51 The third issue for examination relates to matters raised in the address of the Crown Prosecutor. It should be pointed out that, as the expression of grounds 1 and 2 impliedly recognize, the intervention of this Court may be attracted as a result of erroneous direction, ruling or failure to direct by the presiding judge. The remedy for complaint about the content of an opponent's address is to make application to the presiding judge for an express correction or, if it is irreparable, for discharge of the jury. An inappropriate response to such application by a judge may give rise to a ground of appeal but there was no response by the judge to examine in this case because no application was made.
52 The remedies which I have mentioned do not exist to the exclusion of a capacity in any event of counsel to put contradictory contention to the jury. In this case it was counsel for the appellant who had the final address.
53 In any event, as the Crown submissions to this Court contend, the complaints advanced now are to an extent misconceived.
54 The first element of complaint inferred that, in observing that there was no challenge to the incidents of assault having occurred, the jury may have found consistency between TM's evidence and the report on the COPS system recorded in May 1999. It was said that the prosecutor was, in effect, inviting a form of coincidence reasoning.
55 The separate trials (involving the different complainants) had followed his Honour's ruling against the use of evidence in that way. In fact the Prosecutor's address was not defying that ruling but drawing attention to circumstances which the jury might find useful when weighing the credibility of TM's testimony. That was no inhibition upon the Prosecutor making such a submission.
56 The second element adverted to an expression in address that the appellant had been "using the complainant as a punching bag". There is no legal impediment to the use by counsel of hyperbole, if the phrase may be so categorized. The submission to this Court that it "unnecessarily inflamed an otherwise highly toxic issue" might well fit within the same category of language. There was no call, as contended, for his Honour to "neutralize" counsel's expression.
57 The appellant's written submissions referred to a comment by the trial judge, in the absence of the jury, concerning the miscarried pregnancy which had occurred, at least as a matter of chronology, after the appellant had sat on TM. The jury were expressly directed that there was no evidence of causal link between those events. The exchange with counsel in the absence of the jury, now sought to be interpreted critically, is not a matter which would attract intervention by this Court.
58 In the final analysis, the judge responded to trial counsel's request for explicit direction concerning the matter of relationship in respect of which both counsel acknowledged that his Honour had fairly put the issue. This acknowledgement was in the presence of the jury. It is now put by different counsel that what was put did not "cure" the earlier directions in that it did not make it clear that the jury could not use the evidence of violence in order to prove the sexual assault charged nor to negative the availability of tendency reasoning.
59 This submission ignores the context of the trial which, as I have mentioned, essentially involved the disproof of consent or, alternatively, the appellant's belief in consent. The absence of complaint by trial counsel and, more emphatically express acknowledgment of the fairness of what was put by those who were in a position to gauge the atmosphere of the trial, is, in my view, of more convincing significance than ex post facto toothcombing of the transcript of the trial and the directions to the jury.
60 The fourth issue above described in effect complained of his Honour's adoption of what had been addressed by the Crown Prosecutor and I have dealt with it in discussing the first issue canvassed on behalf of the appellant in support of these grounds.
61 As earlier mentioned, there was evidence that TM expressed fear about leaving the Liverpool premises. An issue was whether she was in fact detained. Her fear, and the reason for it, were relevant to this issue.
62 An analogy may be drawn from R v Preston unreported NSWCCA 9 April 1997 where there was an issue of consent to alleged forced sexual intercourse, and it was held that previous violent conduct of the offender was available to explain the state of the mind of the victim and why she did not, on the occasion, resist or call for help. The evidence of the previous conduct of the appellant was similarly germane to TM's state of mind which led her not to leave the Liverpool premises until eventually the circumstances altered and she could avail herself of the opportunity.
63 The fifth identified issue is raised in the context of complaint that his Honour did not adequately warn the jury that they could not substitute evidence of the "relationship" activity for evidence of the specific offence charged nor could they reason that, because the appellant may have done something wrong on other occasions, he must have done so on the occasion relevant to the charge: cf R v Beserick 1993 30 NSWLR 510.
