Kiss v R

Determination

1. The Crown did not advance any persuasive basis for the contention that the applicant had not, like Humphreys, demonstrated an objectively justifiable sense of grievance. The reasoning that was applicable in Humphreys' case is equally applicable in the applicant's case. He is entitled to the same justifiable sense of grievance as Humphreys was found to have had. Like Humphreys, he faced charges that carried significantly lower penalties than those faced by Barnes but was sentenced significantly more severely. That the applicant played a more prominent role in the enterprise than did Humphreys or Barnes is no answer; that is accommodated in the relativity of the sentences, which the applicant accepts as appropriate.
2. Put simply, Barnes, who was charged with more serious offences, was treated more leniently than the applicant. No basis in their respective roles, or their personal circumstances, was cited as justifying the discrepancy.
3. The question raised by the Crown's submission is the effect, if any, of the sentence subsequently imposed by Zahra SC DCJ and partly accumulated on the sentence now under consideration. The effect of the partial accumulation was substantially to reduce the effective sentence for the present offences. I am unpersuaded that that sentence should affect the proper evaluation of the objective criminality of the money laundering offences, committed in 2008 and 2009, or of the applicant's moral culpability for those offences.
4. In my opinion the applicant is entitled to the same approach as was taken in Humphreys' case. The consequence is that the sentence imposed must be set aside and the sentencing discretion re-exercised.
5. In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 the High Court held that, where error has been identified in the sentencing process, it is the duty of this Court to re-exercise the sentencing discretion. This, however, is not a case where error has been found in the sentencing exercise: the need for resentencing arises because of events (the sentencing of Barnes, and the decision of this Court in Humphreys' case) that have occurred post sentencing. No error has been identified in the approach taken by Girdham SC DCJ. Accordingly, the appropriate way to deal with resentencing is to adopt the findings of fact made by Girdham SC DCJ and, in particular, the proportionality of the applicant's criminality to that of Humphreys, and to restore the relationship of those sentences.
6. Both the aggregate head sentence imposed on Humphreys and the non-parole period were approximately 82% of those imposed on the applicant. Appropriate adjustment could be achieved by restoring those proportions. That yields a head sentence of 8 years and 6 months with a non-parole period of 5 years and 2 months. Approximately the same result is achieved by reducing the applicant's sentence by the same proportions as those by which Humphreys' sentence was reduced on appeal - that is, by approximately 24% for the head sentence and 32% for the non-parole period. However, the sentence imposed included a modest reduction of the statutory proportion between the non-parole period and the head sentence prescribed by s 44(2) of the Sentencing Procedure Act which requires (in the absence of special circumstances) that the non-parole period be no less than 75% of the total sentence. Girdham SC DCJ gave three reasons for this departure from the statutory ratio: (i) that there was no guarantee of release at the expiration of the non-parole period, and the sentence she proposed would provide an incentive for rehabilitation; (ii) that it was appropriate to provide for a lengthy period of support on the applicant's release; and (iii) that being subject to parole for a more lengthy period would operate as a disincentive for the applicant to "seek to enrich himself other than by legitimate means".
7. In the light of subsequent events (see below) those reasons are no longer operative. The applicant has, since the imposition of sentence by Girdham SC DCJ, been sentenced to another lengthy term of imprisonment in respect of a series of unrelated offences. There are no other special circumstances justifying departure from the statutory ratio. The sentence I propose will restore that ratio.
8. I propose that this Court impose an aggregate sentence of imprisonment of 8 years and 6 months, to commence on 24 April 2016 and expire on 23 October 2024, with a non-parole period of 6 years and 4 months to expire on 23 August 2022. On each of counts 1-23, I would nominate an indicative sentence of imprisonment for 3 years and 9 months; on counts 24-28 I would nominate indicative sentences of imprisonment of 3 years.
9. I therefore propose the following orders: 1. the time in which to apply for leave to appeal is extended to 4 November 2020; 2. leave to appeal against sentence is granted; 3. appeal allowed, sentence imposed on 28 October 2016 is quashed; 4. in lieu thereof the applicant be sentenced to an aggregate term of imprisonment made up of a non-parole period of 6 years and 4 months, commencing on 24 April 2016 and expiring on 23 August 2022, with a balance of term of 2 years and 2 months which will expire on 23 October 2024.

The sentence of 21 June 2019

1. In August 2018 the applicant was arraigned in the District Court on an indictment containing 17 counts. The counts on the indictment were:

• five counts (counts 1, 5, 7, 10 and 16) of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act 1900 (NSW);
• nine counts (counts 2, 4, 6, 8, 9, 11, 13, 14 and 15) of sexual intercourse without consent, contrary to s 61I of the Crimes Act;
• one count (count 12) of attempted sexual intercourse without consent;
• one count (count 3) of intentionally choking, suffocating or strangling another person so as to render the other person unconscious, insensible or incapable of resistance, contrary to s 37(1) of the Crimes Act;
• one count (count 17) of intimidation, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). All offences were alleged to have been committed between 1 August 2014 and 31 October 2014, against the same complainant.

1. The applicant entered pleas of not guilty to all counts and a trial before Zahra SC DCJ and a jury proceeded. During the course of the trial the judge directed verdicts of not guilty in relation to counts 5 and 6. The jury returned verdicts of not guilty on counts 9, 10, 11, 12, 13, 14, 15 and 16. It found the applicant guilty of the statutory alternative to count 16, common assault, and of the remaining counts.
2. Accordingly, the applicant stood for sentence on:

• two counts (counts 1 and 7) of assault occasioning actual bodily harm, for which a maximum penalty of imprisonment for five years is prescribed;
• one count (count 16) of common assault, for which a maximum penalty of imprisonment for two years is prescribed;
• three counts (counts 2, 4 and 8) of sexual intercourse without consent, for which a maximum penalty of imprisonment for 14 years is provided, and for which, by Part 4, Div 1A of the Sentencing Procedure Act, a standard non-parole period of 7 years is prescribed;
• one count (count 3) of intentionally choking or strangling, for which a maximum penalty of imprisonment for 10 years is prescribed;
• one count (count 17) of intimidation, for which a maximum penalty of imprisonment for five years and/or 50 penalty units is prescribed.

