Hassan v R

Helen Roebuck

1. Ms Roebuck was a "forensic biologist" called by the defence. She said that, between 2009 and 2012, she was employed by the New South Wales Police Force Forensic Services Group, and that her role there including "undertaking examinations of exhibits submitted by the police for the presence of biological material", namely, "blood, semen, saliva and body fluids". She said that her tasks also included "sampling for DNA submission and conducting a small amount of DNA analysis" within the facility itself. She said that she also attended court to provide expert evidence.
2. Ms Roebuck agreed that she examined the pink and red blanket and the pink and fawn blanket. She said that they were examined "for the presence of any damage so anything, any holes, tears, that kind of thing". She was also asked to "assess whether the damage present could have been caused in the form of a stab cut" to the two blankets. She stated that both the blankets had "a number of areas of damage" and she concluded that "all of the areas that I identified were in fact stab cuts". She said that, at the time she did the examination, she did not have available to her the notes of Ms Aldaba, although she did have them before compiling her report.
3. Ms Roebuck said that she concluded that there were "six areas of dark blood-like staining" on the pink and red blanket. She was referred to the statement in her report that "None of these areas - that is the six areas of dark blood-like staining - had a saturated appearance". She said that, by using the term "saturated", she was referring to "a stain that would have soaked into the fabric". She said that, by contrast, the appearance of "the red brown stains" on the pink and red blanket were "on the surface of the fabric so they were much lighter and across the surface of the fibres, not soaked into the fabric itself". She agreed that, in other words, it might be described as a "transfer".
4. Ms Roebuck was referred to her statement in the report that "None of these areas, that is the areas of dark blood-like staining, had a saturated appearance that would be expected if the blanket had been in direct contact with a person who had freely bleeding injuries". She explained that the expression "freely bleeding" refers to when "a cut is produced the blood will have to flow to the surface of the wound" and will then "flow from the wound across the skin". She explained that this was "different to something like a paper cut when you just see a very small amount of blood", whereas "freely bleeding would be from a much more substantial wound and really talks about flow of blood across the surface of the skin".
5. Ms Roebuck was referred to the knife which was said to have been used in the attack and was asked whether, if a person have been stabbed with that type of knife, a freely bleeding injury would be expected. She responded that, if the wound did result from a "stab", then she would agree, but she also said that "not every injury caused by that knife would necessarily freely bleed". She said that it was the use of the word "stab" that indicated to her that a freely bleeding injury would be expected, although she said that this was "probably the limit of my expertise in that".
6. Ms Roebuck was referred to her examination of the pink and fawn blanket and agreed that she concluded that "none of the stains had a saturated appearance that would be expected if the blanket has been in contact with a person who had freely bleeding injuries".
7. Ms Roebuck was then asked about the scenarios put to Dr Van Vuuren in the first question of the evidence which I have extracted at [51] above. She was asked to not only assume that scenario, but also to assume that there was only one blanket, that the victim had a T-shirt on, and that there were "in excess of 16 stab wounds". She gave the following answer: "Okay. With that number of stab wounds - let me take a step back. Going back to basics where one stab wound is inflicted to a victim, it won't necessarily freely bleed instantaneously like absolutely within a split second. It can take a few seconds for the blood to reach the surface of the skin and start to pool on the body. As you start to inflict multiple stab wound to a victim, particularly when you are talking around the number of 16, for example, in the assumptions I have been given, by the time you reach that 16th wound, in my opinion, I would expect multiple of those wounds to be bleeding fairly significantly if they are all significant stab wounds to the body. Therefore, in a scenario where 16 wounds have been inflicted, I would expect to see saturation bloodstaining apparent on that blanket in contact with the victim."
8. She was then asked these questions and gave these answers: "Q. Even though the victim is wearing a T-shirt? A. The T-shirt would stem the blood to some degree, but with the nature and number of those injuries, I would expect to be seeing still significant staining on the T-shirt but purely down to the number of stab wounds you are talking about, it would be a different situation with a different scenario, of course. Q. If there were only one stab wound you might not expect to see saturation? A. Yes. Q. If there were two you might not expect to see saturation? A. It increases with the number of wounds because the amount of blood present is increased on the body. Q. You asked earlier whether the scenario involved one or two blankets, would you please explain why that might make a difference? A. The layering of the blankets can have an effect because if you have clothing, one blanket and another blanket on top, my expectation of the transfer to the top blanket is less than my expectation of transfer to the bottom blanket and the clothing, because it has to soak through multiple layers to reach that top blanket, so I wouldn't have the same expectation of both blankets if they were layered. Q. You have told us about the top blanket, what was your expectation in relation to the bottom blanket? A. In relation to the bottom blanket, it would have been the same expectation as if we only had the one blanket, so I would expect to see saturation staining on that bottom blanket."
9. In cross-examination, Ms Roebuck agreed that she did not spend "significant time" looking at bloodstaining at the time she examined the blankets. She said that it was sometime after that examination that she was asked to "provide an opinion about bloodstaining and the appearance of bloodstaining". She agreed that she had made "limited notes" about the bloodstaining and that she did not do any testing.
10. Ms Roebuck agreed that she did not get any photographs of the injuries on the deceased's body and was not provided with any of the crime scene photos, although she said she would have "reassessed my findings based on those photographs". She also agreed that she did not have a report from any crime scene officer who attended the scene. Notwithstanding these limitations, she agreed that she felt "with some confidence" she could comment about the damage, including that the stain was a "transfer" stain and that you could not see any saturation.
11. Ms Roebuck also agreed that she was asked to comment on whether "the appearance [of the blanket] was consistent with having been used to cover a victim with 20 stab wounds". She agreed that it would have been of assistance to have information about "where the victim was", and that the only information she had was "one sentence relating to the number of stab wounds".
12. Ms Roebuck was asked whether, in reaching an opinion as to "whether or not the appearance of the bloodstaining on the blanket was consistent with having been used to cover someone with stab wounds", it would have assisted her to have a copy of the autopsy report to know more about the stab wounds. She agreed that this would have allowed her "to provide more interpretation of the staining". She also agreed that she was not provided with the evidence of Dr Van Vuuren. She agreed that, as well as the autopsy report, Dr Van Vuuren's evidence may have assisted her in her opinion about the staining on the blankets, and stated that it would have "enabled me to re-evaluate my findings and perhaps give a more expressive opinion on the staining".
13. Ms Roebuck agreed that she was not a medical practitioner and it was put to her she did not have "any experience in what wounds were bleeding what way", and she responded that she was not trained medically, but that she had seen "a significant number of homicide cases and the resulting wounds", which she said is "very different" to a doctor's expertise. However, she agreed that "a doctor is different in that the doctor can talk about where wounds would bleed internally more than they would bleed externally".
14. Ms Roebuck agreed that the amount of blood on the blanket could vary with the amount of time that the blanket was in contact with a person who was stabbed, whether the person was struggling with the person doing the stabbing and making many different types of movements, as well as the positioning of the blanket relative to that person. However, she maintained that, for a case with "in the order of 16 freely bleeding injuries", which she admitted was an assumption, she "would be expecting to see more bloodstaining than was apparent on those blankets".
15. Ms Roebuck was asked these questions and gave these answers: "Q. If a person was in bed, awoke, was stabbed and then sat up, stood up, struggled and during that period they are stabbed, before falling on the ground, then that movement and positioning of the person that is stabbed would have a great bearing on how much blood came to be on the blankets, correct? A. It would, because what you are or what I understand that you are inferring is the blanket is no longer in contact with the source of blood. Q. It may be in contact in part but not wrapped around? A. Not across the body, yes, so that would have a large impact, yes. … Q. Assuming that is blood, is that the soaked or saturated type of appearance that you would expect in circumstances like the evidence you have given about gravity taking hold and the blood from a person falling down? A. Yes, that does have the appearance of saturated staining. Q. If a person was stabbed before they came to be on the ground, and bleeds out on to the carpet, they were stabbed in the circumstances I described where they were getting out of bed, you wouldn't necessarily expect to see soaked or saturated blood on the blankets, would you? A. It would depend on the length of time they were in that position, so you would expect to see what we call passive staining where the blood drips on to the floor through the effect of gravity. Over time that passive staining and all of the drops can build up to the point where they appear, effectively becomes a saturated area of staining and it can look very similar to this, but it would take a number of minutes of dripping blood into that position. Q. The person stabbed would have to stay upright? A. Yes. Q. Without knowing the variables it is very difficult to say, isn't it? A. Yes, yes."

