr Bond and Ms [M] - sorry, Ms [Kezic] both assaulted Ms [M] in the course of that. Mr Bond poured something from a bottle onto a rag. Mr Maher, you and Mr Bond then bound Ms [M] with gaffer or electrical tape around the neck and the mouth, her wrists, her arms and legs, and you sat her up against the door.

She was then assaulted further by Mr Bond. Ms [Kezic] tried to get her dogs to attack her. And then you, Mr Maher, dragged Ms [M] to Mr Bond's room. You left her there and closed the door behind her.

Now, whilst she was in that room alone she alleges that you came into the room, having changed your clothes, and that you were wearing a pair of boxer shorts, and that you played with your penis on the outside of your clothing, thereby tormenting her.

Now, you were quite emphatic in your denial of that. Equally, she was quite insistent that it happened. Now, I can't be satisfied beyond reasonable doubt that that actually occurred in the absence of any independent evidence to corroborate it.

Ultimately, Ms [Kezic] went into the room and distracted you, Mr Maher. Ms [Kezic] and Ms [M] were left in the room.

Ms [Kezic] helped Ms [M] remove the tape, and then she had a cigarette. She took Ms [M] to the bathroom. Now, this is a bathroom and a laundry. The laundry has a door to the outside, but the door was locked and there was no key. And from there, Ms [M] went to the computer room.

In the computer room the occupants, being Ms [Kezic], Mr Bond, and Mr Maher, engaged in a group hug with Ms [M], and all three, bar Ms [M], smoked a bong. They all remained in that computer room, or a sort of lounge room.

Now, Mr Pureau then returned. You were wearing latex gloves. You had a knife strapped to your waist, and you held a taser gun in your hand. The others then left the computer room.

Now, there's no evidence that you were told what had happened immediately before your return, but what you said to Ms [M] was, 'Get the fuck in the room', meaning your bedroom.

Once you were in the room you told her not to scream. You told her that you were going to kill her, and that the more noise she made the more pain you were going to inflict. You told her that you would soak her in acid, and that would get rid of your DNA.

She referred to her infant son, and that there would be no one to care for him, and you then made the comment of her parents would be able to do that.

You pointed the knife at her. Now, she, by this stage, was in great fear that you were going to carry out your threat. Not only had you made the threat, but you had the apparent means to carry out that threat. She dropped to the ground and began to scream. You grabbed her by the hair and you were trying to get at her face.

And she resisted your attempts and in doing that, with the [taser] gun in one hand - your hand that is - her right thumb was tasered. What she wanted to do was to prove to you her whereabouts that day. You walked her to the computer room and then back to the bedroom, where she began to look for her paperwork.

Now, it seems that, as I've mentioned, the places that she was attending were in the same street as the local police station. And because of something that you'd been involved in, you were afraid that she had been to the police, and that was the cause of all of this, but she had an innocent explanation.

While she was looking for the paperwork she saw Mr Bond's mobile phone on the floor. She attempted to ring 000 and in her panicked state she rang AAA and didn't get through, obviously enough. But she then realised what she had done and had the wits to ring 000 and she left the mobile phone on the floor, running. A tape of that was played during the course of the trial, but it's really impossible to know what was said. She then left the bedroom and walked towards the back door of the house, up towards where the kitchen is.

At that stage you, Mr Pureau, were with Mr Bond and you both had ropes with you. Ms [Kezic] and Mr Maher were outside the house on the patio. Ms [M] was given permission to go outside for a cigarette. And whilst she went outside, or whilst she was outside she heard Mr Bond exclaiming that someone had called 000 on his phone. And then Ms [Kezic] whispered or mouthed to Ms M, 'The gate'. Ms [M] looked and saw the gate and then she bolted.

She sought and obtained assistance from the next door neighbours, but one would have to say that the next door neighbours were fairly reluctant to be involved. The male who came to the front door was afraid of what might happen, I guess, and he sent her around the side of the house. She had to jump over a fence and come to the back door.

Ultimately the neighbours called the police and Ms [M] was rescued. The police took her down the road and waited for an ambulance. She was then taken to hospital where she was treated. Though she had physical injuries, it seems to me that the real harm she suffered was psychological. It was a terrible ordeal and between everyone involved it was prolonged over about more than five hours. As Judge Fenbury said when he sentenced Mr Bond: 'This was a merciless piece of vicious and terrifying violence'.

Now, you've been convicted of the offences that I've already mentioned. The deprivation of liberty in each case was serious. In your case, Mr Maher, it was aggravated by reason that there were other people being present. Now, I accept that you were not convicted of the assault.

And in your case, Mr Pureau, it has to be self-evident that your offending is a very serious example of domestic violence. The assault in itself was serious, but the real seriousness is the threat to unlawfully kill Ms [M] and your deprivation of her liberty in circumstances where you had physically assaulted her, occasioning bodily harm. That's the cut on the thumb from the taser.