1. Also before the Court on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW) were two charges of related offences of committing an act of cruelty on an animal, laid under s 5(1) of the Prevention of Cruelty to Animals Act 1979 (NSW), to be dealt with under s 167 of the Criminal Procedure Act. A charge of breach of bond was also before his Honour.
2. On 21 June 2019 Zahra SC DCJ, pursuant to s 53A(1) Sentencing Procedure Act, imposed an aggregate sentence of imprisonment for 13 years with a non-parole period of 8 years and 6 months. In compliance with s 53A(2) his Honour nominated the sentences he would, if sentencing separately, have imposed in respect of the individual offences. Having regard to the sentence already being served by reason of the sentence imposed by Girdham SC DCJ on 28 October 2016, his Honour specified a commencement date of 23 February 2020. This represented an accumulation of approximately 3 years and 10 months and concurrence of 7 years and 4 months. The result of the accumulation was, in effect, to halve the non-parole period of the previous sentence.
3. A backup offence of intimidation was withdrawn. Zahra SC DCJ disposed of the offences of animal cruelty and the breach of bond by convicting the applicant, but, pursuant to s 10A of the Sentencing Procedure Act, imposing no additional penalty.
4. The total sentence will expire on 22 February 2033; the non-parole period will expire on 22 August 2028. The applicant seeks leave to appeal against the sentence. He does not seek to challenge the convictions.

The facts of the offences

1. The applicant having been convicted at trial, it was for the trial judge to find the facts, not inconsistent with the jury verdicts. Zahra SC DCJ comprehensively stated the facts as he found them to be, principally by reference expressly to evidence given by the complainant. Having regard to the grounds, and the argument, raised on behalf of the applicant, it is necessary to set out the facts of the offences of which the applicant was convicted in some detail.
2. As mentioned above, all offences were committed between August and October 2014. At that time the applicant and the complainant were living in a south coast town in a domestic relationship that was unquestionably highly abusive and controlling on the part of the applicant. A few days after they took up residence together, and after a conversation about the complainant's prior sexual history, the applicant used his arm to swing her back on the bed on which they were sitting, jumped on her, with his legs astride her, and punched her two or three times. He then apologised and said that he had never hit a girl before. (This was later shown to be untrue.) The complainant suffered bruising to her face. This event constituted the offence the subject of count 1, the first count of assault occasioning actual bodily harm.
3. The applicant then went downstairs to get an icepack which he gave to the complainant to put on her bruised cheek, crawled on top of her, kissed her and began undressing her. She did not respond. He had penile-vaginal sexual intercourse with her then, and about five further times throughout the night. The jury was plainly satisfied that the sexual intercourse was, to the applicant's knowledge, without consent. This was the factual basis of count 2, the first instance of sexual intercourse without consent.
4. A couple of days later the applicant asked the complainant again about her previous sexual history. He became angry, raised his voice, directing hostile questions at her. She became afraid and ran to the bathroom but was unable to gain access in time to avoid the applicant who pursued her. He grabbed her from behind with his hand on her throat, threw her on to the tiled floor, causing her head to hit the tiles. He jumped on her, with both hands around her throat, his thumb on "the soft part of my throat". She attempted to have him stop but was unable to speak. She thought she was going to die and started to feel dizzy. The applicant then let go of her throat and she began to cry.
5. The applicant apologised, helped her up from the floor, and into the bedroom and gave her an icepack. He helped her into the bed, lay down next to her, and, shortly after, had penile-vaginal sexual intercourse with her. It is plain from the jury's verdict that it accepted that this sexual intercourse also was, to the knowledge of the applicant, without consent. These events gave rise to counts 3 and 4 on the indictment, of intentionally choking/strangling, and the second instance of sexual intercourse without consent.
6. About a week later, when the complainant was sitting on the bed, the applicant threw her backwards, ripped the zipper of the jacket she was wearing, and headbutted her, causing her to fall back, so that her head hit the bedhead. He pulled her up, head-butted her again, and punched her two or three times. One of her teeth was chipped. The applicant again obtained an icepack. He then undressed the complainant. Although she told him she did not want to, he had penile-vaginal sexual intercourse with her. These events gave rise to counts 7 and 8 on the indictment, of assault occasioning actual bodily harm and sexual intercourse without consent. It is again apparent that the jury accepted that, to the applicant's knowledge, the complainant did not consent to the sexual intercourse. The applicant would not allow the complainant to see a dentist until the bruises went away.
7. On another occasion the complainant and the applicant drove to Castle Hill where the applicant was to meet his former partner and daughter. He left the complainant in the car, with her mobile phone. She called her father and told him that it was the applicant who had chipped her tooth and caused the bruising to her face. When the applicant returned to the car she drove off, with the applicant in the vehicle, and then reported to him the conversation. He ripped the sunglasses from her face, saying that he needed to see her eyes to be sure that she was not lying. He told her to pull over and stop the car, which, eventually, she did. The applicant again apologised for his conduct and asked for time to give him a chance to improve. This event gave rise to count 16 on the indictment of assault occasioning actual bodily harm. The jury found the applicant not guilty of that count, but guilty of common assault.
8. Towards the end of October the complainant had arranged to meet her parents in the Blue Mountains. On the morning of the planned meeting, the applicant told her that they would not be attending. When the complainant's father refused to accept this and said that he was on his way to meet the complainant, the applicant threatened: "I will crush your dad's spine, I will break his pelvis, I will admit your mum into a mental institute, I will double mortgage your parents' home. If either of them step out of line, don't think I won't hold back, I will hurt your dad." The complainant was "very scared because I had seen what he could do". This constituted the offence of intimidation, count 17.
9. When the complainant's parents arrived, the applicant remained present throughout the whole of the visit. The complainant said that she wanted to spend the day with her parents but the applicant said that he did not trust her with them yet.
10. Pursuant to s 97 of the Evidence Act 1995 (NSW) evidence was admitted in the trial of the applicant's tendency to perpetrate violence in domestic relationships. A previous domestic partner of the applicant, referred to as "JC", gave an account of four incidents during the course of her relationship with the applicant that bear a disturbing similarity to those recounted above, the subject of the sentence now under consideration. In one such incident, at a time when JC was pregnant, the applicant grabbed her on the throat with both hands and choked her, and covered her mouth to prevent her from screaming. JC suffered bruising all over her body and a laceration to her throat. She feared for her own life and for that of her unborn child. In another such incident, in Queensland, when she attempted to leave the applicant, he grabbed her by the arm and hit her so that she was fearful for her life. In a third incident, in 2012, after she had given birth, the applicant accused her, in the presence of two others, of being "a cheat and a liar". He lunged at her and attempted to headbutt her over a kitchen bench. He grabbed her by the throat and hair and banged her head on the sink. She feared for her life and safety. The final incident of which JC gave evidence occurred when she was on holiday with the applicant in Las Vegas. They had argued over the cost of a mobile phone. She fell asleep, and woke to find the applicant choking her on the bed. She again feared for her life. She managed to break free but the applicant again placed his hands around her throat and told her that she was his possession.
11. At the time of the offences, the applicant was subject to a bond to be of good behaviour, imposed in the Port Macquarie Local Court on 6 December 2013 with respect to an offence of stalk or intimidate with intent to cause another person to fear physical or mental harm, committed against JC.

