Khoury v R

1. [1]

   ADAMSON JA: Fouad Khoury (the applicant) seeks leave to appeal against his convictions for two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) (the subject offences). The counts arose out of a single incident with the complainant on 8 January 2021, involving digital and penile-vaginal penetration. The applicant was convicted after a trial by jury over which T Smith SC DCJ (the trial judge) presided.

2. [2]

   On 12 December 2022 the trial judge imposed an aggregate sentence of 4 years’ imprisonment which was back-dated to commence on 30 March 2022. It is due to expire on 29 March 2026. The non-parole period is 2 years and 4 months. The earliest date on which the applicant will be eligible for parole is 29 July 2024.

3. [3]

   The applicant was granted leave to amend ground 1 of his proposed notice of appeal on 14 February 2024. He sought leave to appeal against his conviction and sentence on the following grounds:

4. [4]

   For the reasons given below, I consider that leave to appeal ought be granted in respect of each of the two grounds but that as neither has been made out, the appeal ought be dismissed.

Ground 1: Application for leave to appeal against the convictions

1. [5]

   The jury was empanelled on 29 June 2022. The Crown opened its case to the jury on 30 June 2022, following which the complainant gave evidence.

2. [6]

   The complainant’s evidence was, relevantly, that she had previously been in a sexual relationship with the applicant which ended when she commenced a sexual relationship with another man, CG, to whom she became engaged to be married. Following the end of that relationship, the applicant, on 8 January 2021, sent a text message to the complainant, inviting her to his apartment in Burwood. The complainant’s evidence was she told the applicant that it was “not a sexual meet up” and that she would be going from his place to a dinner commitment with a friend that evening. She gave evidence that the applicant asked her whether she was still with CG and she confirmed that she was not as they had broken up. Her evidence was that when she arrived at the applicant’s apartment, he digitally penetrated her vagina and then had penile-vaginal sexual intercourse with her without her consent.

3. [7]

   The complainant gave evidence that, following the sexual assaults, she left the applicant’s apartment and met her friend, SQ, for dinner. She said that when she told SQ about what the applicant had done, SQ encouraged her to report the matter to police. After dinner with SQ, the complainant went to the Parramatta Police Station to report the offending conduct. While she was there, she called CG and told him that she had been raped. He came to the police station and followed her to Blacktown Hospital, where she underwent tests. The following day she attended Burwood Police Station to make a statement.

4. [8]

   The complainant’s cross-examination commenced on 30 June 2022 and continued into 1 July 2022, the second day of the trial. It revealed that the defence case was that the complainant had agreed to go to the applicant’s residence where she consented to the penile-vaginal sexual intercourse because she had broken up with CG and wanted to have sex with the applicant and that the digital penetration had not occurred. She denied that this was the case and said that although she had told the applicant that she and CG had broken up, she had also told the applicant that she did not want to have sex with him.

5. [9]

   After the complainant had completed her evidence, CG was called as a witness in the Crown case. He gave evidence that he had been in a sexual relationship with the complainant until about 2020. After their relationship had ended, they had contact from time to time. CG gave evidence that he received a telephone call from the complainant who told him that she was at the police station at Parramatta and that she had been “raped”. He told her that he was on his way and drove to the police station to comfort her. When he arrived, the complainant was “very shaken up … trembling [and in] a very bad way”. Police officers then transported the complainant to Blacktown Hospital. CG drove separately to the hospital where he remained with the complainant and the police officers until early in the morning of 9 January 2021 when he left with the complainant.

6. [10]

   In cross-examination, CG agreed that, as far as he could recall, the first time he was asked by police to give a statement about the evening of 8 January 2021 was on 22 June 2022, which was over 18 months after the relevant evening. There was no re-examination and the witness was excused.