And you were armed with a knife, the taser, wearing latex gloves and threatening death. As I've mentioned, you had the ability and the means to carry out your threat, and there's a great physical disparity between the two of you and Ms [M]. I accept that the bulk of her injuries were from the assaults from Mr Bond and Ms [Kezic].

63 We appreciate that this statement of the relevant facts encompassed all of the offending committed by Mr Maher and the appellant. Thus, when considering the factual circumstances of the offences as they apply to the appellant we acknowledge:

(a) He had no involvement in the incident which concerned only Mr Maher, Ms Kezic and Mr Bond.

(b) While Ms M's ordeal lasted more than five hours, the offences committed by the appellant occurred over a lesser period, having regard to the appellant's absence from the house for approximately one and a half hours.

(c) His Honour accepted that the bulk of the physical injuries suffered by Ms M were at the hands of Mr Bond and Ms Kezic.

(d) Although the appellant must be held to be responsible in part for the psychological trauma inflicted upon Ms M, he cannot be held responsible for all that trauma.

64 The appellant was 24 years of age at the time of the offences and 26 when he was sentenced. He was born in New Zealand and came to Australia at the age of 17. In May 2014, he was convicted of an assault occasioning bodily harm in the Magistrates Court and fined $5,000. This offence occurred in a domestic setting. Later in 2014, he was convicted of six counts of stealing and fined. In 2014 and 2015, he was convicted of driving while under fines suspension.

65 The appellant claimed he had no issues with either illicit substances or alcohol. Prior to his incarceration he was working as a plasterer.

66 The author of the pre-sentence report noted that the appellant adopted a stance of denial regarding his involvement in the offences and that his expressions of empathy for the victim did not appear to be genuine.

67 The appellant's submissions with respect to ground 3 focused in large measure on a comparison with The State of Western Australia v Cheeseman.[46] The appellant submitted that the offending in that case was factually similar to the present case, yet the total effective sentence imposed upon the respondent in that case (18 months' immediate imprisonment) was significantly lower when compared to the total effective sentence that was imposed here.

68 The maximum penalties for the offences committed by the appellant are as follows:

69 In The State of Western Australia v Cheeseman, the respondent, who was 24 years of age at the time of the offending, was convicted on his pleas of guilty of two counts of deprivation of liberty, one count of assault occasioning bodily harm and one count of making threats to kill.

70 The offences involved two victims, K and C. The respondent had been in a family and domestic relationship with K. After that relationship, K and C formed an intimate relationship. The respondent believed that this intimacy had begun before he and K separated. An argument developed between K and the respondent which escalated to the point where, after a physical altercation, the respondent detained K in his motor vehicle and drove to his home. K remained at the respondent's home against her will. The respondent then armed himself with a loaded spear gun. C came to the house where she was confronted by the respondent, who pointed the loaded spear gun at her and forced her to enter the house. The respondent told K and C, 'No one is leaving unless I say so'. He also said that he was 'dying tonight' and would be taking someone with him.[47] When C refused to hand her car keys to the respondent, he punched her hard on the left cheek, knocking her down. He struck her again, causing the skin on her left cheek to split. The respondent then forced C onto a kitchen stool, picked up the loaded spear gun and pointed it at her chest, making threats to kill. At some stage, the respondent discharged the spear gun so that the spear penetrated a door in his home.

71 Later in the evening, the respondent wrote a note to the effect that he took full responsibility for the crime he had committed. Eventually, he telephoned the police, told them that there had been a domestic dispute and that he wanted them to come and arrest him. K and C then drove him to the police station, but officers were not in attendance. He handed himself into police soon after.

72 The respondent had a relatively minor criminal history, but the offences he committed which were the subject of the appeal occurred about three weeks before the expiration of a community based order for offences of aggravated burglary and stealing or receiving. The respondent cooperated with police from an early stage, pleaded guilty at the earliest opportunity, accepted responsibility for the offending, demonstrated genuine remorse for his offending and was found to have been suffering a mixed anxiety and depressive disorder at the time of his offending. Prior to sentencing, he had spent 4 months in custody.

73 At first instance, the respondent received a total effective sentence of 2 years' imprisonment conditionally suspended for 18 months. A State appeal against this sentence was allowed. Having regard to the progress that the appellant had made towards rehabilitation since he had been sentenced at first instance, this court imposed a total effective sentence of 18 months' immediate imprisonment.