The sentencing judgment

1. The sentencing judge concluded that the applicant killed the deceased by "stabbing her on a large number of occasions in a violent attack to her body". He stated that the "stab wounds penetrated a number of [the deceased's] principal organs and blood vessels including her heart, both her lungs, her kidneys and liver, and her inferior vena cava". He said that she "died almost immediately".
2. The sentencing judge directed himself as to the principles to be applied by a sentencing judge in making findings of fact. Quoting from R v Isaacs (1997) 41 NSWLR 374 at 377-8, he concluded that the "primary constraint" upon the sentencing judge is that "the view of the facts adopted by the judge for the purposes of sentencing must be consistent with the verdict of the jury". He said that a "second constraint" was that "findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt".
3. The sentencing judge stated at [18] that, "given the nature of the particular offence, that is, one associated with domestic violence by a man against a woman, the principles of general deterrence and institutional denunciation of the crime involved must play an important, although proportionate role", referring to R v Greene [2001] NSWCCA 258 at [16]. He said that general deterrence is "a powerful factor in the protection of the public by making it clear that others who may be tempted to engage in similar conduct will meet with severe punishment".
4. The sentencing judge concluded that, after the birth of the youngest child of the applicant and the deceased in Melbourne, the marital relationship deteriorated. He stated that there were a number of factors which aggravated the breakdown: first, the age difference between the couple; second, the fact that the deceased "had a more relaxed approach to socialising with the broader community" than the applicant; third, the applicant was "critical of the way in which his wife was bringing up their children", and that he thought that her discipline was too harsh; and fourth, the applicant had, on a number of occasions, secretly recorded his wife "having conversations with her mother and sister on the telephone, and also interacting with their children". He noted that the applicant saw nothing wrong with this conduct.
5. The sentencing judge noted that the marital relationship had deteriorated to such an extent that, in October 2011, the deceased and her three children moved to Melbourne and the deceased told her mother and sister that the applicant "had, in accordance with Muslim law, divorced her". The sentencing judge noted that the separation lasted "a number of weeks" when the deceased, at the applicant's request, returned to Sydney with her children.
6. The sentencing judge also referred to the fact that, on 17 April 2012, the deceased rang her husband to discuss the fact that their coffee grinder had been "rendered inoperative by the cutting of the electrical power cord". He found that they had an argument in which she accused him of cutting the power cord, which he denied and for which he blamed Salih, their 7-year-old son. He stated that the applicant, who was "obviously angry", told the deceased that "she should wait until he got home".
7. The sentencing judge said that he found the applicant an "unimpressive witness". His conclusion at [33] was in the following terms: "I found Mr Hassan to be an unimpressive witness. Frequently, he gave answers which were inconsistent with evidence which he had earlier given, he gave answers which were evasive, and I thought deliberately so, on some occasions, and he displayed a degree of resentment in having to answer questions which challenged any answer or explanation which he had given. For example, in one account in evidence, he said that on the evening of her death, his wife attempted to commit suicide, and that he sustained his arm injury trying to stop her. Another account suggested that she attacked him whilst he was asleep and he sustained the injury when he was defending himself and prior to removing the knife from her. These accounts cannot stand together."
8. The sentencing judge said that, in those circumstances, to the extent that "objectively, or else independently, established facts contradict [the applicant's] evidence", he generally accepted them. However, he stated expressly that "any finding which is adverse to [the applicant] must be one of which I am persuaded beyond reasonable doubt".
9. The sentencing judge rejected the applicant's evidence that, during the course of 17 April 2012, the applicant and the deceased had discussed selling household items in advance of moving to Perth. He stated that, "had such a discussion taken place, I would have expected [the deceased] to have told her mother and sister". He noted that, during the course of 17 April 2012, the deceased told both her sister and her mother that she and the applicant had argued over the telephone on that day and that the applicant was angry. He stated that he was satisfied that this had occurred.
10. The sentencing judge noted that the applicant left work at about 4:35pm, and stated that he was satisfied that he arrived home at about 6:00pm, and that the attack occurred at about 11:00pm.
11. The sentencing judge accepted that, once the applicant's account of what occurred on the evening in question was rejected, there was little evidence about what happened and it was not correct for him to speculate. However, he stated that, by 8:30pm, he was satisfied that the children had been put to bed in their bedroom. He also stated that he was satisfied that, in the period between 6:00pm and 11:00pm, there were "a number of verbal arguments, about a variety of matters," between the applicant and the deceased which caused the deceased to be "upset and scared of her husband". He referred to the telephone conversations that the deceased had with her mother and sister, and stated that she was "clearly unhappy and distressed".
12. The sentencing judge stated that he was satisfied that, during the evening, the applicant changed into her nightwear, consisting of "a pair of underpants and a long, blue T-shirt". He said that he was satisfied that she went to bed and covered herself with the pink and red blanket. The sentencing judge stated that he was satisfied that "[the applicant], having returned home, had a shower and changed into clothes which were street clothes and not of a kind which he would wear to bed".
13. The sentencing judge found that, at the time when the applicant attacked the deceased, he had "lost his self-control to such an extent that he must have formed an intention to kill [the deceased]". He stated that this finding was consistent with the jury's verdict. He stated that what caused the applicant to lose his self-control could not be "precisely determined", but he said that he was "persuaded that it must have consisted of words said by his wife to him in the course of one of the verbal exchanges which occurred between them that evening".