Evidence of the applicant's personal circumstances

1. The applicant did not give evidence in the trial or in the sentencing proceedings. Evidence of his personal circumstances was given from two sources, a report of a psychiatrist (Dr Gordon Elliott) dated 26 November 2018 to which there was an addendum of 24 December 2018, and a handwritten letter from the applicant. Dr Elliott identified the purpose of his report as being: "… to determine whether [the applicant] is suffering from a mental illness, mental condition or a cognitive impairment, and whether there are reasonable grounds to believe that [he] is a mentally ill person within the meaning of the NSW Mental Health Act 2007." He said that he was also requested to make any treatment recommendations and to inform the Court about any other issues he considered important.
2. It appears that the report was requested or ordered by the Court. Dr Elliott noted that the applicant had been charged with two counts of assault occasioning actual bodily harm, three of sexual intercourse without consent, one of intentionally choke person with recklessness, two counts of stalk/intimidate intending to cause fear of physical harm and two counts of common assault. These are generally identifiable as the convictions relating to the complainant, although it is apparent that the report referred to two other charges.
3. Dr Elliott took a personal history from the applicant, which, except for one thing, was unremarkable. The applicant grew up in a supporting and loving family environment, with three sisters and two brothers. He left school at Year 10 and completed a mechanic's apprenticeship, and then gained further specialist qualifications. He claimed to have operated several apparently highly successful businesses, before becoming a property developer.
4. He is married, with one daughter aged 11 at the time of the report, but at the time of these offences was separated from his wife. His daughter suffers from multiple conditions, including autism, and a chronic juvenile kidney disease. He is proposing to donate a kidney to her (which will not occur until she turns 14) and, to ensure the health of his kidneys, maintains a strict and special diet.
5. Dr Elliott reported: "This proved to be a difficult and inconclusive assessment. Mr Kiss was a digressive and overly talkative historian and it was difficult to structure the interview."
6. There is little contained in the report that throws useful light on the sentencing exercise. This appears also to have been the view of Zahra SC DCJ, who, while referring to it, does not appear to have gained much value from it.
7. Under the heading "Diagnosis" Dr Elliott wrote: "I find it difficult to offer a conclusive opinion to The Court regarding Mr Kiss's mental state … . Unfortunately, without a more intensive period of psychiatric observation, I am unable to offer The Court a conclusive diagnosis as to whether Mr Kiss suffers from a psychotic illness. On balance, I consider it the most likely option, but again this is far from conclusive. An alternative explanation is that Mr Kiss is a psychologically vulnerable individual, currently under extreme stress in prison and facing a sentencing hearing on serious charges, and is embellishing his previous problems in an anxious manner and constructing rather fantastic stories that may be loosely based in reality. A third option is that Mr Kiss was mindful of the impression he was creating, and this was an attempt to feign mental illness by a man facing serious criminal charges and who has already been convicted of serious fraud offences. If this were the case, then it represents a sophisticated and elaborate deception, and demonstrates an awareness of the layered nature of Schizophrenia, including not only its psychotic symptoms but also the negative symptoms of self-neglect. This seems less likely." There were a number of expressions of scepticism in the report concerning the veracity of the history given by the applicant to Dr Elliott.
8. In the addendum to his report, dated 24 December 2018, Dr Elliott recorded that he had had the opportunity to speak with the applicant's mother. Following that conversation, he concluded: "Overall, I consider it more likely Mr Kiss's presentation is consistent with the second proposed diagnosis from my original report; namely that he is overwhelmed by the custodial environment, particularly since his assault, is extremely anxious about his upcoming Court appearance, and has unwittingly embellished or exaggerated aspects of his personal history in order to illustrate the dramatic change in his circumstances."
9. The reference to "his assault" is a reference to an assault on the applicant while he was in custody, which was described in an agreed statement of facts. The assault occurred on 7 October 2017, when the applicant was held in a medium security facility. As he walked towards the telephone area, the applicant was attacked by two other prisoners, one of whom was armed with a knife. He suffered lacerations to his left cheek and left ear, both of which required suturing, abrasions and a bruise to his right eye, puncture wounds to his right forearm and right chest and fractures to his nose, right cheek and jawbone. He was treated in hospital at Port Macquarie.
10. Also available to Zahra SC DCJ, although not throwing much light on the issues, were records of Justice Health.

