OR v R

1. [1]

   MITCHELMORE JA: The applicant was tried on an indictment before Baly SC DCJ, alleging the following offences committed against a single complainant, LJ, with whom he was in an intimate domestic relationship between August 2020 and July 2022:

   1. (1)

      Between 1 December 2020 and 28 February 2021, the applicant did intimidate LJ with the intention of causing her to fear mental or physical harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (count 1);

   2. (2)

      Between 1 June 2021 and 11 June 2021, the applicant did intentionally choke LJ without consent, contrary to s 37(1A) of the Crimes Act 1900 (NSW) (count 2);

   3. (3)

      Between 1 June 2022 and 30 June 2022, the applicant did assault LJ, contrary to s 61 of the Crimes Act (count 3);

   4. (4)

      Between 1 June 2022 and 30 June 2022, the applicant did have sexual intercourse with LJ without her consent and knowing she was not consenting, contrary to s 61I of the Crimes Act (count 4);

   5. (5)

      on four occasions on 1 July 2022, the applicant did have sexual intercourse with LJ without her consent and knowing she was not consenting in circumstances of aggravation, “namely, that at the time of, or immediately before or after, the commission of the offence, [the applicant] recklessly inflicted actual bodily harm” on LJ, contrary to s 61J(1) of the Crimes Act (counts 5-8).

2. [2]

   On 4 April 2024, her Honour found the applicant guilty of counts 1, 2, 3, 4, 6, 7 and 8, and guilty of the statutory alternative to count 5 (sexual intercourse without consent contrary to s 61I of the Crimes Act). On 21 June 2024, her Honour sentenced the applicant to an aggregate term of imprisonment of 18 years, with a non-parole period of 10 years.

3. [3]

   The applicant appeals against his conviction on the following grounds, the latter of which requires leave (Criminal Appeal Act 1912 (NSW), s 5(1)(a) and (b)):

   1. (1)

      The trial judge erred in failing to apply the second and third limbs of the Liberato direction.

   2. (2)

      Upon the whole of the evidence, it was not open to the trial judge to be satisfied beyond reasonable doubt that the applicant was guilty of each count on the indictment.

4. [4]

   The applicant also seeks leave to appeal against his sentence (Criminal Appeal Act, s 5(1)(c)) on the following grounds:

   1. (1)

      In passing the indicative sentence for count 1, the sentencing judge failed to assess the criminality individually, with the erroneous approach in the indication of the sentence revealing error in the aggregate sentence.

   2. (2)

      In respect of counts 2 and 4, the sentencing judge failed to adequately assess and/or explain the findings on objective seriousness.

   3. (3)

      The indicative sentence passed for counts 5 to 8 was infected by error in making a “blanket” assessment rather than assessing the criminality individually, with the erroneous approach in the indication of the sentence revealing error in the aggregate sentence.

   4. (4)

      The sentencing judge misapplied the totality principle.

   5. (5)

      The sentence was manifestly excessive.

5. [5]

   The applicant seeks leave to bring his appeal and his application for leave to appeal out of time. The notice of appeal was filed seven days after the notice of intention to appeal ceased to have effect on 24 June 2025: Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(2)(a), (5). The applicant’s solicitor explained the failure to comply with the deadline in an annexure to the notice of appeal. The Crown’s opposition to the extension of time was limited to the merits of the substantive appeal. Given that only a short extension is sought, and the applicant’s solicitor has provided an explanation for the delay, I would grant leave to bring the appeal and the application for leave to appeal out of time.

The conviction appeal

1. [6]

   Although I have reviewed the whole of the evidence, for convenience in what follows I have relied on parts of the trial judge’s reasons which were not in dispute on the appeal. As s 578A of the Crimes Act precludes publication of any matter which identifies the complainant or any matter likely to lead to her identification, I will refer to the complainant as Ms J.

2. [7]

   The applicant and Ms J met just before August 2020, as a result of Ms J’s mother and the applicant’s mother organising an introduction. They commenced an intimate relationship shortly thereafter. In March 2021, the applicant moved into Ms J’s flat in south-west Sydney. Ms J became pregnant, and the couple’s child was born in late-March 2022. The relationship ended in early July 2022, after the acts that were the subject of counts 5 to 8.