14. The sentencing judge said that the most likely account was that given by the applicant in his evidence when he said that the deceased said to him "words to the effect that he was not a man, the children were not his but were another man's and he should take a look in the mirror, and further that these words were accompanied by swearing on her part". He said that he accepted this because "it accords with the probabilities of what occurred and it provides the only rational explanation as to the cause of [the applicant's] loss of control".
15. The sentencing judge, in those circumstances, reached the following conclusion at [47]: "[47] At about 11pm, after a number of verbal arguments I accept that Ms Yousif said something like the words to which I have just referred to Mr Hassan which caused him to lose his self-control, take up a large knife, and brutally attack his wife. He stabbed her at least 14 times. The stab wounds were distributed over the front upper part of Ms Yousif's torso, on the back of her arms and her fingers, on her upper left thigh at the rear, and one large stab wound in her back."
16. The sentencing judge referred to the evidence of Dr Van Vuuren, and stated that the "distribution of the wounds and their number, and in particular, the depth of a number of the wounds … delivered through a blanket, persuade me beyond reasonable doubt that [the applicant] mounted the brutal and vicious assault on the deceased whilst she was on or in the bed and cowering under one of the blankets". He said that he was satisfied that she received "defensive wounds to her arms and hands as she attempted to cover her upper body during the assault". He stated that he was satisfied that "the wounds to her thigh and her back" were "sustained during the assault as she curled up and tried to turn away from her husband while he attacked her".
17. The sentencing judge found that, at some stage during the course of the assault, the applicant sustained a laceration to his left upper arm. He concluded that the assault "forced [the deceased] off the bed and onto the ground where she bled profusely". He said that the applicant "left the room and left his wife to die" and then proceeded to "wash himself in the bathroom, leaving smears of his wife's blood in the bathroom and on the floor".
18. The sentencing judge stated that, in these circumstances, he was "satisfied beyond reasonable doubt that against a background of marital disharmony, on the evening in question, one or more arguments took place between" the applicant and the deceased, culminating in the deceased "questioning [the applicant's] manhood and whether he had fathered their children", coupled with verbal abuse "by swearing at him". He concluded that, as a consequence of this assault the applicant "lost his self-control to such an extent that he brutally stabbed his wife to death".
19. The sentencing judge concluded that the degree of provocation was "at the lower end of the scale, particularly given the maturity of [the applicant] as a 54-year-old man" at the time of the assault.
20. In those circumstances, the sentencing judge proceeded to sentence the applicant "upon the basis of a low level verbal provocation which was shortly thereafter followed by an excessively violent and brutal attack". The sentencing judge stated that he was "well satisfied" that the applicant's account of what occurred, which suggested that he killed his wife while acting in self-defence, was incorrect and that the applicant "must have known it to be incorrect when he gave the police that version".
21. The sentencing judge referred to various matters required to be considered by s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). He stated that, although there were "a number of matters which may be regarded as aggravating factors within the meaning of the legislation", he should not "have any additional regard to them, as they are included in the offence and do not merit separate consideration".
22. The sentencing judge stated that there were a number of mitigating factors which he was required to take into account. The first was that the offence was not "part of a planned or organised criminal activity". The second was that the applicant was "provoked by the victim". In that context, he found that the applicant was provoked, and "hence has been found guilty of manslaughter and not murder" and that "no further weight ought be attributed to this consideration because it has already been taken into account".
23. The sentencing judge stated that the third factor was that it was relevant to note that "the offender had no prior criminal convictions and was a person of good character". He stated that he took this factor into account.
24. In relation to the applicant's prospects of rehabilitation and the likelihood of reoffending, he referred to a report of a psychologist, Ms Delphine Bostock, who expressed the view that "providing he receives appropriate support, the likelihood of [the applicant] committing further offences in the future is minimal". He accepted this opinion. He concluded that the applicant had "reasonable prospects of rehabilitation, largely because he did [not] have any empirically-based criminogenic needs associated with violence, and did not have any prior history of criminal conduct".
25. The sentencing judge said that, "save for his early plea of guilty, I see no evidence of remorse whatsoever in the attitude of [the applicant] to what has occurred". He said the "totality of the evidence reveals to me a man who feels unable to demonstrate any regret for what he did, and a man who felt wronged by his current predicament". He stated the applicant "regards himself as the victim of what occurred and not a perpetrator".
26. The sentencing judge stated that the applicant was "entitled to a full discount of 25 per cent" for his plea of guilty to manslaughter.
27. The sentencing judge said that, in his assessment, the level of criminality was "very serious". He repeated his view that "the provocation was at a low level, and although the loss of self-control was almost immediate, the degree of violence inflicted on [the deceased] was excessive". He stated that he regarded the case as "showing why the offence of manslaughter is properly regarded as a major crime", and that the present case was "a most serious example" of it.
28. The sentencing judge referred to the applicant's subjective circumstances, noting that he grew up in Sudan in "what seems to have been a loving family" and that, before marrying the deceased, he was married to his first wife and the divorce was "amicable". He noted that, when the applicant came to Australia in 2008, he commenced employment and had "largely remained employed ever since". He also noted that, "in all respects, prior to the events in question, he was a man of good character".
29. The sentencing judge stated that, without regard to any discount for his plea of guilty, he determined that the appropriate sentence was one of a total of 16 years imprisonment. However, the sentence was reduced to 12 years imprisonment because of his guilty plea.
30. The sentencing judge also stated that he was not satisfied that he should make a finding of "special circumstances", and that, accordingly, the non-parole period ought to be 9 years. He stated that he was "well satisfied that the nature and seriousness of the crime means that any lesser penalty … would be [in]adequate to punish him, and to denounce the crime".