7. [11]

   As CG was leaving the courtroom after the conclusion of his evidence, he initiated an exchange with the applicant, who was seated in the dock. The applicant’s solicitor observed the interchange but it was not seen by the prosecutor, the applicant’s trial counsel or the trial judge. The applicant’s solicitor brought this to the attention of his trial counsel, who rose to his feet to raise it with the trial judge.

8. [12]

   The applicant’s trial counsel indicated that he wanted to put something on the record before the witness left the courtroom. The trial judge sent the jury out. In the absence of the jury, the applicant’s trial counsel said:

9. [13]

   The trial judge indicated that she would like to see “the tapes” (CCTV footage of the courtroom) to ascertain what the jury might have observed before deciding what, if anything, needed to be done. The applicant’s trial counsel confirmed that he heard the applicant respond to CG although he did not see it. The trial judge indicated that she would continue with the trial and deal with the incident if the tapes or further information warranted it. At that point the jury was brought back and Detective Senior Constable Ryan Hurley, the officer in charge of the investigation, was called to give evidence.

10. [14]

    At 12.50pm, the trial judge informed the jury that she was not available to continue the trial that afternoon (as had already been foreshadowed) and sent them away until Monday morning (4 July 2022).

11. [15]

    The trial judge then adjourned the Court until 2pm in order that the incident could be investigated and its ramifications considered.

12. [16]

    Over the luncheon adjournment, the trial judge watched a copy of the video recording of the courtroom which was provided by a Sheriff’s Officer and which showed CG giving his evidence, leaving the witness box, moving towards the door at the rear of the courtroom and, on the way, lifting his hand to his face (with the back of his head towards the camera and the jury). It also showed the applicant’s reaction, which is described below. There was no audio recording which shed light on what the applicant had said to CG.

13. [17]

    When the Court reconvened at 2pm, (in the absence of the jury), her Honour related what she had seen in the following terms:

14. [18]

    The recording was played in this Court at the hearing of the application for leave to appeal. Having viewed the tape, I accept the trial judge’s description of what it depicts.

15. [19]

    The trial judge arranged for CG to be brought back into the courtroom. She informed him that he was not excused and that the subpoena served on him could still be enforced. The trial judge invited the parties to consider their positions over the weekend.

16. [20]

    On the third day of the trial, Monday 4 July 2022, the trial judge informed the parties that a note had been received from the jury, which relevantly asked:

17. [21]

    The applicant’s trial counsel then informed the trial judge that he was instructed to apply for a discharge of the jury on the basis of the incident. The applicant’s trial counsel confirmed that the basis of his application was that:

    1. (1)

       the incident had occurred in the presence of the jury and was the subject of a jury note;

    2. (2)

       CG, by acting in a “threatening” and “confrontational” fashion towards the applicant and gesturing at him, might have the effect of giving CG’s evidence undue significance because the incident showed that he felt very strongly about what the complainant had told him (because, implicitly, he believed her); and

    3. (3)

       CG’s evidence would also tend to bolster the complainant’s evidence because it was the only evidence of complaint (as SQ was not to be called to give evidence).

18. [22]

    The trial judge pointed out that CG’s evidence had relatively little probative value and was not challenged. The applicant’s trial counsel accepted that the extent of CG’s evidence was that the complainant had told him, “I’ve been raped” and that the complainant had already said as much to a police officer beforehand.

19. [23]

    The Crown provided the trial judge and the applicant with a statement of a police officer, Nicholas Cantarella, who had asked CG while he was outside the courtroom after the incident what the applicant had said to him. CG responded in Arabic, which he translated for Mr Cantarella to mean, “Fuck your Mum”. The statement was admitted on the voir dire. After the admission of the statement, the following exchange occurred:

20. [24]

    The trial judge indicated that she did not propose to discharge the jury but that she would give a direction, which was outlined to counsel in the absence of the jury. The applicant’s trial counsel did not wish to be heard further about the crafting of an appropriate direction if the application for discharge was refused.

21. [25]

    The following exchange then took place:

22. [26]

    The jury was brought back in and the judge gave the following direction:

23. [27]

    In the course of the summing up, while the trial judge was referring to the evidence of CG, her Honour reminded the jury of the direction she had given in relation to the incident.

24. [28]

    A challenge to a trial judge’s refusal to discharge a jury amounts to a challenge to conviction and, accordingly, the court’s powers to intervene are limited by s 6(1) of the Criminal Appeal Act 1912 (NSW): R v TS [2004] NSWCCA 38; (2004) 144 A Crim R 124 (Sully J) at [116]. The applicant requires leave to appeal because the proposed ground does not relate to a question of law alone but to the exercise of a judicial discretion: Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 at [77]-[78].

25. [29]

    Whether the trial judge’s discretion ought be exercised to discharge a jury for a potentially prejudicial event in the trial depends on a number of factors which include: the seriousness of the event in the context of the real issues; when the event occurs in the course of the trial; whether the prejudicial conduct was deliberate; and whether a direction to the jury is likely to be effective to overcome any prejudicial impact of the event: Zheng v R (2021) 104 NSWLR 668; [2021] NSWCCA 78 at [92]-[96]; see also Dries v R [2022] NSWCCA 33 at [37] (Macfarlan JA). Ultimately, the discretion to discharge the jury ought only be exercised “when that course is necessary to prevent a miscarriage of justice”: Watson v R [2022] NSWCCA 208 at [25], [34], [36].

26. [30]

    In Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 (Crofts), the plurality (Toohey, Gaudron, Gummow and Kirby JJ) said at 440–441:

27. [31]

    Thus, when determining an appeal against a conviction on the basis of a failure to discharge the jury, the question for this Court is whether the refusal to discharge the jury occasioned a risk of a substantial miscarriage of justice.

28. [32]

    In these circumstances, it is necessary to identify the alleged risk of prejudice to the applicant and whether the trial judge’s direction was sufficient to ameliorate that prejudice.

29. [33]

    Ms Stares SC, who appeared on behalf of the applicant, submitted that the prejudice to the applicant arose from:

    1. (1)

       the “safety concern” posed by the incident which required the jury to be removed from the courtroom “after the perception of a safety risk to them” (the alleged safety concern);

    2. (2)

       the applicant’s physical reaction to CG’s conduct, which would tend to prejudice the jury’s view of him in light of the issues raised in the trial (whether the complainant had consented to penile-vaginal sexual intercourse and whether digital penetration had occurred) (the applicant’s physical reaction);

    3. (3)

       the applicant’s verbal reaction to CG which would tend to prejudice him because his words were “derogatory towards a woman” (the applicant’s verbal reaction); and

    4. (4)

       the fact that CG’s evidence would be bolstered by the incident (because it showed in a dramatic way that he believed the complainant when she said she had been raped), thereby also bolstering the complainant’s evidence that she had not consented to penile-vaginal sexual intercourse, thus having an unwarranted and prejudicial effect on the applicant.

30. [34]

    Ms Stares further submitted, in relation to the trial judge’s direction, that:

    1. (1)

       The direction tended to downplay the significance of CG’s evidence, which was significant because it established that the complainant had failed to mention digital penetration to CG; and

    2. (2)

       in the context of the trial (including the offences for which the applicant stood to be tried), the factual background of the offences (that he had forced himself on an unwilling complainant), the seriousness of the incident which occurred in the presence of the jury and the applicant’s response to CG’s provocation, the direction was insufficient to cure the prejudice to the applicant; and

    3. (3)

       accordingly, the trial judge’s failure to discharge the jury deprived the applicant of a fair trial and constituted a miscarriage of justice.

31. [35]

    Although Ms Stares was critical of the trial judge for not giving more detailed reasons for refusing to discharge the jury, I understood her to accept that the trial judge’s reasons were sufficiently revealed by the transcript. It would have been open to the trial judge to provide further reasons for refusing the discharge but given the applicant’s trial counsel indicated that further reasons were not sought, it is understandable that the trial judge did not provide them. While there is some ambiguity in the applicant’s trial counsel’s words “we don’t require a judgment at this stage”, I do not consider that the trial judge ought to have understood that the applicant required reasons to be given, albeit at a later time. In any event, nothing turns on this, having regard to Ms Stares’ acceptance that the basis for the trial judge’s refusal is evident from the transcript.

32. [36]

    Further, as was set out in the passage extracted above from Crofts, this Court is not confined to the reasons given by the trial judge.

33. [37]

    Ms Stares submitted that the trial judge’s swift actions in removing the jury from the courtroom and her Honour’s reference to the matter “escalat[ing]” indicated that the trial judge considered that the jury needed to be removed from the courtroom for their own safety.

34. [38]

    I reject this submission. The tape of the courtroom shows that CG (with his back to the jury) lifted his hand to his face as part of a gesture on his way out of the courtroom. In response, the applicant, who was lounging in the witness box in a relaxed posture with his arms stretched out on either side on the backs of adjacent seats (the dock having been designed for multiple accused), removed the face mask he was wearing (a pandemic precaution which applied to all non-speakers in the courtroom at the time). The applicant’s trial counsel stood up to interject, following which the applicant said (according to Officer Cantarella’s statement) “Fuck your Mum” just before CG left the courtroom. The incident did not pose a safety concern to anyone.

35. [39]

    The trial judge’s request that the jury leave the courtroom, in response to the applicant’s trial counsel’s statement that he wanted to put something on the record, was a standard means of preventing the jury becoming aware of something which might prejudice its fair deliberation of the issues in the trial.

36. [40]

    It is significant that the applicant’s trial counsel, who was best placed to gauge the potential prejudicial effect of the incident, did not raise the alleged safety concern in support of his application for discharge of the jury. The matters actually raised by him provide “a sure guide to the true potential prejudice”: Cox v R [2022] NSWCCA 66 at [48] (Beech-Jones CJ at CL, Hamill and Cavanagh JJ agreeing).

37. [41]

    The applicant’s relaxed demeanour in the dock was not such as to indicate to an observer that he was impulsive, violent or quick to anger. The insult he directed to CG, even assuming that the jury had heard and understood it, was derogatory to women (as many such insults are) but was clichéd. The prejudicial effect of the applicant’s reaction to CG’s gesture was also not raised by the applicant’s trial counsel before the trial judge. In these circumstances, I would not infer that it was thought at the time to cause potential prejudice to the applicant.

38. [42]

    In any event, the trial judge’s direction was ample to address any potential prejudice since her Honour specifically directed the jury to disregard the applicant’s reaction as “not relevant to any of the issues that [the jury] need[s] to determine …”.

39. [43]

    Ms Stares submitted that the incident and the consequential direction created a forensic disadvantage to the applicant which amounted to prejudice. She submitted that the applicant’s trial counsel had developed a case through the cross-examination of the complainant that, having broken up with CG, she wanted to resume a sexual relationship with the applicant and was, accordingly, unlikely to be telling CG the truth when she told him that she had been raped. She submitted that the jury might reason that CG’s behaviour was, in effect, so dramatic and so inappropriate in a courtroom that it increased the credibility of the complainant’s account because he would only behave in such a way if he felt strongly that the complainant was telling the truth about having been raped. She submitted that the incident would have thereby increased the complainant’s credibility.

40. [44]

    I consider that it was open to the trial judge to regard the direction as sufficient to address this potential prejudice. Although the brief reasons given by the trial judge which are recorded on the transcript do not expressly address this aspect of the applicant’s trial counsel’s submissions, I consider her Honour was correct not to regard this potential prejudice as irremediable. Nor do I accept Ms Stares’ submission that the conduct of the two men was extraordinary in a courtroom, where one (CG) was the ex-boyfriend of the complainant and had come at her request to the police station and the other (the applicant) was said to have raped her. Some level of antagonism was to be expected. The way in which it was expressed was relatively confined and was contained by the actions of the applicant’s trial counsel and the trial judge.

41. [45]

    The incident occurred on the third day of the trial after the complainant and CG had given evidence. The only remaining witnesses in the Crown case were police officers. Had the jury been discharged, the prosecutor would have been entitled to play a recording of the complainant’s evidence instead of recalling her: s 306I of the Criminal Procedure Act 1986 (NSW) (which applies because the applicant was charged with offences against s 61I of the Crimes Act, which are prescribed sexual offences within the meaning of s 3 of the Criminal Procedure Act).

42. [46]

    The evidence of CG was relatively inconsequential since he said only that the complainant told him that she had been raped after she had already told police officers. Her demeanour at the police station was something which others witnessed. Thus, the Crown case would not have been weakened, materially or at all, had CG not given evidence.

43. [47]

    It can be inferred that CG’s conduct towards the applicant was deliberate. However, it cannot be inferred that he had any intention to derail the trial. The applicant’s response, while deliberate, appears to have been an instinctive response to a provocative act without any thought to the consequences. The interaction between the two males is the sort of interaction which is not, in other settings, atypical between male antagonists wishing to demonstrate bravado. The applicant’s response amounted to no more than a clichéd insult.

44. [48]

    Although the applicant maintained his application for a discharge, his trial counsel did not want to be heard as to the content of trial judge’s proposed direction (which was in fact given). This is a significant matter. The matters raised by the applicant’s trial counsel (and her Honour) are a more reliable barometer of potential prejudice than matters raised for the first time on appeal.

45. [49]

    I do not consider that there was any real prospect of the applicant being prejudiced by the incident, even if the jurors had not only observed it (in so far as they were able) but also understood the applicant’s response. Indeed, the wording of the jury note tends to indicate that the jury was diligent, attentive and objective (by asking “[i]s there anything of significance [we] should know”) and had not formed any view about the conduct itself.

46. [50]

    Any prejudice arising from the exchange was, in my view, wholly remedied by the trial judge’s direction in answer to the jury question. The trial judge addressed each of the matters which was relevant to her determination whether to discharge the jury. No error has been demonstrated.

47. [51]

    The criminal justice system in New South Wales requires that persons accused of indictable offences are tried by jury (in the case of Commonwealth offences) or by jury or by judge alone (in the case of offences against the laws of New South Wales). Particularly for lay witnesses, giving evidence in a courtroom may be a new experience with unaccustomed rules and etiquettes. Trial judges endeavour, with the assistance of counsel and solicitors, to ensure that evidence is elicited in a courteous and coherent fashion and that any antagonism, including between witnesses and accused persons, is not evident to the jury. Thus, attempts are made to confine a witness’s contribution to the answers given to questions asked by counsel or the judge. However, the eliciting of oral evidence does not always follow an orderly path. Witnesses, as in the present case, may wish to express their aversion to an accused or the accused’s alleged conduct by their answers or conduct, both within and, as in the present case, outside the witness box but within sight of the jury. As was said in Crofts at 440, “[t]he possibilities of slips occurring are inescapable.”

48. [52]

    These occurrences happen sufficiently often for trial judges to be alert to any build-up of tension in the courtroom with a view to its being reduced to avoid outbreaks of intemperate language, inappropriate gestures or, worse still, violence. If things have gone too far and a trial judge considers that a direction will be inadequate to remedy a potential prejudice to an accused and thereby deprive the accused of a fair trial, the trial judge will be obliged to discharge the jury. If the trial judge fails to do so in such circumstances, this Court will, unless the proviso in s 6(1) of the Criminal Appeal Act applies, quash the conviction and order a retrial. In making this assessment, latitude needs to be given to the trial judge’s advantage in ascertaining the potential prejudice arising by reference to personal observation and an assessment of the atmosphere of the trial.

49. [53]

    It is also important that trial judges not be too ready to discharge juries whenever there is any departure from proper conduct or any situation which may require a direction to eliminate the risk of prejudice and bring the jury back to a correct path of reasoning. In many cases, including, in my view, the present, a timely direction is sufficient to address the issue. When a jury is unnecessarily discharged, the administration of justice is affected: the accused may be required to spend more time in custody on remand; jurors may become disgruntled by being discharged for no apparent reason; counsel may become unavailable; trials already listed may lose allocated hearing dates; witnesses may be reluctant to return; the jury in a new trial may have only the pre-recorded evidence of the complainant; and the public cost of trials is increased for no good reason.

50. [54]

    In the present case, the trial judge addressed the issue in an exemplary way. Her Honour was astute to investigate what had actually occurred and to consult with counsel as to what ought be done. Her Honour crafted a direction to which neither party took exception and which was ample to deal with the issue. I do not consider that the applicant’s right to a fair trial was compromised in any way by the incident having regard to the direction which was given.

51. [55]

    I would grant leave to appeal on ground 1 but dismiss the appeal.

Ground 2: Application for leave to appeal against sentence

1. [56]

   As set out above, the sole ground of appeal against the sentence is that the sentencing judge (who was also the trial judge) erred in calculating the commencement date of the sentence.

2. [57]

   In fixing the commencement date for the sentence for the subject offences, the sentencing judge was required to consider the effect of the following:

   1. (1)

      after committing the subject offences, the applicant was charged with various offences which were dealt with in the Local Court (the Local Court charges);

   2. (2)

      the applicant spent discrete periods in custody on remand following his arrest for the Local Court charges;

   3. (3)

      before the applicant was sentenced for the subject offences, he was convicted and sentenced for the offence of assault occasioning actual bodily harm in a setting of domestic violence (the AOABH offence), which was one of the Local Court charges and was committed on 15 November 2021; and

   4. (4)

      on 14 January 2022, the magistrate at Burwood Local Court imposed a sentence for the AOABH offence of 9 months’ imprisonment, which was back-dated to commence on 15 November 2021, with a non-parole period of 3 months’ imprisonment.

3. [58]

   At the time the magistrate imposed the sentence for the AOABH offence, 14 January 2022, the applicant had spent a total of 164 days in custody on remand in the following periods:

4. [59]

   Many of the Local Court charges were dismissed pursuant to s 14(1)(a) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCI Act). On 14 January 2022, the magistrate dealt with the Local Court charges as follows:

5. [60]

   The transcript of the Local Court hearing (which was available to this Court but was not tendered before the sentencing judge) indicates that the applicant’s counsel submitted that the magistrate could take into account, in setting the commencement date, the actual period of time which had already been spent in custody even if it was also in respect of other offences. The applicant’s counsel referred the magistrate to Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145 at [21]-[23] (Simpson J, James and Hall JJ agreeing), in which this Court held that the sentencing court had a discretion as to the commencement date and could take into account prior custody on remand. The applicant’s counsel submitted that an Intensive Correction Order would not be appropriate because the applicant ought have the benefit of a back-dated commencement date for the sentence to reflect the periods for which he had been in custody on remand.

6. [61]

   The magistrate said in her reasons (tr 30):

7. [62]

   The sentencing judge addressed the period of pre-sentence custody as follows:

8. [63]

   The sentencing judge’s calculation of total pre-sentence custody and the period of custody referable to the AOABH offence can be summarised as follows:

9. [64]

   Section 24(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) requires the sentencing court to take into account “any time for which the offender has been held in custody in relation to the offence.” Section 47(2) of the Act entitles a sentencing judge to back-date a sentence to commence on a day before the date on which the sentence is imposed. Section 47(3) of the Act requires the sentencing judge making an order under s 47(2) to take into account time spent in custody in relation to the offence or any of the offences to which the sentence relates.

10. [65]

    Ms Stares submitted that, according to the applicant’s criminal history, the AOABH offence was committed on 15 November 2021 and that, according to the applicant’s custodial history, he was not arrested for that offence until 14 December 2021, although the magistrate back-dated the sentence to the date of the offence (15 November 2021) rather than to the date of his arrest (14 December 2021). She submitted that there ought only to have been a deduction of 64 days for the AOABH offence, to reflect the actual time in custody referable to that offence, rather than 92 days.

11. [66]

    Ms Stares also submitted orally that, by not taking into account the period from 15 November 2021 to 14 December 2021 as a period in custody, the sentencing judge had impermissibly purported to “correct” the sentence imposed by the magistrate for the AOABH offence.

12. [67]

    The sentencing judge expressly stated in her Honour’s reasons, the bases for her calculations of the total number of days which the applicant had spent in custody (349 days) and the total number of days which the applicant had spent in custody referable to the AOABH offence (92 days). As is apparent from the sentence imposed, the magistrate back-dated the commencement of the sentence to 15 November 2021, being the date on which the AOABH offence was committed. The sentencing judge was entitled to infer that the magistrate, in back-dating the commencement date of the sentence for the AOABH offence had taken into account pre-sentence custody on remand. This inference is confirmed by the transcript of the magistrate’s reasons which was not available to the sentencing judge. The magistrate’s reasons indicated that this was designed to take into account periods in custody on remand for matters which were ultimately dismissed under the MHCI Act and the Mental Health (Forensic Provisions) Act or for which no custodial sentence was imposed. There was no error in the sentencing judge’s calculations.

13. [68]

    I turn to Ms Stares’ submission that the sentencing judge, by taking into account 92 days (the non-parole period for the AOABH offence) rather than 64 days (being the period of the nominated non-parole period which was actually spent in custody) erroneously attempted to “correct” the sentence for the AOABH offence.

14. [69]

    It is an important aspect of the principle of totality that, where a sentencing judge imposes a sentence on an offender who has already been sentenced by another judicial officer, the sentencing judge must:

    1. (1)

       accept that the first sentence was an appropriate exercise of the first judge's discretion; and

    2. (2)

       determine what overall sentence is appropriate for all offences.

15. [70]

    There is no basis for inferring that the sentencing judge did not accept the effect of the sentence imposed for the AOABH offence or that her Honour sought to undermine it by making a deduction of 92 days rather than 64 days from the time spent in custody referable to the subject offence. Her Honour was entitled to accumulate the sentence for the AOABH offence with the sentence for the subject offences by 3 months (being the non-parole period for the sentence for the AOABH offence) and to make the whole of the parole period of the AOABH offence concurrent with the sentence for the subject offences.

16. [71]

    The sentencing judge’s reasons expressly outline what her Honour proposed to do and why. By prefacing the passage dealing with the deduction with the words, “[w]hat I have decided to do in the exercise of my discretion”, her Honour made plain that it was a discretionary judgment, not merely a mathematical calculation which was being undertaken. Her Honour was entitled, in the exercise of her discretion, to decide by how much the sentence would be back-dated. The principles of totality applied: see Callaghan v R at [21]–[23].

17. [72]

    The applicant has failed to identify any error in the exercise of the sentencing judge’s discretion. Because the matter has been fully argued and considered, I would grant leave. However, I would dismiss the appeal.

Proposed orders

1. [73]

   For the reasons given above, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [74]

   WRIGHT J: I agree with the orders proposed by Adamson JA for the reasons that her Honour has given.

3. [75]

   SWEENEY J: I agree with Adamson JA that Judge Smith’s direction to the jury was entirely appropriate to deal with the incident, and her not discharging the jury did not result in a miscarriage of justice for the applicant in the trial.

4. [76]

   I agree with the orders proposed by Adamson JA.