3. [8]

   The Crown case was that the applicant was coercive and controlling, with the frequency and severity of the behaviour escalating as the relationship progressed. As the trial judge observed in her Honour’s reasons at [8], the Crown case was based largely on the evidence of Ms J.

4. [9]

   Ms J was 26 years of age when she gave evidence at trial. At age 10, Ms J was diagnosed with anxiety, depression and post-traumatic stress disorder. At age 20, Ms J was diagnosed with bipolar disorder. Although on one occasion Ms J saw a psychiatrist who opined that she could have borderline personality disorder, she has not been diagnosed with that disorder. As the trial judge recorded at [13], Ms J gave evidence that her conditions were well controlled with medication, and that while she occasionally got a little bit sad or would have a little bit more energy, she was not affected “unless something quite severe is happening”.

5. [10]

   Shortly before the trial, Ms J was diagnosed with level 2 (moderate) autism spectrum disorder. Accordingly, she was a vulnerable person pursuant to the Criminal Procedure Act 1986 (NSW) and gave evidence via AVL with the assistance of a witness intermediary.

6. [11]

   Ms J’s evidence in chief in relation to counts 1 to 4 was given primarily by playing a domestic violence evidence recording (DVEC) which took place on 12 July 2022. Ms J did not speak about the conduct the subject of counts 5 to 8 in the DVEC as it was agreed that she would make a separate statement about those matters. The trial judge stated at [17] that she reviewed the DVEC a number of times and received a transcript as an aide.

7. [12]

   In the DVEC, Ms J spoke of a number of incidents that were not the subject of charges and on which the Crown relied as context evidence. Ms J said that an incident in which the applicant punched her in the arm “would probably be the start of it”. Ms J told him that it hurt and not to play like that. Ms J also said that about a year and a half before the DVEC, the applicant had started slapping her during sex. She told him that she was “not really into that”, after which he did not do it for a while. However, the applicant slapped her again on an occasion when they were at his mother’s house, not in the context of sexual activity, with Ms J describing the slap as “really hard”. According to Ms J, the applicant’s mother saw this happen and she became really angry with the applicant. Ms J told the applicant’s mother that it was okay and they were just playing around. The next slapping incident that Ms J recalled was the subject of count 3, addressed below.

8. [13]

   Ms J next told the police about the choking that was the subject of count 2, before speaking about threats the applicant had made, the first of which was the subject of count 1. In relation to other threats, Ms J said that the applicant had in recent times talked about tying her to the bed and “dumping loads” until she became pregnant again (Ms J was resistant to having another baby). She also said that the applicant often said to her, “If you were a bloke, or if you were a man, I would knock you out”.

9. [14]

   Ms J told the police during the DVEC that at the start of the relationship everything had been perfect and the applicant had been very positive towards her. At about the three-month mark, things started coming up that were concerning. Ms J gave evidence that the applicant was “quite aggressive” when drunk and that his consumption of alcohol increased during the relationship, to the point that he was frequently drunk.

10. [15]

    When asked in the DVEC if the applicant had ever threatened her, Ms J said that he had threatened “to cut off my tongue and my tits” if she ever left him, so she “could never suck another man’s dick”. Ms J recalled that this occurred around a year ago, before she fell pregnant. It happened during the day at around midday, when they were in a carpark of a Bunnings store and were walking towards the store.

11. [16]

    On 10 January 2021, at 1:38 pm, the applicant sent the following text message to Ms J (Exhibit C):

12. [17]

    When asked about this message during her oral evidence in chief, Ms J said, “This would have been about, about the threat he made while we were at Bunnings in that parking lot, yeah”. The trial judge noted at [32] that the Crown relied upon this evidence “as, in effect, an admission by the accused”.

13. [18]

    Ms J was also asked about a text message that she sent the applicant on 10 September 2021 at 7:58 pm (Exhibit B), in which she wrote:

14. [19]

    Ms J was taken to the part of the message I have emphasised, and gave evidence that she was referring to “in January, Bunnings, in that parking lot when he made that comment”.

15. [20]

    In the DVEC, Ms J said that maybe a week or two before 11 June 2021, when she was sitting on the couch at home, the applicant came up behind her and put her in a headlock. The applicant was laughing and Ms J could not breathe and almost passed out, becoming really dizzy and seeing black spots in front of her eyes. The applicant kept laughing and saying, “You know, just tap out. Just tap out”.