The Grounds of Appeal

1. The applicant relied on the following grounds of appeal: 1. His Honour erred in failing to find beyond a reasonable doubt that the applicant was guilty "for the manslaughter of his wife upon the basis of a low level of verbal provocation which was shortly thereafter followed by an excessively violent and brutal attack ("the critical finding")". 2. It was not open to His Honour to make the critical finding beyond a reasonable doubt. 3. The sentence was manifestly excessive.

Grounds 1 and 2

1. It is convenient to deal with these grounds together.

The submissions

1. The applicant submitted that the sentencing judge reached his conclusion that the assault resulted from "verbal provocation" because, in his view, it accorded with the "probabilities" of what occurred and provided "the only rational explanation" of the loss of control, as I have noted at [211] above. The applicant submitted that the use of the term "probabilities" was indicative of "failure to make the critical finding beyond reasonable doubt" and that the use of the words "the only rational explanation" seemed to "reverse the onus of proof". The applicant submitted that it was "not a matter of determining what was the most probable occurrence", but a question of "whether the Crown had established beyond reasonable doubt on all the evidence that the applicant had not acted in self-defence and the deceased had not provoked the applicant by attacking him with a knife".
2. Counsel for the applicant submitted the fact that the sentencing judge did not determine the matter beyond reasonable doubt was demonstrated by the fact that he did not take into account that "the DNA of the deceased was located on the handle of the knife" while the deceased's blood was not. She submitted that the inference which should have been drawn was that "the deceased must have held the knife at some time", which she submitted was evidence that the applicant was "provoked either by the deceased approaching him with the knife or having acted in self-defence as a result of the deceased approaching him with a knife".
3. In his written submissions, the applicant submitted that the evidence as to "the distribution of the wounds, their number and or their depth, did not establish beyond reasonable doubt that the attack upon the deceased occurred whilst she was in the bed". Counsel for the applicant submitted that "the expert evidence was not definitive as to where the deceased had been stabbed".
4. It was also submitted by the applicant that the sentencing judge "failed to refer to the expert evidence of the lack of blood on the blanket at the incision points" and "the location on the right hand side of the blanket of the majority of the incision points". Counsel for the applicant referred to the evidence of Dr Van Vuuren that it would be expected there would be blood on the blanket "at the point where the knife was removed from [it]", but submitted that the incision marks on the blanket did not coincide with the staining marks Dr Van Vuuren would have expected had the deceased been stabbed through the blanket. She submitted that this was consistent with the applicant's evidence that "the deceased stabbed the blanket before he disarmed her and stabbed her before she ended up wrapped in the blanket".
5. Counsel for the applicant also referred to the fact that "the blood on the doona was located on the side of the doona" which he submitted was "not consistent with the applicant having stabbed the deceased as she lay in bed", but rather, was consistent with "a struggle where the deceased came to rest on the floor leaning against the bed". She submitted that this also was consistent with the evidence given by the applicant at the trial.
6. The applicant also submitted that the sentencing judge failed to have regard to what was described as the "defensive wound" to the applicant's forearm. In his written submissions, the applicant complained that there was no reference to "the expert evidence that the laceration to the applicant's forearm was consistent with a defensive wound from a knife attack".
7. At the hearing, counsel for the applicant referred to statement in the Crown's written submissions about the applicant's injury that "it is far from clear that it was sustained as defensively". She pointed to the fact that the question was whether there was "reasonable doubt that the injury was not sustained defensively".
8. Counsel for the applicant submitted that the failure of the sentencing judge to take these matters into account demonstrated that the findings made by him were not made beyond reasonable doubt. She submitted that, in these circumstances, the finding that "the provocation was verbal" was in fact based "on probabilities". She submitted that, if there was a doubt as to what occurred, that doubt should have gone in favour of the applicant.
9. The applicant submitted that, while there was no requirement for the offender to be sentenced on "the most favourable view of the facts that are consistent with the verdict"… any matters in which there is a reasonable doubt must be resolved in favour of the accused". He submitted that it was not open to the sentencing judge to "make the critical finding beyond reasonable doubt given the acknowledged paucity of evidence as to what occurred immediately prior to the stabbing".
10. The Crown pointed to the fact that manslaughter was left to the jury on the basis of either excessive self-defence or provocation. She pointed out the task of the sentencing judge was "to make his own findings of fact consistently with the verdict". She pointed out that, in dealing with the facts, the sentencing judge reminded himself of the principles to be applied.