The remarks on sentence

1. Zahra SC DCJ recited, in some detail, the circumstances of each offence of which the applicant was found guilty. He also recounted evidence of other instances of controlling behaviour by the applicant. The offences were committed in the context of a highly abusive relationship in which the applicant maintained control of all aspects of the complainant's life.
2. One example of the applicant's behaviour is to be found in the use of a mobile telephone (which was in the complainant's name) of which the applicant maintained control, permitting the complainant to use it in his presence. The occasion when she used the phone to contact her parents was a rare example of her having access to the phone in the absence of the applicant. He was in the habit of accessing text messages she sent, and accusing her of sending messages that she had not sent. She felt "interrogated or manipulated".
3. The complainant gave evidence that the applicant would not allow her to go to hospital for medical treatment and that he "controlled what I did".
4. In another instance, after the commencement of the relationship with the applicant, the complainant told him of her concerns that she might become pregnant, and commenced using contraceptives. The applicant referred to her as a "slut".
5. The complainant was a regular swimmer; the applicant told her that "swimming was the number one sport for prostitutes and that's what they did to cleanse themselves".
6. Specific instances of the applicant's cruelty and control relate to the complainant's dog, a very young chihuahua. On one occasion the complainant was in the driver's seat of the car with the dog which was on the floor in front of the front passenger seat. The applicant was using the phone, outside the car. He entered the car, kicked the dog, pulled the dog from the floor onto his lap and began strangling her with his hand around her throat, causing her tongue to protrude. The dog urinated on the applicant who then threatened to kill her. He said to the complainant: "Now I'm going to, now I'm going to kill her. No one disobeys me, especially a dog." He told the complainant that he was hurting the dog. He refused the complainant's request to take the dog to a vet.
7. On another occasion, at home, the complainant saw the applicant swing his arm at the dog causing her to become airborne and then fall; the dog ran to the complainant. The applicant advanced and hit the dog again, this time causing the dog to fall onto her back.
8. Zahra SC DCJ expressed the view (which has not been challenged and is clearly correct) that the applicant's cruelty towards the dog was intended as a form of continuing control and intimidation of the complainant.

The assessment of objective gravity

1. Zahra SC DCJ found the assault the subject of count 16 (common assault) to be below the mid-range of objective gravity; and the choking offence (the subject of count 3) and the intimidating offence (the subject of count 17) to be above the mid-range of objective gravity. He found each of sexual intercourse without consent offences to be within the mid-range of objective gravity. He noted that each of the sexual intercourse offences of which the applicant was convicted was preceded by an assault. Having regard to the grounds of appeal, it is necessary to set out his expressed findings with respect to the sexual intercourse offences. His Honour found that the assault the subject of count 1 (which preceded the first of the sexual intercourse without consent offences) was "an objectively serious assault involving repeated punches to [the complainant's] face" and "identifies the [applicant's] possessiveness from the time of the commencement of the relationship and his resort to violence to achieve dominance over the [complainant]". Of the sexual intercourse without consent offence that immediately followed he said: "The [complainant] was subjected to a continuous course of multiple acts of intercourse. The circumstances of the assault immediately prior to the commencement of the sexual assault, in my view, supports a conclusion the offender knew she was not consenting to the sexual intercourse."
2. With respect to the next pair of assault and sexual intercourse without consent offences (counts 3 and 4), which occurred only a couple of days later, Zahra SC DCJ said: "The conduct represents a continuing pattern of dominance over the [complainant]. The offending involving the choking of the [complainant] is of a most serious kind. In my view, that offending falls above the middle of the range of objective seriousness. The [complainant] described feeling dizzy which is consistent with the [applicant] blocking her airway and the [complainant's] progression towards unconsciousness. Fortunately, the [applicant] desisted and commenced apologising to the [complainant]. The [complainant] believed she was going to die. In my view the count of sexual intercourse without consent falls within the middle of the range of objective seriousness."
3. With respect to counts 7 and 8 Zahra SC DCJ said: "The sexual assault is objectively serious and falls within the middle of the range of objective seriousness. The sexual assault followed significant acts of violence upon the [complainant] when she was repeatedly head-butted and punched. By this time the [complainant] had been subjected to frequent assaults upon her and had been subjected to sexual assault with some frequency."

The grounds of the application

1. The applicant proposes three grounds of appeal, identified as follows: "1. His Honour erred in his assessment of the objective criminality with respect to counts 2, 4 and 8 [the offences of sexual intercourse without consent] and elevated the indicative sentences which inform the aggregate sentence. 2. His Honour erred in the level of accumulation upon the sentence imposed by Judge Girdham and imposed a sentence which is overall manifestly excessive when considered against the totality of the offending. 3. The sentence imposed upon the applicant was manifestly excessive."

