Paite v Tasmania [2019] TASCCA 5

"In this case you might think, you would be entitled to think, that a third alternative might be open on the evidence. It's entirely a matter for you. If for example you were satisfied, particularly having regard to the scientific evidence, Mr Paite's semen being in [the complainant's] high vagina, that there was intercourse, but you're not satisfied that [the complainant] has given you reliable account of what occurred leading up to the occurrence of sexual intercourse.

If you're not in a position where you can exclude Mr Paite's version of those events beyond reasonable doubt then you might be left in a situation where you're satisfied that there was sexual intercourse on the basis particularly of the scientific evidence, but not satisfied about what led up to it or the circumstances in which it occurred.

Now, if that's where you are left in this case then consent is an issue. If you are satisfied there was sexual intercourse you still have to consider the question of consent, and if you're not satisfied beyond reasonable doubt that you have been given an accurate version by [the complainant] then you would have to consider that issue, and it's only where you're satisfied beyond reasonable doubt that (a) there was sexual intercourse and (b) that it occurred without [the complainant's] consent in the way that I have explained it to you, that you can return a verdict of guilty. If you're left in doubt about that matter, the appropriate verdict is a verdict of not guilty."

Inconsistencies and improbabilities in the complainant's evidence

1. Against that background, and in light of the direction of the trial judge to consider the circumstances leading up to the act of intercourse when considering the question of consent, should the jury have entertained a reasonable doubt that intercourse was without the complainant's consent? It is a case which, in our view, depended heavily on the jury's assessment of the credibility of the complainant and the appellant. The conclusion we have reached about the fact of sexual intercourse affects the proposition now advanced by the appellant about the issue of consent and the way in which the evidence relevant to that issue is to be considered. It may at once be observed that acceptance of the complainant's evidence of intercourse is relevant to the assessment of the credibility and reliability of her evidence in other respects. Conversely, it follows from the proper rejection of the appellant's evidence that intercourse did not occur, that his denial was a lie. A lie about a matter of such fundamental importance in the trial was very damaging to the appellant's credibility and entitled the jury to be generally sceptical of his evidence. In that context, it is to be noted that evidence of the complainant's sexual advances came only from the appellant.
2. Even so, the appellant now contends that, by reason of the inconsistency, improbability and implausibility of aspects of the complainant's evidence, it was not open to the jury to be satisfied beyond reasonable doubt that intercourse was without her consent. Because of the manner in which the trial was conducted, it was not a contention advanced by the appellant at trial. The submission now made is directed principally to:
   • evidence of the complainant's intoxication;
   • the conflict between the evidence of the complainant on the one hand and her friend, E, and the appellant on the other about whether the complainant initially sat in the front or rear of the taxi;
   • the complainant's evidence that she could not get out of the taxi because the car door was locked;
   • the appellant's evidence about his belief that there was a camera in the taxi;
   • evidence about the complainant's behaviour when she arrived home which was inconsistent with her complaint of rape.
3. The significance of these factors on the verdict was not clearly expressed by the appellant's counsel at the hearing of the appeal. However they could only be directed to the truthfulness and honesty of the complainant's evidence that she did not consent to intercourse. The proposition that, in her evidence at trial, she could be honestly mistaken that she did not consent to intercourse, is beyond credulity. Soon after the alleged crime the complainant told the police and Dr Dorney, at least, that she had been raped. Subject to some argument about just what was said, it was also open to conclude that she told her boyfriend soon after she arrived home that she had been raped. Either the complaint was false and untruthful or it was not. There was no room for honest mistake. It is not enough for the appellant to demonstrate that the complainant may have been mistaken about some parts of her evidence to the jury. For this ground to succeed the appellant must establish that the jury should have entertained a doubt about the honesty of the complainant's account. In other words, the appellant must establish that the jury should have found it reasonably possible that the complainant consented to intercourse but then lied about it to her boyfriend, to the police, to the doctor who examined her, and to the jury.
4. We will first consider the particular matters raised by the appellant. In doing so, it is important to recall that the individual and cumulative effect is to be taken into account, but also that the evidence must be considered in light of all of the evidence.

1. The substance of the submission about intoxication was directed to its possible effect on the reliability of the complainant's evidence. It could not reasonably or rationally be contended that the effect on the complainant of the consumption of alcohol before the sexual intercourse affected the honesty of her evidence at trial. The evidence of her intoxication is equivocal in any event. The evidence did not necessarily point to her evidence, in the critical respects, as being less reliable. There is no doubt that the complainant was very intoxicated when she entered the taxi. Her friend, E, described her as being "a bit intoxicated at that point in time, unable to quite stand by herself." In cross-examination of E, counsel for the appellant sought to downplay the level of the complainant's intoxication. E agreed that the complainant was "a bit wobbly on her feet", but able to converse with her. When the complainant arrived home she was seen and spoken to by her female housemate, T. T described the complainant as "relatively drunk", and "a little bit all over the place but able to hold a conversation."
2. Conversely, the complainant was not so intoxicated that she was unable to direct the appellant to McDonalds and to ask the appellant to use her card to pay for the purchase and to give him her card for that purpose. She was also able to give the appellant directions to her residence. In his evidence the appellant said that he had had people in his taxi who were really intoxicated and "she wasn't anything close to that", and he had no difficulty in conversing with her.
3. More will be said shortly about what the complainant said and did when she arrived home. However she engaged in a relatively detailed conversation with her boyfriend B. Constable Samuel Tilley was one of the police officers called to the complainant's house after B phoned the police. He spoke to the complainant. He said that she appeared "very intoxicated" and was "having trouble verbalising", but she gave him a coherent account of what she said had happened. Dr Dorney examined her about four hours later. Dr Dorney had no concerns about the level of her sobriety. In cross-examination Dr Dorney gave evidence that he would not have proceeded with the examination if the complainant had not been able to give an appropriate history and competently respond to questions.
4. The evidence of the effect of the alcohol consumed by the complainant was part of the evidence that the jury was entitled to consider. The trial judge correctly directed the jury that it was open to them to accept some of the evidence of a witness, but not accept other parts of that witness's evidence. Evidence of the complainant's intoxication may also have been treated by the jury as an explanation for mistakes or confusion about other aspects of her evidence not critical to the verdict.
5. The appellant did not, at least expressly, submit that the complainant's intoxication, by its disinhibiting effect, may have made her more likely to freely agree to sexual intercourse. What is implicit in the appellant's contentions is the suggestion that, perhaps affected by alcohol, the complainant agreed to sexual intercourse, but then quickly regretted her actions and made, and persisted with, a false complaint of rape. In our respectful opinion, it would be wrong to doubt the credibility of the complainant's account based on a generalised notion that alcohol has such an effect. There was no evidence that alcohol may have affected the complainant in that way and, because of the way in which the trial was conducted, it was not a proposition which was put to her so as to give her an opportunity to respond to it.

1. The next aspect of the complainant's evidence which was subject to criticism concerned the clear conflict between the evidence of the appellant and the complainant's friend, E, on the one hand, and the complainant on the other, as to which seat the complainant occupied when she first entered the taxi outside the bar. E gave evidence that the complainant entered the back seat of the taxi. The appellant gave evidence that the complainant entered the back seat of the taxi but, after the journey started and while the car was moving, she climbed from the back to the front. The complainant strongly denied that she got into the back seat of the cab. The evidence at trial included CCTV footage of the taxi at the drive-through at McDonalds. The CCTV established beyond doubt that, by then, the complainant was in the front seat of the taxi.
2. What is to be made of this? It was open to the jury to regard this conflict as significant and as tending to support the evidence of the appellant, and to undermine the credibility of the complainant. It was also open to the jury to conclude that the evidence of either the complainant, or her friend E, was mistaken, but to attribute little weight to it. The jury might simply have been unable to resolve the issue.

1. The next issue concerned the conflict of evidence between the complainant and the appellant about the locked taxi door. The complainant gave evidence that she tried to open the front door of the taxi but could not because it was locked. The appellant's evidence was that the front passenger door of a Prius could not be locked so that it could not be opened from the inside. It was open to the jury to consider this evidence in a number of ways. It was entitled to reject the evidence of the appellant, as it had properly rejected his evidence about sexual intercourse not having taken place. It was also open to consider that, in view of the complainant's intoxication, she was confused or mistaken about whether the door was locked or not, whether she tried to open it, or whether an attempt to open it might have been flawed in some unidentified way.

1. The appellant gave evidence of his belief that there was a camera in the taxi which recorded what occurred inside the car. The appellant's evidence of the presence of cameras was supported by a representative of the taxi company, Mr Cheetham, who also explained to the jury that taxi cameras are mandatory and cannot not be turned off without disconnecting the car engine battery. In this case, Mr Cheetham was asked by the police to recover the camera recordings from the appellant's cab, but he was not successful. He thought that the most likely explanation was that, because the system had limited storage, the relevant footage had been "overridden" by the time of the police request.
2. The appellant contends that the uncontradicted evidence of his belief of the existence of a visual recording of events in the taxi should have given rise to doubt in the minds of the jury that the appellant committed a crime. He suggests that it is inherently unlikely that he would commit such a grave crime, which he knew would likely be reported, and of which he believed there would be a visual recording. He also points to his evidence that he returned to Tasmania from Sudan immediately upon being informed by his wife by telephone that he was to be charged with rape, believing that the taxi camera footage would establish his innocence.
3. It was open to the jury to consider the evidence about the camera in a number of ways. We accept that the evidence is capable of leading to an inference consistent with the appellant's innocence. The evidence is also to be considered in light of our conclusion that, contrary to the appellant's denial, sexual intercourse took place. Whatever view the appellant took of how the camera footage would establish his innocence, he persisted in his denial of intercourse in the face of strong evidence to the contrary. In our view it was all but inevitable that the jury would be satisfied, as it must have been, that the appellant had intercourse with the complainant. In view of that conclusion, the jury could reasonably have found that the appellant took advantage of the complainant's intoxication and was confident that, in these circumstances, she was unlikely to complain about his conduct. His state of mind was also capable of explaining why the appellant, if he believed that the camera in the taxi was working, might nevertheless be prepared to force himself upon the complainant notwithstanding the presence of the camera. It was open to the jury to find that the risk of discovery was outweighed by his determination to have sexual intercourse.

The complainant's behaviour on arriving home and her complaint

1. The complainant's female housemate, T, gave evidence that she was at home watching movies in her room with her partner when the complainant arrived home. She said that she heard the complainant on the front deck trying to get her keys from the meter box. T went to the front door and opened it. She said that the complainant was sitting on the seat outside the door "laughing and giggling because she'd had a bit to drink." T's evidence was that the complainant told her "a few times" that the taxi driver had given her a lift for free, and the complainant told her "'I love you' like a...drunk best friend does."
2. According to the complainant's boyfriend, B, he was in his bedroom playing video games when he heard the complainant arrive home at about 2.30 am. He heard her voice outside and went out to "help her up the stairs." He could not remember seeing his house mate, T, and said he could mainly remember going straight outside. He said that as the complainant came into the house she pushed past him and went into the bathroom where she stayed for ten minutes. After the complainant came out of the bathroom he walked her into the bedroom. She talked to him about the evening and the taxi ride home. He said her story started to "trail off", but when he pressed her she told him that she did not have to pay for the taxi. The following question and answer exchange occurred between counsel for the appellant and B:

"Now you said she started trailing off when she was talking to you about the taxi ride home and that she didn't have to pay, what - do you ask any more questions then?.....Yes, at this point I'm a bit curious so I'm asking, 'Well why didn't you have to pay a forty dollar - or a thirty dollar cab fare if that's what you usually would do', so she starts explaining that the taxi driver started to say some explicit things and started to caress her inner thigh.

Her inner thigh?.....Yes, he started to put his hands upon her legs and say things like how she was beautiful and then she kind of stopped and she just clammed up and didn't want to say anymore and just went real quiet.

And when she's describing that to you did she demonstrate to you the area that the taxi driver had put his hand?.....Yes, on her inner thigh on her right leg up near towards her vaginal area.

All right, thank you. While she's telling you these things did you make any assessment about how she appeared to you?.....Well at this point I had realised that her lipstick was smudged and that her inner thigh was red and looked - well sore, I guess, and that there was a certain smell that kind of hit me at this point, like the smell of semen."

"Does she tell you anything more or do you ask any more questions after she tells you about touching to the inner thigh?.....Yes, I start kind of pressuring her more to give me more information, like 'What did this taxi driver do, what happened when he started touching you'. At first she was really hesitant to say anything and she starts crying a lot, probably the worst I've ever seen her cry ever, it didn't look like she was going to stop, to be honest, and I - at this point I've just asked questions, she's just nodding because she's just so hysterical she can't answer me, and at this point I realised that she most definitely had probably been raped.

So that was an assessment, she didn't say that to you at that time?.....Not at that time, no.

It's just an assessment that you - or a conclusion that you jumped to?.....Yes."

1. The appellant contends that T's evidence of the appellant "laughing and giggling" should be accepted and evidences behaviour inconsistent with that which would be expected of a person who has been raped. The substance of the concern expressed by Estcourt J about the evidence of how the complainant's story was given to her boyfriend, is that she was incrementally led into a false allegation. The scenario advanced is that the complainant, possibly experiencing remorse and guilt from having engaged in consensual sex with the appellant, and unable to give her boyfriend a satisfactory account of why she did not have to pay the taxi fare, acquiesced in his assumption that she had been raped and thereafter persisted with the lie.

1. We have referred to some of the various ways in which the jury might have considered, adopted or rejected the evidence relevant to the issues raised by the appellant. We do not regard any of the criticisms raised by the appellant of the evidence of the complainant, either considered separately or by their combined force, as leading to the conclusion that it was not open to the jury to be satisfied beyond reasonable doubt of guilt. Informing that view, it is of considerable importance that criticisms of the complainant's evidence are not to be considered in isolation. All of the evidence must be considered, including the evidence about sexual intercourse to which we have already referred. The jury would not have considered the matters now raised by the appellant in a vacuum, divorced from the remainder of the evidence. In particular, when it is suggested that it was not open to the jury to be satisfied beyond reasonable doubt that the act of penetration was not consensual, careful attention must be given to the evidence of the complainant and the appellant and whether their respective versions derive support from other evidence. Other evidence of the complainant's conduct, of her complaints to her boyfriend, to Constable Tilley and to Dr Dorney, and evidence of injuries to her, must all be factored in. All provide further support of the inference of guilt.
2. The complainant gave evidence. When asked about how she behaved when she first arrived home, she thought she "tried to act a bit normal - well, in the sense that I was still intoxicated, but to try not to let anything, like, so they knew anything was wrong." She said that she did not want tell her housemate, T, and that she "just felt really ashamed" and "didn't want to tell nobody." When her boyfriend first asked her about her night, she said that "It was okay", but that he must have thought that she was upset and "eventually, over time, I told him." The following exchange occurred with trial counsel for the respondent:

"And do you remember what you said?......I didn't want to tell him at first.

Mm.......But I'm pretty sure I told him that the taxi driver touched me.

Okay. All right. And you didn't - you didn't tell [B] any more than that, just that -......At first because when I told him it made me really upset because I didn't want to tell him, because I felt so bad.

Okay. All right. And what does [B] do as the two of you are talking about what had happened and he keeps asking you more questions?......He said - well after I finished telling him what fully happened he said 'that's rape and it's not okay' he said 'I'm going to go call the police' and he went 'call the police straightaway' and I said 'No, I don't want to'."

1. After speaking with the complainant, B phoned the police. At trial, the complainant was asked what she said to the police when they arrived at her home that night:

"And do you remember what you told the police?......What had happened throughout the night from where it all started at [the house where they had first had drinks] to where it all ended in my street.

And did you tell the police what had happened in the taxi was - was touching or did you tell them more detail?......I told them the full details.

All right. Okay, so, full details, you mean you told them that it was vaginal sexual intercourse?......Yes, that's correct.

And that you had said 'No' and you didn't want to?......Yes."

1. T gave other evidence of the complainant's conduct after she arrived home. She agreed that the complainant's boyfriend came and took the complainant into the bedroom. According to T, the complainant's boyfriend came to T's room about 15 minutes later and said that the taxi driver had "felt up her leg." T went to the complainant's bedroom and saw her sitting on the bedroom floor in a distressed state, wrapped up in a blanket, saying she was sorry and that she "did not want to disappoint anyone." When cross-examined, T said that she thought that the complainant mentioned to her that the taxi driver had sex with her, but was not sure whether it when she first went into the room, or later when the police came.
2. Courts and the community know that there is no standard "normal" reaction to circumstances of sexual assault. There are many reasons why a person may be reluctant to complain of sexual crime. Behaviour which may be contradictory is not unusual. It does not necessarily indicate that a complaint is false. In this case, we regard the behaviour of the complainant, once she was inside her house, as entirely consistent with having just suffered the trauma of forced non-consensual sexual intercourse. We regard the hesitation in the complaint of rape to her boyfriend as understandable. Constable Tilley gave evidence of what the complainant told him and how she appeared. He said that she seemed guarded and reluctant to speak to him but told him that the taxi driver had "raped" her. He agreed that she appeared intoxicated but was sobbing and distressed.
3. The complainant also gave Dr Dorney an account of what had happened to her. She told Dr Dorney that the driver pulled over and kissed her, pulled the passenger seat back and forced himself on top of her. He noted what she told him in the following terms:

"He put his hands on my shoulder so I couldn't move, he was lying on top of me. I was wearing a dress and underwear but no tights and a bra. He reached down and pulled my pants down to about my knees. I was struggling but I can't remember how he got out his penis but he forced my legs apart with his knees and put his penis in my vagina. He was kissing me on the lips and around the neck. He had vaginal sex with me for two minutes at most. He came inside me I thought. I didn't see a condom. He had been holding me down by holding my upper arms between the shoulders and elbows. He got off me and said 'you don't have to pay me'. I got out of the car and he drove off. I had repeatedly said 'no stop, I have a boyfriend'.

1. If the jury accepted the evidence of the complainant, they could use the evidence of what was said in the complaints as some evidence that an offence did occur: Evidence Act 2001, s 66. Not only were her complaints consistent with her evidence, Dr Dorney saw evidence of injury which was consistent with her version. He observed tenderness on both of her upper arms and a bruise on her inner thigh. True it is that the observations were also possibly consistent with consensual sex, although that scenario seems to us to be less likely. The evidence added to the credibility of the complainant's account.
2. In our view, other aspects of the appellant's account were to be treated with scepticism. We regard as implausible his account that he drove off without payment merely because the complainant was delaying him and he needed to work. It was open to the jury to find that the appellant left without waiting for payment because no payment was required and, having forced himself upon the complainant, he wanted to leave as quickly as possible.

1. Inability to resolve all issues, even those consistent with innocence, is not an unusual feature attaching to trial by jury. Human affairs are not like jigsaws, cut to shape and size with defined edges. Behaviour of participants in events is not always logical or consistent. It is not unusual for facts to emerge which are, on one view, capable of supporting a defence case or casting doubt upon a Crown case. The existence of such facts does not automatically preclude acceptance of the essential prosecution evidence and a finding of guilt. The point was made in R v Hillier [2007] HCA 13, 228 CLR 618 that it is necessary to consider the whole of the evidence when facts exist which, on one view, tend to point in the direction of innocence.
2. In Hillier, the Crown case was based on circumstantial evidence. A conviction for murder was set aside by the Court of Criminal Appeal on the basis that the verdict was unsafe or unsatisfactory. In a joint judgment with which Gleeson CJ agreed, Gummow, Hayne and Crennan JJ found that the Court of Criminal Appeal had based its conclusion upon an examination of facts which were consistent with Mr Hillier's innocence, but which were examined in isolation from other evidence at the trial. Although Hillier involved circumstantial evidence, the requirement that evidence must be considered in its entirety applies generally in cases in which it is asserted that a verdict is unsafe or unsatisfactory.
3. The joint judgment in Hillier made the following observations:

"[48] Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.

[49] In the present case, there was evidence (such as the evidence of unidentified DNA on the pyjama top) which was consistent with Mr Hillier's innocence. But the question for the Court of Appeal was whether, on the whole of the evidence, it was open to the jury to be persuaded beyond reasonable doubt that he was guilty." [Emphasis added.]

1. The proper approach identified by the High Court in Hillier has application here; even more so because it is a case which depends on the assessment by a jury of the credibility of witnesses. To the extent that the matters raised by the appellant might, on one view, tend to cast doubt on the reliability of the complainant's evidence, those matters are not to be considered in isolation from the rest of the evidence. In particular, they are not to be considered in isolation from a view that was open to the jury, namely, that the complainant had told the truth concerning intercourse occurring, and the appellant had lied.
2. The importance of the jury's assessment of the evidence of a complainant and an accused has been emphasised in numerous authorities. In Hillier, the joint judgment observed that it was "important to recognise that Mr Hillier gave evidence at his trial". The judgment continued at [50]:

"... One question which the jury was bound to consider was what they made of Mr Hillier's evidence. Did they believe that Mr Hillier may have been telling the truth when he denied responsibility for Ms Hardwick's death? Or were they, as the verdict revealed, positively persuaded on a consideration of all of the evidence (including his) that he was not?" [Emphasis added.]

1. More recently, the High Court in R v Baden-Clay [2016] HCA 35, 258 CLR 308, emphasised the stringent nature of the test for intervention by an appellate court and the importance of the role of the jury. The Court stated at [65]-[66]:

"It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact'. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.

With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] 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'." [Footnotes omitted.]

1. The proposition underlying the appellant's contention is that the jury should not have excluded, as a reasonable possibility, that the complaint of rape was false. The appellant's submission suggests that the possibility of a lie is supported by:
   • T's description of the complainant as "laughing and giggling" as behaviour which the jury should have regarded as inconsistent with the behaviour of a person who had, moments before, been raped;
   • doubt about the complainant's account of how she got to the front seat of the taxi;
   • doubt about her account of the door of the taxi being locked; and
   • the implausibility of the proposition that the appellant would commit a rape while holding the belief that the crime would be captured by the camera in the taxi.
2. The appellant's contentions should not be accepted. To do so would, in the circumstances of this case, amount to a substitution of trial by jury with trial by appeal. In our respectful opinion, the appellant's submission that the jury should have entertained a reasonable doubt does not take full account of the central importance of the role of the jury and the advantages enjoyed by the jury in this case. This was a case which depended heavily on the credibility of the complainant and the appellant. It is not one in which the oral testimony of the complainant is so unreliable or wanting in credibility that no jury, acting reasonably, could be satisfied of the appellant's guilt to the required degree. Rather, it is a case in which the jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by this Court, particularly when the scenario now advanced by the appellant as one which should have led the jury to have a reasonable doubt was not a scenario advanced by the appellant at trial.
3. In our view, not only was this a case in which the jury had a significant advantage in seeing and hearing the complainant and the appellant in the witness box, the independent evidence provided strong support for the evidence of the complainant in important respects. The conclusion that sexual intercourse occurred was almost inevitable, and it was open to the jury to conclude that the complainant was telling the truth as to the circumstances and her lack of consent. Having regard to the totality of the evidence, we are satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.

1. In our opinion the appellant has not demonstrated that the jury verdict is unsafe and unsatisfactory. None of the proposed further grounds is made out. We would refuse leave to add additional grounds and dismiss the appeal. The appellant was sentenced to imprisonment for five years. It was ordered that he not be eligible to apply for parole until he has served three years of that sentence. Those sentencing orders are not affected by this appeal. However an adjustment to the date of commencement of the sentence is necessary. The appellant was taken into custody on 4 June 2018, the day of the verdict. The sentencing judge ordered that the term of imprisonment he imposed commence on that day. The appellant spent 158 days in custody until he was granted bail on 9 November 2018 pending the outcome of the appeal. He was returned to custody at the conclusion of the appeal hearing on 13 March 2019. So as to allow for the period not spent in custody we would, subject to the parties having the opportunity to consider the calculations, order that the term of imprisonment commence on 6 October 2018**.**