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Parties: David Christopher Laipato (Appellant) The Queen (Respondent)

Representation: Counsel K Ginges (Appellant) T Hickey (Respondent)

Solicitors McKenna Taylor (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number: AC 43 of 2019

Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Burns J Date of Decision: 20 December 2019 Case Title: R v Laipato Citation: [2019] ACTSC 386

THE COURT

The trial and sentence

1. The appellant was tried before Burns J (the trial judge) and a jury on charges relating to an incident on 8 January 2019.

2. On 17 September 2019, the jury returned the following verdicts:

(a) Count 1: burglary with intent to harm someone in the building—guilty;

(b) Count 2: unlawfully confine the complainant—guilty;

(c) Count 3: choke, suffocate, or strangle the complainant—guilty;

(d) Count 4: commit act of indecency upon the complainant without her consent— not guilty;

(e) Count 5: choke, suffocate, or strangle the complainant—not guilty; (f) Count 6: intentionally cause damage to property of Hertz Australia Pty Ltd (car tyres)—not guilty;

(g) Count 7: intentionally cause damage to property of the complainant (two front doors)—not guilty;

(h) Count 8: intentionally cause damage to property of the complainant (laundry door)—not guilty; and

(i) Count 9: steal a CCTV hard drive belonging to the complainant—not guilty.

3. On 20 December 2019, the trial judge imposed the following sentences:

(a) Count 1: three years and six months’ imprisonment, from 8 January 2019 to 7 July 2022;

(b) Count 2: two years and three months’ imprisonment, from 8 June 2021 to 7 September 2022; and

(c) Count 3: one year and eight months’ imprisonment, from 8 October 2022 to 7 June 2024.

4. The total sentence was five years and five months’ imprisonment, from 8 January 2019 to 7 June 2024. The trial judge fixed a nonparole period of three years and six months’ imprisonment, from 8 January 2019 to 7 July 2022.

5. The appellant appealed against the convictions and sentences.

Grounds of appeal

6. The notice of appeal was filed on 1 October 2019. On 17 January 2020, the appellant filed an amended notice of appeal. On 29 April 2020, he sought leave to file a further amended notice of appeal.

7. Ultimately, the appellant sought to agitate the following grounds of appeal:

(a) Ground 1: The verdicts on Counts 1, 2 and 3 are inconsistent with the verdicts on the remaining counts.

(b) Ground 2: The verdicts on Counts 1, 2 and 3 are unreasonable, unsafe and unsatisfactory having regard to the evidence.

(c) Ground 3: The trial miscarried because the Crown adduced evidence of the appellant’s “bad character”.

(d) Ground 4: Alternatively, the trial miscarried because the trial judge failed to direct the jury about the limited way in which it could rely upon evidence of “bad character”.

(e) Ground 6: On sentence, the trial judge erred by making factual findings that were inconsistent with the jury’s verdicts.

(f) Ground 7: The sentences were manifestly excessive.

8. In relation to any resentencing exercise, the appellant tendered further evidence. Leave to appeal

9. As to the sentence and “bad character” grounds (Grounds 3, 4, 6, and 7), r 5412 of the Court Procedure Rules 2006 (ACT) (CPR) requires leave to amend a notice of appeal after appeal papers have been settled.

10. Because of the stage at which the proposed amendments were notified, there is no prejudice associated with the late amendments. We grant leave under r 5412 of the CPR.

11. Additionally, in relation to the “bad character” grounds (Grounds 3 and 4), leave is required under r 5531 of the CPR because, at the trial, defence counsel took no objection to the evidence and sought no redirection. Rule 5531 of the CPR provides:

5531 Appeals to Court of Appeal—grounds of appeal against conviction or sentence Unless the Court of Appeal otherwise orders, the following must not be allowed as a ground for appeal against conviction or sentence unless objection was taken at the trial by the party appealing: (a) a direction given by the trial judge; (b) the trial judge’s failure to give a direction; (c) the trial judge’s decision about the admission or rejection of evidence.

12. Generally, leave should be granted under r 5531 if an alleged misdirection resulted in a miscarriage of justice, in that the appellant lost a real chance (a chance fairly open) of acquittal: KN v The Queen [2019] ACTCA 37 at [15], see also GW v The Queen [2015] ACTCA 15 at [15], Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at [72] (McHugh J).

13. For the reasons below at [129]–[142], we have concluded that the appellant lost no real chance of acquittal and, in relation to proposed Grounds 3 and 4, leave is refused.

The prosecution evidence at trial

14. The appellant’s former partner (the complainant) was the key prosecution witness. Her evidence was given through two evidence-in-chief interviews with police (commencing at 6:10 AM on 8 January 2019, i.e. immediately after the incident, and on 30 August 2019) and in person before the jury in September 2019.

15. The complainant described a volatile domestic relationship between herself and the appellant. She said that, at the time of the incident, they were separated.

16. At 9:44 PM on 7 January 2019, the appellant messaged the complainant (Exhibit D):

You dont and will not understand how fkn angry nd upset I am with you. How you can go into a relationship with your beliefs nd attitude is fkn unforgivable for the fact of this. Wasting time nd love. We have no choice but to not be together I hope your happy

17. Later that night, the complainant and the appellant were “arguing back and forth, in text”. Among other accusations made by the complainant, at 11:53 PM, she labelled him an “unfaithful cheater”.

18. At 12:52 AM on 8 January 2019, the appellant messaged the complainant, asking her to “meet me somehwre … Or open the door”. At 12:53 AM, he messaged “its the last time ill be doing this”. At 12:54 AM, he messaged “I serious want you to know how serious I am about us leavibg this”.

Count 1—Burglary / Count 7—damage property (front doors)

19. The complainant said that the appellant had “broken into” her house. She had heard him knocking and had told him to leave “and then he smashed through both the doors”.

20. In Court, the complainant said that, shortly after the text exchange, she had been in bed when she had heard a noise at her front entry. Her front entry comprised a timber door that she had locked and a screen door. She heard noises at the doors “as if someone was breaking in” and “it sounded like … doors were being damaged. She said:

I don’t know how he broke them or got in but I know that he broke them to get in because he was standing right there.

21. She said that it had happened very quickly. After he had entered, she had heard doors “being slammed in a way or pushed”.

22. The complainant said that, after the incident, the screen door was missing its handle and there was damage to the doorframe, as depicted in the photographs comprising Exhibit A.

Counts 2, 3, and 5—unlawful confinement and unlawful choking

23. The complainant said that the appellant had dragged her from her bed into a neighbouring room (the “clothes room” or second bedroom), where he had choked her.

24. On 8 January 2019, the complainant said that the appellant had choked her, and had “made [her] stay” in the second room, telling her to sit. He had informed her that if she tried to leave, he would do it again. When she “went to vomit”, he had told her to do it in the corner.

25. On 8 January 2019, the complainant said that the appellant had choked her “a few times in the room” and that it had happened when “he put his hand over [her] mouth first and held [her] nose”. He had said “I swear to God, I could fucking kill you”. In the first police interview, she said that “he choked me one of the times” by putting his hands around her throat.

26. On 30 August 2019, the complainant’s narrative account was:

he choked me in [the clothes room], covered my mouth, held my nose so I couldn’t breathe. Um, he wouldn’t let me out. I vomited in the corner. Um, I was sort of pleading with him to let me out and to let me go, and he wouldn’t. Um, he was telling me to sit, to stay. Um, so after I was kept in there, he let me out to go to the laundry. He followed me and stayed very close …

27. In Court, the complainant was unable to say how many times that the appellant had put his hand to her throat, but she said that it had been more than twice and it had been “multiple times”. At one stage, he had covered her mouth with his hand and then, because she had continued to breathe through her nose, he had held her nose shut so that she could not breathe. The choking and the placing of the hand over her mouth had been separate incidents. When she was being choked, she was on the floor. At one stage as the appellant was squeezing her neck, he had said “I could [fucking] kill you”. When she had informed the appellant that she was gagging and needed to vomit, he had told her to do it in the corner and she had vomited in the corner.

28. The complainant said that, initially, she had resisted. However, she had become compliant in order to avoid further angering the appellant.

29. The complainant said that she had been kept in the room for what “felt like hours”.

Count 8—damage property (laundry door)

30. On 8 January 2019, the complainant said that the appellant had “broken the laundry door” but she didn’t know how. In Court, she said that, after the incident, she had observed damage to the laundry door’s shutting mechanism and that fragments of wood were missing.