11. The Crown submitted that it was "important to understand the respective strength of the evidence in relation to self-defence and provocation". She noted that, although the applicant gave evidence that the deceased attacked him with a knife while he was lying in bed and that the injury to his arm occurred while he was defending himself, his evidence as to his state of mind was "equivocal". She referred to the evidence to which I have referred at [182] above and submitted that, even if the applicant's response after the interpreter sought clarification was "ambiguous", it did not evidence that he remained "scared" of the deceased so as to support a belief that "his subsequent conduct was necessary to defend himself". She said that this evidence was "more consistent with other evidence that the applicant gave to the effect that he lost self-control after [the deceased] hit him with the knife (on his account), after which he could not recall what happened".
12. The Crown referred to the findings of the sentencing judge to which I have referred at [207]-[211] above, in particular, the finding that she was "upset and scared", and submitted this was supported by the evidence of Ms Yousif and her mother.
13. The Crown also submitted that the reference by the sentencing judge at [46], to which I have referred at [211] above, where he referred to his findings "according with the probabilities", did not involve making a finding as to the level of provocation on the balance of probabilities rather than beyond reasonable doubt. She also submitted that his description of what occurred as being "the only rational explanation" did not involve a reversal of the onus of proof.
14. The Crown submitted there was sufficient evidence for the sentencing judge to be satisfied beyond reasonable doubt that the deceased was "cowering under at least one [of the blankets] at the time of the attack". She referred to the fact that the evidence established that there was a series of incision marks in the blankets, with 6 in the pink and red blanket and 17 in the red and fawn blanket. In relation to the red and fawn blanket, she pointed out that there were "many areas of red staining on both sides of the blanket", and on side A, there were "many areas of staining on the tips of the fibres of the blanket adjacent to holes 1 to 16", a "larger area of staining on the lower left edge of the blanket" on that side and "an area of staining on the tips of the blanket fibres in the top left corner". She also pointed to the evidence that, on side B, there were "numerous dark stains adjacent to holes 1 to 15". She noted the evidence of Ms Aldaba that the holes were made by a knife or "similar sharp implement", which I have set out at [95]-[97] above, and the evidence of Ms Kiprovich that the pink acrylic fibres collected from the knife could have come from the pink and red blanket, which I have set out at [98]-[99] above.
15. At the hearing, the Crown referred to the observation of Senior Constable Josephs to the effect there were not only "visible bloodstains on the frill" of the doona, but also that the stains extended around "the entire length of the doona cover from the top to the bottom at the left hand side", which I have set out at [19] above.
16. The Crown said that the submission that the injury to the applicant's arm was a defensive wound was not supported by the evidence. She submitted that the evidence of Dr Van Vuuren was that the lacerations on the applicant's hands were not defensive wounds and that the wound on the arm was not "typical" of a defensive wound. In written submissions, she referred to the description of the wound given by Dr Sacca to which I have referred at [36] above and the evidence of Dr Van Vuuren to which I have referred at [54] above and submitted that, in light of that evidence, it was "well open" to the sentencing judge to conclude that the injuries the applicant sustained were not defensive in nature. She submitted that the sentencing judge's findings to which I have referred at [213]-[214] above were consistent with that evidence.
17. So far as the submission by the applicant that the fact that "the two blankets were not saturated with [the deceased's] blood" supported his contentions that he was holding the blankets and that she was stabbing him through them, the Crown referred to the two scenarios put to Dr Van Vuuren to which I have referred at [51]-[52] above, and in particular, her conclusion that the wounds caused more internal haemorrhaging than external haemorrhaging. She submitted that it was open to reject the evidence of Ms Roebuck due to the absence of information which underpinned her conclusion.
18. The Crown also submitted that the sentencing judge was entitled to reject the applicant's evidence. She pointed to the fact that, during his interview with the police, he said "nothing about defending himself with the blankets". She pointed to his answers to questions 78-84 in the ERISP, which she described as his "first account" of the events of the evening of 17 April 2012. She then referred to the different accounts given in his answers to questions 253-271 and his answers to questions 287-296. She pointed out that it was only in his answer to question 300 that he mentioned the blankets, and he said that "there was a blanket but I wasn't completely covered".
19. The Crown also pointed to the answers given by the applicant to questions 301, 302, 306, 336, 338 and 418-419, which she submitted showed that, during the ERISP, the applicant had given a number of accounts of what had happened, but none in the same form as the evidence he gave at trial as to "the blankets being held up by him while [the deceased] was stabbing through it".
20. The Crown submitted that it was open to the sentencing judge to conclude that the fact that the DNA of the deceased and the applicant was found on the knife handle while no blood was found there was "not sufficient to support the alternative inference for which the applicant contended when viewed with all of the other evidence". She noted that there was evidence from the applicant's ERISP that the deceased handled the knife prior to the assault and that there was no evidence of the time at which the DNA came to be on the knife or the age of the DNA.