Ground One: assessment of objective criminality 1. (i) the applicant's knowledge that the complainant did not consent

1. This ground relates only to the assessment of objective gravity of the three sexual intercourse without consent offences. The principal argument advanced in written submissions in support of the applicant's proposition that the assessment was erroneous depended on what was asserted to be an erroneous finding that the applicant had actual knowledge that the complainant did not consent to the sexual intercourse and that the assessment of objective gravity ought to have been made on the basis that he was reckless as to whether or not the whether the complainant consented. In order to understand this argument it is necessary to understand the statutory context.
2. Section 61I of the Crimes Act provides: "Sexual Assault 61I Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years."
3. "Consent" is now defined in s 61HE. At the time of the offences committed by the applicant, the definition was located in s 61HA. There is no relevant difference between the two provisions. Section 61HA relevantly provided: "(2) Meaning of consent. A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (3) Knowledge about consent. A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse."
4. Paragraphs (a), (b) and (c) represent three categories of, or states of mind that signify or constitute, knowledge of the absence of consent, in descending order of moral culpability: Saffin v R [2020] NSWCCA 246 at [22].
5. It was not in issue that the jury found, in respect of each of these offences, that the applicant had the requisite knowledge. What was put in issue by the applicant's argument is the means by which that knowledge was constituted - whether it was by actual knowledge (as, the argument went, Zahra SC DCJ explicitly or implicitly found) or by recklessness as to whether the complainant consented or not. Inherent in the argument is the proposition that knowledge constituted by recklessness renders an offender less culpable than does actual knowledge of the absence of consent. No authority was advanced for that proposition, and it is not necessary to pause to examine its correctness. It may, for present purposes, be accepted. It is consistent with the decision in Saffin cited above.
6. The proposition that the applicant's knowledge may have been constituted by recklessness, as distinct from actual awareness of the absence of consent by the complainant, is entirely inconsistent with the findings of fact made by Zahra SC DCJ, which are unchallenged. Zahra SC DCJ considered that the assault that immediately preceded the sexual intercourse the subject of count 2 supported a conclusion of actual knowledge, as distinct from recklessness.
7. The second offence of sexual intercourse without consent (count 4) was, similarly, immediately preceded by a violent assault that involved the applicant choking the complainant, and that Zahra SC DCJ found represented a continuing pattern of dominance by the applicant of the complainant. There was no room in this assessment for a conclusion that the applicant may have been merely reckless as to whether the complainant consented to the sexual intercourse.
8. The third offence of this kind (count 8) followed the same pattern. It was preceded by a violent assault on the complainant by the applicant by headbutting and punching her, resulting in a chipped tooth. Again, there is no room for a view that the applicant's knowledge was constituted by recklessness.
9. Even if it could reasonably be said that the applicant did not turn his mind to the question of whether the complainant consented to the sexual intercourse, and therefore should be found to have been reckless, the level of his recklessness was of such a high order as to amount to knowledge. Certainly, a finding of recklessness as distinct from actual knowledge would not diminish the assessment of objective gravity of any of the sexual intercourse offences.
10. There was no error in the conclusion (whether express or implied) by Zahra SC DCJ that, on the occasion of each of these offences, the applicant had actual knowledge that the complainant did not consent to the sexual intercourse. That puts the offences at the higher end of moral culpability.
11. Subsidiary arguments advanced in support of the proposition that the assessment of objective seriousness was erroneous were: (i) that, by reference to the charges of sexual intercourse on which the applicant was acquitted, the complainant should be found to have exaggerated in her account of the offences; (ii) that, on each occasion, the applicant apologised to the complainant for his conduct; and (iii) that, on the complainant's evidence, on no occasion was the absence of consent clearly expressed.
12. None of these should be accepted as bearing upon the assessment of objective gravity. The fact that the jury acquitted on some charges has no bearing on the objective gravity of those on which the applicant was convicted. Nor does an apology after the event affect its objective gravity. The absence of (genuine) consent was manifest, in each case, by the violent assault which was followed by the commission of the offence charged. 1. (ii) the relevance of the existing relationship between the applicant and the complainant
13. In oral argument as well as briefly in written submissions a separate basis for challenging the assessment of objective gravity was put, somewhat diffidently, and with express recognition that it may be seen to be "politically insensitive".
14. This was that, because the offences were committed in the context of an ongoing consensual relationship, they were less objectively serious than, for example, "the rape of a stranger" would be. No authority was cited for this outdated and long discredited notion. It has been repudiated by this Court as recently as 2020: Bussey v R [2020] NSWCCA 280, per Harrison J, with whom Hoeben CJ at CL and Bellew J agreed. Indeed, it is not clear to me that the proposition that an offence of sexual assault, committed in the context of an ongoing sexual relationship is necessarily, for that reason alone, less serious than a sexual assault committed by a stranger, has ever been accepted in this country. A brief review of authority will make the point. The astute reader may, at times, detect a degree of ambivalence between the statements and the application of principle.
15. The proposition might be derived from (or traced to) the English decision in Roger Clive Stockwell (1984) 6 Cr App R (S) 84. In that case an estranged husband visited the complainant at the home she shared with their children, argued with her, and then, with considerable violence and over her strenuous physical and verbal resistance, committed rape. The complainant suffered injuries to her face and body and extensive bruising. At first instance the offender was sentenced to imprisonment for 3 years. On appeal that sentence was reduced to 2 years. In reasons that, after almost four decades, do not bear close scrutiny, Farquharson J acknowledged a contention made on behalf of the offender that: "… this was not a rape of a strange woman or a woman hardly known, but the rape of a woman with whom the appellant had lived as man and wife - initially, no doubt, very happily - for upwards of 10 years." Of this contention his Lordship said: "This does add a different dimension to the case and puts the sentence at the lowest end of the bracket."
16. In David Edward Cox (1985) 7 Cr App R (S) 422 a sentence for rape committed on the divorced wife of the offender was reduced from imprisonment for 4 years to imprisonment for 3 years. In proposing that course Drake J, with whom Ackner LJ agreed, said: "Of course the fact that the complainant was the appellant's former wife in no way at all entitled him to act as he did. This was rape. He pleaded guilty to rape and it was rape with some aggravating features."
17. The reason for the reduction in sentence was "the wholly unusual and exceptional circumstances" in which the offence was committed. Although the offender and the complainant were divorced, they lived together in the same house, shared the matrimonial bed, and had, on occasions, sexual relations without protest from the complainant. The complainant had subsequently expressed forgiveness of the offender.