16. [21]

    Notes from the medical practice that Ms J attended recorded that during an appointment with a general practitioner (GP) on 18 June 2021, Ms J discussed concerns regarding her partner and their recent moving in together. The notes recorded that Ms J disclosed that the previous week her partner had put her in a chokehold and she started to get dizzy and could not breathe. The notes also recorded that she disclosed that he had threatened to mutilate her if she broke up with him, but had later said that he was joking and had taken it too far.

17. [22]

    In the DVEC, Ms J said that two to three weeks before the interview, she and the applicant were at home. She was sitting on the couch and the applicant was standing in front of her and slapped her. Ms J said, “Don’t slap me”. The applicant slapped her again and said, “I’m in charge, I’ll do what I want”. Ms J’s recollection was that the applicant slapped both sides of her face.

18. [23]

    Ms J gave evidence in the trial that on an occasion in June 2022, when she was standing in the bathroom drying herself after a shower, the applicant came and stood behind her. He started rubbing his penis against her anus. Ms J gave evidence that when that was happening, she said “no”, and clarified in the next answer that she was saying no to sex:

19. [24]

    The applicant put his head on Ms J’s back and pushed her forward over the sink, and then inserted his penis into her vagina. Ms J thought she said “no” a second time. According to Ms J, the applicant “continued to do what he was doing for a few minutes until he ejaculated, and then he pulled me off and he said, you know, ‘So when you say, ‘no’, it really means yes’, and kind of just smiled and walked off”.

20. [25]

    Ms J gave evidence that on 1 July 2022 she had been at home all day with the baby, who had been unsettled. Ms J said that the baby had milk intolerances and would not sleep. Ms J and the baby were booked to go to a multi-day sleep and settle program at Karitane, a parent support centre in Carramar, on 4 July 2022.

21. [26]

    The applicant had been at work during the day and had then gone to the pub. She called him and asked him to come home as she wanted “a shower and help with [the baby]”. The applicant returned home around 7pm. Ms J described him as very drunk and unsteady on his feet, “and very full-on and kind of aggressive”.

22. [27]

    Ms J had a shower, and then the applicant went and had a shower. Ms J went into the bedroom, dried off, dressed in her pyjamas and got into bed. The baby was asleep in a travel cot by Ms J’s side of the bed.

23. [28]

    Ms J gave evidence that she began to perform consensual fellatio on the applicant; he was lying down, while Ms J was “between his legs and over the top of him”. According to Ms J, the applicant was being “really rough”, putting his hands in her hair at the roots and holding really tight and forcing her head down “to the point where I was choking”. Ms J then gave the following evidence:

24. [29]

    Ms J was horrified with herself and kept apologising to the applicant, as he continued to stroke his penis. After he stopped touching himself, the applicant wiped himself off with a towel beside his bed, walked around to the bed and, standing near the foot of the bed, told her to use her brain and said, “If I didn’t want that, I wouldn’t have done that”.

25. [30]

    Ms J said that she ended up lying on her side of the bed, curled up with her back to him and his side of the bed. She knew that at that time she had no pyjama bottoms on and could not remember if she had a top on. The applicant came and sat on the edge of the bed and started rubbing her rear and upper thighs, before using her hip to roll her on to her stomach. The applicant then started rubbing her anus with his fingers before starting “to push his fingers inside” her anus. Ms J said:

26. [31]

    Ms J told the applicant to “slow down” because he was going “so fast and being so rough”, but the applicant did not say anything, did not slow down and did not stop. When asked whether she said anything else at that stage about what she wanted him to do, Ms J said:

27. [32]

    The proceedings were then adjourned because Ms J was distressed. Ms J said on resumption that at the point that she told the applicant to stop, and the reason she was becoming more distressed, was because she “felt his knuckles on the inside” of her anus.

