Thorne v Regina

Court of Criminal Appeal (NSW)|2007-02-07|Before: Sully J, Howie J, Hall J

JUDGMENT OF: Sully J at 1; Howie J at 2; Hall J at 92

DECISION: (1) Appeal against conviction dismissed; (2) Application for leave to appeal against sentence granted, appeal allowed and the sentences quashed; (3)(a) On the first count the appellant is sentenced to a term of imprisonment comprising a non-parole period of 6 years to date from 29 November 2004 and to expire on 28 November 2010. There is to be a balance of term of 3 1/2 years from 29 November 2010; (3)(b) On the second and third counts the appellant is sentenced to a term of imprisonment comprising a non-parole period of 3 1/2 years to date from 29 November 2008 and to expire on 28 May 2012 the date upon which the appellant is eligible to be released to parole. There is to be a balance of term of 3 1/2 years from 29 May 2012. It is intended that the appellant be sentenced to an overall term of 11 years with an overall non-parole period of 7 1/2 years from 29 November 2004 before being eligible to be released to parole on 28 May 2012.

Crimes Act 1900 - ss 405AA, 61I, 61J Evidence Act 1995 - s 136 LEGISLATION CITED: Criminal Appeal Rules - Rule 4 Criminal Procedure Act 1987 - s 161 Crimes (Sentencing Procedure) Act 1999 - ss 21A, 44

R v Dann (NSWCCA, unreported, 19 May 2000) R v RTB [2002] NSWCCA 104 R v Murray (1987) 11 NSWLR 12 R v RNS [1999] NSWCCA 122 CASES CITED: R v Piazza (1997) 94 A Crim R 459 R v Townsend [1999] NSWCCA 294 R v Johnson [2004] NSWCCA 76 R v Wickham [2004] NSWCCA 193 R v Fordham (1997) 98 A Crim R 359 R v MMK [2006] NSWCCA 272

COUNSEL: J. Dwyer - Crown W. Barber - Appellant

SOLICITORS: S. Kavanagh - Crown S. O'Connor - Appellant

IN THE COURT OF CRIMINAL APPEAL 2006/1948

SULLY J HOWIE J HALL J

WEDNESDAY 7 FEBRUARY 2007 Ronald THORNE v REGINA Judgment 1 SULLY J: I agree with Howie J. 2 HOWIE J: The appellant was convicted after trial by jury in the District Court of three counts of sexual assault committed against his estranged wife. Each of the offences arose from the one incident that occurred on 20 November 2004 in Queanbeyan. The first count alleged an offence contrary to s 61J of the Crimes Act 1900, an aggravated sexual assault, the circumstances of aggravation being the malicious infliction of actual bodily harm immediately before the intercourse. The second and third counts alleged offences contrary to s 61I of that Act, being offences of sexual intercourse without consent. 3 As a consequence of the convictions Judge Maguire (the Judge) sentenced the appellant to an overall sentence of imprisonment consisting of a non-parole period of 10 years with a balance of term of 3 years and 4 months. The sentences dated from 29 November 2004 and the appellant is eligible to be released to parole on 28 November 2014. 4 The appellant appeals against his conviction and seeks leave to appeal against the sentences imposed. The grounds of appeal in respect of conviction are as follows:

[The Judge] erred when he gave directions which elevated neutral expert evidence of sexual assault and in so doing bolstered the credibility of the Complainant.

[The Judge] erred when he erroneously directed the jury on a question of fact.

[The Judge] erred when he directed the jury that purported injuries to the Complainant's wrists were capable of amounting to corroboration and [the Judge] gave an inadequate Murray direction which resulted in unfair prejudice to the Appellant.

[The Judge's] summing up was not balanced in that he failed to sum up the case for the defence adequately or at all.

The cumulative effects of grounds 1-4 is that the Appellant did not receive a fair trial according to law and there has been a miscarriage of justice.