Ground 1 - The critical finding was not made beyond reasonable doubt

1. Ground 1 can be dealt with shortly. It is well-established that sentencing judges "may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27], quoting R v Storey [1998] 1 VR 359 at 369.
2. In R v Isaacs (1997) 41 NSWLR 374 at 378, a case in which there was a question about whether the jury had convicted the appellant of manslaughter resulting from provocation rather than a dangerous and unlawful act, it was pointed out that two primary constraints on a judge in finding facts for the purpose of sentencing were first, that "the view of the facts adopted by the judge for the purposes of sentencing must be consistent with the verdict of the jury" and second, that findings of fact, to the extent they are adverse to the accused, "must be arrived at beyond reasonable doubt": see also Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [5], [9], [14]. It was not suggested in the present case that the sentencing judge should have inquired of the jury of the basis for the verdict: see Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 at [33]-[45].
3. The sentencing judge, towards the commencement of his judgment, correctly directed himself as to the two constraints on a sentencing judge. I have referred to this direction at [199] above.
4. The applicant submitted that the sentencing judge departed from this standard for two principal reasons: in finding that the provocation must have consisted of words said by the deceased, the sentencing judge first said that "the most likely account" of the words used by the deceased was that given by the applicant, and second, that this "accords with the probabilities of what occurred" and provided "the only rational explanation" for the applicant's loss of control, as I have set out at [211] above.
5. I do not think the sentencing judge erred in his approach to the correct standard of proof in that paragraph. First, in saying that "the most likely account" was that the deceased used the words attributed to her by the applicant during the course of the dispute which led to the killing, he was in fact accepting the evidence of the applicant about what the deceased said. This did not involve any finding against the applicant which had to be proved beyond reasonable doubt.
6. Nor do I think that he was applying an incorrect standard in making the remark that the fact that the provocation occurred in that fashion "accords with the probabilities of what occurred" and provided "the only rational explanation" of the applicant's loss of control. The sentencing judge's remarks in that paragraph must be considered in the context of his earlier remarks at [44] that he was "persuaded" that the applicant's loss of self-control was caused by the words used by the deceased, and his finding at [49], expressly made beyond reasonable doubt, that the applicant attacked the deceased while she was on the bed, and his finding at [52]-[53], also expressly made beyond reasonable doubt, that, as a consequence of the abuse from the deceased, the applicant lost his self-control and stabbed the deceased to death.
7. It seems to me that, in those circumstances, the sentencing judge's reference to "the probabilities" and the verbal abuse being "the only rational explanation" of the cause of the applicant's loss of control did not involve a finding on the balance of probabilities that the attack was caused by a verbal provocation as distinct from a provocation resulting from a stabbing attack with a knife or self-defence. His reference to "the probabilities" and the words attributed to the deceased by the applicant being "the only rational explanation" were directed to the nature of the verbal provocation in circumstances where the primary judge was satisfied beyond reasonable doubt that the only alternative causes of either self-defence or provocation as a result of being attacked with the knife were not made out.
8. The second basis on which it was submitted that the sentencing judge had not made his findings beyond reasonable doubt was that he did not take into account expert evidence, particularly the fact that, while the deceased's DNA was found on the handle of the knife, her blood was not. While that evidence may be relevant to the question of whether it was open to the sentencing judge to conclude beyond reasonable doubt that the assault resulted from verbal provocation, it does not follow that, in reaching his conclusion, he applied the wrong test. Whether he was in error in reaching this conclusion is the subject of ground 2.
9. It follows that ground 1 of the grounds of appeal has not been made out.