28. [33]

    After the applicant continued the digital penetration of her anus for a while (she was not sure how long), he took his fingers and hand out and inserted his penis into her anus. She gave the following evidence:

29. [34]

    By the time the applicant removed his fingers from her anus, Ms J was “pressed up against the headboard with my head sideways and my shoulder against the headboard from trying to move away”. She was still groaning. The applicant said to her words to the effect of, “Take your time. Just take your time” and fell asleep shortly thereafter. Ms J gave the following evidence:

30. [35]

    Ms J said that the applicant approached her in bed the following morning and grabbed her wrist and tried to lead it towards him, lifting up the sheet and revealing his erect penis. Ms J’s reaction was:

31. [36]

    Ms J gave evidence that the applicant went out somewhere, and she rang her friend and told her about the assault the night before, as much as she could verbalise at that point. The applicant returned home while she was still on the phone and asked why she was crying. Ms J said she said to the applicant, “I told you last night, I told you to go and get the lube, I told you to slow down, I told you it hurts, I told you to stop, I told you twice”. According to Ms J, the applicant replied, “You didn’t tell me to stop”, to which she replied, “I did, I told you twice”.

32. [37]

    Ms J’s friend gave evidence that confirmed Ms J’s account of the phone call, including that it was cut short. She also gave evidence of a further conversation with Ms J on 3 July 2022, in the course of which Ms J disclosed that she was bleeding from her “backside”. She advised Ms J to go to the doctor, and Ms J responded that she did not want anyone to see her naked.

33. [38]

    On 4 July 2022, Ms J and the baby went to Karitane for the scheduled multiday stay. On her first night there, Ms J was experiencing panic attacks and called for a nurse. Heaven Guzman was the nurse who attended. Ms J gave evidence that she asked Nurse Guzman what would happen if she reported a sexual assault, and Nurse Guzman replied that she was a mandatory reporter. Nurse Guzman tried to get Ms J to go to a doctor but she “couldn’t”.

34. [39]

    Nurse Guzman gave evidence that she received a call at around 2:45 am on 5 July 2022, and went to Ms J’s room. When she arrived, Ms J was sitting on the bed and was “in a bit of a panic state, just quite upset”, and she said she had woken in the dark and thought there was someone standing near the bed. Nurse Guzman said that they discussed Ms J’s experiences with her partner. According to Nurse Guzman, Ms J told her that he had made threats to her about leaving him, and disclosed the threat that is the subject of count 1. Nurse Guzman recalled that Ms J said that she wanted to disclose something and asked if Nurse Guzman would have to report what she disclosed. Nurse Guzman advised that she was a mandatory reporter.

35. [40]

    Nurse Guzman made a reasonably contemporaneous note, which recorded that Ms J disclosed that the applicant had become quite rough and violent with her, that she had pleaded with him to stop, and that it had caused bleeding which did not cease until Monday. There was the following exchange in Nurse Guzman’s evidence in chief:

36. [41]

    In cross-examination, Nurse Guzman confirmed that when she wrote in this note that Ms J said, “sorry”, she had meant to write “stop”. Also in cross-examination, Nurse Guzman said that she did not ask for details of the sexual assault. She said that Ms J did mention that there was an injury to “that site” that “made it hard to sit down”, although she (Ms J) did not give any further details.

37. [42]

    Ms J gave evidence that when she became aware that Nurse Guzman had made a report to the police, she “freaked out because if he’s already threatening to mutilate me when I hadn’t said anything to anyone and things were good, what was he going to do when I had said things to people”. When police attended Karitane on 5 July 2022, Ms J told them nothing was wrong. While the police were at Karitane, they told Ms J that they had to put in place an apprehended domestic violence order (ADVO), despite Ms J “begging them” not to. An ADVO was put in place and was served on the applicant on 9 July 2022.

38. [43]

    Ms J gave evidence that she left Karitane either the same day that the police attended or the next morning. The Crown tendered a series of text messages between Ms J and the applicant that were exchanged on the afternoon of 6 July 2022. In the first of those messages, Ms J told the applicant that she had told a nurse “what happened between us on Friday”, that the nurse had put a report in and the police were called. Ms J said that she refused to give a statement, but she was not allowed to come home “because this means that they’ll put another report in”, and that having discharged herself from Karitane she and the baby were staying at Ms J’s mother’s place. The applicant asked Ms J what a report being made meant, and Ms J said she had told the nurse exactly what Ms J had said to him when she was upset on Saturday, to which the applicant replied:

39. [44]

    Ms J replied “the lot” and said she did not know if she was allowed to be alone and would check. The applicant replied that all he cared about was Ms J and the baby and what was best for them both, and that this was not good for the baby.

40. [45]

    Ms J gave evidence that shortly after leaving Karitane she went to see her GP, Dr Cummins. Ms J said she went to see Dr Cummins because she was still bleeding anally. Her evidence was that she gave Dr Cummins information about why she was bleeding anally, and while she could not remember exactly what she said, she did tell Dr Cummins that there was an assault. There was no physical examination on that occasion because, according to Ms J: “I couldn’t, I couldn’t get undressed in front of anyone. I didn’t want anyone touching me.”

41. [46]

    Dr Cummins gave evidence that she saw Ms J on 8 July 2022 and that she disclosed that she had been sexually assaulted by the applicant. Ms J disclosed that the applicant had inserted his penis into her anus and that she had told him to stop twice and to slow down, but he did not do so. Ms J also reported having had rectal bleeding for three days after the sexual assault, and ongoing pain when defecating. Ms J was highly distressed and tearful when describing the event, and she declined to consent to a physical examination. Ms J told Dr Cummins that she had reported the sexual assault to the Karitane nurse. Dr Cummins gave evidence that she informed Ms J that she had to make a mandatory report, and she subsequently did so.

42. [47]

    Ms J was cross-examined in relation to her mental health. She was asked about paranoia and hallucinations she had experienced that resulted in an involuntary admission to hospital in January 2021 (which she gave evidence were triggered in part by recreational drugs supplied to her by the applicant), and on her history of suicidal thoughts and suicidal ideation. She was also cross-examined on the hallucination she had at Karitane that led to her calling for Nurse Guzman. She gave evidence that she had no knowledge of a diagnosis of borderline personality disorder, although one psychiatrist she saw had mentioned it.

43. [48]

    Ms J accepted that in visits to the GP practice in 2021, she had told the GP that she had resolved things with the applicant (in September), and that her partner was a kind person (in December). Ms J’s evidence was that they had good times and bad times, and that by December 2021 she was trying to cover for the applicant to make it seem like things were okay, and that he had told her not to talk about their “stuff” to anyone.

44. [49]

    She accepted on a number of occasions during cross-examination that she was concerned that if she left the applicant he would try and take their child, including on the basis of her mental health and because his family had more money to fight for custody. She said that the applicant did not want her taking medication, even at a time well before she became pregnant, saying that the doctors were wrong.

45. [50]

    Ms J was cross-examined extensively about a series of memes and messages that she sent to the applicant, some of which were of a sexual nature and made reference to “deep throating” and anal sex. Ms J gave evidence that she obtained the memes (Exhibits 1-10) from Facebook and sent them to the applicant at a time when they were exploring their sexuality together and were keen to try new things. Ms J’s evidence was that she sent the various memes because she thought they were funny, and emphasised that she sent them in a “consensual space”. She said that eventually, the applicant stopped talking and just went ahead and did what he wanted, and stopped listening to her.

46. [51]

    In the context of cross-examination on memes that included references to couples smacking each other (Exhibits 1-2), Ms J denied that a level of wrestling and mock fighting was part of her relationship with the applicant.

47. [52]

    Ms J was asked why she did not include the messages containing those memes in the screenshots she gave to police, even though some of the screenshotted messages that she did provide to police were sent around the same time. Ms J gave evidence that she had asked the police to extract her messages with the applicant from her phone, and the police declined that request. In the circumstances, she tried to collect as much information as she could, describing it as “extremely re-traumatising to have to go through those messages”. When Ms J said that she did not know exactly what was relevant, she was asked:

48. [53]

    Ms J was cross examined about having a motive to lie or invent false allegations. It was put to her that she had done so in order to prevent the applicant having access to his child. There was extensive cross-examination about the ADVO taken out by police. Ms J was cross-examined about the fact that she did not facilitate access between the applicant and the baby in July 2022, and she accepted that at that time the ADVO did not prevent the applicant from having contact with the baby as the baby was not listed as a protected person. Ms J maintained she did have valid fears for the baby’s safety.

49. [54]

    In relation to the counts on the indictment, Ms J did not agree with the proposition that the applicant had never threatened to cut off her lips or her breasts (count 1). She denied that the occasion when the applicant put her in a headlock and choked her (count 2) formed part of their play fighting. She denied that when the applicant slapped her (count 3), he was doing so in the course of re-enacting a scene from a television show and they were laughing about it. In relation to count 4, it was put to Ms J that she and the applicant had consensual penile vaginal intercourse, with the applicant initially positioned behind her, and that partway through he picked her up and placed her on the vanity so that she was facing him and they had sex in that position for a few more minutes. Ms J said this was completely false, and that she believed she had said “no” twice.

50. [55]

    In relation to counts 5 to 8, it was put to Ms J that the sexual conduct the subject of count 5 was consensual and that at no stage had she vomited, which she denied. In relation to the counts of digital and penile anal intercourse that were the subject of counts 6, 7 and 8, Ms J accepted that initially, she did not ask the applicant to stop, instead asking him to get the lubricant. Ms J was also asked:

51. [56]

    Earlier in the cross-examination, Ms J gave evidence about what the safe word was. Ms J’s evidence was that she and the applicant had agreed that if either of them were uncomfortable with any sexual activity they could use the safe word. However, Ms J also gave evidence that she had used it once previously “and there were repercussions”, so she did not use it. When asked if she used the safe word at all on 1 July 2022, she replied: “I did not feel like I could, no.” When the applicant’s counsel returned to the subject later in the cross-examination, Ms J denied the applicant made a number of comments referring to the safe word during the events the subject of counts 5 to 8. Her evidence was that he made just one comment referring to the safe word, that he smirked when he said it, and that due to her past experience and his tone in making the comment she felt that she could not use it. When asked whether use of the safe word meant that whatever was happening should be discontinued, Ms J replied: “Stop always means stop and it always has.”

52. [57]

    In re-examination, the trial judge asked Ms J what she meant when she said that there had been “repercussions” from the applicant on the one occasion she had used the safe word during their relationship. Ms J replied that after she used the safe word, the applicant had withdrawn affection from her: she could not hold his hand or hug him for multiple weeks, and “like he would just throw it [the “it” being her use of the safe word] in my face”. Ms J reiterated that the word “no” had “always meant ‘no’”, and “stop” had “always meant ‘stop’”, and that had never been removed.

53. [58]

    On 12 July 2022, the applicant was arrested in relation to the conduct the subject of counts 1 to 3. On 13 July 2022, he participated in a recorded interview with police, on which he relied at trial. On 28 September 2022, the applicant was arrested in relation to the offending the subject of counts 4 to 8.

54. [59]

    In his recorded interview, the applicant said in relation to count 3 (assault) that he had once slapped Ms J during sex, but she did not really like it and he had not done it again. He denied having slapped her when she was on the couch watching television.

55. [60]

    The applicant said that before the baby was born, he and Ms J would wrestle and muck around. In relation to count 2 (choking), he said that he and Ms J were mucking around and that Ms J, who was on top of him, had punched him. He then rolled her over and got her in a headlock, but it was not serious or violent. He denied coming up behind her and putting her in a headlock.

56. [61]

    In relation to count 1 (intimidation), the applicant denied saying what Ms J alleged he had said in the Bunnings car park, or making any statement like that. The applicant also denied making the other statements that Ms J had alleged he had said although he admitted that he may have said to her, “If you were a man I would’ve punched you the fuck out by now”. He said Ms J had a borderline personality disorder and bipolar disorder and that her medication caused her to sleep a lot. He said that he spoke to her about this as he was at work and she needed to look after the baby, but he did not stop her from taking the medication.

57. [62]

    In his evidence in chief at trial, the applicant said that he had told the police the truth during the interview. Consistently with the interview, he denied the allegations the subject of count 1. In cross-examination on this count, the applicant was shown the text message he sent to Ms J on 10 January 2021 (see [16] above). The applicant said that Ms J was unhappy in the relationship at that time but he had no idea what she was unhappy about, and he sent the message to reassure her. The trial judge found this explanation “frankly… impossible to accept” as it was illogical to apologise without knowing the reason: at [226].

58. [63]

    In cross-examination on count 2, he denied that he put Ms J in a headlock and choked her. He said there were potentially three occasions when he placed her in a headlock but that this was in the context of mucking around.

59. [64]

    In relation to the slapping the subject of count 3, the applicant gave evidence that he had “tapped” Ms J as part of a re-enactment of a television show that they had been watching. He said they were laughing and the slaps were “little taps” and were not done in an angry manner. In cross-examination he accepted that early in their relationship she told him she did not like being slapped in the face during sex. As the trial judge noted at [228], and as was put to the applicant in cross-examination, he did not mention the re-enactment aspect of this episode in his interview with the police in July 2022.

60. [65]

    The applicant gave an account of count 4 (sexual intercourse without consent) in which the sexual intercourse was wholly consensual and that there were no indications that Ms J was not consenting. In cross-examination, the applicant denied that he ignored Ms J when she said she did not want to have sex or that he ever said, “So when you say no, it actually means yes”.

61. [66]

    In relation to counts 5 to 8, the applicant’s account of what happened was as follows:

62. [67]

    The applicant gave evidence that the next day Ms J said to him that he had hurt her, and she also said, “I’m bleeding”. He went out to get tyres, and when he returned Ms J was “hysterical” and was crying on the phone. She said to the applicant that she had told him to stop, and he replied that she hadn’t, and he had never heard her say that. He asked her why she didn’t use the safe word. He did not recall what she said in response to that, but that she told him he had to go.

63. [68]

    In cross-examination, the applicant accepted that during the events of 1 July 2022 he had said to Ms J “what’s the safe word?”. When it was then raised with him that he had said in his evidence in chief that the safe word was never mentioned during sex, the applicant said the word was never invoked in any of their sexual activity. He agreed that the safe word was not the only way to stop sex, and that the word “no” would also have been effective. He denied that Ms J had said “stop”, and said that she had said, “Stop, get more lube, slow down”. It was put that his response to her asking him to stop was to mock her, saying “what’s the safe word?”. The applicant denied that he was mocking her.

64. [69]

    In cross-examination, the applicant denied grabbing Ms J’s hair and forcing her head onto his penis, or that she told him to stop. He did not accept he said, “I don't care” and denied that she vomited. In relation to the subsequent penetrative acts he agreed that he inserted his fingers into Ms J’s anus but said that he “used lube straight away” because Ms J had asked for it “before it even started”. He denied that after he put his fingers in her anus she started complaining that it was hurting because he was being so rough, and it was only after this that he went and got lubricant. However, he accepted that she said at some stage that it was painful and to “get more lube”, which he did. The applicant disagreed that he reinserted his fingers, with lubricant, and was very rough because he was angry with her.

65. [70]

    The applicant agreed that after he took his fingers out of her anus, he inserted his penis into her anus but he denied that at that stage she was visibly distressed and clearly in pain. He accepted that he then took his penis out and reinserted his fingers in her anus, but denied that Ms J was visibly distressed at that time. The applicant also accepted that he put much more of his hand into her anus than on previous occasions of consensual digital anal sex, but said they discussed this during the act and that he asked to do this.

66. [71]

    He agreed that Ms J was extremely upset the next day, and that she told him she was pissing blood, but denied that the reason she had blood coming from her anus was because he had put so much of his hand in her anus and had been so rough with her. The applicant said he did not cause anything like that because there was no blood on the bed, or on his hands. He accepted that he said something like, “[w]ell, now you know how I feel”, as part of their humour, and she laughed it off “and that was it”.

67. [72]

    The applicant was asked about a text message that he sent to Ms J on 3 July 2022 (Exhibit D), part of which said, “I now know that I’ve crossed boundaries, I know”. The applicant said that he was trying to figure out what boundaries he had crossed having realised that he had said or done something that she had not liked. The trial judge found this explanation “impossible to accept given the nature of this somewhat raw and dramatic behaviour of the complainant and her strong complaint including directly to the accused himself”: at [230].

68. [73]

    Four additional witnesses gave evidence in the defence case. The applicant’s mother gave evidence that she had seen the applicant and Ms J mucking around and they had told her that they were just wrestling, and that Ms J had never raised any issue with her about it. The applicant also called evidence as to his good character, including from three former girlfriends.

69. [74]

    The trial judge found that there was “no question that the accused is a person of good character”: at [234]. However, she found that his good character was of limited weight to the question of likelihood as the relationships occurred in very different circumstances, and a person’s behaviour in one relationship does not necessarily mirror their behaviour in another relationship: at [244].

