Wyper v The Queen; R v Wyper [2017] ACTCA 59

Authorised report: 19 ACTLR 288

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: Wyper v The Queen; R v Wyper

Citation: [2017] ACTCA 59

Hearing Date: 2 November 2017

Decision Date: 11 December 2017

Before: Murrell CJ, Bromwich J and Robinson AJ

Decision: The appellant is refused leave to appeal on ground (c). The appeals against conviction and sentence are dismissed.

Catchwords: APPEAL – GENERAL PRINCIPLES – Appeal against conviction – whether verdict is unreasonable or cannot be supported having regard to the complainant’s evidence – complainant’s credibility and reliability as a witness – whether failure to put defence case to jury resulted in miscarriage of justice – whether leave is required where alleged failure to put defence case – whether failure to give appropriate direction about onus of proof regarding alleged motive to lie – no objection taken APPEAL – GENERAL PRINCIPLES – Crown appeal against sentence – whether sentence manifestly inadequate – intensive correction order – nature of sentencing discretion – sentencing principles in family violence offences – not typical family violence offence – nature of intensive correction orders

Legislation Cited: Crimes (Sentencing) Act 2005 (ACT) ss 11, 33(za) Crimes Act 1900 (ACT) s 54(1) Court Procedures Rules 2006 (ACT) r 5531 Supreme Court Act 1933 (ACT) ss 37O(2)(a)

Cases Cited: Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Cashin v The Queen [2017] ACTCA 13 Cherry v The Queen [2017] NSWCCA 150 Cruz v The Queen [2017] ACTCA 48 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym) [2017] HCA 41; 91 ALJR 1063 Director of Public Prosecutions (Vic) v OJA [2007] VSCA 129; 172 A Crim R 181 Doe v The Queen [2008] NSWCCA 203; 187 A Crim R 328 GW v The Queen [2015] ACTCA 15; 306 FLR 104 Hargreaves v The Queen [2011] HCA 44; 245 CLR 257 Hili v The Queen [2010] HCA 45; 242 CLR 520 Liberato v The Queen (1985) 159 CLR 507 M v The Queen (1994) 181 CLR 487 MFA v The Queen [2002] HCA 53; 213 CLR 606 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 Munda v State of South Australia [2013] HCA 38; 249 CLR 600 Munro v The Queen [2014] ACTCA 11 Ngerengere (No 3) [2016] ACTSC 229 O’ Rafferty v The Queen [2014] ACTCA 35 R v Baden-Clay [2016] HCA 35; 258 CLR 308 R v GAR (No 2) [2010] NSWCCA 164 R v Getachew [2012] HCA 10; 248 CLR 22 R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 R v Hidic [2017] ACTSC 307 R v Hill [2015] ACTSC 289 R v Lee [2017] ACTCA 30 R v Murray (1987) 11 NSWLR 12 R v Pham [2015] HCA 39; 256 CLR 550 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 Samani v The Queen [2016] ACTCA 48 South v The Queen [2007] NSWCCA 117 Wong v The Queen [2001] HCA 64; 207 CLR 584

Texts Cited: Explanatory Statement, Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT)

Parties: Gavin Wyper (Appellant) The Queen (Respondent)

Representation: Counsel Mr K Archer and Mr A Hopkins (Appellant) Mr J White SC (Respondent)

Solicitors Rachel Bird & Co (Appellant) ACT Director of Public Prosecutions (Respondent)

File Numbers: ACTCA 3 of 2017; ACTCA 21 of 2017

Decision under appeal: Court/Tribunal: Supreme Court of the ACT Before: Refshauge J Date of Decision: 2 May 2017 Case Title: R v Wyper; R v Wyper (No 2) Citation: [2017] ACTSC 50; [2017] ACTSC 103 Court File Number: SCC 109 of 2016

THE COURT:

The appeals

1. On 20 December 2016, a jury found Gavin Wyper (the appellant) guilty of the offence that, on 17 January 2016, he engaged in sexual intercourse with the complainant without her consent, being reckless as to whether she was consenting. The offence is contrary to s 54(1) of the Crimes Act 1900 (ACT). It attracts a maximum penalty of 12 years’ imprisonment.

2. On 2 May 2017, Refshauge J (the trial judge) sentenced the appellant to two years and six months’ imprisonment from 2 May 2017 and ordered that the sentence be served by way of intensive correction order (ICO) in the community under s 11 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act): R v Wyper (No 2) [2017] ACTSC 103 (Wyper (No 2)). The trial judge imposed a community service condition on the ICO, requiring that the appellant perform 100 hours of community service work within 12 months.

3. The appellant has already served the community service condition.

4. The appellant sought to appeal against the conviction on the grounds that:

(a) The verdict was “unsafe and unsatisfactory” (unreasonable or unsupportable) having regard to the unreliability of the complainant’s evidence: Supreme Court Act 1933 (ACT) (SCA) s 37O(2)(a)(i).

(b) The trial judge failed to accurately and fairly put the defence case to the jury, resulting in a miscarriage of justice: SCA s 37O(2)(a)(iii).

(c) The trial judge failed to clearly direct the jury on the onus of proof applying to the defence case that the complainant had a motive to lie, thereby misstating the law and/or causing a miscarriage of justice: SCA s 37O(2)(a)(ii) and/or (iii).

5. Rule 5531 of the Court Procedures Rules 2006 (CPR) provides that, unless the Court of Appeal orders otherwise, an appellant cannot appeal against “a direction given by the trial judge” or “the trial judge’s failure to give a direction” if the appellant did not take objection at the trial. In relation to ground (c), leave is required. The parties disagreed about whether the appellant required leave to pursue ground (b).

6. The prosecution appealed on the ground that the sentence was manifestly inadequate.

7. Although he was the respondent to the prosecution appeal against sentence, throughout these reasons we will refer to Mr Wyper as the appellant.

8. For the reasons that appear below, both the appeal against conviction and the appeal against sentence will be dismissed.

Evidence

9. From about July 2014 to December 2015, the appellant and the complainant maintained an intimate relationship. They kept separate homes, but the complainant often stayed overnight at the appellant’s home.

10. In December 2015, the complainant travelled overseas. While she was overseas, she was told that the appellant had resumed a relationship with a former girlfriend. When the complainant returned to Australia, she raised the matter with the appellant, who reassured her that he wanted to remain in a relationship with her. The complainant moved into the appellant’s house.

11. At about 8:30 am on Sunday 17 January 2016, the appellant asked the complainant to move out of his house. The appellant declined to provide a reason for the request.

12. From about that point, the appellant’s account of events differed significantly from the complainant’s account.

13. According to the complainant, she went into the bedroom and the appellant followed her. The appellant repeated his request that she leave. She said that she did not want to leave. The appellant then said: “do you want me to fuck you, make you happy, then you will leave?” The appellant positioned himself on top of the complainant, held her down with his hand, pulled down her pants, parted her legs and digitally penetrated her for a couple of minutes. She experienced pain. She told the appellant that he was hurting her and that she wanted to leave. He stopped the sexual intercourse and got off the bed. The complainant went to the bathroom. During the assault, the complainant was frightened and urinated on the bed. Immediately afterwards, she poured water and mouthwash onto the wet area. She then decided to pour liquid onto the spare bed with a view to disrupting the appellant’s capacity to sleep comfortably. She proceeded to pack her belongings. The appellant watched her while she was packing. She drove away.

14. The appellant denied that he had engaged in digital penetration. He gave evidence that, when he asked the complainant to move out, her response was to slam a water bottle onto the kitchen table. Because the complainant was raising her voice, the appellant went outside. He came back into the house and, after some time, he heard “coat hangers clanging”. He assumed that the complainant was packing her belongings. At one point, he helped the complainant to retrieve a radio from a high bench. Otherwise, he avoided the complainant. After the complainant had left, the appellant could not find the television remote control. While looking for the remote control, he discovered fresh scratches on walls and stab marks in a meditation cushion. He inspected the house and discovered that other items that had been damaged. As he discovered the damage, he sent text messages to the complainant. He noticed that the sheets in the master bedroom had “bluey green liquid” on them.

15. Commencing at 9:22 am on that day, the appellant and the complainant exchanged the following text messages:

09:22 am – appellant: “I am calling the police and reporting the damage to my walls, meditation cushion and the stealing of my tv remote.” 09:23 am – appellant: “Oh and nice effort with my spices…” 09:26 am – appellant: “I will tell [the complainant’s daughter] of your efforts… and u have my keys.” 09:33 am – complainant: “your Tv remote in your place” 09:35am – appellant: “Where is it?” 09:36am – complainant: “not tell you” 09:37am – appellant: “I will be getting quotes for repairs and painting and replacement remotes etc” 09:39am – appellant: “and my bed you bitch” 09:40am – complainant: “what?” 09:42am – appellant: “You are in big trouble … coming to your place” 09:44am – complainant: “what is trouble?” 09:48am – appellant: “Replacement of my chair as well … a couple of thousand dollars of damage” 09:50am – appellant: “Remote to my robot .. damage to my billiard table ….” 09:52am – missed call from appellant, voice mail transcribed: “Hey and my busy table and my remote to my … Where the hell are they. Tell you what … going to cost you.” 09:53am – appellant: “damage to my spare bed …” 09:56am – appellant: “taking photos to send to your work” 10:02 am – complainant: “the punishments are for botj” “Both” 10:14 am – appellant: “And computer screen” 10:17am – appellant: “You will pay for this …” 10:23 am – appellant: “And a new breville food processor .” 10:25 am – complainant: “I will kill myself nothing is to pay. how did you treat me?” 10:25 am – appellant: “You will pay lots” 10:31 am – appellant: “And stab my suit and clothes … naughty” 10:45 am – appellant: “And my leather chair that my sons bought me …” “I want my house keys back before 12:30pm …” 11:01 am – appellant: “And just to be really bitter and twisted cut pictures of my sons and my dad’s Christmas card …” 11:19am – complainant: “I will call police as you raped me and abused me this morning I will post your house key”

16. The complainant said that, when she arrived home, she became worried, drove away from her home and telephoned a friend. She spoke to the friend’s husband. She also spoke to her daughter, but told her little of what had occurred. She then drove back home.

17. At the trial, the friend’s husband gave evidence that, at about 9:45 am on Sunday, 17 January, he received a brief phone call from the complainant asking to speak to his wife. The complainant was “sobbing”.

18. He said that, about 15 minutes later (at approximately 10:00 am), he telephoned the complainant and asked whether she was alright. The complainant replied partly in Chinese and partly in English. He understood her to mean “that she was hurt, physically hurt, and that someone had hurt her. She was afraid. She thought someone was going to come after her and hurt her some more”. The complainant told the friend’s husband that she had been “beaten” by her boyfriend. He asked whether she had been hurt “physically”, and she replied “yes”. He asked whether she had been hurt “sexually”, and she replied “yes”. He asked whether her boyfriend had entered her body, and the complainant replied “yes”. He told her “well, if you’ve been beaten and someone’s forced themselves on you, you’ve been raped”.

19. In a third telephone call, the complainant called the friend’s husband and told him that “she was scared to go home. She thought there was someone there”. He advised her to call the police and to consider applying for a protection order.

20. At 11:12 am on 17 January 2016, the appellant called the police and complained about the property damage.

21. At about 1:20 pm on 17 January 2016, the complainant called the police and complained about the sexual assault.

22. After police attended the complainant’s house, her friend’s husband drove the complainant to hospital for a medical examination. She said that her legs were weak and sore and he noticed that she limped to the car. He also noticed some redness and bruising, mainly on her forearms. At about this time, the complainant was receiving calls about the property damage. She told the friend’s husband that she thought that the appellant was “making up stories” to make her feel or look bad.

23. The medical examination was undertaken at approximately 5:15 pm on 17 January 2016. It revealed multiple bruises and some abrasions on both arms and both upper thighs. The complainant told the examining doctor that the injuries had been caused by the appellant. A genital examination revealed a “triangular shaped laceration” at the base of the complainant’s vaginal opening, indicating “blunt force to the lower entrance of the vagina”. The doctor concluded that the injury was “likely less than 24 hours old and it was likely to have occurred during the penetration of the vagina”. The complainant told the doctor that the appellant had caused the injury with his fingers.

The cause of the property damage and its relevance

25. The complainant was not fluent in English, but she gave most of her evidence in English, referring to the interpreter only occasionally.

26. The complainant consistently admitted pouring water and mouthwash onto the bed and consistently denied causing other property damage.

27. However, there was substantial evidence supporting the appellant’s oral evidence that it was the complainant who had caused the other damage to his property. The appellant’s account was supported by the appellant’s contemporaneous text messages of complaint, the substance of which the complainant did not deny in her text messages. There was photographic evidence. The complainant had the opportunity to cause the damage while she was packing. She had motives to do so; the appellant had jilted her and, on the complainant’s evidence, he had raped her.

28. One alternative explanation for the property damage was that the appellant had caused the damage for the purpose of “framing” or demeaning the complainant. This explanation is unappealing, particularly as one of the items that was damaged was a photograph of sentimental importance to the appellant. Another alternative explanation was that the damage was pre-existing. Given the timing and tenor of the text complaints by the appellant, this explanation seems improbable.

29. If the complainant caused the property damage, then that fact was relevant in several ways. First, it tended to undermine the complainant’s general credibility; it enabled an argument that if she was prepared to lie about one matter relating to the appellant then she may have been prepared to lie about the sexual assault. Second, it was explicable as revenge or “payback” for the alleged sexual assault. Third, it provided a possible motive for the complainant to fabricate the complaint of sexual assault; the defence suggested that the complainant may have been motivated to fabricate the allegation of sexual assault in an attempt to distract attention away from her own criminal conduct or in order to overshadow the appellant’s complaint to police.

30. While the first two relevancies are matters of common sense, the third proposes a somewhat irrational thinking process by the complainant. However, we acknowledge that a jilted partner does not always behave rationally.

31. We note that some of the submissions made on the appeal seemed to confuse motive/s for causing property damage with motive/s for making false allegations of sexual assault.

Defence treatment of motive to fabricate allegations of sexual assault

32. On the appeal, the appellant argued that the complainant’s allegations emerged in the context of relationship difficulties that crystallised on 17 January 2016. The appellant said that, after the appellant asked the complainant to leave his house and as she was moving around the house to pack her belongings, she damaged property belonging to the appellant “out of anger” and “revenge”. When the appellant discovered the damage, he photographed it and immediately complained by text message. He warned the complainant that he would ring the police and said that he would claim compensation. He also threatened to tell the complainant’s daughter and colleagues about the damage. The appellant argued that, because of the his threats about the property damage, the complainant fabricated the complaint of sexual assault.

33. Although this argument was articulated clearly on the appeal, it was not advanced strongly at the trial. As we discuss below, there were good forensic reasons to downplay the argument at the trial; it was a “double-edged sword”.

34. In opening to the jury, defence counsel stated that the appellant denied the sexual assault. Counsel referred to the onus and standard of proof. As to a possible motive for fabricating the allegation of sexual assault, defence counsel approached the topic obliquely. He noted that the complainant had caused significant property damage while packing to leave the premises and that, after discovering the extent of the damage, the appellant had contacted the police. Counsel went on to say:

What is particularly significant about that, ladies and gentlemen, is that you will see about the timing of it. He contacts police before any allegation of rape is made by [the complainant] to him.

In fact, it would have been more pertinent to say that it was only after the accused had informed the complainant by text message that he proposed to contact the police that she mentioned rape; the alleged motive necessarily related to the time when the complainant became aware that the appellant intended to contact the police or had done so, rather than to the time when the appellant actually contacted the police.

35. In cross-examination, the complainant denied that, in her text messages, she had threatened to kill herself because she “knew [she was] in trouble for the damage [she] had done”. She denied that she had “made up that [the appellant] raped [her], because [she] knew that [she] would get in trouble for damaging his things”. The cross-examination did not further explore this issue.

36. In her closing address, the prosecutor observed that:

From the line of questioning it seems that the defence case is that [the complainant] made up the allegation to avoid or at least mitigate the consequences of property damage.

37. In his closing address, defence counsel submitted that the complainant had caused the property damage in order to punish the appellant for having a second relationship. He said that it was significant that the complainant had sent a text message alleging sexual assault only after her friend’s husband had quizzed her on that topic and that she had delayed until about 1:26 pm to make a complaint to the police. Counsel did not expressly submit that the complainant may have been motivated to fabricate the allegation of sexual assault in an attempt to — as the prosecutor submitted — “avoid or at least mitigate the consequences of property damage”. He dwelt on “inconsistencies” in the complainant’s conduct and statements, but did not firmly submit that the complainant had lied about causing the property damage, going no further than to say:

It’s not for [the appellant] to prove that [the complainant] has lied. It’s not even for you to find that she has lied. What the Crown has to prove… is beyond reasonable doubt that he engaged in this sexual act.

Trial judge’s treatment of defence case and motive to fabricate allegations

38. The trial judge gave a “Liberato direction” (Liberato v The Queen (1985) 159 CLR 507), informing the jury that:

The Crown case depends on you accepting the evidence of [the complainant] beyond reasonable doubt, notwithstanding the sworn denials of [the appellant]. You don’t have to believe him before he is entitled to be acquitted. In summary, first, if you believe the evidence of [the appellant] obviously you must acquit. That's the end of it. Second, if you find difficulty in accepting the evidence of [the appellant] but think that it might be true, then you must also acquit. Third, if you don't believe [the appellant] then you should put his testimony to one side. The question will then remain, has the Crown, upon the basis of the evidence that you do accept, proved the guilt of [the appellant] beyond reasonable doubt.

39. The trial judge went on to give the following “Murray direction” (R v Murray (1987) 11 NSWLR 12):

I need also to direct you that as the principal evidence against [the appellant] is the evidence of [the complainant], you need to scrutinise her evidence very carefully. Indeed, I need to tell you that it would be dangerous to convict Mr Wyper on the uncorroborated evidence of [the complainant] unless, after a thorough scrutiny of the evidence and paying heed to this warning, you’re convinced of its truth and its accuracy. Thus you need to be cautious about accepting [the complainant’s] evidence and the weight you put on it but that is, of course, a matter entirely for you as to whether you accept it and what weight you give it. You must, however, take into account these warnings that I’m giving you. (emphasis added)

40. The above direction was very favourable to the defence, particularly as the complainant’s evidence was in fact corroborated by the medical evidence that was consistent with her account of what had taken place. Further it received some confirmation through the early complaints that she made. The NSW Court of Criminal Appeal has cautioned against using the phrase “dangerous to convict” when giving a direction under s 165 of the Evidence Act 1995 (NSW) (“unreliable evidence”), which is in similar terms to s 165 of the Evidence Act 2011 (ACT). In R v GAR (No 2) [2010] NSWCCA 164 at [103] the Court explained:

In any event, although a warning in terms of the formulation “dangerous to convict” may be given as part of a s 165 direction in an appropriate case, a trial Judge is never under a duty to do so: Kanaan v R [2006] NSWCCA 109 at [217]; Robinson v R at 93 [8]. Further, as Spigelman CJ observed in Robinson v R at 95 [19], the use of the terminology “dangerous to convict” fails to give sufficient weight to the danger that a jury will regard the formulation as, in substance, an instruction by the jury to acquit, so that it is a formulation best avoided save in exceptional circumstances.

41. Although the trial judge did not refer to possible motives for inventing a false allegation of sexual assault, in the course of directing the jury about the manner in which they could use complaint evidence, his Honour said:

You'll recall also the submission that [defence counsel] made to you about the context in which the complaint was made and you'll take that into account in determining whether the making of the complaint was done at a time and in a way that would lead you to accept that it was made honestly.

42. When dealing with the defence case, the trial judge said:

[The appellant] denied that the offence occurred, his defence was that nothing happened and indeed that [the complainant] damaged a lot of his property when she left his house…

[The appellant] relied too on the complaint that he had made to police about the damage to his property. If you find that he did make the complaint to the police as he said and you've heard a recording of his call to them and you might think that that's not difficult to find, then you may take this into account as some evidence of the occurrence of the incident of what he complained, namely the damage to his property.

Leave to argue appeal grounds (b) and (c)

43. In proposed appeal ground (b), the appellant contended that the trial judge had failed to accurately and fairly put the defence case about motive to lie, which was central to the defence case as a whole.

44. First, the appellant submitted that, as ground (b) alleged failure to accurately and fairly put the defence case, leave was not required because it is not a “failure to give a direction” within CPR r 5531(b). This point was considered but not resolved in GW v The Queen [2015] ACTCA 15; 306 FLR 104 at [14] (GW), referring to O’ Rafferty v The Queen [2014] ACTCA 35 at [13]. In GW, the Court observed that, as a failure to adequately put the defence case would often create a substantial miscarriage of justice, if leave was necessary to argue that point, then it would generally be granted. However, even if leave was not required, the appellate court would nevertheless take into account whether defence counsel objected to the fairness of the summing up; a failure to object would suggest that the summing up was considered by defence counsel to be fair and adequate.

45. Without determining whether leave is required, we have considered the merits of ground (b), taking into account the lack of objection to the summing up. For the reasons that appear below, we find the ground to be unmeritorious.

46. In proposed appeal ground (c), the appellant submitted that the trial judge failed to direct the jury on the onus of proof applying to the defence case that the complainant had a motive to lie, thereby misstating the law and/or causing a miscarriage of justice.

47. The appellant sought no direction on this matter at the trial and, pursuant to r 5531(b), he required leave to argue the matter. Ground (c) is inextricably linked with ground (b) and both grounds can be dealt with briefly. Consequently, we will address the merits of the proposed ground (c) when considering ground (b). For the reasons that appear below, we find that it, too, is unmeritorious. Consideration of appeal ground (a) – verdict unreasonable or unsupportable

48. The appellant submitted that the evidence of the complainant (the critical prosecution witness) lacked credibility for reasons that could not be explained by the manner in which it was given. The complainant’s denial that she had caused the property damage was inherently implausible and must be doubted. The fact that the complainant caused the property damage provided her with a motive to fabricate the rape allegation, which meant that the jury ought to have doubted the appellant’s guilt.

49. The circumstances in which an appellate court will intervene to set aside a verdict as unsafe and unsatisfactory were authoritatively established in M v The Queen (1994) 181 CLR 487 (M). At 494–495, the majority stated:

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

50. M was applied in GW where, at [43], this Court said:

…the appellate court must independently assess the sufficiency and quality of the evidence… The ultimate question is whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In its reasons, the appellate court must disclose its assessment of the capacity of the evidence to support the verdict.

51. When considering whether it was “open” to a jury to convict, an appellate court must be careful, as was emphasised in R v Baden-Clay [2016] HCA 35; 258 CLR 308 at [65]– [66]:

[65] 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… [66] 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)

52. At [38] of Cruz v The Queen [2017] ACTCA 48, this Court said: … A key qualification to that ordinary basis for finding that a jury ought to have shared the appeal court’s doubts is when the advantage that the jury enjoyed in seeing and hearing the evidence at trial would have been such as to overcome the appeal court’s doubt…

53. We accept that the complainant’s denial that she caused damage to the appellant’s property was somewhat implausible. Nevertheless, we consider that, having regard to the jury’s advantage in seeing and hearing the complainant, it was “open” to the jury to convict.

54. It was open to the jury to doubt or even disbelieve the complainant’s evidence about property damage yet accept her evidence about the offence beyond reasonable doubt. If there is a rational basis for doing so, a factfinder may accept part of a witness’s evidence but reject another part: MFA v The Queen [2002] HCA 53; 213 CLR 606 at [34]; see also, Cashin v The Queen [2017] ACTCA 13 at [26]; GW at [60]. As the trial judge directed the jury in this case:

It's important to appreciate that in relation to accepting the evidence of any witness, you're not obliged to accept or reject the whole of the witness's evidence. You may accept all of the evidence given by a witness, a part of the evidence given by a witness, or none of the evidence given by a witness. You may, if you think it right, accept part of a witness's evidence and reject another part of it. The fact that you don't accept a portion of the evidence of a witness doesn't mean that you must reject, necessarily, the whole of that witness's evidence.

55. There was a rational basis for doubting the complainant’s evidence about causing the property damage but accepting her evidence about the sexual assault. The complaint evidence and medical evidence provided independent support for the complainant’s allegations of sexual assault. The text messages (depending upon how they were interpreted by the jury), the complaint evidence and the medical evidence of injury were consistent with the alleged assault. The medical evidence provided powerful corroboration. Further, if the jury found that the complainant did damage the appellant’s property, it may have concluded that such behaviour was consistent with the alleged sexual assault; that the complainant may have been motivated to damage the appellant’s property by way of exacting revenge for a sexual assault that had just occurred.

56. Ultimately, it was for the jury to assess the credibility of the complainant. Because she was not fluent in English and she was of Chinese cultural background, it is particularly difficult for this Court to assess the quality of her evidence by considering the transcript. The cultural and language barriers mean that the jury was in a much better position than this Court to assess her as a witness.

Consideration of appeal grounds (b) and (c) – failure to fairly put the defence case and failure to give appropriate direction about onus of proof associated with alleged motive to lie

57. The appellant’s first submission was that the complainant’s motive to lie about whether she had been sexually assaulted was central to the defence case but, when summing up to the jury, the trial judge ignored the matter.

58. The second submission was that, as the defence had raised a possible motive to lie, the trial judge should have directed the jury that there was no onus on the defence to establish the asserted motive (or any other motive) and it remained for the prosecution to prove the case beyond reasonable doubt.

59. As to the first submission, the starting point is that jury directions should be crafted so as to assist the jury to focus on the real issues in the trial and avoid confusing the jury. In R v Getachew [2012] HCA 10; 248 CLR 22 at [29], the High Court said:

The directions to be given to a jury on a trial for rape are to be moulded in the light of the proper construction of the relevant provisions of the Crimes Act and, no less importantly, having regard to the real issues in the trial. As this court has repeatedly pointed out, the judge in a criminal trial must accept the responsibility of deciding what are the real issues in the case, must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury need to know to decide those issues. (footnotes omitted)

60. Consistently with this approach, where the defence has advanced a possible motive to lie (it has become a “real issue” in the trial), it will generally be appropriate for the trial judge to refer to the possible motive when directing the jury. In South v The Queen [2007] NSWCCA 117 at [43], the Court said:

Both the Crown prosecutor and the accused are entitled to put arguments to the jury relating to the evidence of a motive to lie which has been asserted in relation to a witness in the particular case, and a satisfactory summing-up should include reference to those arguments… (emphasis in original)

61. In this trial, the defence did make it a “real issue” that the complainant was motivated to lie about a sexual assault in order to “avoid or at least mitigate the consequences of property damage” (see above [36]). That was the prosecutor’s perception.

62. However, throughout the trial the defence was ambivalent about pressing the issue. In his closing address, defence counsel did not even mention that the complainant may have been motivated to lie because of the appellant’s threat to report the property damage (or for any other reason).

63. There were good forensic reasons for avoiding the issue. It was a “double-edged sword”. On one hand, when the complainant learned that the appellant intended to report the property damage to the police then that may have motivated her to fabricate allegations of sexual assault (although the manner in which an allegation of sexual assault could address the consequences of causing property damage is not apparent). On the other hand, a sexual assault may have provided the motive for the damage; the complainant may have been motivated to cause the property damage for the purpose of exacting revenge for a sexual assault that had just occurred. Defence counsel had to make forensic decisions about the manner in which he would deal with this dilemma. Understandably, he chose to downplay the issue of motive to lie.

64. Mirroring the approach of defence counsel, in his directions the trial judge made only brief and indirect reference to the possible motive/s for the complainant fabricating a false allegation about sexual assault: see [41]–[42] above. Like defence counsel, the trial judge did not venture into the difficult territory of how and why a threat to report property damage may have motivated the complainant to fabricate an allegation of sexual assault.

65. Given the manner in which the defence had been conducted, it is not surprising that when, at the conclusion of the summing up, the trial judge asked counsel whether they had any submissions about the summing up, both counsel indicated that they did not. There was no complaint that the trial judge had failed to put the defence case in relation to motive to lie or generally.

66. In the adversarial system, an accused person and defence counsel make forensic decisions, including decisions about whether to seek further direction in relation to the summing up. Such decisions depend upon the manner in which the defence has been conducted and “the atmosphere of the trial”: Munro v The Queen [2014] ACTCA 11 at [130] (Munro). When there has been no application for redirection, the appellate court may infer that defence counsel perceived no unfairness or injustice in the directions that were given: Munro at [130].

67. We conclude that, having regard to the manner in which the defence was conducted (presumably because of the “double-edged” nature of the possible motive) and “the atmosphere of the trial”, defence counsel perceived the summing up to be fair and reasonable and, for that reason, did not seek a further direction about motive.

Having regard to these authorities, the following propositions emerge. Where the defence case directly asserts a motive to lie, and the issue has accordingly featured in the addresses of counsel, a miscarriage of justice may arise if the summing up gives undue emphasis to the issue of motive (“the central theme”), or goes beyond the asserted motive and poses the question at large, and the summing up does not contain full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie and that rejection of the motive does not justify a conclusion that the evidence of the witness is truthful.

70. The defence case did not “directly assert a motive to lie”. The issue did not “feature in the addresses of counsel”. It was the subject of only indirect reference in the summing up. Consequently, we consider that there was no need to give any direction to the effect that the accused bore no onus to prove a motive to lie.

71. Nevertheless, we note that a strong focus of the trial judge’s summing up was the need for the prosecution to prove its case beyond reasonable doubt and the related need for the jury to decide whether it was satisfied beyond reasonable doubt that the complainant was telling the truth about the critical events.

72. Appeal ground (b) is not made out. In relation to ground (c), leave to appeal should be refused.

Reasons for sentence

73. In his reasons for sentence of 1 March 2017 (R v Wyper [2017] ACTSC 50 (Wyper)), the trial judge noted the following matters (among others):

(a) The maximum penalty for the offence (12 years’ imprisonment).

(b) The facts upon which he was sentencing, as established by the jury’s verdict.

(c) The significant physical, psychological and economic impact of the offence on the victim.

(d) The offence was a “grave” offence; as a sexual offence, it was “abhorrent to the community and should be treated by the court accordingly”: at [27]. (e) Although the offence was a relatively short duration, there were some aggravating features (in particular, it occurred within a domestic relationship, it involved some violence and it occurred in the face of express objection). His Honour also noted that the form of sexual intercourse was digital penetration (but his Honour recognised that there is no hierarchy of acts of sexual intercourse).

(f) The appellant’s strong subjective circumstances, including the circumstance that, at 56 years of age, he had no criminal record and was of otherwise excellent character.

(g) The offence was out of character and was “an uncharacteristic aberration”: at [75].

(h) “Strong protective factors” had resulted in the appellant being assessed as having a low risk of sexual or general reoffending: at [47].

(i) The appellant had maintained his innocence and was deprived of the mitigation that remorse justifies. Nevertheless, he was prepared to engage with appropriate sentencing interventions if directed by the Court to do so.

(j) Current sentencing patterns as revealed by similar cases, including R v Ballantyne (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 1 April 2014); R v Taylor [2015] ACTSC 43; and R v Buckley (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 30 August 2013).

(k) Relevant sentencing purposes, including the need for general deterrence.

(l) For such a serious offence it would ordinarily be the case that some part of the sentence must be served in full time custody.

74. After considering the ICO assessment report and observing that a sentence of imprisonment was appropriate, the trial judge said at [20] of Wyper (No 2):

Nevertheless, Mr Wyper’s good character, including his lack of criminal record in the context of his age and subjective circumstances, justifies the moderation of the severity of sentence and makes the service of the sentence of imprisonment by intensive correction order appropriate.

Crown appeal against sentence

75. The prosecution did not appeal against the head sentence of two years and six months’ imprisonment. Rather, the prosecution submitted that the only appropriate manner in which to serve sentence was by full-time imprisonment and anything less was “manifestly inadequate”, including service by ICO.

76. The principles relating to Crown appeals against sentence are well-known and were recently reiterated by this Court in R v Lee [2017] ACTCA 30 (Lee) at [53]–[57] and Cruz v The Queen [2017] ACTCA 48 (Cruz). In Cruz at [67], this Court said:

Crown sentence appeals must be approached with considerable appellate restraint, following House v The King and also Dinsdale v The Queen [2000] HCA 54; 202 CLR 321. Error must be established, whether express or inferred. It is no part of the function of this Court to substitute a conclusion it considers preferable to that formed by the trial and sentencing judge in the absence of such error being shown to exist.

77. In R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [10], this Court observed that: … whereas an offender appeal is concerned with the correction of error in a particular case, a Crown appeal against sentence should be a rarity, brought for the purpose of laying down principles for the general governance and guidance of courts: Thomson v R [2015] ACTCA 16 at [68] per Murrell CJ and Ross J, citing CMB v Attorney-General (NSW) [2015] HCA 9; 317 ALR 308; R v Duffy [2014] ACTCA 53; 297 FLR 359 at [54]–[60].

Manifest inadequacy

78. We accept that, in directing that the sentence be served by way of ICO, the trial judge imposed a lenient sentence.

79. But was it “manifestly inadequate”?

80. It is trite to say that sentencing is a matter of discretion and “instinctive synthesis”. Recently, in Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym) [2017] HCA 41; 91 ALJR 1063 at [5] (Dalgliesh), Kiefel CJ, Bell and Keane JJ quoted the following passage from Wong v The Queen [2001] HCA 64; 207 CLR 584 at 611 [75]:

[T]he task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an ‘instinctive synthesis’. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features. (emphasis in original)

81. In Barbaro v The Queen [2014] HCA 2; 253 CLR 58, the High Court rejected a strictly “mathematical” approach to sentencing. At [34], the plurality said:

Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentence cannot, and should not, be broken down into some set of component parts. (footnotes omitted)

82. The High Court has also made clear that a consideration of comparable cases may be useful, but that those cases do not fix quantitative boundaries within which future sentences must be passed: Hili v The Queen [2010] HCA 45; 242 CLR 520, [54]–[55]; R v Pham [2015] HCA 39; 256 CLR 550, [26]–[27]. In R v Kilic [2016] HCA 48; 259 CLR 256 at [22], the Court said that:

Their Honours in the Court of Appeal observed, correctly, that examination of [comparable cases] may provide a relevant “yardstick” by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles but that the requirement to have regard to the sentences imposed in those cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather the range of sentences imposed in the past may inform a “broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle”. (footnotes omitted)

83. These cases reinvigorate the importance of the inherently discretionary nature of sentencing and the corresponding reluctance of appeal courts to intervene, especially in Crown appeals.

84. A finding that a sentence is manifestly inadequate is a conclusion that the sentencing discretion has miscarried, although it may not be possible to identify a specific error: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6].

85. In this case, the prosecution submitted that a consideration of the objective seriousness of the offence, relevant sentencing principles (including general deterrence and denunciation), the appellant’s subjective characteristics, and principles drawn from comparable cases required the conclusion that the sentencing discretion had miscarried.

86. Although the prosecution does not rely on any specific error by the trial judge, as the prosecution identified particular matters we will consider each of the matters to which the prosecution referred.

Objective seriousness

87. The prosecution complained that, when assessing the objective seriousness of the offence, the trial judge failed to remark upon “key facts” concerning “the degree of violence … and the circumstances of humiliation” (in accordance with R v Hill [2015] ACTSC 289 at [15]), causing his Honour to mischaracterise the seriousness of the offending.

88. The prosecution identified the “key facts” upon which the trial judge had failed to remark as: the fact that the attack was unprovoked and unjustified; that the appellant was physically superior to the complainant; that the appellant pinned the complainant to the bed and when he forced his hand into her pants he caused her trousers to rip open; that the shock of the attack caused the complainant to urinate herself; that the offence “involved a significant breach of trust” (“a hallmark of family violence which aggravates the offending conduct and heightens the objective seriousness of the offence”); and that, after the offence, the appellant behaved in a callous way, watching the complainant as she packed her belongings and later sending a text in which he threatened to contact the police and accuse the complainant of theft.

89. The trial judge may not have characterised aspects of the appellant’s conduct in precisely the same manner as the prosecution but, insofar as it was necessary to do so, his Honour did remark upon each of the matters that the prosecution identified as “key facts”.

90. It went without saying that, like most sexual assaults, in this case the assault was “unprovoked and unjustified”; the trial judge did not suggest otherwise.

91. While the trial judge may not have expressly referred to details such as the appellant’s physical superiority or the fact that his conduct caused a rip to the complainant’s trousers, his Honour did refer to the critical matter, which was that force was used, and his Honour also expressly noted that the complainant had been unable to move because the appellant was bigger than her.

92. Having presided over the trial, the trial judge was well aware that the attack had caused the complainant to urinate. In the sentencing remarks, there was no need to dwell on this embarrassing aspect of the incident, let alone emphasise it.

93. The trial judge did not characterise the appellant’s conduct as involving a “breach of trust”, but he did refer to the vulnerability of parties in a domestic relationship and characterised the offence as “a family violence offence, which renders it more serious”: Wyper at [31].

94. It is debatable whether this particular offence is properly characterised as involving a “breach of trust”; that expression is more commonly used in circumstances where there has been a breach of what is widely considered to be a duty, such as the duty of a parent to a child or the duty of an employee to an employer. In making this observation, we do not suggest that this or any other family violence offence is any less serious because it may not involve a “breach of trust”.

Subjective features

103. The prosecution conceded that the appellant’s subjective circumstances were strong.

104. However, the prosecution argued that the trial judge overemphasised the strength of the appellant’s subjective features and “did not appropriately balance the stark lack of remorse against other subjective factors”.

105. Further, the prosecution submitted that the trial judge was “overwhelmed” by the appellant’s strong subjective circumstances, particularly the appellant’s prior good character, and allowed the subjective features to overshadow the objective seriousness of the offence, and the facts that it was a family violence offence involving actual violence.

106. In relation to the manner in which the trial judge treated the appellant’s lack of remorse, we note that the demonstration of remorse can only result in the imposition of a lesser penalty; its absence cannot justify a more severe penalty. Remorse can be relevant to a number of sentencing purposes, particularly rehabilitation; it can enable a court to reason that the acknowledgement of wrongdoing is the first step on the path to rehabilitation.

107. In this case, the trial judge was well aware that, following his conviction, the appellant continued to deny the offending conduct and demonstrated no remorse. However, the trial judge was also satisfied that the offence was truly out of character, i.e. it was unlikely that the appellant would reoffend. Further (as the trial judge observed) the appellant was at least willing to engage with “appropriate sentencing interventions” if directed to do so: Wyper at [46].

108. We detect no error in the manner in which the trial judge approached the issue of lack of remorse.

109. As to the contention that the trial judge was “overwhelmed” by the appellant’s strong subjective circumstances and failed to give adequate weight to other sentencing considerations, the sentencing remarks do not support this submission. The trial judge did not lose sight of the fact that the offence was objectively serious; his Honour characterised it as a “grave” offence: Wyper at [27]. His Honour acknowledged that the objective circumstances of the offence and relevant sentencing purposes would ordinarily call for a sentence of full-time imprisonment. His Honour laboured over whether the offender’s subjective circumstances meant that the sentence of imprisonment could be served otherwise than by way of full-time imprisonment and concluded that they did, relying on a finding that the appellant’s conduct was truly out of character.

110. The trial judge’s substantial reliance on the fact that the appellant’s conduct was “out of character” was not just a “box-ticking” reference to the conduct being “out of character”; there was a very firm basis upon which the sentencing judge was entitled to make the finding.

Sentencing range indicated by comparable cases

111. The prosecution submitted that “current sentencing practice” must be taken into account under s 33(za) of the Sentencing Act and can be determined by reference to comparable cases; further, this practice indicated that a period of full-time imprisonment was required.

112. “Current sentencing practice” and current sentencing patterns (as derived from statistics and/or comparable cases) may be different things. For present purposes, that does not matter; either way, it may be helpful to refer to comparable cases, at least for the limited purpose of identifying any “unifying principles” relevant to a particular sentencing exercise: Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80.

113. On the other hand, the sentencing range that is indicated by past sentences cannot assume primacy in the sentencing process; it is not a “controlling factor” when a sentencing court is identifying the appropriate sentence by the process of “instinctive synthesis”: Dalgleish at [68]. It cannot be used to “cap and collar” the measures of manifest excessiveness and manifest inadequacy: Director of Public Prosecutions (Vic) v OJA [2007] VSCA 129; 172 A Crim R 181 at [30], cited with approval in Dalgleish at [51].

114. The prosecution referred to cases that were said to establish the following “unifying principles”:

(a) Sexual offences are regarded as objectively serious offences by the courts; (b) The serious nature of sexual intercourse without consent demands that the sentencing purposes of deterrence, denunciation and recognition of harm to the complainant be given prominence; (c) A period of full-time imprisonment is usually necessary to give effect to the above sentencing principles.

115. The appellant did not take issue with the prosecution’s statement of “unifying principles” and nor do we.

116. However, on more than one occasion, each of the above “principles” was explicitly recognised by the trial judge. For example, in Wyper (No 2) at [7], his Honour said:

Sexual offending is, of course, a very serious matter which ordinarily warrants a term of imprisonment to be served in full-time custody because of the need to respect sentencing purposes such as general deterrence, punishment, the need to mount make the offender accountable for his or her actions, or to denounce the conduct, and to recognise the harm done to the victim.

Appropriateness of an intensive correction order

117. Pursuant to s 11 of the Sentencing Act, a court has discretion to impose an ICO where an offender is sentenced to a term of imprisonment. Where the term exceeds two years but is less than four years, the court can impose an ICO only if it considers that it is appropriate to do so having regarding to the three matters set out in s 11(3): the level of harm caused to the victim and the community by the offence, the risk posed to the community by the offender, and “the offender’s culpability for the offence having regard to all the circumstances.”

118. The prosecution contended that, although the trial judge referred to each of the three matters when deciding whether an ICO was an appropriate sentence, his Honour accorded inadequate weight to the first and third of the matters: the level of harm to the community and the culpability of the appellant.

119. The prosecution submitted that the appellant’s lack of remorse and insight into the offending, as well the “callousness” with which he treated the complainant, were particularly relevant to an assessment of culpability.

120. If by “callousness” the prosecution was referring to the comment by the appellant that preceded the assault and the circumstances in which the assault occurred (the appellant had just terminated his relationship with the complainant and she was upset), then we accept that the callousness was relevant to the assessment of culpability. The trial judge assessed the offender’s culpability as “a high”, no doubt partly because of the callousness upon which the prosecution relied.

121. In Wyper (No 2) at [28], the trial judge said:

Mr Wyper’s culpability for the offence was high and the fact that he has shown no remorse is somewhat worrying but, after anxious thought, I am satisfied that it, by itself or in combination with the other matters to which I have referred, does not make it inappropriate that an Intensive Correction Order be made.

122. Contrary to the prosecution submission, the assessment of “culpability for [an] offence” does not involve a consideration of whether the offender has shown remorse or insight. Remorse and insight (or lack thereof) occur after an offence and are part of an offender’s subjective circumstances. In the remarks quoted at [121], the trial judge was not suggesting otherwise; his Honour was merely recording that, in this case, the combination of high culpability and lack of remorse weighed against the imposition of an ICO.

123. After addressing the level of harm to the victim, the trial judge considered the harm to the community that was caused by the offence, and stated in Wyper (No 2) at [27]:

While any attack of sexual violence is an attack on the community, the isolated circumstances of the offence do not, it seems to me, amount to a reason for not making an Intensive Correction Order either in itself or in combination with the other matters.

124. The prosecution suggested that his Honour underrated the harm to the community that was caused by the offence, but did not elaborate.

125. We accept that, in general, offences of family violence cause great harm to the community, both directly and indirectly; they cause immediate physical and psychological harm, they may result in intergenerational trauma and they have significant financial consequences for the community. However, s 11(3) of the Sentencing Act is not focused on the harm caused by such offences generally, but on the harm caused by the offence in question. It is not apparent that this particular offence, which was an isolated incident, caused significant harm to the community (as opposed to the victim).

126. The prosecution further submitted that, where general deterrence is an important sentencing purpose, such as in sexual offending in a family violence context, it is not appropriate for a court to make an ICO.

127. As to the general appropriateness of an ICO, the legislature envisaged that an ICO would be an onerous sentence of imprisonment, albeit one that was served in the community, and would reflect purposes including punishment, accountability denunciation and general deterrence: R v Hidic [2017] ACTSC 307 at [50] and [53]. See also R v Ngerengere (No 3) [2016] ACTSC 229 at [21]; Samani v The Queen [2016] ACTCA 48 at [43]–[47].

128. In the Explanatory Statement to the Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT), the Attorney-General explained that an ICO is “a sentence of ‘last resort’ for offenders before full-time imprisonment.” Further, an ICO was “designed to be punitive while still allowing the courts to incorporate elements of rehabilitation… It is flexible … but still sufficiently structured to ensure every order places appropriate demands on an offender.”

129. There can be no general rule that, where general deterrence is an important sentencing purpose, such as in sexual offending in a family violence context, it is never appropriate for a court to make an ICO. In relation to any category of offence, a sentencing court has a broad discretion which must take into account many considerations, not just general deterrence. In any event, the legislature envisaged that an ICO could reflect sentencing purposes such as general deterrence.

130. We have considered the prosecution’s complaints both individually and collectively. We find that they lack substance. While the sentence is indeed lenient, we do not infer that the exercise of the sentencing discretion miscarried. Indeed, his Honour’s sentencing remarks thoroughly, transparently and persuasively explain the way in which he exercised his sentencing discretion and, by applying correct sentencing principles, arrived at a sentence that is within the available range.

Orders

131. The Court orders that:

(i) The appellant is refused leave to appeal on ground (c).

(ii) The appeal against conviction is dismissed.

(iii) The appeal against sentence is dismissed.

I certify that the preceding one hundred and thirty-one [131] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 11 December 2017