31. However, photographs were tendered that showed that the laundry door had been damaged as at December 2018: Exhibit O.

32. The complainant told the police that she had not consumed drugs. In Court, she said that when the appellant permitted her to leave the second bedroom, she went to the laundry. In the laundry, she smoked cannabis through a bong.

33. Exhibit J (a photograph of the appellant and the complainant in the laundry at 2:33 AM) depicted the appellant with his shirt off and the complainant mixing cannabis with tobacco to put into a bong.

Count 4—indecent assault

34. In her first evidence-in-chief interview, the complainant did not mention an indecent assault.

35. In her second evidence-in-chief interview and when she gave oral evidence in Court, the complainant said that she had gone from the laundry to her bedroom and the appellant had followed her and taken photographs of her. He had pinned her down to the bed and tried to remove her pants, unsuccessfully. The appellant had spread the complainant’s legs and pinned her down. The more she had resisted, the more he had pressed down. She had stopped pushing the appellant from her because he was physically stronger than her and she had felt that resistance would only cause further aggression. The appellant had “ground” his penis against her genital area for five or 10 minutes while she had remained inanimate.

36. The appellant photographed the complainant on her bed at 2:28 AM (Exhibit M), i.e. five minutes before the photograph taken at 2:33 AM in the laundry.

Count 9—theft

37. The complainant said that, when she had suggested to the appellant that he had been captured on her CCTV system, the appellant had become quite aggressive and had ripped out a hard drive that had been attached to the CCTV system in the complainant’s bedroom and departed with it.

38. The disconnected wires were depicted in an exhibit that was tendered at the trial. Count 6—damage property (Hertz rental car)

39. As at 8 January 2019, the complainant had a Hertz rental car in her driveway. She had last travelled in the car some days earlier.

40. After the incident, the vehicle tyres had been slashed.

41. Police located a knife blade on the driveway.

42. In her first evidence-in-chief interview, the complainant said that the appellant had slashed the two front tyres of the car and that he “always carries around a knife”, although she had not seen a knife on the night in question.

43. In Court, the complainant said that she had sent a message to her friend, X, “so that if he did come back and something worse happened, at least someone would know it was him”. She said that she had remained in bed from when the appellant left until the police arrived.

44. The text message that the complainant sent to X at 3:40 AM (Exhibit F) said:

David just came he broke both front doors to get in took me to my close room choked me while he whispered I swear to God i could kill you.. he did ot several times then covered my nose and mouth and kept saying it over and over my whole body spasmed out. He took my hard drive so i have no footage of him coming here. He told me if im not going to love him that way then i can love him this way. I tried to call the cops but hung up because i thpught i heard his dads ute hes driving.. now im too scared to call incase he comes back. i don’t know what to do.. he was even telling me where to sit held me in that room for ages to sit on the floor, i felt like vomiting after he choked me and he told me to spew in the corner… he took pictures of me and was writing captions saying “im all covered” so noone will believe me.. oh and he slashed 2 tyres out the front.. im delering this im scared he’ll come back. … Screenshot that please!

45. Photographs taken at 2:33 AM in the laundry showed the complainant wearing a top that differed from the top described by the police. When cross-examined, the complainant said that she had not changed her clothes before the police arrived but had changed them before she was taken by ambulance to hospital.

46. Constables Smythe and Fowler arrived at about 4 AM. Constable Smythe stated that the complainant had been “despondent, shaken and she wouldn’t look at police”. His account of a conversation with the complainant was:

[the complainant] told me that her ex-partner had attended the residence and she didn’t want him to be there. The residence was locked up so he couldn’t get in. He – she told me that he spiked the front tyres of the Skoda that was in the front – in the driveway and meaning that the tyres were deflated. He then tried to get into various points of the residence before then breaking into the front – through the front door of the residence. He went into the first bedroom where [the complainant] was and he – [the complainant] told me that he dragged her off the bed and into the second bedroom which was next to the first bedroom. At that time, he – [the complainant] told me that he choked her and that she thought she was going to black out. She told me that they had – he had taken her into other parts of the residence and used his mobile phone to take photos of them together saying that it was to cover himself and I remember her using those words, “cover himself” so that her story would not be believed. At a later time, she said that he left in his father’s utility taking a digital video recorder with him.

47. Constable Smythe saw red marks on the complainant’s neck and observed that her right foot was swollen and slightly injured. He undertook a “video walk-through” of the premises. He did not see or smell any vomit in the clothes room but said that, as there were many clothes in the room, it was “definitely possible” that vomit had been present.

48. Constable Fowler observed damage to the screen door and the main front door and said that the doors had been difficult to open because of the damage. He noticed red marks on the complainant’s face that looked like scratches and observed that the left side of her neck was very red and swollen and that her right foot was swollen and bleeding. He recalled that the complainant had said that the appellant had forced entry through the front two doors, grabbed her and taken her to the second room “where he had kept her captive in there for a number of hours” and “strangled her a number of times and threatened to kill her”. However, he agreed that his notebook did not record strangling “a number of times”. He said that he had not observed any vomit but agreed that there may have been vomit that he had overlooked because “the clothes were everywhere”. The complainant had told him that the appellant had taken her CCTV hard drive and had slashed the tyres of her car.

49. Senior Constable Knight arrived slightly later. She observed damage to the front door and saw that woodchips from the frame of the door were lying on the ground around the doormat (as depicted in Exhibit A). The complainant had appeared to be “concerned and a little bit paranoid”. The complainant had said that “she had been choked with both hands”, that the appellant had taken photographs to “cover himself” and that he had removed her CCTV hard drive. Senior Constable Knight had observed that the complainant’s foot was bleeding. In the “clothes room”, she observed some blood on the floor.

50. Senior Constable Knight said that, in her prior dealings with the complainant, she had observed her to have a “rough voice”.

51. The report of attending ambulance officers (Exhibit L) noted that the complainant “appeared anxious and distressed”. It recorded the following history:

[Patient] stated they were choked and had their mouth smothered by the perpetrators [sic] hands for roughly 15 to 20 seconds. [Patient] unsure if there was an LOC [loss of consciousness].

52. On examining the complainant, the ambulance officers observed redness and swelling to her throat, a hoarse voice, and neck stiffness and she reported pain when swallowing. The complainant was hesitant to present to hospital: Exhibit L.

53. The complainant was persuaded to attend the Canberra Hospital.

54. Dr Parekh did not see the complainant when she arrived at the Hospital at 5:29 AM, but later reviewed the Hospital records. Dr Parekh gave the following evidence:

… she had said that there had been a hand over her mouth and nose in an attempt to suffocate. There had been choking six to seven times over the space of a few hours, and that was later described as a choking mechanism with hands. So choking and strangulation … she was possibly losing consciousness. She had pain localised to her throat, … and later on this was described in the medical records as the only pain reported as to the anterior neck, and so the front of the neck is the anterior neck. She was then examined … and they noticed that she had a raspy or hoarse voice upon questioning, and that that was described as having changed since the event. She had significant anterior neck swelling, and that her neck was tender to palpation … She also had a decreased range of motion in her neck, and she had pain with her movement, so she wasn’t able to fully move her neck in the way that you might expect, and she was noticed to have an abrasion or a graze on the top of her right foot. She was specifically examined for signs that can be associated with strangulation, and the things that we typical look for is what we call petechial haemorrhaging in the eyes … and they weren’t present. And the examining doctor … said that she had significant soft tissue injury proportionate to the assault reported, with no acute airway compromise. … She did have some pre-existing medical conditions, and she had anxiety … she had a goitre, and a goitre is a swelling in the neck that is generally an incidental finding. Hers is what we call a multinodular thyroid … generally is what we call asymptomatic, so it doesn’t tend to cause problems …

55. Dr Parekh said that goitre could cause swelling in the neck but that swelling was one of the most common results of trauma and that goitre was unlikely to be the cause of the complainant’s “constellation of symptoms” that included swelling, tenderness, and a hoarse voice. Dr Parekh agreed that that smoking could cause a hoarse voice and that certain types of goitre can produce a hoarse voice.

56. The police did not obtain a warrant to search the appellant’s car or premises for the CCTV hard drive.

57. On 11 February 2019, the complainant spoke to Senior Constable Knight and alluded to a matter which the officer assumed to be a matter of a sexual nature. At that stage, the complainant indicated that she did not wish to discuss it any further with police.