64 The question is whether directions were adequate. What he had said early in his charge to the jury is set out above. The terms were an explicit embargo upon the jury entertaining a course of reasoning such as is now suggested may have tainted the trial. I am unpersuaded that his Honour's directions were inadequate. No doubt it would have been desirable to give such warning as the evidence was being adduced but the final direction was emphatic and unequivocal and the trial did not miscarry.
65 I would reject grounds 1 and 2.
66 Ground 3 contends that the trial judge erred in failing to give a direction to the jury in accordance with R v Murray 1987 11 NSWLR 12 concerning the uncorroborated evidence of the complainant.
67 It is apt to recall just what Lee J said in that case. It was:
"In all cases of serious crime it is customary for judges to stress where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinized with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness's evidence is unreliable. There will be cases where failure to bring home to the jury the position of the uncorroborated witness will undoubtedly lead to the verdict being set aside. It is a different matter altogether from requiring a direction that it is unsafe to act on the uncorroborated evidence of the complainant in a sex case".
68 The complaint of the appellant concerns the absence of a direction by Dodd DCJ in terms that the jury should scrutinize the evidence of TM with great care.
69 In relation to the first count, he directed:
"You must be satisfied beyond reasonable doubt that her account of that, in terms of her lack of consent is accurate and true beyond reasonable doubt before you can convict the accused".
70 In relation to the third count and both counts he said:
"You will not find the accused guilty unless you are satisfied beyond reasonable doubt that the complainant TM is telling the truth, and accurately telling the truth when she says that she did not leave the premises because she feared that if she attempted to do so the accused would seek to inflict physical violence on her and that in fact it was the intention of the accused to have TM understand that. Whether or not he would actually have inflicted physical violence upon her, but to have her believe that he would do so, and that he possibly could do so if she attempted to leave.
It is therefore essential, members of the jury, that you examine the evidence of the complainant, TM, carefully in respect of both counts".
71 I would not draw any distinction between the words "examine carefully" and "carefully scrutinize". They convey the same precaution. The submissions on behalf of the appellant overlook that the incantation "scrutinize with great care" was not used at trial in Murray and the appeal in that case was in fact dismissed.
72 There is no mandate to give a Murray direction, as Lee J's expression that it was customary, shows. Nor is there, if following the custom, an obligation to use any formula of particular words or in particular to use the verb scrutinize.
73 The cautions given by his Honour were entirely adequate to the issues of the trial and ground 3 is not made out.
74 Ground 4 complains that the trial judge erred in not giving adequate directions in respect of the disadvantages faced by the appellant by reason of the delay in formal complaint and prosecution.
75 The events giving rise to the allegations occurred in March to April 1999. TM's complaint to police was prompt as evidenced by the detailed entry on the COPS computer system on 1 May 1999. This, as I have related, follows her first attempt to seek help at a police station which was ignored.
76 It does appear that a formal statement was not taken by police until January 2003. The circumstances which led to this lapse of time were not explored.
77 Argument in support of the ground is sought to be derived from Longman v The Queen 1989 168 CLR 79 and the oft quoted passage in the joint judgment specifying the requirements of warning to a jury of the disadvantage to an accused which perhaps may not be apparent in possibly losing the means of testing the complainant's allegations when there has been delay in prosecution.
78 It should be mentioned that in Longman the complainant was aged six and ten at the times of the alleged offences and aged thirty two when the allegations came to trial. The contrast in terms of bare effluxion of time is between nearly four years in the present case and at least twenty two years in Longman.
79 There was no issue raised at trial in the present case of an explicit disadvantage by reason of the effluxion of time. The occurrence of the act of anal penetration in count 1 was not disputed. The issue was consent.
80 The submissions by the appellant refer to a number of authorities where the need, or the absence of need, for a Longman direction has been discussed culminating in a contention that "it was incumbent on the trial judge to give the warning and explain how it could be relevant in the context of this case and at the very least to explain that the appellant was unable adequately to test and meet the evidence of the complainant".
81 The context of the case was epitomized by the judge in the extracts I have referred to, namely the absence of consent on count 1 and the intention to instil and the apprehension of fear of physical violence on count 3. It is not surprising that neither counsel at trial nor in the appeal have been able to articulate how specifically the appellant was disadvantaged.