18. There may have been a reversion to the Stockwell doctrine in Arthur John Berry (1988) 10 Cr App R (S) 13. This was another case in which a domestic relationship had come to an end. On a visit to the complainant's home in order to collect their daughter the offender argued with the complainant, lost his temper, kicked in the latch of the door to the house and entered, used violence on the complainant causing bruising, and raped her. A sentence of imprisonment for 6 years was, on appeal reduced to 4. Mustill LJ observed: "These facts show that this case is far from those in which, for example, a woman walking home has been set upon by a total stranger and violated. Nevertheless the rape of a former wife or lover is of course always a serious offence, and nothing that we say should be taken to indicate the contrary. The relevance of a previous settled sexual relationship was made plain by the decision of this Court in Cox … . The rape of a former wife or mistress may have exceptional features which make it a less serious offence than otherwise it would be: see also Stockwell … . To our mind these cases show that in some instances the violation of the person and defilement that are inevitable features where a stranger rapes a woman are not always present to the same degree when the offender and the victim had previously had a long-standing sexual relationship."
19. It is worth observing here that what was "made plain" in Cox was that the fact of matrimony gave no rights to the offender to conduct himself as he did; and that the passage extracted from Berry, far from endorsing a difference of approach depending upon whether sexual assault is committed by a stranger or an intimate partner, directs attention to the circumstances (distinct from the fact) of the relationship.
20. Comfortingly, apart from Berry, I have been able to identify no case, in the United Kingdom or in Australia, that supports or adopts the reasoning in Stockwell, although a number of Australian decisions have referred to the trio of cases outlined above without apparent disapproval. In James Augustine Lyttle (1991) 57 A Crim R 398 the complainant terminated a long-standing relationship with the offender, during much of which time they had lived together. At about 2 am one morning the offender, affected by alcohol, broke into the complainant's home, where she was asleep. He pinned her wrists above her head, tore her clothing and, after a further struggle, sexually penetrated her. A sentence of imprisonment of 3 years with a non-parole period of 1 year imposed in the ACT Supreme Court was found to have been manifestly excessive; in substitution therefor, a sentence of imprisonment for 2 years with a direction for release after 6 months was imposed by the Full Court of the Federal Court of Australia.
21. The Court rejected a submission that the offence was unusual because of the history of the prior intimate relationship, saying, at 402: "Violence of one kind or another including sexual violence in the seclusion of the home is regrettably an all too common feature of relationships which fail. The victims of domestic violence depend heavily on the law, and the enforcement of the law through the courts, for their protection. The efficacy of their protection depends largely on community understanding that offences of this kind will attract substantial punishment. The sentences of the courts must give public recognition of the right of every person to restrict sexual behaviour to situations in which he or she participates in the exercise of a free will."
22. The Court then went on to refer to and quote from passages in Berry, extracted above. There is nothing in the judgment to indicate that the Full Court endorsed the notion that sexual assault in a domestic environment is less serious than sexual assault by a stranger; the passage earlier quoted points to the opposite. (Some might struggle to reconcile the reasoning with the result).
23. To the extent that the headnote to the report of Lyttle suggests that the Court endorsed that part of the decision in Berry that suggested a differentiation between "partner-rape" and "stranger-rape" it should be treated with caution.
24. Kane Raymond Stephens (1994) 76 A Crim R 5 was another case, in Queensland, of two counts of rape and one of indecent assault committed by the offender on his de facto partner. The relationship was one in which the offender was repeatedly violent towards the complainant. The offences for which he was sentenced occurred late at night on a single occasion. The offender assaulted the complainant, abused her verbally, forced her to perform fellatio on him and to have penile-vaginal sexual intercourse with him. At first instance, Stephens was sentenced to imprisonment for 3 years, with a recommendation for eligibility for release on parole after 6 months. One reason given for the leniency of the sentence was that the sentencing judge said that "he took a more lenient view of rapes which take place within an existing de facto relationship". On a Crown appeal, the Court of Appeal declined to accept "that, as a general proposition, it is necessarily right to do so". The Court went on to say (at 6-7): "There may well be circumstances, which we do not attempt to define comprehensively, in which the existence of such a relationship will have a significant bearing upon the court's decision as to the appropriate sentence, for example, because it is relevant to the offender's state of mind. No doubt, where there is a marital or de facto relationship, there may be greater scope for a genuine belief on the part of the man that the woman has or is likely to consent to sexual intercourse. And where that mistake is honest but unreasonable, it may be relevant to take it into account in sentencing the offender."
25. Such a finding, if made, would not affect the assessment of the objective gravity of the offence, but may possibly be seen as relevant to moral culpability. The Court held that those circumstances did not apply in that case, upheld the Crown appeal, and resentenced the offender to imprisonment for 5 years with a recommendation that he be eligible for release on parole after 2 years.
26. John Anthony Wiren (1996) 89 A Crim R 356 was a case from the Northern Territory in which the offender was charged with an offence of attempted sexual intercourse without consent and one offence of sexual intercourse without consent, committed on two separate occasions 17 days apart. The parties had been living together in a de facto relationship; after the first offence the offender left the home, but, on the pretext of recovering some property, returned, with the intention of committing the second offence.
27. The Court of Criminal Appeal accepted that a prior sexual history between victim and offender "can be" (at 360 - emphasis in original) an important mitigating factor in sentencing for sexual offences. It referred to a number of the decisions cited above and endorsed the view of the Queensland Court of Criminal Appeal in Stephens that it was "wrong" or "not necessarily right" to take a more lenient view of rape within an existing relationship. In the application of the principles, however, the Court said (at 370): "Sexual intercourse without consent, in its essence a crime of violence, is generally regarded as the gravest of all the sexual offences. As his Honour pointed out here (p 5), it is 'the antithesis of love'. It involves the abuse of an act common to the human race, the consensual nature of which is treated in our society as fundamental to the expression of love between human beings. The community attaches high value to the consensual aspect, and accordingly applies strong sanctions to its abuse. The sense of public outrage cannot and ought not to be left out of account when sentencing; the sentence should accord with the general moral sense of the community in relation to the crime and the circumstances of its commission. The crime commonly involves quite a severe degree of emotional and psychological trauma for the victim; the physical consequences may also be severe, though none were suggested here. The intimate proximity between rapist and victim is a particularly unpleasant aspect of the crime, with concomitant fear or terror on the victim's part, particularly when the rapist is a stranger. That factor is usually not present to the same degree when the rapist and victim have had a recent prior longstanding non-violent sexual relationship, as here; familiarity with such an offender militates against the fear or terror generated by an unknown assailant. Hence the observations in Cox … and Berry … and the generally lower level of sentencing in such cases as compared with stranger-rapes, in the absence of violence; this is illustrated by the sentencing cases elsewhere … and by the sentencing on appeal in Lyttle … . However, whether the prior relationship is a significant factor depends on the circumstances of the particular case … ." (Emphasis in original.)
28. On the facts of that case the Court went on to find that the fear or terror experienced by the complainant could not have been present "to the same degree" as it would have been had the rapist been a stranger, and concluded that the sentencing should be lower than it would have been in the case of a stranger-rape.