Ground 2 - It was not open to make the critical finding beyond reasonable doubt

1. Although the Court did not have the sentencing judge's summing-up to the jury, it is apparent from the opening statement made to the jury on behalf of the applicant, which I have set out at [108] above, that he was seeking to persuade the jury that "Not only did [the deceased] come at him with a knife but she actually tried to stab him, and he attempted to defend himself" and that "Far from letting up once he had taken the knife off her, she continued [to attack him] both verbally and physically".
2. Thus, it was critical to the defence case that not only was there verbal provocation, but that the deceased was originally in possession of the knife and in fact attempted to stab the applicant with it.
3. It was, in my opinion, open to the sentencing judge to be satisfied beyond reasonable doubt that that was not what in fact occurred. The sentencing judge, in my opinion, was entitled to reject the evidence of the applicant on this issue.
4. The first account given by the applicant as to what occurred was given in answer to a question from Senior Constable Jarman, who asked him "Did you do this to her?", to which he responded "Yes" and told her that he used a knife. He also stated to Senior Constable Watson "I have very big problems with my wife, long big problems. I have so much stress". There was no mention of the deceased attacking him with a knife.
5. The first suggestion from the applicant that the deceased had attacked him came in what he told Dr Sacca, as recorded in her notes: "Patient states left arm injured when his wife, who was trying to kill herself with a knife, then attacked him". However, by the time of the ERISP later in the morning of 18 April 2012, the applicant provided a number of different accounts. First, he criticised the deceased for her treatment of their children, which was not supported by any other evidence. He claimed that the deceased grabbed their son and started to hit him. He said that he started to talk to her. He then said that she said that "I'm going to commit suicide" and took the knife. He then said that "I was sitting in the room so she went and hit me" on his left arm. He said that she started hitting him and he could not "put up with that", so he hit her with the knife: see ERISP Q73-Q83).
6. Later in the ERISP, the applicant referred to an argument about the wire to the mixer being cut saying the argument took place originally by telephone in the afternoon. He said that the argument continued. He claimed that the deceased had agreed the day before she would change her ways, but said that, on the night in question, she was "hurting me with her words and raising her voice". He said that he said "enough, I am very tired", and claimed that he put a pillow over his head. He said that the next thing was "I was lying down in bed, I saw her carrying the knife", and said that she was standing above him. He said that he got up towards her straight away in order "not to hit me or to hit herself". He said that she then hit him with the knife and started swearing at him. He said that he "couldn't take it", saying that "You can see here that I'm injured and despite all of that … she does not appreciate this or that": see ERISP Q106-Q109, Q129, Q236, Q253-Q296.
7. He next said that he was leaning on the bed under the covers, which were halfway up. He said that she was still swearing, he saw himself bleeding, he took the knife off her, and she was saying "bad words": see ERISP Q300-Q302. At that stage in the ERISP, the applicant said that the deceased did not threaten to commit suicide that night, but that she had previously threatened to do so: see ERISP Q325-Q329. The applicant also said, towards the end of the interview, that he thought that the deceased could have stabbed him because "she brought this specific knife", and that she had tried to stab him a month before: see ERISP Q331-Q332.
8. It can be seen there were a number of internal inconsistencies in the applicant's account of what occurred. He first said that the deceased threatened to commit suicide. Second, he initially said that he was "sitting in the room" when he was hit by the deceased in the left arm. Subsequently, he said that he was lying in bed, that she was standing above him, and that he got up straight away. Finally, he said that he was on the bed under the covers, which were halfway up. His last version was that, as the deceased started hitting him, he was leaning on the edge of the bed. Significantly, in none of these versions was there any suggestion that the deceased attempted to stab him multiple times through the blanket.
9. I have set out the evidence of the deceased in chief at the trial at [137]-[142] above. This version was quite different to his earlier versions, particularly in relation to his claim that he was covering himself with blankets and that she was hitting the two blankets with the knife.
10. There are a number of other difficulties with the applicant's evidence. First, the allegation of the mistreatment of the children was not supported by any other evidence. The suggestion that he and the deceased were moving to Perth must be considered in light of the fact that, in her conversations with her mother and sister on 17 April 2012, the deceased apparently made no mention of this fact. Further, the applicant made no mention in the ERISP of the fact that, when he arrived home on 17 April 2012, the children complained that she was hitting them, as distinct from the comment that she grabbed his son and hit him. Nor did he mention that the deceased had threatened to leave with the children the following day. The sentencing judge was also entitled to accept the evidence of Ms Yousif and Mrs Zaki which established at least that the applicant was a controlling individual of whom the deceased was afraid.
11. Having regard to these matters, it is my opinion that it was open to the sentencing judge to reject the applicant's version of events. His suggestion that the deceased repeatedly stabbed at him through the blankets while he tried to protect himself was only raised at the trial and was quite different from his earlier versions, which themselves were inconsistent. Further, a version of events which involves the deceased stabbing at the applicant some 20 times through the blanket without inflicting any injury apart from that on his forearm, with the applicant then losing self-control, taking the knife from her, and repeatedly stabbing her, is totally improbable. Even leaving aside the other difficulties with his evidence to which I have referred, the sentencing judge, who had the advantage of seeing the applicant give evidence, was entitled to reject his versions of events.
12. In these circumstances, the sentencing judge was entitled to be satisfied beyond reasonable doubt that the deceased did not attack the applicant with a knife, but rather, was stabbed when she was under at least one of the blankets either on or alongside the bed. The deceased, by the time of the attack, had changed into her pyjamas, by contrast to the applicant, who was in "street clothes". Further, the only explanation for the incisions on the blanket was that they were caused by stabbing through it with a sharp implement. As the Crown pointed out, there were in fact many stains on the blanket, a number of which were adjacent to the holes. The absence of "saturated" bloodstains was explained by Dr Van Vuuren in the evidence which I have set out at [51]-[52] above. The primary judge was entitled to accept her evidence in preference to the evidence of Ms Roebuck, particularly having regard to the paucity of material on which Ms Roebuck based her opinion, and the fact that she was not a medical practitioner.
13. The applicant placed particular reliance on two matters. The first was the assertion that the wound to the applicant's left arm was a "defensive wound". Having regard to the evidence of Dr Van Vuuren to which I have referred at [54] above, the sentencing judge was entitled to conclude to the contrary.
14. The other matter relied on by the applicant was that, while the deceased's DNA was on the knife handle, traces of her blood were not. However, the applicant had said both in the ERISP and in evidence at trial that the deceased had previously handled the knife. In these circumstances, it was open to the sentencing judge to arrive at the conclusion he reached beyond reasonable doubt, notwithstanding this evidence.
15. It follows that this ground of appeal has not been made out.