The Crown case 5 The Crown case was as follows. The complainant and the appellant were living together amicably several days a week even though their marriage had effectively come to an end. The living arrangements were principally so that the appellant could care for their children when their mother was absent on business. The complainant and the appellant had separate bedrooms. Shortly before the incident giving rise to the offences there had been some discussion between them about a reconciliation but the complainant was not prepared to change the then existing arrangements. 6 On 19 November 2004 at about 5.30pm the complainant returned home from a trip to the Gold Coast. The appellant indicated that he was going out for the evening. The complainant understood that he was not returning that night. At about 5am the next morning the complainant was awoken by the presence of the appellant, naked, in her bedroom. He said that he wanted to make love to her but she told him not to be silly, that he was drunk and that he should go back to bed. He left the room and she locked the door behind him. About 40 minutes later he knocked at the door saying that he wanted to speak to her. The complainant opened the door slightly in order to silence him but he forced his way into the room. He was naked except for a pair of the complainant's lace panties. The complainant asked him why he was wearing her underwear and he replied, "Because I'm a sick fuck". 7 The appellant said to the complainant, "I'm going to have sex with you one last time and then I'm going to kill myself and you'll never have to see me again". She told him not to be silly but he struck her to the jaw causing her to fall onto the bed. The appellant then climbed on to the bed, pinned her down and hit her a number of times about the head. She attempted to get up but the appellant grabbed her by the hair, repeating that he was going to have sex with her and then kill himself. He told her that she could "do it the easy way or the hard way" to which the complainant responded that she would do it the easy way. 8 The complainant then removed the boxer shorts she was wearing and lay on the bed. The appellant had intercourse with her. He then lifted her t-shirt and touched her breasts saying that he was a "sick fuck". This allegation gave rise to the first offence on the indictment. 9 Their daughter came to the door calling for the complainant. She asked the appellant to go and calm the child. He got up and put on a bathrobe telling the complainant to stay where she was or he would kill her. While he was out of the room, the complainant sent a text message to two of her friends asking them to call the police. This was at about 5.50am. The appellant returned to the room and again grabbed the complainant by the hair asking "the easy way or the hard way?" The complainant was forced to lie on her stomach and the appellant again had intercourse with her. This allegation was the basis of the second count on the indictment. 10 According to the complainant the appellant then "grabbed my arms and he tried to pin them behind my back". She asked him what he was doing and he said, "I'm going to fuck you up the arse". The appellant then inserted his penis in the complainant's anus. This allegation gave rise to the third count on the indictment. 11 The daughter again came to the door calling for the complainant and the appellant allowed her to leave the room. She put on a t-shirt and wrapped a towel around her waist. She took with her a mobile phone and, when outside the bedroom, dialled triple O. She told the operator that her husband was hurting her and gave the address. She then saw the appellant outside the child's room banging his head against the wall. He told her to go downstairs which she did. She tried to leave by the front door but it was locked. The appellant caught her and threatened that he would kill her if she did not do what he wanted. He attempted to drag her into the garage during which her shirt was ripped. She went upstairs to see to their children, who were distressed, and the appellant, who had followed her, said to their son, "Mummy's going to take care of you now because I can't". 12 The complainant took the opportunity while the appellant was speaking to the children to escape the house but the appellant chased and caught her. He commenced punching her to the head and body. A neighbour came out onto the street and the appellant fled back into the house. He grabbed a rope and ran into a nearby park where he attempted to hang himself. He climbed into a tree, secured the rope to a branch, placed it around his neck and jumped. However, two men, who were in the park at the time, saw what happened and supported the appellant's weight, relieving the pressure around his neck, until police arrived and cut him down. 13 Police spoke to the complainant outside her home. She said, "He came into my room and wanted sex. I managed to get him out. He came back in. He grabbed me and hit me. He said I could do it the hard way or the easy way. He told me he wanted to fuck me one more time before he killed himself". 14 The complainant later found a text message on her mobile phone from the appellant sent at 4.15am as follows, "Do u want to make love 2 night?" Late that day the complainant located a suicide note written by the appellant. The defence case 15 The appellant gave evidence that he had been out drinking that night until about 4.30am. After he arrived home, he had been thinking of killing himself because he was sick of his life. He was unhappy that he had no place of his own so that his children could stay with him and his work was not enjoyable. He said that he went to the complainant's room and spoke to her about his depression. She told him that he was "talking crap", whereupon he commenced hitting her. When his daughter came to the door, he took her back to bed. He realised what he had done and returned to apologise to the complainant for hitting her. However she said, "Yeah, you are a big fucking man aren't you?" He thereupon lost his temper and commenced striking her again. 16 The daughter returned to the bedroom and ran to the complainant. Seeing this, the appellant sat on the floor and commenced to cry. The complainant took the child back to bed. He decided to kill himself and left the room. He obtained a rope and went to the kitchen where he wrote a note for his mother. The complainant left the house and ran into the street where he again assaulted her until interrupted by the appearance of a neighbour. He then went to the park where he attempted to hang himself. The medical evidence 17 Dr Svoboda saw the complainant at about 8.30am the morning of the incident. She gave evidence of a history she took from the complainant that was not significantly different from the account given by the complainant in evidence. In that account the complainant said that the appellant "forcibly held her hands behind her back". During the course of her account of the injuries suffered by the complainant the doctor noted, "There was tenderness to palpation of both wrists. No associated bruising was noticed". Neither counsel asked any question about these particular injuries nor what might have caused them. 18 The following evidence in chief was given by the doctor in relation to whether the examination of the complainant supported the allegation of sexual assaults:

A. ………….. The normal anogenital examination and speculum examination neither confirmed nor refute(d) the allegation of sexual assault.

Q. In other words, the finding in relation to that part of your examination is neutral? A. Yes. It's not possible to say whether, from the examination whether sexual assault did occur, however, the majority of sexual assaults there is no injury to the anogenital region.

Q. Why is that? A. There are many reasons why that may be possible. It's a combination of reasons from both the victim and the assailant. Victim reasons would be due to what we call the physiological state of the tissues. So a woman who is of a reproductive age who has oestrogen has very flexible healthy tissues which are very resistant to tearing and to injury. Also prior sexual experience means that a woman can alter her body to prevent injury, particularly if there is pain, she may be able to tilt her pelvis to prevent an injury occurring to her genital region. And also lack of resistance so where there has been threat of harm a woman may become quite passive and not resist entry into her vagina or anus and therefore is less likely to be injured. The other factor is the use of force so that if (sic) an assailant factor how much force there is in penetration and during penetration will also impact on the amount of injury if any is seen.

HIS HONOUR: Q. Assuming that he had had a considerable amount of alcohol to drink and having regard to the fact that the complainant told you that she couldn't say whether (he) ejaculated or not, are those factors likely to affect whether or not there would be injury to her private parts? A. Alcohol would have an inhibitory affect on his ability to maintain an erection and to ejaculate so it may have an impact and also with his lack of coordination if he was intoxicated may also have limited the amount of force that could be used. 19 During the course of the addresses both counsel referred to this evidence. The Crown reminded the jury that the evidence was neutral and referred to the doctor's explanation for why this was not uncommon. Defence counsel stressed what she said was the significance of the finding that the anogenital and the speculum examination were normal and the lack of any finding of semen on samples taken from the complainant. Defence counsel submitted that, in light of the absence of any bruising to the genitals or the anus and the absence of any semen, the jury would have a reasonable doubt that intercourse took place.

Ground 1 20 Against this background the complaint raised in the first ground of appeal is that the judge misdirected the jury in relation to the evidence of the doctor so that in effect what was neutral evidence came to bolster the credibility of the complainant. 21 During the course of the summing up and in the absence of the jury the following occurred:

CROWN PROSECUTOR: There's just one further area in relation to my friend's submissions on the medical evidence and that was in relation to the neutral finding of the doctor in relation to her examination of the complainant's genitalia and anus. It wasn't - in my submission, the inference - my friend can't draw from a neutral finding the - something which she has referred to as being very significant. That is there being no bruising to either the anus or the vagina.

HIS HONOUR: Yes, I will be saying something about that too.

WARWICK: Your Honour, the doctor did say the examination was normal.

HIS HONOUR: Yes but she went on to say that normal is the normal. Normal is the norm. That quite frequently one does not find damage to the genital area. One does find it where there's particularly vigorous penetration. One doesn't find it so much in a woman - this woman had had three children. This accused had had a skinful of alcohol. There's serious doubt as to whether he ejaculated. That's the jury might think not the kind of penetration that would cause any damage, any physical damage. And that's a point that the doctor made in her evidence.

WARWICK: Your Honour in general about - she did say in general that those factors can be relevant. She also said she didn't have any evidence of those factors in this case.

HIS HONOUR: There was no evidence of vigorous thrusting of the penis. So that's consistent with the possibility that you wouldn't find any damage.

WARWICK: Your Honour she also said that there was - that she didn't know whether there was any previous anal intercourse and that she thought that could affect that and she said whether there was lubrication could affect that as well. Which might be relevant in this particular case.

HIS HONOUR: At the end of the day, the doctor is neutral on that. She says that the findings don't point either to guilt or to innocence and that - the jury could take that on board, but that's not then to be the basis of a submission that there must be a reasonable doubt on that alone. I will consider very carefully over night what directions I will give the jury. 22 The next day, during the course of his summing up, the Judge said to the jury:

There is another matter I want to mention. The doctor told you that there was no sign of injury to the vaginal area or to the anus of this woman. And the doctor has suggested to you that that finding is neutral. It does not support the proposition that there was a sexual assault. But it does not negate the proposition. When you are looking at that, you might bear in mind that the complainant says that faced with what she was faced with, she became compliant. And of course you remember I told you yesterday that there is no obligation in law for a woman to fight off an assailant. If she submits through fear or terror, that does not mean she is consenting. But if you accept that she did not reject him, physically, then that might throw some light on your thinking as to the absence of injuries.

It was put to you that there was no semen found in relation to this matter. That is something that you would have to consider. But bear in mind that the complainant told you that he did not ejaculate. And bear in mind that this is a man who had been out on the beer all night. He had left after dinner and arrived back at 5 o'clock in the morning. He had consumed a slab of beer. And this is a classic instance of a jury being called upon to use their own common sense and experience of the world. 23 It was submitted that this passage had the effect of allowing the doctor's evidence to bolster the credibility of the complainant by suggesting that the medical evidence was consistent with the complainant becoming compliant to the appellant's demands. It was also complained that the Judge did not indicate that the evidence was consistent with the appellant's account. It was further submitted that the evidence of the doctor's examination of the complainant's genital and anal area should not have been tendered in evidence. 24 In my opinion these complaints have no merit and the last submission has an air of unreality about it. True it is that there are decisions of this Court that favour alternate arrangements being made that would make it unnecessary for the Crown to call "neutral" medical evidence; see R v Dann (NSWCCA, unreported, 19 May 2000) and R v RTB [2002] NSWCCA 104. But in a case, such as the present, where the doctor is being called to give evidence of a general examination of the complainant shortly after the alleged assaults including findings as to all the physical injuries suffered by the complainant, it seems to me to be unrealistic for there to be no evidence given as to the result of her examination of the complainant's genitalia or anus in light of the complaint made to her. The jury would expect such an examination to have taken place and would want to know the results of it. Provided that the evidence was given in a way that did not suggest that the findings were consistent with the complainant's version, it seems to me to be only sensible for the jury to be informed of all the findings made by the doctor from her clinical examination of the complainant. That is what occurred in the present case. 25 And it also seems to me to be relevant for the doctor to explain why the findings of a lack of any injury to the complainant's genitalia or anus were neutral. That is a matter of medical expertise and I would not expect a jury to have appreciated from common experience how there could be an allegation of forced sexual intercourse yet no injury consistent with that allegation apparent a short time after the event. No objection was taken to this evidence and in my view there was no reason for it to be rejected. 26 In my opinion the Judge did no more in the passage quoted above than was necessary to address the submission of defence counsel to the jury that the absence of injuries to the complainant's genital area or anus was a "significant" matter. Because the absence of injury was neutral, it had no significance one way or the other. It would have been obvious to the jury how such a finding was consistent with the appellant's account without the Judge commenting on that fact. Yet the Judge was entitled to explain to the jury how the absence of any injury was not necessarily inconsistent with the complainant's account. The Judge made it clear that the evidence neither supported the Crown's case nor negated it. What was said could not in my opinion lead the jury to view the medical evidence as assisting the Crown case. 27 This ground of appeal does not succeed.

Ground 2 28 This ground also arises from what the Judge said to the jury about the doctor's evidence. It has already been noted that the doctor referred to finding "tenderness to palpation of both wrists" and that "no associated bruising was noted". The doctor also found "a faint blue bruise with marked tenderness and swelling" on the right first web space. She gave evidence that this injury could have been due to a direct blow or a forceful gripping of the hand. The doctor expressed no opinion as to the cause of the injury to the wrists nor was she asked to explain what was meant by "tenderness to palpation". 29 The Crown in address stated:

You've heard the doctor's report in relation to the injuries sustained by [the complainant]. Pardon me for a moment. And it might have appeared to you it was almost like a shopping list of injuries, injuries to the facial area, to the jaw, to the neck area thereabouts and tellingly and I'll get back to this a bit later, the swelling of the wrists. You recall that whilst the accused agreed that he beat her about the head with fist and open hand, (he) denied pinning her wrists down. You'll recall the complainant told you in relation to the allegations of - the second and third allegations on the indictment that then he came back into the room you remember those words, it can be easy or it can be hard, words to that effect and according to Michelle pinned her arms ..(not transcribable).. while she was laying flat on the bed.

The accused says nothing of that sort happened. Well you'll remember what the doctor said in relation to those wrists. There was tenderness to palpitation (sic) of both wrists and you might think well that's certainly in accordance with what [the complainant] has told you. 30 Defence counsel said to the jury:

Ladies and gentlemen you heard the evidence yesterday of the doctor and the doctor's observations. I would just like to read to you what the doctor said about the complainant's wrists and you will remember, and you will notice from this that this is not what the doctor saw, it's what the complainant told her. The doctor has noted:

"There was tenderness to palpation of both wrists. No associated bruising was noted."

Now ladies and gentlemen I put that to you that there is no mention there of visibly seeing either bruising or swelling. What the doctor has recorded is that the complainant said her wrists were tender.

31 During the course of the summing up and in the absence of the jury, the Judge said to defence counsel:

I propose to tell you that I'm going to direct the jury that your submission about some of the medical evidence was not available to you to make. The doctor included in her findings, "there was tenderness to palpation of both wrists". Now that is not something that the complainant told the doctor. That's a clinical finding by the doctor herself on palpating or touching the wrists. You put it that this was something that the complainant had told the doctor, and that's just not - that's a submission that's not available to you.

Defence counsel, who admitted that she had misunderstood the evidence of the doctor, raised no objection to such a direction. 32 During the course of reviewing the findings made by the doctor on her examination of the complainant the Judge said to the jury:

"There was tenderness to palpation of both wrists. No associated bruising was noted."

Now I have to say that a submission made to you by Ms Warwick yesterday about that, was not a valid submission. Ms Warwick put it to you that this was something the complainant told the Doctor. Now I will be later referring to the things that the complainant told the Doctor. There is a separate part of the report. These seven matters that I have read out to you are not what the complainant told the Doctor. These are the signs that the Doctor saw in the course of her own clinical examination. And the sixth one is tenderness to palpation of both wrists.

Now the other, one to five and seven, are all consistent with the Accused's case. Because his case is that he gave her several hidings, but did not have sex with her. So that those six findings by the Doctor do not advance the Crown case, by way of corroboration. But the sixth one, tenderness to palpation of both wrists, you could regard that as evidence supporting the complainant's evidence that her hands were pinned behind her back while she was face down on the bed. 33 The complaint now made is that there was no evidence as to the meaning of the term "tenderness to palpation" nor as to how the doctor had made that finding. It is submitted that no criticism should have been made of the defence submission that it was what the complainant told the doctor as opposed to something objectively observed by the doctor during her examination. 34 It would have been obvious to the jury that the finding that there was tenderness to palpation in the wrists was a finding made by the doctor during her examination. This was one of a number of findings that she had reported including other observable injuries such as bruises and scratches. If the jury had any difficulty with the term or what it meant or conveyed, they could have sought clarification and it should not be assumed that they, unlike both counsel, did not understand the term. But neither party asked the doctor how she derived that finding, and, therefore, it was not open to defence counsel to assume that it was as a result of what the complainant told the doctor. It may have been that the complainant expressed pain when the doctor palpated her wrists, on the other hand she could have shown the feeling of pain by an involuntary reaction to the palpation of the wrists. It was never suggested to the doctor that this was not a reliable or objectively based finding made during the course of her clinical examination and defence counsel was not entitled to suggest otherwise. 35 There was nothing inaccurate or erroneous in what the Judge told the jury and his Honour was entitled, if not required, to point out to them that it was a clinical finding made on examination by the doctor rather than part of the complainant's account to the doctor of what happened and the injuries that she suffered. Even though the doctor was not asked, and therefore gave no opinion, as to how that injury might have been suffered, the jury were entitled from their own common sense and experience to find that tenderness to touching in the wrists without any observable bruising was at least consistent with the complainant's account of being pinned by the wrists, an act that the appellant denied. 36 This ground of appeal is not made out.

Ground 3 37 This ground complains that the Judge was in error in telling the jury that the injury to the wrist supported the complainant's account and that this error together with an "inadequate Murray direction" resulted in "unfair prejudice". 38 It is clear that there was an issue between the parties at trial as to whether the appellant had pinned, or tried to pin, the complainant's arms behind her back just before the incident giving rise to the third charge occurred. The evidence as it stood before the jury was that the complainant alleged that the appellant held her hands behind her back "very firmly". The appellant in cross-examination denied that he had pinned her arms or hands behind her back. The jury asked for the cross-examination on this topic to be repeated to them after their retirement. 39 In my opinion it was open to the jury to consider that the tenderness to the wrists supported the complainant on this aspect of their conflicting accounts and, further, that it supported her allegation that she had been sexually assaulted while laying on her stomach. It might have been the case that this injury could have been explained in some other way but this was never explored with the doctor or the complainant. But even had another explanation been available, it would not necessarily follow that the evidence would have been deprived of its corroborative value. It would have been open to the jury to determine whether the injury was more consistent with the complainant's account than that of the appellant. This is why this injury assumed more significance than the other injuries suffered by the complainant, because they were as equally consistent with the appellant's account as with that of the complainant. They were "intractably neutral". The Judge directed the jury to this effect. 40 In any event there was other evidence capable of supporting the complainant's account. The text message was highly persuasive of her allegations of sexual assault in that it showed that the appellant wanted to have sexual intercourse with her on that evening a short time before the assaults took place. It was cogent evidence supporting her allegations that sexual intercourse occurred. The jury were directed that this was evidence that could corroborate the complainant. 41 Although it is unnecessary to consider the proviso in respect of this aspect of the ground of appeal because I do not consider that there was any error, it should be noted that the complaints made both to police and to the doctor could, and should in my opinion, have been admitted as evidence of the truth of the assertions contained in them. Therefore, they should also have been available to the jury as evidence supportive of the account given by the complainant in the witness box. For reasons that I do not fully understand the Judge directed the jury that they could not use these statements as evidence of the truth of the assertions contained in them. Yet they were made very shortly after the incidents to which they related: the complaint was made to police immediately after the cessation of the assaults upon her and the account to the doctor some three hours later. It seems that part of the reasoning for not admitting the complaints made to the police as evidence of their truth was that they were not written down by the police at the time. That fact may affect the probity of the evidence but I have difficulty seeing how it can impact upon the admissibility of the statements as evidence of the truth of the assertions the police said were made to them by the complainant. There was in my view no good reason to limit the use of the evidence under s 136 of the Evidence Act. 42 In my opinion there was no miscarriage of justice arising from what the Judge said to the jury about the use they could make of the evidence of the doctor as to the injury to the complainant's wrists. In any event there was ample evidence to support the complainant's account and the Crown case was, in my view, overwhelming. 43 Associated with this ground of appeal is a complaint that the Judge failed to give an adequate "Murray direction". This is a direction given where the Crown case is substantially comprised of the evidence of a single witness unsupported by any other evidence. The direction stresses that, before the jury could convict upon the evidence of that witness, they must be satisfied beyond reasonable doubt that the witness is reliable. The direction requires the jury to scrutinise the evidence with care before convicting upon it: R v Murray (1987) 11 NSWLR 12. 44 During the summing up and in the absence of the jury there was some discussion about whether the judge should give such a direction and his Honour indicated that he would. The Judge accordingly said to the jury:

I want to talk to you about the question of corroboration. Some Crown cases depend entirely upon the evidence of the complainant. Others do not. In that second category there is sometimes evidence supporting what the complainant says. Where there is no corroboration, it is usual to tell the jury that they should look with great care at the evidence of the complainant, and scrutinise that evidence before accepting it. And Judges give that warning to jurors in every case.

It is not necessarily the case here that there is no corroboration. That is a matter for you to decide, because there are elements of the evidence, which if you accept them, are capable of amounting to corroboration.

The law used to be that a Crown case had to be supported by some corroborative evidence. That is no longer the law. But the elements of the evidence to which I refer, as amounting to corroboration, if you accept them, are principally the incoming text message, and the Doctor's evidence, or part of the Doctor's evidence.

The Judge then went on to explain to the jury the relevance of the text message and the medical evidence, particularly the injuries to the wrist, as discussed above. 45 In support of this ground of appeal it is argued that the direction was inadequate in that the jury ought to have been told that, if they were not satisfied that there was any evidence to support or corroborate the complainant, they should scrutinise her evidence with great care before accepting it. Further, it was submitted that there was no evidence that could amount to corroboration. 46 The direction, with respect, was hardly a model of clarity and it was not entirely accurate. It did not, for example, fully explain the concept of corroboration as evidence that was independent of the complainant and indicated that the accused committed the offence charged; in this case that he had sexual intercourse with the complainant. Yet the Judge did indicate to the jury that there were only two pieces of evidence that could amount to corroboration, being the text message and the injury to the wrists. The jury were also informed that whether or not this evidence did support the complainant was a matter for them. The direction further told the jury that, where there was no evidence supporting a complainant, then it was usual for the judge to warn the jury to "look at the evidence with great care and to scrutinise it". I confess that I do not understand the difference between scrutinising something and looking at it with great care but the jury would have appreciated the caution with which they were to approach the evidence if they found there was no evidence to support it. 47 In my opinion the direction achieved what was necessary in informing the jury of the manner in which they were to deal with the evidence of the complainant depending upon whether or not they found that her evidence was supported by the text message or the injury to the wrists. The evidence of the text message was clearly supportive of the complainant's account that the appellant had sexual intercourse with her and it is difficult to see how the jury could have found otherwise. As I have already indicated, I am of the view that the injury to the wrist was capable of supporting the complainant's account that sexual intercourse took place. 48 This ground of appeal fails. Ground 4 49 This ground complains that the summing up was unbalanced because the defence case was not put to the jury. There was no such complaint made to the judge and so rule 4 of the Criminal Appeal Rules applies. 50 The complaint is in effect that only twice during the summing up did the judge note to the jury the nature of the defence case: that no sexual intercourse took place. It was conceded in written submissions on behalf of the appellant that the trial was short and the issues were straightforward. However, it was submitted that this fact did not relieve the trial judge of the obligation to sum up the respective cases of the parties. In this regard the decision of R v RNS [1999] NSWCCA 122 is relied upon. There Bell J, with whom the other members of the Court agreed, stated:

[57] The trial Judge took the course of not summarising any of the evidence in the course of his charge to the jury. Nor did he summarise the submissions made on behalf of the Crown or the appellant or relate the directions of law which he gave to the issues raised by the evidence.

[58] The trial was a short one. Evidence was taken over three days. At the conclusion of the evidence his Honour invited the jury to give careful attention to the addresses of counsel. He had earlier signalled his intention to both counsel not to summarise the evidence. This course was consented to by both counsel. Provision is made in s405AA Crimes Act for a trial Judge to dispense with a summary of the evidence. That provision does not permit the trial Judge to give the jury no guidance as to the way the evidence relates to the directions of law given. It does not relieve the trial Judge of the obligation to sum up the respective cases made by the Crown and the accused; Regina v Condon (1995) 83 A Crim R 335 at 347; Regina v Zorad (1990) 19 NSWLR 91. 51 The summing up in the present case was a relatively short one, extending to about 31 double-spaced pages of typed transcript. However, in the present case, unlike the situation in RNS, there is no suggestion that the trial judge failed during the summing up to explain how the evidence related to the directions of law that he gave to the jury. Nor as in RNS was there any error or deficiency in the directions or warnings given to the jury to the disadvantage of the appellant. 52 From my reading of the summing up, it does not appear to be unfairly unbalanced in favour of the Crown, a view apparently consistent with that held by defence counsel at the trial who made no complaint. For example, there is little or no comment upon the evidence or the differing accounts given by the Crown and the defence. In fact there is very little review of the evidence, a matter that the Judge acknowledged to the jury. The only matters dealt with in any detail were the text message and the injuries to the wrists because of their potential value as corroboration. The Judge made little reference to the defence address, except to correct what was said about the injury to the wrists as discussed above. However, he made no reference to the Crown's address except in a general way to explain the Crown case to the jury on each of the charges. 53 Therefore, the ground of appeal needs to be considered only as to the alleged failure of the Judge to review in any detail the defence case. Although there is an obligation in a summing up for a judge to bring home to the jury the ambit of the defence case, it does not mean that in every case the Judge is to review the evidence given by an accused even where the extent of the defence is simply a denial of the substance of the charge. In R v Piazza (1997) 94 A Crim R 459 Grove J referred to the obligations of a judge in a summing up notwithstanding the terms of what was then s 405AA of the Crimes Act 1900, a provision now found in s 161 of the Criminal Procedure Act 1987. His Honour stated:

Subs(3) preserves other obligations of the Judge and the provision does not detract from the duty to communicate to the jury of what the respective cases being presented on behalf of the Crown and accused consist, and how it is that cases are claimed to be supported (or not) by the evidence. The Judge is not required to restate every argument put on behalf of an accused but he must ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence: Domican v The Queen (1992) 173 CLR 555. 54 Hunt CJ at CL stated:

I wish to add to what Grove J has said concerning s405AA of the Crimes Act 1900. The section was inserted in the Crimes Act late in 1990, by Act 74 of that year, following repeated criticisms by this court of trial Judges who apparently believed that they were obliged to read out to the jury the evidence which had been given chronologically, starting with the first witness and going through the evidence in chief, the cross examination and then the re examination of each witness before turning to the next witness and so on, and who also apparently believed that by doing so they had presented to the jury the issues of fact which they had to determine.

Subs(1) of s405AA relieved trial Judges of any such perceived obligation to summarise all of the evidence. In truth, there never was such an obligation. The obligation has always been, and remains, that to which I have already referred, to present to the jury the issues of fact which they have to determine, and to do so with such reference to the facts of the case as is necessary to assist them in that task. In Regina v Zorad, decided earlier in 1990, this court said: 'A summing up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law maybe applied to the facts of the particular case, but it should also include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the argument which have been put in relation to that evidence 55 Grove J quoted those passages in R v Townsend [1999] NSWCCA 294 at [16] - [17] in determining to uphold a ground of appeal that asserted that the summing up failed to put adequately or fairly the defence case. Although in that case the appellant had given evidence at trial denying the allegations of sexual assault made against him by a niece, the defence had also called a number of witnesses to give evidence tending to show that the complainant's evidence could not be true in particular aspects. Notwithstanding that the defence case was described as "patently clear and very simple", it was held that the trial miscarried because the trial judge did not attempt to summarise to the jury the case as presented by the prosecution or the defence and, therefore, failed to fulfil a fundamental obligation in summing up to the jury. 56 In the present case the trial was a very short one and the simple issue was whether the jury was satisfied beyond reasonable doubt that the accused had sexual intercourse with the complainant as she alleged. Apart from those allegations there was little of the evidence in dispute. The jury were empanelled on 16 May 2005. The appellant commenced to give evidence shortly before lunch on 18 May. His evidence was substantially completed that afternoon but he gave a further hour of evidence the next day. That evidence commenced at about 12 pm after a morning of legal argument. The evidence concluded at about 1pm on 19 May. Counsel addressed the jury after lunch and the Judge commenced summing up immediately that afternoon. Defence counsel's address was very brief and largely taken up by summarising the appellant's evidence and relying upon the medical evidence. The summing up was completed the next morning and the jury retired at 11 am. There are references in the summing up to the accused's case being that there was no sexual intercourse even though he admitted to having physically assaulted the complainant on the morning in question. 57 I cannot accept that in the circumstances of this particular case, the failure of the judge to summarise the appellant's evidence resulted in a miscarriage of justice or in a summing up that was so defective that the convictions following it cannot be allowed to stand. As I have already indicated, the Crown case was in my view overwhelming. That fact of course does not alone justify a failure of the Judge to put the defence case adequately or fairly to the jury and it might in some cases require that the Judge be careful to ensure that the defence case is not lost or overwhelmed by references in the summing up to the Crown case. But here, unlike the situation in Townsend, there was little evidence other than that given by the appellant himself that supported the defence case. 58 I simply cannot believe that we have reached the stage of formalism in respect of a summing up where a failure to summarise the appellant's evidence alone must, in the absence of any other error or inadequacy on the part the trial judge, inevitably result in a mistrial. This is particularly so where there was no complaint by defence counsel who must have been satisfied that in all the circumstances the summing up was fair to her client and that the jury would have appreciated his defence. 59 I am of the opinion that this ground fails. 60 Although Ground 5 relies upon what is said to be the accumulation of errors raised in the earlier grounds, I do not consider there were any errors which taken either individually or together resulted in a miscarriage of justice. In my opinion the appeal against conviction should be dismissed. Sentence 61 The Judge sentenced the appellant on the first count to a term of imprisonment made up of a non-parole period of 10 years to commence from 29 November 2004 and to expire on 28 November 2014 with a balance of term of 3 years and 4 months. On the second and third counts the Judge imposed identical terms of imprisonment each made up of a non-parole period of 7 years from 29 November 2004 and to expire on 28 November 2011 with a balance of term of 2 years and 4 months. Thus all of the sentences were to be served concurrently. 62 The maximum penalty for the offence in the first count was imprisonment for 20 years and there is an applicable standard non-parole period of 10 years. In respect of the offences on the second and third counts the maximum penalty was imprisonment for 14 years with a standard non-parole period of 7 years. 63 The appellant was born on 25 April 1968. He has a minor record for dishonesty in New South Wales and in 1990 was sentenced in the ACT Supreme Court for a sexual assault offence to imprisonment for 2 years and 6 months to be released after 6 months on a recognisance with supervision and 30 hours at an attendance centre. 64 A pre-sentence report indicated that the appellant had responded well to supervision that was terminated early in August 1992. He reported a stable and supportive upbringing by his mother and grandparents. He had maintained various employments with public service departments until his arrest. The appellant admitted to drinking heavily on the weekends and using cannabis at the time of the offences. He stated that he was feeling suicidal on the morning when the incident took place. He denied any physical abuse of the complainant during their relationship and continued to deny having sexually assaulted her. However, he had agreed to be assessed for a sexual offender's programme in gaol. 65 The Judge found that there was no evidence of contrition and that "the prospect of rehabilitation is by no means positive". He accepted the following passage from the pre-sentence report:

Taking into account all of the above information and incorporating a standardised risk/needs assessment process the offender is suitable for a high level of intervention by this Service commensurate with assessed risk. The individualised case plan would include strategies to address the following identified areas of criminogenic need. One, alcohol and other drug abuse. Two, anger management. Three, sexual offending however [the appellant] would appear to require the high intensity custody based intensive treatment program in order to adequately address his offending behaviour. 66 The Judge found the offences were not planned and that there was no serious physical injury inflicted upon the complainant. However, his Honour described them as "terrible crimes" and assessed them as falling into the mid-range of seriousness. The Judge found that there were no special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 and stated "I see no call for accumulation of the sentences I propose". 67 There was initially only one ground of appeal argued in written submissions being that the Judge erred in the treating the appellant's prior conviction as an aggravating factor. The complaint arises from the following passage in the remarks on sentence:

I am mindful of the provisions of s 21A and have taken them into account. In particular I regard his previous record as an aggravating factor. Further, the offences involved a breach of trust as the offender being the estranged husband of the complainant was provided by her with a key to the house so that he could be available to [care for] the children. 68 This is yet another case where a sentencing judge has simply referred to a matter in s 21A of the Crimes (Sentencing Procedure) Act without any explanation as to why in the case before the court the factor of aggravation applied. The sentencing remarks were given on 28 July 2005. By that time it was established that s 21A(2)(d) should be limited by common law principles so that a prior criminal record was an aggravating factor only in the sense that it indicated there was a need for increased retribution, deterrence or the protection of the community: R v Johnson [2004] NSWCCA 76; R v Wickham [2004] NSWCCA 193. Although a question arose in this Court as to whether the provision was so limited, authority binding upon the Judge constrained the use to be made of that factor in a way that meant it had no applicability to the case before him. A sexual assault offence committed 14 years earlier may have been relevant to suggest that the offences for which the appellant was to be sentenced were not completely aberrant but it could not in any way aggravate the offence or increase the otherwise appropriate sentence. 69 At the hearing of the appeal an affidavit was tendered on the basis that it would be received as fresh or new evidence. The affidavit was made by the solicitor of the appellant who claimed to have "vast experience in criminal law". As a result of his reading of the transcripts, the solicitor believed that "psychological issues were relevant to sentencing and an experts (sic) report would have been of assistance to the Court in determining a sentence according to law……". The affidavit states:

As I believe the appellants (sic) threat and his actual attempt at self harm was not rational behaviour I retained a forensic psychologist, John Jacmon, to consult with the appellant for the purposes of a report.

A report dated 16 October 2006 by Dr Jacman was attached. The Crown objected to the affidavit and the report being tendered. 70 The present situation with regard to the affidavit and the psychological report is almost identical to that which was before the Court in R v Fordham (1997) 98 A Crim R 359, NSWCCA, unreported 2 December 1997. In that case, with the concurrence of Hunt CJ at CL and Smart J, I stated at p 28 of the unreported version of the judgment (the judgment as printed in the volume of the Australian Criminal Reports has at least one typographical error);

The appeal against sentence is based principally upon the Court receiving into evidence a report by a psychologist Dr Hayes. That report is dated 6 August 1997 and was based upon an assessment of the appellant the day before the report was prepared. It is obvious that the report was made after the appellant had been sentenced by the trial judge. The report is, therefore, either fresh or new evidence and it is admissible only if proper grounds have been established: R v Lanham [1970] 2 NSWLR 218; R v Cartwright (1989) 17 NSWLR 243 at 257. Absent sentencing error which requires the Court to resentence an appellant, this Court should, in my view, resist attempts to place before it material which was not before the sentencing judge. Simply because the legal representatives of an appellant (very often not the particular solicitor and barrister who acted for the appellant at the hearing on sentence) feel that some aspect of the personal circumstances of the appellant was not properly investigated and, therefore, not placed before the sentencing judge, or because they consider that more attention should have been given to some subjective factor than was paid to it by the legal representatives of the appellant at the sentencing hearing, it should not generally follow that a proper basis has been made out for this Court to receive such material. Those representing an accused person before the trial court have a wide discretion to conduct the defence as they see fit and this Court should not generally interfere in the exercise of that discretion: R v Birks (1990) 19 NSWLR 677 at 683-685. I see no reason why that principle should not apply, at least to the same extent, to sentencing proceedings as it does to the actual trial. 71 In the present case there was clearly material that indicated that the appellant was in a somewhat abnormal state of mind on the evening in question over and above the fact that he was intoxicated. On the complainant's account he had told her that he wanted to have intercourse once more before killing himself. He wrote a letter that he left in the kitchen as follows:

Mum Please 4give me. I tryed (sic) to be a good son. Nan, I'm so sorry to put u through this. I have no explination (sic).

The wife gave evidence that the appellant was at one stage banging his head against the wall of the house and telling the children that he would not be able to look after them any longer. And of course there was the attempt to hang himself in the park. The appellant's uncontradicted evidence at the trial was that he intended to commit suicide. There was also evidence of him wearing the complainant's panties and his explanation to her that he was "a sick fuck". 72 The pre-sentence report contained the following under the heading "Factors related to offending":

Emotional [The appellant] reports that he was feeling suicidal at the time of the offences. He was separated from his wife and children, had no stable accommodation and felt like a failure.

Apart from his sexual offending [the appellant] appears to have a lengthy history of depression with thoughts and actions leading to self-harm. He has been referred to a psychologist to address this problem. 73 During the course of submissions by defence counsel at the sentencing hearing she relied upon the emotional upheaval of the appellant as evidenced by his attempt to commit suicide. The Judge asked whether there was any evidence of brain injury and defence counsel said that she had instructions that there had been periods of headaches and dizziness but they had passed. The Judge asked whether she was happy to proceed without pursuing that topic and counsel indicated that she was. Further during the course of her address defence counsel referred to the fact that the appellant had been seeing a psychologist while in custody. It seems reasonably clear that, for whatever reason, a decision was made not to place before the court any psychological or psychiatric evidence. 74 I do not find it particularly remarkable that no psychological material was placed before the Judge. As I have already indicated, it was obvious that the appellant was mentally disordered on the evening in question in that he apparently formed the intention to commit suicide before he decided to assault the complainant. It was one of the reasons he gave for wanting to have intercourse with her. There was no suggestion that the attempt to take his life was not a genuine one. There was some material indicating that as a result he was hospitalised for some period of time although no medical evidence was placed before the court. There was material before the Judge that the appellant was depressed at the time because of his situation with the children and his lack of any permanent accommodation away from the family home. He had given evidence to this effect during the course of the trial and a similar statement was contained in the pre-sentence report. However, although his mental state was a relevant factor, it lost some of its significance because of the prior offence of sexual assault for which he had been imprisoned. 75 Even without a psychological report, it would have been reasonable for the Judge to infer that the appellant's mental condition was a somewhat transient state due to his particular circumstances at the time, and that his intoxication contributed to his feelings of despair on this evening. The pre-sentence report indicated how the appellant needed assistance and what could be done to advance his rehabilitation. Although there may have been a particular course of psychological treatment required, there was ample material before the Judge upon which a finding of special circumstances could have been made to assist the rehabilitation of the appellant if the Judge had been minded to make such a finding. 76 I am far from satisfied that there is a sufficient foundation made out to receive the psychological report as a basis for interfering with the sentence imposed absent any other error in the exercise of the judge's discretion. I would reject the evidence as fresh or new evidence going to the merits of the appeal. However, I would be prepared to accept the report, if the Court came to re-sentence the appellant, on the basis that it amplified material that was before the sentencing Judge. However, I wish to make clear my view that this Court should not readily receive evidence when called upon to re-sentence an appellant where that evidence could have, and should have, been placed before the sentencing Judge. It is not appropriate in my view that this Court should rehear the sentencing proceedings afresh. 77 However, notwithstanding the absence of any psychiatric or psychological report, there was, as I have already indicated, clear evidence that the appellant was disordered in his thinking and behaviour on the night in question. Yet there is no reference to this fact by the Judge in his sentencing remarks other than when reciting the facts or in a lengthy quote from the pre-sentence report. The only reference to defence counsel's submissions in this regard was as follows:

Counsel's reference to emotion and alcohol lacks cogency. 78 With respect I do not understand that remark in light of the evidence of the appellant's unstable mental condition at the time. The appellant's mental state was clearly a relevant fact in determining whether the offence was in the mid-range of seriousness, yet there is no reference to it at all when the Judge was determining the seriousness of the offences. The Judge gives no reasons for making the finding that the offending fell within the mid-range of seriousness. In obvious cases the failure to do so might not indicate that the discretion miscarried. But where, as here, there was in existence an obvious fact that would tend against such a finding, there seems to me to be a requirement based upon general principles that the Judge explain how the finding was made notwithstanding the evidence of the appellant's mental state. 79 In my opinion the absence of any appropriate consideration of the appellant's mental state on any of the issues that the sentencing judge was required to consider indicates that the sentencing discretion miscarried by reason of the failure to take into account a relevant fact. It is, therefore, open to the Court to consider the psychological report on the question of re-sentencing the appellant. 80 The psychological report does not advance the matter greatly. Much of it is simply a restatement of the appellant's version of events and his feelings at the time of the incident. Unsurprisingly the psychologist reports that the appellant suffered from clinical levels of depression and anxiety at the time of the incident and had suicidal thoughts. These problems led him to abuse alcohol and directly impinged upon his capacity to make reasoned judgments. The psychologist believes that the appellant needs intensive treatment and has set out a treatment plan. 81 None of this material really explains why the appellant embarked upon violence to the complainant including sexually assaulting her, except that his thoughts and judgments were disordered. As I have already noted, the material has less significance than might otherwise have been the case in light of the earlier sexual assault offences. Still it seems to me to be a matter of significance in determining whether the offences were within the mid-range of seriousness and in light of his disordered mental state I do not believe that they are. 82 There are a number of matters that can amount to aggravating factors under s 61J. They are clearly not all of the same seriousness. For example, it is an aggravating factor to threaten to inflict actual bodily harm at the time of, or immediately before or after, the commission of the sexual assault. Generally speaking that factor would be less serious than actually inflicting harm. But of course it depends upon the nature of the threat and, for example, whether a weapon was used. It is an aggravating factor that the victim has a serious physical or serious intellectual disability. Again, generally speaking, such a matter of aggravation would be more serious than inflicting harm that amounted to no more than bare actual bodily injury. Of course there can be other aggravating factors not mentioned in s 61J(2), such as acts degrading the complainant. 83 As I have indicated there is no analysis at all undertaken by the sentencing judge of what an offence of mid-range seriousness would entail in such a situation where there are a range of aggravating factors that may or may not be present and may differ in degrees of seriousness. It is not an easy task to consider what might represent an offence of mid-range seriousness in such a situation but that is what is required. It is not good enough, in my opinion, in such a case simply to make the bald statement that the offence is within the mid-range of seriousness without explaining how that assessment has been made or to describe them as "terrible crimes". It is unfortunate that sentencing has been so complicated by the standard non-parole provisions but that is a result of the legislation and the courts cannot avoid it. Although an assessment of the seriousness of an offence is a finding of fact and one with which the court will not normally interfere, when the finding is made apparently without any regard to a critical piece of evidence, it cannot withstand scrutiny. 84 In the present case, it is clear that the offences were impulsive and had their genesis in the appellant's alcohol consumption and his consequential depression and disordered thinking. Of course the offences occurred in the complainant's own home, but that was of less significance in this case because the appellant was living there. The Judge found that this gave rise to a breach of trust because the appellant had been given a key to the premises to look after the children. With respect that misrepresents the situation and I doubt that this was an aggravating feature within the terms of s 21A(2)(l). There was no other aggravating factor under s 21A(2) nor otherwise. However, there were no mitigating factors under s 21A(3). 85 In my opinion, notwithstanding the gravity of the offence under s 61J, it fell significantly below the mid-range of seriousness. All offences falling within this category of sexual assault will be very serious offences and that is no doubt why there is a maximum penalty prescribed of imprisonment for 20 years. But there has to be a discrimination made between the offence committed and the hypothetical offence in the mid-range of seriousness. In this case the aggravating feature based upon the infliction of actual bodily harm was not of a particularly serious kind as the injuries were relevantly minor and mostly superficial. There were no acts of degradation of the complainant other than the sexual assaults themselves. The appellant was mentally disturbed at the time of the offending and this was a direct cause of the offences as it arose from his relationship with the complainant. 86 Similarly in relation to the second and third counts by reason of the appellant's mental state the offences fall short of the mid-range of offending. It should be noted than none of the aggravating features surrounding that offending could be taken into account because the offences were not charged under s 61J. So it could not be part of the offending that the complainant was threatened at this time and that actual bodily harm was inflicted upon her, for example by the injury to her wrists. Again the Judge gave no consideration at all to what might be a mid-range offence under s 61I or where these particular offences fell within the range of offending encompassed within that section. The task is not an easy one because it is difficult to consider a range of offending without taking into account matters that would give rise to aggravating factors under the more serious offence under s 61J. However, in this case the offence was impulsive and committed when the appellant was mentally disturbed and contemplating suicide. 87 The Judge stated that general deterrence was a factor. That is no doubt true, as it is in all cases of domestic violence. But with respect it is too simplistic a statement in a case where the offences clearly arise from the very disturbed mental state of the offender who was genuinely suicidal throughout the commission of the offences and generally behaving in a bizarre and abnormal manner, such as wearing his wife's panties. I believe there was a basis to moderate the significance of general deterrence in such a case. 88 The Judge made all sentences concurrent. There is a failure to indicate why he came to that view other than a remark that he saw "no call for accumulation of the sentence I propose". With respect that is not an adequate consideration of this important issue. It should be clearly understood that the issue of whether sentences should be made concurrent or cumulative is a matter of discretion but is to be determined according to proper principles. It does not follow, particularly with sexual assault offences, that simply because the offences are part of the one criminal activity the sentences should be served concurrently. In R v MMK [2006] NSWCCA 272 this Court most recently considered this issue and stated:

[13] In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality. 89 In my opinion the sentence for the first offence could not encompass the total criminality for all the offending. Each of the sexual assaults was serious. There was a break between the offence in the first count and the offences committed in the second and third counts. The third count involved anal intercourse whereas the first and second counts were offences of vaginal intercourse. 90 The issue arises whether there should be a finding of special circumstances. The Judge simply stated that there were none. That finding might have been appropriate in the absence of any psychological evidence to suggest that the appellant needed any particular form of treatment. Normally this court would not interfere with that finding in the absence of anything to suggest that it was not open. However where, as here, the discretion totally miscarried by the failure of the Judge to properly consider the question of the standard non-parole period, it is open to this Court to reconsider the issue as it is in effect re-exercising the sentencing discretion afresh. The appellant according to the psychological report remains at risk of suicide and will do so until he can resolve to accept the break-up of his family. He needs extensive treatment and no doubt this can best be achieved on his release. However, the offences are such that there can be little moderation to the non-parole period to ensure that it reflects the objective seriousness of the offending notwithstanding the appellant's mental state at the time. There are special circumstances in respect of the second and third counts because of the partial accumulation of sentences. 91 The orders I propose are as follows:

(2) Application for leave to appeal against sentence granted, appeal allowed and the sentences quashed;

(3)(a) On the first count the appellant is sentenced to a term of imprisonment comprising a non-parole period of 6 years to date from 29 November 2004 and to expire on 28 November 2010. There is to be a balance of term of 3½ years from 29 November 2010;

(3)(b) On the second and third counts the appellant is sentenced to a term of imprisonment comprising a non-parole period of 3½ years to date from 29 November 2008 and to expire on 28 May 2012 the date upon which the appellant is eligible to be released to parole. There is to be a balance of term of 3½ years from 29 May 2012.

It is intended that the appellant be sentenced to an overall term of 11 years with an overall non-parole period of 7½ years from 29 November 2004 before being eligible to be released to parole on 28 May 2012. 92 HALL J: I agree with Howie J. **********

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