74 The appellant's reliance of The State of Western Australia v Cheeseman is misplaced. As a matter of principle, a single case or a small number of cases is of little assistance in the sentencing exercise and cannot establish the range of sentences customarily imposed.[48] In any event, while there are some factual similarities between the two cases, The State of Western Australia v Cheeseman is not an apt comparator. Unlike the respondent in The State of Western Australia v Cheeseman, the appellant in the present case:

(a) did not plead guilty, nor did he take responsibility for his offending, nor did he demonstrate any genuine remorse for what he had done;

(b) was not suffering from any mental impairment at the time of the offending;

(c) did not cooperate with the police from an early stage; and

75 There is no quarrel with his Honour's finding that the appellant's overall offending constituted a very serious example of domestic violence. His Honour was correct to conclude that the real seriousness of what the appellant did lay in his threats to kill Ms M and her deprivation of liberty. His Honour had regard to the victim impact statements which showed that Ms M thought that she would die during her ordeal. The negative psychological consequences are both ongoing and serious. Ms M was defenceless and particularly vulnerable by reason of the greater physical strength of the appellant and her pregnancy. The offences occurred in a domestic setting. The fact that the offences were committed in such a setting increases the seriousness of what the appellant did. It does not matter that their relationship was brief. A person in a short-term domestic relationship is entitled to as much protection as someone in a longer-term relationship.

76 The appellant's antecedents provide no real mitigation. He has no insight into his offending. Violence is not uncharacteristic of him. Nor is violence in a domestic setting. Personal and general deterrence were important sentencing considerations and warranted a more severe penalty. Although the offences occurred in the one transaction, the imposition of concurrent sentences would have resulted in a total effective sentence that would be an inadequate and inappropriate reflection of the overall criminality of the appellant's conduct.

77 Having regard to all of the relevant circumstances and sentencing factors, we have not been persuaded that the total effective sentence imposed upon the appellant infringed the first limb of the totality principle. While we would give leave to appeal with respect to ground 3, we would dismiss the ground.

78 Insofar as grounds 1 and 2 remain live, we are unpersuaded that the individual sentences on counts 3 and 5 were manifestly excessive.

79 We have already set out the circumstances in which each offence was committed, the personal circumstances of the appellant and the maximum penalty for each of the offences. The appellant sought to support the allegation of manifest excess by reference to what were said to be comparable cases.

80 With respect to the offence of deprivation of liberty, in addition to the case of The State of Western Australia v Cheeseman, the appellant cited Cook v The Queen;[49] Iveson v The State of Western Australia;[50] Snider v The State of Western Australia;[51] Kometer v The State of Western Australia[52] and Miller v The State of Western Australia.[53]

81 With respect to the offence of threats to kill, the appellant cited The State of Western Australia v Bennett;[54] Etheridge v The Queen;[55] Quigley v The State of Western Australia;[56] KIP v The State of Western Australia[57] and The State of Western Australia v Turaga.[58]

82 It is unnecessary to discuss any of the cases cited by the appellant in detail. They do not bear out the proposition that the individual sentences imposed on counts 3 and 5 in this case were manifestly excessive.

83 In our opinion, having regard to the circumstances and all relevant sentencing considerations, the individual sentences imposed upon the appellant were not unreasonable or plainly unjust. They were not manifestly excessive. Leave to appeal on grounds 1 and 2 should be refused.

84 The orders we would make in respect of the appeal against conviction are as follows:

1. Leave to appeal is refused.
2. The appeal is dismissed.

85 The orders that we would make in respect of the appeal against sentence are as follows:

1. Leave to appeal on grounds 1 and 2 is refused.
2. Leave to appeal is granted in respect of ground 3.
3. The appeal is dismissed.

[39] Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 [72].

[40] Russell-Miles v The State of Western Australia [2012] WASCA 57 [19].

[41] Wilson v The State of Western Australia [2010] WASCA 82 [2].

[42] Roffey v The State of Western Australia [2007] WASCA 246 [24].

[43] Pollock v The State of Western Australia [2009] WASCA 121 [27].

[44] Juma v The State of Western Australia [2011] WASCA 54 [34].

[46] The State of Western Australia v Cheeseman [2011] WASCA 15.

[47] The State of Western Australia v Cheeseman [20].

[48] See Wallam v The State of Western Australia [2012] WASCA 115 [13].

[49] Cook v The Queen [2001] WASCA 16.

[50] Iveson v The State of Western Australia [2005] WASCA 25.

[51] Snider v The State of Western Australia [2005] WASCA 61.

[52] Kometer v The State of Western Australia [2005] WASCA 131.

[53] Miller v The State of Western Australia [2009] WASCA 79.

[54] The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137.

[55] Etheridge v The Queen [2004] WASCA 152.

[56] Quigley v The State of Western Australia [2013] WASCA 9.

[57] KIP v The State of Western Australia [2013] WASCA 71.

[58] The State of Western Australia v Turaga [2006] WASCA 199.