29. In R v Mason [2001] VSCA 62 Winneke P (with whom Tadgell and Buchanan JJA agreed) referred to Berry, Wiren and an unreported Victorian case (Halliday (Court of Criminal Appeal (VIC), 21 March 1990, unrep)) and noted a submission made on behalf of the offender that: "… where rape occurs against the background of a previous settled sexual relationship, it should be regarded by a sentencing court, at least in circumstances such as existed here, as less serious than a rape by a total stranger."
30. Winneke P did not regard those cases as laying down a sentencing principle of inflexible or universal application. His Honour said (at [7]-[8]): "A rape committed in the context, and against the background, of a previous settled relationship may in certain circumstances be a factor which a court can take into account in mitigation where it can be seen that the impact upon the victim has, for that reason, been less traumatic than otherwise it might have been. But, equally, it is not difficult to imagine a rape, committed by a man who has been in a previous relationship with his victim, which would be every bit as frightening as a rape committed by a stranger. The one thing which the authorities to which this Court has been referred demonstrate is that the crime of rape, whatever the circumstances, and upon whomsoever committed, is regarded by the courts as a grave insult to its victim and a crime which can rarely give rise to a non-custodial sentence. It should not be forgotten that the crime of rape is an intensely personal crime which, for sentencing purposes, cannot be divorced from its effects on the victim. But the effects include not only those which flow from the physical invasion of the victim's person and security, but also those which flow from the violation of the more intangible intellectual properties of the victim's rights and freedoms. In a society in which there is an increasing number of couples becoming estranged, the courts have a heightened obligation to deter those who have previously lived in a stable relationship with a wife or partner from regarding such wife or partner as akin to a chattel devoid of rights or freedoms, and as an object readily available for their sexual gratification."
31. His Honour then referred, with express approval, to an earlier decision of the same court, R v Harris [1998] 4 VR 21. In that case the appellant Crown had submitted that the sentencing judge had erroneously proceeded on the basis (inter alia) that "since the parties were husband and wife the complainant would not have suffered the long term traumatisation which other victims of rape endure." All members of the Court declined to read the sentencing remarks in that way and considered that the sentencing judge had proceeded on the basis of the facts he found about the relationship rather than any assumption that the mere fact that the matrimonial relationship existed diminished the seriousness of the offence. The leading judgment was delivered by Charles JA; in a brief concurring judgment Tadgell JA agreed and added: "In particular, it cannot be said that his Honour purported to apply any principle to the effect that rape by a man of his wife or former wife or of a person with whom he is or has been in a close relationship is to be treated more leniently than a rape by a stranger. The authorities do not appear to support any such principle. The most that can be said, in my opinion, is that the penalty to be imposed for the crime of rape cannot be regarded as necessarily conditioned by the relationship of the parties to it. Any relationship or lack of it between them will no doubt usually fall to be considered as one of the circumstances to be taken into account in a determination of the appropriate penalty. In some circumstances a prior relationship may serve as a factor of mitigation, but it need not, and it may indeed serve to aggravate the offence." (At 28-29.)
32. The court in Mason appears to have misread that judgment and quoted Tadgell JA as saying: "In particular it might be said that his Honour purported to apply a principle to the effect that … ." The discrepancy does not affect the value of the observations made by Tadgell JA.
33. In this Court, in NM v R [2012] NSWCCA 215, Macfarlan JA, with whom McCallum J (as her Honour then was) and Grove AJ agreed, referred (at [58]) to "[t]he importance of considering the nature of the relationship between an offender and victim" and cited Wiren and Mason as authority for the proposition: "That a prior sexual relationship between a victim an offender may, depending upon the particular circumstances of the case, be an important mitigating factor in sentencing for sexual offences" (emphasis added).
34. The emphasised words are critical; Macfarlan JA was not endorsing the general proposition advanced here, that the fact of the relationship is sufficient of itself to mitigate the offence.
35. The final nail was hammered into the coffin by Harrison J in Bussey. With the emphatic concurrence of Hoeben CJ at CL and Bellew J, his Honour said: "[95] The cases reveal a consistent and commendable emphasis upon the need to consider each offence of sexual assault upon a woman by her partner or former partner with special and particular regard to the circumstances of the case. However, there has in my view been a regrettable tendency in some cases to refer to the fact that the assault occurred within, or following the breakdown of, a relationship as something that might 'mitigate' the seriousness of the particular offence. This type of language has the unfortunate potential erroneously to dilute the significance of the offence under consideration. Put simply, the objective seriousness of sexual intercourse without consent cannot be reduced because of factors such as a prior sexual history between an offender and his victim without making unjustified and impermissible assumptions about the effect upon the victim. It depreciates the notion that no means no, whatever other factors may be involved. To accept that a prior relationship can ever operate to mitigate the seriousness of the offending completely abandons that uncontroversial wisdom and reverts to the type of attitude that once saw domestic violence treated as less culpable than other assaults. It also proceeds upon the implicit and unsafe adoption of non-consensual sexual intercourse with a stranger as the default position. [96] I cannot accept that a statement such as 'the violation of the person and the defilement that are inevitable features where a stranger rapes a woman are not always present to the same degree when the offender and the victim had previously had a longstanding sexual relationship' is now or could ever have been an acceptable, far less correct, summary of the law or that it should continue to influence this Court in the determination of cases such as the present. Violation and defilement of the victim are quintessential aspects of the offence and the victim's familiarity with an assailant can have no bearing upon that fundamental circumstance. Indeed, such an assault, committed by a person with whom the victim may have had a formerly close and respectful relationship, is potentially more likely to exacerbate the seriousness of the offence than otherwise. I cannot accept the proposition that there can be varying degrees of violation and defilement. Such a concept appears to derive from the offensive notion that a man should in certain circumstances be entitled to raise his prior relationship with the victim as some kind of limited excuse for disregarding the absence of consent to an act of intercourse with him to which activity the victim had historically consented."
36. The short answer to the applicant's contention is that, notwithstanding some apparent hesitancy in applying the relevant principles, there is no principle that a sexual assault committed in the context of a prior or existing relationship is, for that reason alone, different from (and less serious than) a sexual assault committed by a stranger. It is the circumstances, not the mere fact, of the relationship that call for consideration. As has been observed in a number of the cases referred to above, the range of circumstances in which sexual offending takes place is almost infinite. It would be quite wrong to state, as a general principle, that one kind of offending is necessarily worse (or necessarily less serious) than another. All sexual assaults have much in common, in the invasion of the victim's bodily integrity and the degradation inflicted. This is so whether or not the offence is committed by a stranger or by a past or even current sexual partner.
37. I have no difficulty in rejecting the first ground of the proposed appeal.