Prosecutor’s address

58. The prosecutor submitted to the jury that:

(a) because the complainant would have been focused on survival and she was in shock at the hospital, she would not have memorised every detail; consequently, she may be mistaken as to some events;

(b) the complainant had given a consistent account of events to her friend X, the police who attended the scene, the doctors at the hospital, and the police who undertook the first evidence-in-chief interview;

(c) the complainant’s evidence was supported by objective evidence;

(d) the complainant did not see what happened to the laundry door and that would have been the least of the complainant’s concerns;

(e) the clothes room was messy and full of clothes (as depicted in the police walk-through video), the complainant did not describe the vomit and it may have been there but overlooked by the police;

(f) the damage to the front doors was the result of considerable force, beyond the capacity of someone of the complainant’s size and stature;

(g) the physical injuries to the complainant’s throat that were observed by ambulance paramedics and doctors were consistent with choking or strangulation and the “constellation of symptoms” was unlikely to have been caused by the goitre;

(h) the text messages showed that the appellant was angry, frustrated, and upset with the complainant and did not evidence an invitation for him to enter at 1 AM; and

(i) the content of the photographs taken by the appellant was consistent with an attempt to “cover up”.

Defence counsel’s address

59. In relation to Counts 1 and 7, at the trial, defence counsel submitted to the jury: It’s entirely plausible that Mr Laipato did go there that night to try and talk to [the complainant] and with the context of those text messages that you’re thinking about, it’s entirely plausible that [the complainant] may have opened the door for him because she might have wanted to continue the argument and he might have wanted to go and discuss their relationship.

60. Counsel submitted that there were inconsistencies in the complainant’s evidence that showed that she was an unreliable witness, including that:

(a) the physical evidence of damage to front doors was inconsistent with the doors having been forced inwards and damaged when the appellant entered the residence;

(b) the photographs taken at 2:28 AM (in the bed) and 2:33 AM (in the laundry) did not fit with the complainant’s sequencing of events;

(c) the evidence about the vomit emerged nine months after the event and was “an enhancement to the story”;

(d) there had been no mention of indecent assault or “grinding” until August 2019;

(e) there was no evidence of injury associated with “grinding”; and

(f) the police evidence in relation to the complainant’s clothing established that the complainant had changed her clothing between the laundry photograph and when the police arrived.

61. Counsel observed that the swelling to the complainant’s neck and her hoarse voice were consistent with her goitre.

62. Counsel observed that the police had failed to obtain a search warrant to look for the CCTV hard drive in the appellant’s residence or car and suggested that:

Perhaps the reason the hard drive went missing is because it would actually show [the complainant] opening the front doors to Mr Laipato. That’s a possibility.

63. Counsel noted that there was no forensic evidence linking the blade that was found in the yard to the appellant and that the complainant had not actually seen what had happened to the tyres. Counsel submitted that there was “just not enough objective evidence there”.

Trial judge’s directions

64. The trial judge directed the jury that the charges must be considered separately and gave an associated “Markuleski direction” (Markuleski v The Queen [2001] NSWCCA 290; 52 NSWLR 82 (Markuleski)), discussed below at [86]) as follows:

You must, however, consider each charge separately when you are deciding whether the Crown has proved its case with regard to these charges. If, for example, you were to find the accused guilty of one charge, you cannot use the fact that you have found him guilty of that charge in order to determine whether he is guilty of the other charges. There’s one exception to the proposition that you must consider each charge separately. If you form any negative conclusion about the essential credibility of [the complainant] with regard to one charge, you should bring that to bear in assessing whether you are satisfied that the accused committed the other charges.

65. His Honour also directed the jury:

You may accept all of the evidence of the witness if you think it is appropriate, you may reject all of the evidence of a witness if you think it is appropriate. You may also accept some of the evidence of a witness and reject other parts of the evidence of the same witness. The fact that you do not accept a portion of the evidence of a witness does not mean that you have to reject all of the evidence of that witness. … You may, for example, think that a witness is mistaken with regard to matters of detail but still accept that their evidence is truthful and reliable about the significant matters about which they give evidence.

66. Further, his Honour gave a “Murray direction” (R v Murray (1987) 11 NSWLR 12), saying:

You will no doubt understand that [the complainant] is a very important Crown witness. She is, in fact, a vital witness because without her evidence you could not be satisfied beyond reasonable doubt that the accused is guilty of any of the charges. There is other evidence which the Crown says supports the evidence of [the complainant] but in the end if you do not accept the evidence of [the complainant] you cannot find the accused guilty. … You must exercise caution before you convict the accused because the Crown case largely depends upon you accepting the reliability of the evidence of a single witness. Before you can convict the accused you should examine the evidence of [the complainant] very carefully in order to satisfy yourself that you can act upon that evidence to the high standard required in a criminal trial. … I am not suggesting that you are not entitled to convict the accused upon the evidence of [the complainant]. Clearly, you are entitled to do so but only after you have carefully examined the evidence and satisfied yourself that in terms of the essential matters it is reliable. In considering [the complainant’s] evidence and whether it does satisfy you of the accused’s guilt, you should, of course, look to see if it is supported by other evidence.

67. The trial judge gave the jury a complaint direction, noting the delay in complaint about the alleged indecent assault.

68. In relation to Count 1, the trial judge directed the jury as set out at [116] below.

69. The jury was provided with a transcript of evidence, including the evidence-in-chief interviews of the complainant.

Authorities concerning unreasonable verdicts

70. The appellant submitted that the verdicts were both inconsistent and unreasonable (Grounds 1 and 2). As to “unreasonableness” (Ground 2), the appellant relied upon the “quality” of the complainant’s evidence.

71. In relation to Ground 2, reference was made to the verdicts as being “unsafe and unsatisfactory” and “unreasonable”. In Featherstone v The Queen; Bloxsome v The Queen [2020] ACTCA 33 at [31]–[40], this Court observed that the Supreme Court Act 1933 (ACT) (Supreme Court Act) does not use the expression “unsafe and unsatisfactory” and that attention should be paid to the terms of the Act.

72. Relevantly, s 37O(2)(a)(i) of the Supreme Court Act provides that, on an appeal against conviction, the Court of Appeal must allow the appeal if it considers that the verdict of the jury should be set aside on the ground that it “is unreasonable, or cannot be supported, having regard to the evidence”.

73. Section 37O mirrors s 6(1) of the Criminal Appeal Act 1912 (NSW). In MFA v The Queen [2002] HCA 53; 213 CLR 606 (MFA), Gleeson CJ, Hayne and Callinan JJ said that, where differential verdicts were alleged to be “factually inconsistent” (i.e. inconsistent otherwise than on a technical or legal ground), under the NSW provision the issue was whether the guilty verdict was unreasonable: at [10] and [36].

74. It follows that the grounds of appeal alleged that the convictions were unreasonable, either because the “quality” of the complainant’s evidence was insufficient to support the convictions or because, in context (and taking into account the “quality” of the complainant’s evidence), the differential verdicts were unreasonable.

75. While the “unreasonableness” of a verdict is a broad concept that may be established by reference only to the “quality” of a complainant’s evidence, in this case the argument about the “quality” of the complainant’s evidence was largely subsumed in the principal submission that the differential verdicts were irreconcilable or “inconsistent” and it was for that reason that the verdicts of guilty were “unreasonable”.

76. The appellant bears the obligation of establishing that differential verdicts are unreasonable: MacKenzie v The Queen (1996) 190 CLR 348 (MacKenzie) at 368–70.

77. In M v The Queen (1994) 181 CLR 487 (M), the appellant had been convicted on the uncorroborated evidence of his daughter. The contention that the verdicts were “unsafe and unsatisfactory” relied upon discrepancies in the complainant’s evidence; it was a “quality of evidence” case, not an “inconsistent verdicts” case. The majority said (at 494):

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacked credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. (emphasis added, citations omitted)

78. Based on discrepancies in the complainant’s evidence and what the Court considered to be the improbability of the appellant having acted as alleged, the majority allowed the appeal.

79. In MFA, the High Court adopted the M “open to the jury” test of unreasonableness, resolving an essentially barren debate about the distinction between a test of whether it was “open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” and a test of whether the jury “must have had a reasonable doubt about the accused’s guilt” (discussed by McHugh J in M at 525). In Pell v The Queen [2020] HCA 12; 94 ALJR 394 (Pell), the High Court equated the tests, remarking (at [45]):

[T]o say that a jury "must have had a doubt" is another way of saying that it was "not reasonably open" to the jury to be satisfied beyond reasonable doubt of the commission of the offence. (citations omitted)

80. Pell did not concern “unreasonableness” because of allegedly inconsistent verdicts. The issue was whether—assuming that the complainant’s evidence was credible and reliable—the jury, acting rationally and having regard to all the other evidence (much of which was unchallenged), must have entertained a reasonable doubt about the appellant’s guilt: at [39] and [46]. Relevantly to the present case, the High Court made the following observations about the assessment of witness credibility (at [37]):

[G]enerally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.