82 The appellant does not identify any precise mischief which ought to have been addressed. It does not establish this ground to incant the hypothetical disadvantages which may accrue to any accused when there is any delay. Obviously, the longer the delay, the greater the risk of an accused being actually affected. There is always an implicit consideration of degree of risk to which extent of delay is germane. Such consideration must be made in the context of the disputed issues in a particular case.
83 Rule 4 applies. It is stated that it cannot be said that there has been no miscarriage of justice. I disagree. The kernel of the submission is that the appellant was denied "the forensic weapons that reasonable contemporaneity provides" but that expression avoids coming to grips with the need to demonstrate something other than general hypothesis. His Honour's task was to guide the jury in relation to the current case and not to lecture them on general legal propositions.
84 I would dismiss the appeal against conviction.
85 I turn to the applications for leave to appeal against sentence. As observed, the appellant stood for sentence for two groups of offences in which TM and RA, respectively, were the victims.
86 The facts concerning sexual intercourse without consent and detaining for advantage in which TM was the victim have been sketched above. The offence to which the appellant pleaded guilty arose out of the assault on 27 April at the Liverpool premises which preceded the arrival of the police investigating the car parking problem.
87 In his remarks on sentence the judge indicated the sentences that he would have imposed if the groups of offences against TM and RA were dealt with independently of each other. It is significant to observe the ancillary orders for concurrence, cumulation and commencement.
88 His Honour stated that he would have sentenced the appellant for the sexual intercourse without consent constituted by the anal penetration of TM to imprisonment for four years with a non parole period of three years and for each of the counts of assault occasioning actual bodily harm and detain for advantage to imprisonment for three years with a non parole period of one year six months, these two sentences to be concurrent with each other but cumulative upon the non parole element of the sentence for the firstmentioned offence. The effective sentence would therefore amount, as a matter of overall assessment, to imprisonment for six years with a non parole period of four years six months.
89 In imposing actual sentences his Honour specified fixed terms of three years imprisonment for each offence, the sentence on count 1 commencing on 18 December 2002 and the sentences on counts 2 and 3 both commencing on 18 December 2005. The result therefore was an overall fixed term of six years imprisonment which, whilst it is recognized that grant of parole is a matter for decision, offers a contrast between that six years of actual custody and the four years and six months of minimum custody which would have been the case if his Honour had applied his provisional sentence indication. It is to be borne in mind that the dates of commencement for the sentences imposed in respect of the offences committed on RA were in each case set at 18 December 2008, that is to say at the expiry of the full six years of the cumulated fixed terms imposed in respect of the offences against TM.
90 The first count of assault occasioning actual bodily harm committed against RA arose out of events on 10 August 2002 when the appellant was at her flat. A relationship between them had existed for about two months, she apparently believing that the appellant was a single man. An argument developed about a girlfriend of hers and the appellant pushed her face to the floor following which she went to a bathroom and saw her lip starting to swell. The appellant said that perhaps he should leave but on receiving her assent to this, he slapped her and she fell against a towel rail. He then dragged her by the hair into a bedroom, picked her up by the ears and threw her to a bed. During these events RA was crying and screaming.
91 All of the other offences committed upon RA occurred on 29 November 2002. On the previous evening RA and the appellant had been out together for dinner, but following events which are detailed in the remarks on sentence, the appellant left the flat and returned at about 4.30 am. Upon gaining entry to the flat and seeing indications that RA wanted him to leave, the appellant struck her on the side of the face causing some injury from which blood commenced to flow from her nose.
92 RA testified that she felt that she had blacked out near this point but when she became conscious that she was on the floor, in conduct somewhat similar to part of the conduct in August, the appellant picked her up by the hair and dragged her into a bedroom. The appellant commenced manually to throttle her. Her resistance became exhausted and she curled into a foetal position. She tried to access a mobile phone but the appellant stamped on it.
93 Later, a period of comparative calm existed and the appellant obtained a tea towel and ice which he applied about her face and head where RA said she was suffering pain. The foregoing relates to the offence of assault occasioning actual bodily harm to which the appellant pleaded guilty.
