He then returned to the kitchen and picked up a padded stool and began to beat the deceased around the face with it. Dr Lawrence, pathologist, found no less than five wounds which he felt were probably the result of the application of blunt force to the deceased's face, nose and cheek area involving the breaking of the skin and fractures.
12 The applicant, by his counsel Mr Pappas, submits that his Honour should not have accepted beyond reasonable doubt the sequence of events deposed by Tara. By doing so, it is submitted that his Honour denied the defence hypothesis of a very different sequence of events. This was, a frenzied and swift attack on the deceased, wounding Tara in the course of that attack. It is submitted that his Honour failed to appreciate the possibility that the murder occurred in a way inconsistent with the evidence of Tara, who was aged 12 years at the time and 14 years at the time of trial. Support for the defence hypothesis is said to arise from police evidence, from Detective Callister and the evidence of the neighbours. Inconsistencies in Tara's evidence is also relied on in support of the submission.
13 As the Crown points out in its written submissions, the underlying thread of the submission is that it was not reasonably open to his Honour to accept beyond reasonable doubt the sequence of events deposed by Tara. It may be observed that there was nothing in Tara's evidence of the sequence of events which is inconsistent with the verdict of the jury.
14 Further, there is no requirement to find facts which are the most favourable to a prisoner, R v Isaacs (1997) 41 NSWLR 374, see also R v Harris [1961] VR 236. Not every alternative hypothesis has to be excluded, only a reasonable hypothesis, Peacock v The King (1911) 13 CLR 619; Queen v Puckeridge (1999) 168 ALR 4.
15 Tara was the only eye witness who could give evidence. She was cross-examined at length. However, she was not directly challenged on the sequence of events, or whereabouts in the house she said she was stabbed, nor about the demeanour and conduct that she attributed to the applicant. Nor did the police evidence directly contradict Tara's evidence to any appreciable extent.
16 His Honour was in a position to assess Tara's credibility and, it seems, accepted her to be credible and plausible. It was open to him to do so. It was also open to his Honour not to accept the hypothesis of the defence was not a reasonable possibility such as to give rise to a reasonable doubt as to Tara's evidence.
17 The remaining grounds of appeal are that his Honour gave undue weight to retribution and deterrence, too little to rehabilitation, and the sentence was manifestly excessive.
18 In particular, it is submitted that his Honour erred in failing to take the applicant's abnormality of mind into account in the assessment of the objective gravity of the offences. However, a reading of his Honour's remarks on sentence make it clear that he did treat the applicant's abnormality of mind as diminishing the culpability of his actions. In particular, Newman J found that it was sufficient to take the case out of the category of the worst type of case which could give rise to a possible life sentence.
19 His Honour said that the objective facts indicated a breach of the law of the highest order. He referred to the pathology evidence as indicative of the vehemence of the attack and the police photographs which underscored it. We have examined the photographs today. Further, his Honour referred to the very serious stab wound upon Tara, which was life threatening, and to its consequences for Tara.
20 In considering the mitigating factors, his Honour referred to the evidence of the applicant's mental condition at the time of the commission of the crimes. He referred to the psychiatric evidence of depression, (Dr Jolly and Professor Mullen). Professor Mullen was also of the opinion that the applicant was suffering from mood and personality disorders. His Honour referred to the evidence of the applicant's childhood as being one of 'disorganisation, distress, intimidation and violence'. Nonetheless, according to the Professor, alcoholism was the applicant's main problem. His Honour noted the applicant's excellent work record and his expression of contrition. He said:
The court is thus presented with a forty one year old man with a history of alcoholism, minor drug abuse and a childhood of privation who has been a good worker all his adult life. I have no doubt that he regards his natural children with affection but in view of the attack upon Tara Barry and the past history of some further violence towards her which was given in evidence and also the violence exhibited towards his stepson Benjamin is such that his affection is muted as far as those latter children are concerned.
21 His Honour sentenced the applicant on the basis of the principle of totality since both offences were committed as a consequence of the one episode. It was in this context that he referred to R v Twala (Court of Criminal Appeal, 4 November 1994, unreported). As in Twala, his Honour was of the view that the objective circumstances were such as to call for a sentence at the higher end of the range. However, unlike Twala, the additional serious crime of the attack on Tara had to be taken into account.
22 It is correct to say that the sentence imposed by his Honour was a very high one. However, his Honour was right to describe the crimes as brutal and horrific. Indeed, they were. The objective seriousness was very high. His Honour had to have regard to the totality of criminality involved in the two offences. He also had to have regard to the applicant's history of violence directed to the deceased. At the time of the fatal attack, the applicant was subject to an apprehended violence order and was on a bond from a conviction of assault on the deceased. Moreover, there is nothing to suggest that his Honour failed to give sufficient weight to the subjective circumstances. While the sentence is a very high one, I do not see that it can be said to be manifestly excessive.
23 Even assuming everything in favour of the applicant's alternative scenario mentioned earlier, and were this Court to re-sentence the applicant, no lesser sentence than that imposed by his Honour would, in my opinion, be appropriate.
24 I would grant the applicant leave to appeal against sentence but dismiss the appeal.
25 DUNFORD J: I agree.
26 SPERLING J: I agree.
27 STEIN JA: The orders of the Court are that the applicant be granted leave to appeal against the sentence and the appeal is dismissed.
OoO