81. These observations may put a gloss on the statement of the majority in M (at [77] above) that “[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced”. The observations in Pell are consistent with those of Spigelman CJ in Markuleski at [70]–[72], where his Honour said that subtle, qualitative differences in the way in which a complainant’s evidence was presented on different counts—and which are not apparent from the transcript—may explain differential verdicts.

82. MacKenzie was an “inconsistent verdicts” case. The appellant had been convicted of making a false statement on oath concerning a matter material to a proceeding but was acquitted of a more serious charge of committing perjury intending to procure the conviction or acquittal of a person. The majority (Gaudron, Gummow and Kirby JJ) said that the test of whether differential verdicts rendered convictions unsafe and unsatisfactory was one of “logic and reasonableness”: at 366. The majority said (at 367):

If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a “merciful” view of the facts upon one count: a function which has always been open to, and often exercised by, juries. (citations omitted)

83. The majority emphasised that an appeal court should exercise restraint before concluding that the absence of strict logic between differential verdicts meant that the jury had acted unreasonably in reaching the guilty verdict: at 368. The majority continued:

Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise in the performance of the jury’s duty.

84. In MacKenzie, the majority had difficulty reconciling the verdicts because, given the way in which the case had been run, it was difficult to distinguish between the “intents” associated with the charges in relation to which the jury had returned differential verdicts. Nevertheless, the majority was not convinced that the verdicts were “so repugnant and irreconcilable” as to require intervention: at 369.

85. The test adopted by the majority in M of whether “it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” was accepted in Jones v The Queen (1997) 191 CLR 439 (Jones), an “inconsistent verdicts” case in which the appeal was allowed. In relation to three counts of child sexual abuse, the jury had acquitted the accused on the second count but convicted him on the first and third counts. It was a “word against word” case in which there had been no disclosure by a child complainant until four years after the alleged events. The majority (Gaudron, McHugh and Gummow JJ) was unable to distinguish between the “quality” of the complainant’s evidence in relation to the three counts, noted that the complainant’s evidence had been uncorroborated, and observed that the delay in making complaint was unexplained: at 455. In Markuleski, Spigelman CJ considered that it was important to an understanding of Jones that in Jones there had been no “Longman warning” (Longman v The Queen (1989) 168 CLR 79) concerning the effect of delay on the appellant’s ability to defend himself: at [157].

86. In Markuleski, the appellant had been convicted of five sexual offences and acquitted of one offence; it was an “inconsistent verdicts” case. Spigelman CJ emphasised that resolution of the question of whether it was “open to the jury” to convict on some counts and acquit on another depended upon whether the verdicts could be reconciled on “the whole of the facts and circumstances of [the] particular case”: at [10] (emphasis added). This proposed a broader test than the “on the whole of the evidence” test in M. Spigelman CJ said that one relevant circumstance was the directions given by the trial judge: Markuleski at [17]–[21].

87. It is now well established that, in a case where charges rest on the evidence of one witness, a conviction on one charge and an acquittal on another does not, of itself, demonstrate inconsistency: MacKenzie, Markuleski at [23], [73] and [125], Ganiji v The Queen [2019] NSWCCA 208 per Basten JA (Button and Loneragan JJ agreeing), Keen v The Queen [2020] NSWCCA 59 (Keen) per McCallum JA at [10] (Wilson and Cavanagh JJ agreeing). After comprehensively reviewing the authorities in Markuleski, Spigelman CJ said (at [125]):

This review of the authorities indicates that a reasonable jury is not obliged to have a doubt about the occurrence of some incidents about which it has only a complainant’s uncorroborated evidence, if they have such a doubt about other incidents whenever, in the latter but not the former case, there is evidence contradictory of, or failing to support, the evidence of the complainant. Any conclusion about this matter depends on the full range of relevant circumstances.

88. In order to address the difficulty that appeal courts were experiencing in determining differential verdict cases where the complainant’s evidence was critical (“word against word cases”), Spigelman CJ opined that, in such cases, it was desirable that the usual direction concerning the separate consideration of each count be supplemented. His Honour said (at [188]):

It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct the jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant’s evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant’s evidence generally.

89. Such a direction has come to be known as a “Markuleski direction”.

90. In MFA, Gleeson CJ, Hayne and Callinan JJ agreed that the significance of verdicts of not guilty must be considered in the light of the facts and circumstances of the particular case and in the context of the jury’s role: at [34]. Relevant contextual features were:

First, as in the present case, … the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of the witness may be accepted in whole or in part. Secondly, … [i]n the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. … A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. … A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspect of the complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, … it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.

91. In TK v The Queen [2009] NSWCCA 151; 74 NSWLR 299 (TK), the jury had acquitted the appellant on one common assault count, two intimidation counts, and two counts of sexual intercourse without consent. It had been unable to agree on one count of sexual intercourse without consent and had convicted the appellant on four counts of common assault, one count of sexual intercourse without consent, and the count of using an offensive weapon to commit an indictable offence. At the relevant time, the complainant and the appellant had been married, but there had been difficulties in their marriage.

92. Simpson J (with whom McClellan CJ at CL and Latham J agreed) reviewed the authorities concerning “unreasonableness” and concluded that they dealt with two separate scenarios. In the first scenario, verdicts of guilty were said to be “unreasonable” because of deficiencies in the evidence: at [121]. On the other hand, cases such as Mackenzie and Markuleski concerned alleged inconsistency between verdicts. In the first class of case, the appeal court must consider “the whole of the evidence”: at [127]. But where the alleged unreasonableness was inconsistency between verdicts, the appeal court was to consider not just “the whole of the evidence” supporting the conviction (the evidence may well be adequate to support the conviction), but also “the significance of the acquittals and what can be read into those verdicts”: at [127]. In particular, the appeal court must consider whether the only explanation for the acquittal was doubt about the complainant’s credibility: at [138]. Her Honour said (at [133]):

Doubt about credibility of a witness is not the only available explanation for acquittal on one or more counts on an indictment, even in circumstances where the prosecution depends entirely or very substantially upon the evidence of that witness - invariably, in a trial involving sexual offences, the complainant. One alternative explanation is the possibility of the jury delivering a merciful, or compassionate, verdict, where, for example, it is perceived to have taken the view that an episode of criminality justifies one, or a smaller number, of charges and convictions, in place of a multiplicity that has been charged.

93. McClellan CJ at CL observed (at [7]):

It is important to remember when considering the problem of inconsistent verdicts that a jury does not have to be satisfied beyond reasonable doubt that all of a complainant's evidence is an accurate or even truthful account of all of the facts relevant to all of the counts. It may be, and in fact may often be the case, that a complainant's recollection of a sequence of events over time will contain inaccuracies, internal contradictions or other imperfections which leave a jury unsure about the Crown case on particular counts. As Wood CJ at CL pointed out in Markuleski, a complainant, concerned that she may not be believed, may exaggerate or embellish her account of particular events.

94. In relation to the allegations of sexual intercourse without consent where the jury had acquitted the appellant, Simpson J said (at [164]):

In the context of allegations of rape within a marriage, a jury may well search for subtle distinctions in the evidence relating to the issue of the appellant's knowledge of, or recklessness as to, the lack of consent.

95. In TK, in relation to the acquittals on charges of intimidation with intent to cause the complainant to fear physical harm, Simpson J considered that there was an obvious explanation: that, in the context of the pre-existing relationship, the jury may have had difficulty in conclusively determining that the appellant had the relevant intent (rather than the acquittals reflecting adversely on the complainant’s credibility).

Consideration of Grounds 1 and 2: inconsistent/unreasonable, unsafe, and unsatisfactory verdicts

96. As to the differential verdicts in the present case and whether the acquittals must have reflected an adverse view of the complainant’s credibility that rendered the convictions “unreasonable”, we make the following general observations.

(a) As the trial judge gave a “Markuleski direction”, we assume that the jury took into account any reasonable doubt that it harboured about the complainant’s credibility in relation to the charges upon which it acquitted when it considered her evidence concerning the charges upon which they convicted. It is obvious from the verdicts that the jury complied with the associated direction to give separate consideration to each charge.