94 The calm did not last and the appellant commenced to molest RA sexually. Without detailing all the incidents, the appellant forcibly and successively penetrated RA's vagina with his fingers, pushed her head into a position so as to have her fellate him and then penetrated her vagina and her anus successively with his penis. These four acts led to the charges of aggravated sexual assault without consent to which the appellant pleaded not guilty but was convicted by jury verdict.
95 As with the offences against TM, the judge indicated the sentences which he would have imposed if the offences against RA were dealt with independently. His actual impositions were the same as his provisional indications with the exception of that on the seventh count which related to the act of anal penetration. For the two offences of assault occasioning actual bodily harm he set fixed terms of three years imprisonment; for the digital penetration offence a fixed term of one year imprisonment; for the act of fellatio to imprisonment of four years with a non parole period of three years and for the vaginal intercourse to four years imprisonment with a non parole period of three years.
96 For the seventh count he indicated a term of six years imprisonment with a non parole period of four years six months but in fact he imposed a sentence of six years imprisonment with a lesser non parole period of three years.
97 All six sentences, and non parole periods where fixed, were directed to commence, as I have said on 18 December 2008.
98 For both groups of offences the overall effective sentence amounted to twelve years imprisonment with a non parole period of nine years commencing on 18 December 2002.
99 It is submitted that this effective sentence was manifestly excessive. Attention was directed on behalf of the appellant to some specific factors.
100 In a somewhat oblique fashion it was said that the failure to have regard to the pleas of guilty (to three of the offences as detailed above) did not recognize the prospects of rehabilitation or strike a balance between objective seriousness of offences and the appellant's subjective case.
101 The late pleas of guilty to limited counts in the indictments were held by his Honour to be neither of utilitarian value nor indicators of remorse. In my view those findings were well open upon the facts. It is not demonstrated that his Honour overlooked relevant subjective factors not all of which, it must be observed favour the appellant. His findings on subjective matters can be adopted and there is no need to pause to recite them.
102 The principal thrust of complaint is in two parts. First, that the head sentence of twelve years does not give proper reflection to the favourable subjective factors, and second, that there should be an adjustment of the proportion of the non parole period to that head sentence by reason of special circumstances.
103 There was an express finding by his Honour in the negative with reference to special circumstances. Despite that, if the setting of non parole periods is examined and it was limited to counts 5, 6 and 7 in the indictment concerning RA, the proportion does favour the appellant when gauged against the proportion mentioned in the statute.
104 Of course, overall, a minimum period of nine years before eligibility for parole against a head sentence of twelve years does exactly equate to the statutory proportion.
105 As his Honour recognized, there were matters capable of amounting to special circumstances, the extent of accumulation being one such circumstance.
106 However, there was no obligation to give reasons for not varying the statutory proportion.
107 Whilst respect should be paid to the views expressed in R v Hookey [2004] NSWCCA 223, the express authority of R v Simpson 2001 53 NSWLR 704 (where the Bench was constituted by five judges) represents binding authority that a judge is not obliged to give reasons for not departing from the statutory formula. His Honour is not shown to have fallen into error.
108 I do not need to dwell upon this matter as, for a reason to which I now turn, the appellant should receive some amelioration by a different route, of what I do not consider he should achieve otherwise.
109 I return to my observation that the actual impositions in respect of the offences against TM, in the sense of non parole period specification, exceeded his Honour's provisional assessment. Had the latter been implemented, the sentences in respect of the offences against RA would commence at the end of the non parole period hypothesized for counts 2 and 3 in the TM matters, that is, from 7 June 2007 rather than 18 December 2008. Whilst in terms of proportion the adjustment may seem slight, the consequence for the appellant is a reduction of one year six months both in total term and minimum non parole period to be served.
110 Save adjustment, which I consider should take place, to reduce the term actually imposed to that which his Honour provisionally formulated, I consider the sentences imposed as well within the bounds of the sound exercise of discretion. It will be convenient in order to ensure clarity to restate the sentences.
111 I propose the following orders: