16 After having regard to concurrencies, the total effective term of imprisonment was 18 months and 21 days. The Court fixed a non-parole period of four months. Consequential orders were made.
17 The applicant seeks leave to appeal against the convictions. The Director appeals against the sentence on the ground of inadequacy.
18 There are three grounds proposed for the appeal against conviction. Only two of these were argued before us.
Verdicts unsafe and unsatisfactory
19 The point taken here is that the verdicts in respect of Counts 2, 3, 6, 7, 8, 9, 10 and 11 were based substantially upon the evidence of the complainant, which evidence contains significant discrepancies with her prior statements and with the medical evidence.
20 In considering this ground, I bear in mind that it is primarily for the jury to weigh the evidence in the light of discrepancies of the kind suggested. It was not put that any direction of his Honour on this topic fell short of what was required. Moreover, it is apparent from the three acquittals that the jury weighed the evidence with care and were prepared not to act upon the oath of the complainant where they thought this was not appropriate.
21 I will not undertake an extensive review of the evidence in this case which I have examined with care. It is necessary to observe however that the applicant, who denied the assaults in his records of interview of 30 March 2002 and 13 November 2002, gave no sworn evidence. In his interviews, however, he did accept that his relationship with the complainant was a turbulent one. He admitted that on at least one occasion he had become angry and damaged property, that there were incidents where he and the complainant shouted at each other to such an extent that the police had to attend and that there were three occasions on which the complainant obtained an intervention order against him on the grounds of violence. He agreed in his March interview that they had had physical fights over the period that they were together, in the course of which things were thrown and, further, that there were occasions when she tried to restrain him and he had tried to restrain her. He said he thought that there were injuries arising out of that. Nevertheless, throughout the interview he denied the charged acts of violence.
22 The allegations in Counts 2 and 3 were that the applicant on 15 July 1998 assaulted the complainant, throwing her to the floor and pushing her arms up her back and then prevented her from leaving the house. The applicant denied these incidents in his record of interview. Her evidence derived some support from that of her father, from the police attendance and from the fact that she obtained an intervention order against the applicant on the following day. There was no supportive medical evidence of her injuries.
23 The main thrust of the attack on these convictions was directed to casting doubt upon the credit of the complainant, relying upon discrepancies between her evidence and her police statements. It was pointed out that the jury acquitted the applicant of the assault referred to in Count 4, which she said had occurred on the same occasion. It was put that, if the jury were not satisfied to act upon her evidence with respect to the assault which she described in graphic detail, they ought not to have acted on the evidence of the same witness with respect to Counts 2 and 3.
24 I am entirely unpersuaded by this submission. It was open to the jury to accept part only of her evidence. It was open to them to view with caution and reject her account of an event which first appeared in her second statement. It was open to them to consider that a conviction on two more serious counts arising out of the events of this day was sufficient.
25 Count 6 concerned an incident of extreme violence, which the complainant said occurred on 17 January 2001. She told of being dragged down the hallway and into the bedroom, of being thrown onto the bed where the applicant tried to strangle her, of having had her head smashed into the wall and of being kicked with steel-capped boots while she lay cowering in a corner. She said that she then left the house and telephoned his mother who went with her back to the house. The mother went inside and retrieved some clothes and then drove her to Maroondah Hospital. She spent three days in hospital with broken ribs, a punctured lung and bruising. She returned home where the applicant was still living on 20 January 1999.
26 The position taken by the applicant in his records of interview was that he was not at the house on this occasion. The first he heard of the incident was when the complainant telephoned him from hospital. He said he was not present when this incident occurred. His mother did not give evidence.
27 Unlike the jury, I have not had the benefit of seeing the videotape of the interviews. On paper his denials did not seem very convincing. In any event, it is the task of the jury to form a view as to the reliability of the Crown evidence on this incident and to weigh up the inconsistencies which counsel for the applicant extracted and presented to them. They were entitled to reject his denial of the incident and to accept the evidence offered on behalf of the Crown. I reject the attack on this conviction.
28 Counts 7, 8, 9 and 10 concern assaults which the complainant described as having occurred on 27 January 1999, 19 March 2000, 19 February 2001 and 5 August 2001 respectively. On each occasion her account was supported by medical evidence of contemporaneous injuries which she said were caused by the applicant. He denied this but offered in his records of interview no explanation for these injuries. On this matter, the applicant bore no burden of proof, as the judge directed the jury. Again, the evaluation of the evidence of the complainant bearing on these incidents is a matter for the jury. I see no reason to disturb their conclusions.
29 The last count, Count 11, which was referred to as the coffee table incident, was said to have occurred on 17 November 2001, two days before her first statement. The complainant said she told the applicant that she had been seeking legal advice and that he had been drinking. She said that he threw a glass towards her, flipped over a coffee table and then the couch on which she was sitting. He then dragged her by the hair outside the house and locked the door behind her. The police officer who attended said that he found her in a foetal position, whimpering. The police went into the house but were unable to rouse the applicant who was asleep in the main bedroom. The injuries of the complainant were described by the medical practitioner who treated her and were verified by photographs.
30 The applicant was not interviewed about this incident for some four months. He then denied the assaults, saying that he remembered only his drink spilling, pushing the coffee table and going to bed.
31 In the circumstances, the decision of the jury to convict on this count is not at all remarkable. The suggestion that the conviction was unsafe or unsatisfactory has not been made out.
32 I conclude, therefore, that the first ground, namely that the convictions on Counts 2, 3, 6, 7, 8, 9, 10 and 11 were unsafe and unsatisfactory, has not been established. I am not persuaded that, after making a full allowance for the advantages enjoyed by the jury, there is a significant possibility that the applicant has been wrongly convicted.
33 Second, it was put that these convictions were inconsistent with the not guilty verdicts on Counts 1, 4 and 5. I see no inconsistency in the relevant sense. It was open to the jury to have a doubt about the evidence of the complainant on some matters and yet to accept it on others. There are circumstances which may explain the acquittals. The complainant did not include in her first statement the incidents which formed the basis of Counts 1, 4 and 5. In the case of Counts 1 and 5, her evidence was inconsistent with earlier statements made by her. In the case of Count 1, the incident was said to have occurred in March 1997, nearly five years before her formal complaint to the police. In the case of Count 4, it may also be that they were satisfied with returning a guilty verdict for the two more serious counts arising out of the events of 15 July 1998. The evidence against the applicant on the counts of which he was convicted was, in my assessment, powerful notwithstanding that some of the counts shared the deficiencies which I have outlined with respect to the acquitted counts. Far from offending logic and common sense, I can well understand a jury, conscientiously discharging their duty, reaching the conclusions which this jury did.
Director's Appeal against sentence
34 This is a more troubling matter. The verdicts show that the respondent (as I shall now call Mr Martin) has, over a number of years, committed a series of gross and cowardly crimes against his domestic partner. He shows no remorse and maintains his denial that the events occurred. The victim impact statement of the complainant is a very moving document showing how his conduct has affected her.
35 I have read the sentencing remarks in which the trial judge notes the prior good character of the respondent, his difficult childhood and his prospects of rehabilitation. Doubtless these are all matters which weighed heavily in his decision to treat the respondent with considerable leniency. No specific sentencing error was alleged. This Court will only reluctantly interfere to increase a sentence imposed by a judge who has, after all, had the opportunity to reflect on his or her task with an unrivalled familiarity with the events and people involved. Add to that, in this case, that the respondent was released from custody upon completion of his sentence on 12 April 2005.
36 I am, nonetheless, troubled by the sentences. I cite, by way of example, Count 6 for which a sentence of 12 months imprisonment was imposed for intentionally causing serious injury, a crime which carries a maximum penalty of 20 years. Nor can this be explained by the circumstances. The incident described by the complainant is a very serious example of this crime: her injuries were severe; the conduct of the respondent brutal. To my mind the community might properly expect that a person convicted of such an offence, even a person of prior good character, should be visited with a substantial term of imprisonment. I am satisfied that the sentence for this conviction alone, and even more so against the appalling conduct to which this young woman was subjected over some three years, would indeed shock the public conscience.
37 Three factors, however, lead me to the conclusion that I should not impose the more severe sentence which the respondent would otherwise deserve. The first is that this matter has been hanging over his head for an inordinate time, a delay which is only partly explained by his pleas of not guilty. He was first interviewed in March 2002, over three years ago. At the conclusion of his second interview in November 2002 he was told he would be charged on summons and, notwithstanding this, it was not until July 2003 that he was formally charged and so that the legal process then took its course. This itself is a punishment which the respondent has suffered in addition to any sentence of imprisonment.
38 The second factor is that the respondent was discharged from custody having completed the sentence on 12 April 2005. Since then, he has resumed his employment. To require him to return to prison to complete an enlarged sentence would, in these circumstances, be to expose him to two separate punishments for the same offence.
39 Furthermore, he has been of good behaviour since he and the complainant parted company in November 2001. In making this observation, I do not overlook the disturbing allegations that there have been threats to the complainant and that she has been beset by a person whom she believes to be the respondent or someone at his instigation. The Director accepted before this Court that in the absence of evidence of these matters we should not have regard to them. We have not been told of any subsequent violent conduct on his part. The pre-sentence report concludes that the respondent is at a low risk of re-offending. There is every prospect of rehabilitation.
40 In the circumstances I would dismiss both the application for leave to appeal against conviction and the Director's appeal against sentence.