(b) When police officers attended, they found that the complainant was upset, shaken and “paranoid”. On the complainant’s account of events, the incident was multifaceted and continued for a significant period. At the time, she would have been extremely frightened. She may have lost consciousness for a period (she told attending ambulance officers that she was unsure whether she had suffered a loss of consciousness). Consequently, she may have misremembered matters or failed to appreciate details, including details that later became significant.

(c) Other evidence clearly showed that the complainant was wrong in two respects. First, she was wrong to infer that the laundry door had been damaged on the night in question (Count 8). Second, she was wrong when she said that the last event was the event in her bedroom.

(d) On her own account, the complainant did not directly witness the events the subject of Counts 6, 7, or 8.

Count 6

97. Several factors may explain the acquittal on Count 6.

98. First, as the appellant conceded, the acquittal on Count 6 may be explained by the fact that there was no evidence that the complainant saw the appellant slash the car tyres. She must have inferred that he had done so. The complainant had not actually seen the appellant damaging the laundry door (Count 8) and she wrongly inferred that he had caused that damage.

99. Second, the jury may have found merit in defence counsel’s submission concerning the lack of forensic evidence linking the knife blade to the appellant (the “CSI effect”— the expectation that there will be forensic evidence and an associated inclination to consider that the absence of such evidence may be evidence that the incident did not occur).

100. Third, there was an apparent inconsistency in the complainant’s evidence; she said that, at the time that she sent the text message to her friend, she had not left her bed (and, inferentially, could not have known that the tyres had been slashed), but the text message referred to the tyres having been slashed.

101. In relation to whether the complainant had had an opportunity to observe the slashed tyres, the jury may have put the inconsistency down to a mistake by the complainant about whether she had or had not left her bed prior to sending the text message. On the complainant’s account, by the time that the text message was sent, she had survived a gruelling series of events, of which the slashing of the tyres would have been the least of her concerns.

102. When separately considering the charges, the jury may have decided that its doubt about Count 6 did not undermine the complainant’s credibility on other counts. Nevertheless, its doubt about Count 6 (and the complainant’s error in relation to Count 8) may have impressed upon the jury that it was necessary to be particularly careful when considering the other charges.

Count 4

103. There are three factors that, individually or cumulatively, provide a rational explanation for the jury’s acquittal on Count 4.

104. First, the complainant said that the appellant had followed her from the laundry to the bedroom, where he had indecently assaulted her and then left the premises. However, the sequencing of the photographs (Exhibit M was photographed in the bedroom before Exhibit J was photographed in the laundry) contradicted the complainant’s sequence of events surrounding any indecent assault in the bedroom.

105. Second, the complainant said that, initially, she had not felt comfortable speaking about the assault. In February 2019, the complainant spoke to Senior Constable Knight, alluding to a sexual matter. However, the complaint of indecent assault was first made to police on 30 August 2019, many months after the complainant’s first recorded interview. Commonly, appeal courts accept that the absence of one allegation from the original complaint may adequately explain differential verdicts: Markuleski at [83].

106. Third, to establish indecent assault, the Crown had to establish that the appellant knew that the complainant did not consent or was reckless about consent. In the context of the relationship between the complainant and the appellant, the jury may have had a doubt about that element.

Count 5

107. Some appeal courts have reconciled “inconsistent” verdicts by reference to a variation in the clarity (or “quality”) of a complainant’s evidence about different events. In BI v The Queen (No 2) [2018] ACTCA 11, in relation to an incident where the appellant had been convicted of a less serious offence and acquitted of the more serious allegation involving penetration, the Court said (at [40]): The evidence was somewhat stronger and clearer for the lesser offence, and weaker, if not lacking in clarity, for the more serious offence. The different verdicts are capable of rational explanation and, accordingly, cannot properly be regarded as factually inconsistent. (citation omitted)

108. From the outset, the complainant consistently complained that she had been choked in the clothes room, but she gave different accounts concerning the number of times that she had been choked. In the text message, she said that she had been choked “several times”. She told Constable Smyth that, in the clothes room, the appellant had “choked her and that she thought she was going to black out”. She told the ambulance officers that she had been “choked” and was unsure whether she had lost consciousness. At the hospital, she said that she had been choked “six to seven times over the space of a few hours”. In evidence, she said that it was more than twice and that it was “multiple times”.

109. The “constellation of symptoms” (red marks and swelling to the neck and hoarseness) described by Dr Parekh provided corroboration for the complaint of choking but could not corroborate more than one incident of choking.

110. In opening, the Crown said:

Once inside [the clothes room], the Crown alleges, the accused has choked [the complainant] at least twice, if not more, that is to say, the accused has put his hand around [the complainant’s] throat and applied pressure such that she could not breathe properly. It is this conduct which constitutes the two charges of choking on the indictment. …

111. However, in the summing up, the trial judge instructed the jury that Count 5 was “the second alleged strangling on the bed as I understand it after the alleged act of indecency”.

112. Neither counsel sought correction.

113. The differential verdicts on Counts 3 and 5 can be reconciled on four bases. First, the complainant was uncertain as to the number of times that she had been choked. Second, the corroborative evidence was incapable of supporting more than one incident. Third, at some point during the choking or chokings, on her account, the complainant may have lost consciousness; any loss of consciousness may have affected her capacity to appreciate or recall the number of choking incidents. Finally, the jury may have been confused by the trial judge’s instruction that Count 5 related to an alleged strangling on the bed when, on the Crown case, it related to a second strangling in the clothes room.

Count 7

114. At first blush, it is difficult to reconcile the verdicts on Counts 1 and 7.

115. The complainant said that she had heard the appellant knocking and then smashing (or “breaking in”) through a screen door and a locked wooden front door. In evidence given in Court, she said that she had heard noises “as if someone was breaking in” and that “it sounded like … doors were being damaged”. Photographs taken by the police (Exhibit A at trial) showed damage to the front door and door frame.

116. However, the indictment charged the appellant in the alternative with having “entered or remained” within the premises. In opening, the prosecutor did not expressly identify “entry” as the burglary in question, although he did say that “the accused has applied significant force to the door effectively breaking his way into the premises”. Consistent with the wording in the indictment, the trial judge directed the jury that, for Count 1, it had to be satisfied beyond reasonable doubt:

Firstly, that the accused entered or remained in the building … Secondly, that at the time he did so he did not have the permission of [the complainant] for him to enter or remain in the building. Thirdly, that he either knew that he did not have the permission of [the complainant] or he was aware that he may not have her permission to enter or remain in the building but determined to enter or remain nevertheless. Finally, that at the time he entered or remained in the building he intended to commit an offence that involved causing harm or threatening to cause harm to anyone in the building. … I would suggest to you that if you were satisfied beyond reasonable doubt that the accused entered the building as a trespasser, then that is the most significant issue. In other words, if you are satisfied that the evidence of the complainant was reliable on the essential facts relating to that charge, that would take you a long way to determining that the charges had been made out …

117. The jury may have doubted that the appellant had damaged the front doors because the complainant had not seen him do it; that, as was the case with the laundry door, the complainant had mistakenly inferred that the appellant was responsible for the damage to the front doors. If so, the verdict of guilty on Count 1 may have been reached on the basis that the appellant had remained on the premises without the complainant’s consent, at least during the period that he unlawfully confined and choked her.

118. Alternatively, the jury may have been satisfied beyond reasonable doubt that the appellant had committed burglary by breaking in through the front doors, but considered that a verdict of guilty on Count 7 was excessive as it involved a sort of “double punishment”, i.e. the jury may have returned a “merciful verdict” on Count 7. Given the objective evidence of wooden splinters on the ground near the front door, this may be the more likely scenario.

Count 9

119. In her text message to X, the complainant said that the appellant had taken her hard drive. In evidence, she said that the appellant had removed her CCTV hard drive when she had told him that his presence had been recorded and had taken it with him when he left her house. When police attended, they saw wires connected to a monitor, consistent with the complainant’s version of events.

120. There are several possible explanations for the acquittal.

121. First, the conduct the subject of Count 9 allegedly occurred in the bedroom following the indecent assault in the bedroom. As the jury was not satisfied beyond reasonable doubt in relation to the indecent assault, that doubt may have carried through to the related charge.