Ground Two: accumulation

1. When sentenced by Zahra SC DCJ the applicant was serving a sentence imposed by Girdham SC DCJ, of 11 years and 2 months, with a non-parole period that will expire on 23 December 2023. That sentence, in turn, was specified to commence on 24 April 2016 to coincide with the expiration of the non-parole period of the sentence imposed for the Port Macquarie offences. The applicant has been in custody in respect of those offences since 25 October 2014. The sentence imposed by Zahra SC DCJ was specified to commence on 23 February 2020, approximately midway through the non-parole period of the Girdham SC DCJ sentence. The Zahra SC DCJ sentence will expire on 22 February 2033; the non-parole period will expire on 22 August 2028. The total period of imprisonment for all three sentences is therefore 18 years and 4 months, with a non-parole period of 13 years and 10 months (in round figures).
2. This undoubtedly is a lengthy sentence. Some relevant sentencing facts bear repetition. The applicant committed the Zahra SC DCJ offences while on bail for the serious Port Macquarie offences. He has a substantial history of non-compliance with the law, including non-compliance with orders to appear at court. These offences were committed in the context of repeatedly abusive, domineering and violent conduct by the applicant towards the complainant. He has shown no remorse for, nor, indeed, insight into, his conduct.
3. Zahra SC DCJ was fully aware of the effect of the sentence he imposed. He expressly selected the commencement date in order to take into account the principle of totality. It is for that reason that, as noted above, the sentence imposed by Girdham SC DCJ was effectively halved. Any further degree of concurrence would make unwarranted inroads into the Girdham SC DCJ sentence.
4. I see no error in the approach taken by Zahra SC DCJ to accumulation which was, if anything, generous. I would reject ground 2 of the proposed appeal.

Ground three: manifest excess

1. No additional argument was directed to the proposition that the sentence was manifestly excessive. I am quite satisfied that it was a sentence well within his Honour's sentencing discretion. I would reject ground 3 of the proposed appeal.
2. It will, however, be necessary, pursuant to s 59 of the Sentencing Procedure Act, to vary the commencement date of the sentence in order to take account of the variation of the sentence imposed by Girdham SC DCJ in respect of the money laundering offences. I propose that the present sentence commence on 23 August 2019, 6 months earlier than was specified by Zahra SC DCJ.
3. The orders I propose in respect of the offences for which the applicant was sentenced by Zahra SC DCJ are: 1. Leave to appeal granted; 2. The commencement date of the sentence is varied; sentence to commence on 23 August 2019, and expire on 22 August 2032; non-parole period to expire on 22 February 2028; 3. Appeal otherwise dismissed.
4. BELLEW J: I have had the advantage of reading in draft the judgment of Simpson AJA. I agree with the proposed orders for the reasons her Honour has given.
5. WILSON J: I also agree with Simpson AJA.

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