The submissions

1. The applicant noted that the sentence imposed was arrived at after allowing a 25% discount for the offer to plead guilty to manslaughter. He observed that the sentencing judge's starting point was therefore 16 years with a non-parole period of 12 years.
2. The applicant referred to the "Public Defender's Sentencing Table" for manslaughter domestic stabbings, which he submitted demonstrated that the sentence was "at the very top of the range" for a manslaughter domestic stabbing. Counsel for the applicant pointed out at the hearing that there were only two cases where a higher total sentence was imposed and only one where there was a higher non-parole period. She accepted that one of the two cases was irrelevant, but submitted that the other case, R v Anderson [2016] NSWSC 399, was relevant to a consideration of this issue. It should be noted that an appeal from that decision was allowed: Anderson v The Queen [2018] NSWCCA 49.
3. Counsel for the applicant submitted that the effect of what the deceased said, which was that she had been "unfaithful during the course of marriage", and the shock of finding out the children were not his, meant that the case was one akin to where the victim was found "in flagrante". She also relied on the fact that the appellant reported the killing, while accepting that he did not do so immediately.
4. The Crown pointed out that the sentencing judge found the offence was a "most serious" example of manslaughter. She referred to Biddle v The Queen [2017] NSWCCA 128 at [105], where Hoeben CJ at CL observed that, in respect of offences committed in the context of a domestic relationship, "general deterrence, community protection and denunciation in sentencing for domestic violence are considerations which are of considerable importance in the community at the present time".

Consideration

1. For a sentence to be manifestly excessive, it must be shown to be "unreasonable or plainly unjust": Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[59] (Hili v The Queen).
2. As I have noted, the applicant referred to a table, which he described as the "Public Defender's Sentencing Table" for manslaughter domestic stabbings. The table provides little assistance. As has been repeatedly pointed out, a range of sentences so disclosed is not necessarily the correct range or otherwise determinative of the upper or lower limits of the sentencing discretion: Hili v The Queen at [54], citing Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305]; R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [26]-[27].
3. Ultimately, the only case that the appellant relied on as comparable to the present case was R v Anderson [2016] NSWSC 399. In that case, a plea of guilty on the basis of excessive self-defence was accepted. The facts on which the sentencing judge sentenced the offender were that, following a struggle between the deceased and the offender, the offender grabbed the knife from the deceased, and the circumstances were such as to no longer justify him stabbing her. After a discount of 20% for his guilty plea, the sentencing judge sentenced the offender to a term of imprisonment of 12 years and 9 months with a non-parole period of 9 years and 6 months.
4. On the appeal in Anderson v The Queen [2018] NSWCCA 49 (Anderson v The Queen), it was found that the sentencing judge erred in holding that the struggle between the offender and the deceased had ceased once the offender regained possession of the knife, and thus, that the justification for the stabbing had passed. The Court stated at [42] that this was contrary to the agreed facts and the other material available, which showed that there had been a struggle for possession of the knife and that the struggle continued after the applicant got possession of it, in the course of which he stabbed the deceased in the chest. The Court resentenced the applicant to a sentence of 12 years with a non-parole period of 9 years, the same sentence imposed in the present case, albeit with a discount of 20% for a guilty plea, compared with 25% in the present case.
5. That case does not provide any basis for concluding that the sentence in the present case was manifestly excessive. The offender in Anderson v The Queen was sentenced on the basis of manslaughter by excessive self-defence in the context of an ongoing struggle involving the use of a knife, by contrast to the present case.
6. The offence in the present case was a most serious one. On the findings by the sentencing judge, which were open to him, the deceased, who was defenceless, was subject to a violent and sustained attack resulting from a "low level" verbal provocation. The sentencing judge found that, although the applicant was previously a person of good character, and there was little likelihood of further offending, he showed no remorse or regret for what occurred, as I have noted at [222] above.
7. The Crown was correct in pointing out that, in domestic violence offences of this nature, general deterrence, community protection and denunciation are important in sentencing. It must be made clear by the courts that such domestic violence will warrant severe punishment.
8. In these circumstances, the sentence was not manifestly excessive.

Conclusion

1. In the result, the following orders should be made: 1. Grant the applicant leave to appeal. 2. Dismiss the appeal.
2. JOHNSON J: I agree with the reasons and proposed orders of Bathurst CJ.
3. PRICE J: I agree with the reasons of the Chief Justice and the orders that the Chief Justice proposes.

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