122. Second, in submissions, defence counsel observed that the police had failed to obtain a search warrant to look for the CCTV hard drive in the appellant’s residence or car. The jury may have been persuaded by the suggestion that the evidence in relation to taking the hard drive was deficient because of this alleged shortcoming on the part of the police.

123. Third, the jury may not have been satisfied beyond reasonable doubt that, at the time that the property was taken, the appellant intended to permanently deprive the complainant of the property.

124. Finally, the jury may have returned a “merciful verdict” on what it considered to be a relatively minor matter that was incidental to the main offences that had occurred in the context of a volatile domestic break up.

Conclusion

125. Essentially, the Crown case was that the appellant had broken into the complainant’s house, remained there without her consent for a significant period, and choked her. Consequently, the gravamen of the case was met by verdicts of guilty on Counts 1, 2, and 3.

126. The jury was told to consider each count separately and was given a “Markuleski direction”. We assume that the jury applied the direction.

127. The differential verdicts are not irreconcilable. Adopting the expressions used in MacKenzie, we are not persuaded that the verdicts are “an affront to logic and common sense” or “so repugnant and irreconcilable” as to require intervention.

128. We have considered the whole of the evidence and are satisfied that the guilty verdicts are not unreasonable.

Grounds 3 and 4: “Bad character evidence”

129. At the commencement of the complainant’s examination-in-chief on 11 September 2019, she was asked about the length of her relationship with the appellant and was then asked to “describe [her] relationship with him”. Defence counsel did not object to this question.

130. The evidence proceeded as follows:

How would you describe your relationship with him?---Toxic, violent, abusive. Were you in a relationship with him at that point in time?---We were fighting and arguing a lot and going back and forth. As at 7 January or on 7 January of this year?---M'mm. Were you arguing with the accused about anything in particular?---Yes, multiple things. What were they?---Him being on Ice, being around people in that scene. His behaviour, what he was doing.

131. Defence counsel did not object to the complainant’s answers.

132. The complainant was then asked about her residential circumstances, before being taken to the argumentative text messages that were exchanged on 7 January 2019.

133. The appellant submitted that the references to the relationship being “toxic, violent, abusive” and to the appellant “being on ice” may have “tipped the balance”, explaining why the jury convicted the appellant on Counts 1 to 3 but acquitted him on the remaining counts; the jury may have used it to show that the appellant had a tendency to be “violent and abusive” towards the complainant and that his behaviour was influenced by methylamphetamine, making it more likely that he committed the alleged offences.

134. The appellant submitted that the evidence was not admissible as relationship evidence; the circumstances of the alleged offences did not require an explanation of the relationship to neutralise the improbability of such conduct occurring “out of the blue”.

135. The appellant said that the evidence should have been rejected under s 137 of the Evidence Act 2011 (ACT) (Evidence Act), which provides:

137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

136. In asking the complainant about the relationship, the prosecutor was trying to elucidate the status of the relationship as at 7 January 2019 by way of introducing the argumentative text messages that were exchanged on 7 January 2019 and contextualising the events of that night. The questions were relatively innocuous. Insofar as the complainant’s answers referred to “violence” and drugs, from the prosecutor’s perspective, they were probably unexpected.

137. When the answers were given, defence counsel could have objected and sought to exclude the material under s 137 of the Evidence Act. She did not do so, possibly because she considered that such an objection would have served only to highlight the difficulty. Further, the text message exchange was vituperative on the part of both the complainant and the appellant and, in that sense, was relatively neutral. Between the giving of the evidence and the conclusion of the trial, defence counsel had ample opportunity to reflect on whether to belatedly object to the evidence or seek a direction prior to or during the summing up, yet no belated objection was made and no direction was sought.

138. In relation to drugs, the trial judge gave the following directions:

You must approach your task as jurors dispassionately but also fearlessly. You must not let emotion or sympathy sway your verdicts. During the course of this trial, you have heard evidence that both the accused and the complainant used illicit drugs. Because of the nature of the relationship between the complainant and the accused as set out in the evidence of the complainant, it was inevitable that you would hear this evidence. That evidence is only before you as background evidence concerning that relationship. You can't use it for any other purpose. You must not, for example, reason that if the accused is a person who uses illicit drugs, he's a person of bad character and therefore likely to have committed the offences with which he is charged. Neither the accused nor [the complainant] are on trial with regard to any offences relating to possession or use of drugs.

139. The appellant submitted that the direction “was more likely in respect of the reference to cannabis smoking” rather than the complainant’s evidence concerning the appellant’s use of “ice”.

140. Whatever the intention, the direction dealt generally with prejudice that might arise concerning persons who use illicit drugs.

141. Counsel was best placed to object to the evidence or seek a direction but must have decided that neither of those things was necessary for her client to receive a fair trial. We agree with that apparent assessment of the situation. The jury was not overborne by the evidence; it returned differential verdicts.

142. Leave should be refused. Sentencing proceedings

143. During the sentencing proceedings, the Crown sought to characterise the burglary in written and oral submissions as “a home invasion occurring in a domestic violence context”.

144. In written submissions in the sentencing proceedings, the Crown stated that the choking had “involved a deliberate and sustained course of conduct that lasted for some time” and that the confinement had “lasted a number of hours”, had been associated with “a brutal and violent home invasion”, and had “involved the infliction of extreme violence in the way of choking and strangulation”.

145. In written submissions, the appellant’s counsel stated in relation to the burglary “there was a level of force used to gain entry” and that “there were multiple instances” of choking.

146. In sentencing the appellant, the trial judge made the following findings (R v Laipato [2019] ACTSC 386 (Laipato)):

(a) The complainant had been “adamant that [the] relationship [with the appellant] was over”, causing the appellant to become angry: at [4].

(b) After midnight, the appellant attended the complainant’s residence, and “entered … with intent to commit an offence involving causing harm or threatening to cause harm” to the complainant; it was a “particularly serious form of burglary” which, in this case, placed the offence “in the midrange of such offences”: at [9].

(c) The appellant “dragged [the complainant] from her bed into the neighbouring room”, where he choked the complainant by placing his hands around her throat “on multiple occasions” and “covered her nose and mouth so that she could not breathe”: at [5].

(d) Count 2 involved a confinement of at least one and a half hours. The offence was “impulsive”. The purpose was to “visit … anger” on the complainant for ending the relationship and “to exercise control over her”. During the confinement, the appellant “inflicted extreme violence” on the complainant. Consequently, the confinement was “towards the upper end of the midrange of such offences”: at [10].

(e) The offence of unlawful choking was “not transient” and “involved a deliberate and sustained course of conduct that lasted for some time”. The offence was “accompanied by a threat to the effect of ‘I could fucking kill you’, which was calculated to increase the [complainant’s] fear”. The offence was “in the midrange of such offences”: at [11].

(f) The appellant had a “very lengthy criminal history”, including convictions for burglary, assault occasioning actual bodily harm, aggravated burglary, recklessly inflicting grievous bodily harm, assault, and drug and traffic offences, and had served multiple terms of imprisonment. Previously, he had been convicted of offences against the complainant: at [8].

(g) The appellant had employment qualifications and work was available to him upon his release from prison: at [15]–[16]. (h) In the past, the appellant had suffered from a major depressive disorder: at [18].

(i) In 2017, while in custody, the appellant had suffered a serious assault for which he had been hospitalised and had received “more than 200 stitches”: at [19].

(j) The appellant’s prospects of rehabilitation were “guarded at best”: at [21]. He was 31 years old. He had shown no remorse. His Honour was concerned about the appellant’s capacity and commitment to avoid criminal offending and achieve a “stable, co-parenting relationship with the [complainant]”. The appellant had taken “no steps” to address substance abuse or domestic violence behaviours: at [22].

(k) The sentencing purposes of punishment, general deterrence, personal deterrence, and denunciation were important: at [23]–[24].

(l) The offences had occurred as part of “one incident involving one [complainant]” and, in relation to some offences, some factors were common: at [24]–[25].

Ground 6: erroneous factual findings and related findings of objective seriousness

147. It is well established that a judge is not required to sentence on the view of the facts that is most favourable to an offender, but can only proceed on the basis of an aggravating circumstance if it is both consistent with the jury’s verdicts and established beyond reasonable doubt: Cheung v The Queen [2001] HCA 67; 209 CLR 1 at [5]–[10], [55] per Gleeson CJ, Gummow and Hayne JJ, Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [70] per French CJ, Bell, Keane and Nettle JJ.

Count 1

148. As to Count 1 (burglary), the appellant submitted that the trial judge had erred in two related respects. First, his Honour had proceeded on the basis that the offence was akin to a “home invasion”. Second, his Honour had proceeded on the basis that the appellant had entered without consent, rather than on the basis that he had remained without consent, in circumstances where the jury’s verdict on Count 7 (not guilty of damaging the front doors) was consistent with a finding that the appellant may have entered the premises without using force but then refused to leave. The appellant submitted that the burglary was significantly less serious than the “midrange” burglary to which his Honour referred.

149. There is no substance to the assertion that the trial judge proceeded on the erroneous basis that the offence was akin to a “home invasion”; despite being encouraged by the Crown to do so, his Honour expressly disavowed such an approach. On the other hand, his Honour agreed that, of the purposes for which a burglary could be committed—with intent to commit an offence involving violence or the threat of violence to an occupant, with intent to steal, and with intent to damage property—in general, the first category was a more serious form of burglary.

150. However, the trial judge did proceed on the erroneous basis that the burglary involved entering without consent rather than remaining without consent. As stated above at [117], it is possible that the verdict of guilty on Count 1 was reached on the basis that the appellant had remained on the premises without the complainant’s consent, at least during the period that he unlawfully confined and choked her.

151. Consequently, in relation to Count 1, the trial judge sentenced the appellant based on a factual error.

152. We do not consider that the factual error reduced the objective seriousness of the offence to something less than “midrange”; to remain upon premises without consent for a substantial period with intent to harm the occupant and in circumstances where the occupant is harmed is an offence of very considerable objective seriousness. However, when Count 1 is viewed in this context, there is a high degree of mutuality between Count 1 and Count 2, which should be reflected in the structuring of the sentences.

Count 2

153. In relation to Count 2 (unlawful confinement), the appellant submitted that the offence should not have been characterised as one involving “extreme violence” or within the upper end of the mid-range for such offences. Further, the appellant complained about the trial judge’s finding that the offence had continued for at least one and a half hours.

154. We accept that the offence must have continued for a maximum of one and a half hours rather than a minimum of one and half hours. The last text exchange between the complainant and the appellant demonstrated that he entered sometime after 12:54 AM. He photographed the complainant on her bed at 2:28 AM, and the complainant said that the bedroom incident followed the unlawful confinement in the laundry. Consequently, any confinement was at most one and half hours. However, we do not consider that this factual error was such as to materially affect the assessment of the objective seriousness of the offence.

155. The offence was committed in the complainant’s home, during the night. It was motivated by a desire to vent anger and assert physical control over the complainant in response to her termination of the relationship. The offence was of not insignificant duration. It was associated with violence and a threat to kill; whether the violence was properly described as “extreme violence” poses a semantic question that is unnecessary to answer.

156. It was open to the trial judge to characterise the offence as “towards the upper end of the midrange for such offences”. However, when any offence is placed on a spectrum of seriousness that extends from low range through mid-range to high range, the placement invites a simplistic approach to sentencing that is generally unhelpful: see FL v The Queen [2020] NSWCCA 114. Consequently, we prefer to characterise Count 2 as an offence of very significant objective seriousness and to articulate the factors that give it that character.

157. In relation to Count 2, the appellant has not established a factual error of substance.

Count 3

158. In relation to Count 3, the appellant submitted that, consistent with the acquittal in Count 5 (a second choking incident), the trial judge was precluded from finding beyond reasonable doubt that the appellant had choked the complainant “on multiple occasions”, amounting to a “sustained course of conduct”. The appellant submitted that he should have been sentenced on the basis that he had choked the complainant once and, at the same time, he had covered her mouth with his hand. Further, the appellant submitted that the jury’s verdict “did not of itself include” his Honour’s finding that the choking was associated with a threat to kill.

159. We accept the appellant’s submission that, having regard to the acquittal on Count 5, the appellant should have been sentenced on the basis that there was one act of choking and an associated covering of the mouth, rather than a “sustained course of conduct”. However, we consider that his Honour was entitled to accept the complainant’s evidence that the choking was associated with a threat to kill.

160. In relation to Count 3, the appellant has established that there was a factual error of substance.

161. It is clear from his Honour’s reasons that the erroneous findings informed his Honour’s conclusion regarding the objective seriousness of Counts 1 and 3. Unfortunately, his Honour was led into error by counsels’ written and oral submissions during the sentencing proceedings, particularly the submissions made by the Crown.

162. Where a sentence is affected by specific error, it is the duty of the appeal court to resentence unless, in the separate and independent exercise of its discretion, it concludes that no different sentence should be passed: AB v The Queen [1999] HCA 46; 198 CLR 111 at [130], Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [35].

163. The interrelationship of the sentences imposed on Counts 1, 2, and 3 means that we must resentence on all counts.

Ground 7: manifest excess

164. The appellant contended that the aggregate sentence, the individual sentences and the degree of accumulation were manifestly excessive. In addition, the appellant submitted that the sentences in respect of Counts 1 and 2 were unreasonable and plainly unjust. The appellant submitted that the sentences on Counts 1 and 2 were manifestly excessive when compared to sentences imposed in comparable cases. Further, there should have been significant concurrence between the sentences imposed on Counts 1 and 2. Taken together, or separately, the manifestly excessive sentences imposed on Counts 1 and 2 and the unjustified accumulation between sentences resulted in an aggregate sentence that was manifestly excessive in the circumstances.

165. The relevant principles in determining whether a sentence is manifestly excessive was summarised by this Court in Dalton v The Queen [2015] ACTCA 48 at [18]. In Wyper v The Queen; The Queen v Wyper [2017] ACTCA 59 at [112]–[113], the Court considered the use of comparable cases in sentencing appeals.

166. Having regard to our conclusions on Ground 6, it is unnecessary to address this ground.

Resentence

167. Burglary is an offence against s 311 of the Criminal Code 2002 (ACT) (Criminal Code). It carries a maximum penalty of 14 years’ imprisonment, a $224,000 fine, or both. In this case, the offence was of very considerable objective seriousness. It involved remaining at the complainant’s home for a not insignificant period in the middle of the night without the complainant’s consent and in circumstances where the appellant not only intended to threaten or cause harm to her but, in fact, proceeded to do so.

168. Unlawful confinement is an offence against s 34 of the Crimes Act 1900 (ACT) (Crimes Act). It carries a maximum penalty of 10 years’ imprisonment. For the reasons stated above, the offence of unlawful confinement that was committed in this case was of very significant objective seriousness.

169. Unlawful choking is an offence against s 28(2)(a) of the Crimes Act, punishable by five years’ imprisonment. In this case, the appellant choked the complainant once and, at the same time, covered her mouth with his hand. The choking was associated with a threat to kill, which was calculated to increase the complainant’s fear. The offence was motivated by anger and a desire to control the complainant. It occurred in the middle of the night when she was in her own home and, in that sense, she was isolated. Although the offence involved only one act of choking, it was a serious offence.

170. The appellant is now 32 years old. Since 2007, he has appeared before the Magistrates Court on many occasions, primarily in relation to driving offences but also in relation to offences of violence. In 2010, he was sentenced to three years’ imprisonment for recklessly inflicting grievous bodily harm. In 2015, he was sentenced for three offences of common assault, two of which occurred on the same day. In 2016, he committed an offence of assault occasioning actual bodily harm for which he was sentenced to 18 months’ imprisonment. Because he had been sentenced for other offences, an 18-month nonparole period was set, from 5 November 2016 to 4 May 2018. He received concurrent sentences for two 2016 offences of obstructing a public official. The subject offences were the third occasion when the appellant offended against the complainant, and the two earlier offences of common assault (committed in June 2015) were somewhat similar to the present offence.

171. On 21 November 2017 at the Alexander Maconochie Centre (AMC), the appellant was assaulted by Mr Yuen and received serious lacerations, requiring more than 200 sutures. The perpetrator received a sentence of three years’ imprisonment.

172. The appellant has one child (with the complainant), to whom he is very attached. He has a positive relationship with his parents. In the past, he has had periods of employment.

173. The appellant has a history of substance abuse.

174. The authors of a pre-sentence report from December 2019 assessed the appellant as having a medium/high risk of reoffending and requiring domestic violence intervention, alcohol and drug treatment, counselling, and mental health assessment.

175. The appellant was permitted to adduce further evidence to the following effect:

(a) On 13 January 2020, the appellant was assaulted at the AMC and later admitted to Canberra Hospital with multiple serious lacerations to the left ankle, upper chest, neck, face, and head after allegedly being assaulted by a fellow inmate with a television and metal poles. The injuries were cleaned and sutured.

(b) On 26 January 2020, the appellant was moved against his wishes to the “management area” of the AMC, where he was partially segregated from the general inmates. He remained there until 12 March 2020.

(c) On 12 March 2020, the appellant was moved from the AMC to the Silverwater Correctional Complex in NSW after “[ACT Corrective Services] determined that it was in the best interest of Mr Laipato’s safety and the ongoing good order and security of the AMC to transfer Mr Lapaito into the custody of [Corrective Services NSW]”.

(d) Apart from one visit from his parents, he has received no visits from family or others due to COVID-19 restrictions. He has had limited contact by video-link.

(e) At the Silverwater Correctional Complex, the appellant has received no psychological counselling, has had limited opportunities to exercise or socialise with other inmates, and has had no access to programs.

(f) The appellant’s parents had shared care of the appellant’s five-year-old son with the complainant. However, the complainant and her son have moved interstate and reside at an unknown location. The appellant’s parents have limited contact with the child via Facetime.

(g) Currently, the appellant has no communication with his son.

176. We accept the trial judge’s assessment of the appellant’s prospects of rehabilitation as “guarded at best”. His Honour was rightly concerned about the appellant’s capacity and commitment to avoid criminal offending and achieve a stable, co-parenting relationship with the complainant: Laipato at [21]. His Honour observed that the appellant had taken no steps to address substance abuse or domestic violence behaviours.

177. In resentencing the appellant, we take into account the incident of 13 January 2020 and its impact on the appellant’s incarceration; the assault constituted an extra-curial punishment. We also take into account that the appellant’s custodial experience has been, and will be, more onerous because he has been moved interstate and also because of visitor restrictions due to COVID-19: Kao v The Queen [2020] NSWCCA 38 per Button J at [45].

178. The comparable decisions involving sentences for burglary to which we were referred included the following decisions.

179. In R v Palmer [2020] ACTSC 13, the offender entered his ex-partner’s house while she was asleep in the early hours of the morning and remained there after being told to leave. After a short verbal altercation, the offender assaulted the complainant (causing bruising to her leg) and choked her (rendering her unconscious). The offender pleaded guilty to one count of burglary, one count of assault occasioning actual bodily harm, and one count of choking a person. The starting point for the sentence for burglary was 12 months’ imprisonment. The total sentence was 30 months’ imprisonment, with a nonparole period of 18 months.

180. In R v Peadon [2015] ACTSC 132, the offender pleaded guilty to two offences of burglary, one offence of recklessly inflicting grievous bodily harm, and two offences of common assault. Over two days, the offender entered his former partner’s home and assaulted her and her boyfriend. At the time, children were present in the house. The offender’s alcohol abuse was a “significant factor” in the offending: at [7]. For the first burglary offence, the starting point for the sentence was 16 months’ imprisonment. For the second burglary offence, the starting point for the sentence was 20 months’ imprisonment.

181. In R v Seears [2015] ACTSC 109, the offender committed an aggravated burglary in the context of family violence. He was armed with a kitchen knife and metallic spirit level. At the time of the offence, he was on conditional liberty. There were a number of assault matters on his criminal history. He was 62 years old. Taking into account additional offences, the starting point for the sentence was three years and six months’ imprisonment.

182. In R v Lockwood [2018] ACTSC 288, the offender and three other men entered the complainant’s house armed with weapons, including a knife and golf club. A jury found the offender guilty of one count of aggravated burglary. The offender was a 50-year-old man with a significant criminal history and “guarded” prospects of rehabilitation: at [56]. He was sentenced to two years and nine months’ imprisonment.

183. The ACT Sentencing Database shows that, for this offence, 72 per cent of offenders receive a sentence of full-time imprisonment, commonly in the range of 12 months to two and a half years’ imprisonment. However, a very high proportion of offenders enter a plea of guilty, frequently entering the plea in the Magistrates Court; the associated discount would be reflected in the sentencing range.

184. The comparable decisions involving sentences for unlawful confinement to which we were referred, or to which reference was made in the sentencing submissions before the trial judge, included the following decisions.

185. In R v Singh [2017] ACTCA 17, the offender and another person blackmailed the complainant and took her to a location where she was unlawfully confined for one and a half hours and subjected to serious sexual assaults. The offender and co-offender were found guilty at trial. The appellant was 20 years old and had no prior criminal history. For the offence of unlawful confinement, the Court of Appeal reduced the sentence from six years’ imprisonment to three years’ imprisonment.

186. In R v Williams [2018] ACTSC 354, the offender was sentenced, inter alia, for one offence of unlawful confinement to 15 months’ imprisonment (after a 25 per cent discount for his guilty pleas). He had attended his domestic partner’s premises and, following an argument, assaulted her and locked her in her bedroom for about 20 minutes, threatening to kill her. She was pregnant at the time. The offender had a short criminal history, including two entries for offences of personal violence.

187. In R v Klickovic [2018] ACTSC 141, Mossop J sentenced an offender for an offence of unlawful confinement in a family violence context. The offence involved two periods of unlawful confinement, the first lasting about three and a half hours and the second about 15 hours. The offender had a limited criminal history. Following a plea of guilty, the offender was sentenced to 18 months’ imprisonment (reduced from 20 months’ imprisonment), suspended after 20 days upon entering into a good behaviour order for three years.

188. In R v Eimerl [2015] ACTSC 72, the offender confined his mother in her house for about two hours and behaved aggressively towards her, causing her to fear for her safety. The offender had a long criminal history, including convictions for offences of violence. At the time of the offence, he was on parole. The starting point for the sentence was two years and nine months’ imprisonment.

189. In R v East [2015] ACTSC 54, the offender confined the complainant in her home for five hours. During the confinement, he grabbed her by the throat, preventing her from breathing. He was on conditional liberty at the time of the offending and had a significant criminal history, including convictions for offences of violence. The starting point for the sentence was 20 months’ imprisonment.

190. In R v Rogers [2014] ACTSC 124, the offender tied the complainant to a bed and assaulted her for at least five hours. The offender had a significant criminal history, including multiple domestic violence offences. The starting point for the sentence was 30 months’ imprisonment, reduced to 25 months’ imprisonment.

191. The ACT Sentencing Database shows that, for this offence, 65 per cent of offenders receive sentences of full-time imprisonment, commonly in the range of 18 months to four years.

192. In relation to the offence of choking, in the written submissions relied upon at the sentencing hearing, the Crown referred to the following decisions.

193. In R v Cowling [2019] ACTSC 138, the offender grabbed the victim and choked her on about three occasions and threatened to kill her and her sister. The starting point for the sentence was three years’ imprisonment.

194. In R v Dillon [2018] ACTSC 164, there were two counts of choking the offender’s young children. For each child, the offender wrapped his hands around the child’s throat, squeezing with such force that the child was rendered unconscious. For each of the two offences, the offender received sentences of two years and 11 months’ imprisonment (reduced by approximately 15 per cent for pleas of guilty).

195. Relevant sentencing purposes include general deterrence, personal deterrence, accountability, denunciation, and the recognition of harm to the victim. Given the appellant’s criminal history for offences of violence and the repetition of violence against the complainant, personal deterrence is an important sentencing purpose. As the appellant is not a young offender and his prospects of rehabilitation are “guarded at best”, rehabilitation is not a prominent sentencing purpose.

196. Accumulation is a discretionary matter. Here, offending conduct is closely related; it may be appropriate to allow an appreciable amount of concurrency. However, complete concurrency will rarely be appropriate because of the need to “acknowledge and have regard to the separate harm done by the different criminal acts of the offender”, and the fact that multiple offences denote “multiple episodes of criminality”: R v Tonari [2014] NSWCCA 232 at [74].

Sentences

197. We impose the following sentences.

(a) Count 1: two years and six months’ imprisonment from 8 January 2019 to 7 July 2021.

(b) Count 2: two years’ imprisonment from 8 January 2020 to 7 January 2022.

(c) Count 3: one year and three months’ imprisonment from 8 April 2021 to 7 July 2022.

198. The total sentence is three years and six months’ imprisonment (42 months’ imprisonment).

199. We fix a nonparole period of 27 months, from 8 January 2019 to 7 April 2021.

I certify that the preceding one hundred and ninety-nine [199] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Acting Justice Robinson and Acting Justice Berman.

Associate:

Date: 7 July 2020