Verdict Judgment

1. [75]

   I have detailed parts of the verdict judgment above. The applicant submitted at trial that Ms J’s evidence should not be accepted, and that her mental health conditions rendered her an unreliable witness: at [121]. The trial judge rejected that submission: at [123]-[125]. The trial judge also rejected the applicant’s contention that Ms J had used a number of “buzzwords” and had given self-serving and self-validating evidence. Her Honour considered that the complainant’s use of terms such as “coercive control”, “trauma”, “in a consensual setting or space” and “under the assumption of consent” reflected her own thoughts and feelings with the benefit of hindsight concerning what happened to her, and what her Honour described as a sophisticated understanding of consent: at [127]-[130].

2. [76]

   The trial judge also rejected any suggestion that the memes on which Ms J had been cross-examined showed that she consented to the acts that were the subject most particularly of counts 5 through to 8: at [131]. Her Honour considered that the memes were largely irrelevant to the facts in issue: at [132].

3. [77]

   The trial judge found that Ms J was “an impressive witness as to both honesty and accuracy”. Her Honour referred to the DVEC and noted that Ms J was careful and detailed in her responses even while her baby could be heard crying in the background. Her Honour described Ms J’s evidence in chief about the sexual offending as similarly both detailed and comprehensive: at [136]. The trial judge accepted that Ms J was concerned to make her evidence as accurate as she could, observing her to have demonstrated various things using her hands: at [137]. Her Honour found in a general sense that Ms J was a reliable witness: at [139].

4. [78]

   Her Honour considered that the “large body” of complaint evidence provided strong support for Ms J’s version of events: at [175]. Her Honour also had regard to the text messages from Ms J to the applicant on 3 July 2022 on the basis that, while not specific as to detail, they did evidence that something had happened that had caused her to have panic attacks: at [173].

5. [79]

   Her Honour also found, by reference to context evidence, that the applicant sought to control aspects of Ms J, including her medication, and that on a number of occasions he had threatened her. She found that Ms J had mixed emotions about him, and that he was violent at times and loving and apologetic at other times, as abundantly evidenced in messages, Ms J’s evidence and the complaint evidence. Her Honour considered that this explained Ms J’s reluctance to complain: [187]-[188].

6. [80]

   In relation to the applicant’s case, her Honour gave herself the following Liberato direction at [200]-[202] before summarising his evidence and rejecting aspects of it in the manner I have identified above:

7. [81]

   The primary judge then turned to the elements and essential facts in respect of each count on the indictment: at [245]-[290]. Shortly before making her positive findings, her Honour stated:

8. [82]

   Her Honour’s factual findings were as follows:

9. [83]

   The applicant did not complain about the terms of the Liberato direction that the trial judge gave herself at [200]-[202], which were orthodox: see Liberato v The Queen (1985) 159 CLR 507 at 515; [1985] HCA 66 (“Liberato”). Rather, the applicant submitted that in making the findings for each count on the indictment, her Honour failed to engage in the analysis that the direction required.

10. [84]

    Contrary to the applicant’s submissions, her Honour’s conclusions on the individual counts on the indictment were entirely consistent with the Liberato direction. Immediately before reaching those ultimate conclusions, her Honour stated that she did not believe the applicant’s version of events on any of the counts on the indictment. Her Honour rejected his evidence and placed it to one side: at [289]. Having entirely rejected his evidence it was unnecessary for her Honour to consider the intermediate step in Liberato because the alternative of thinking his version might possibly be true was not open in light of the rejection.

11. [85]

    In relation to count 1, the applicant took issue with her Honour’s finding on the question of whether he made the statement that he denied making at [247]-[250]. He contended that in framing the “key issue” as whether he made the relevant intimidatory statement, the trial judge focused the inquiry incorrectly. The focus of the inquiry should have been whether the requisite intent was present and there was, in his submission, a doubt on the whole of the evidence as to his intention in circumstances where Ms J had described him as “joking” her reports to Dr Cummins and Nurse Guzman, and where in his text message to her on the same day (Exhibit C) he referred to having taken a joke “too far”. Even if her Honour rejected the applicant’s evidence that he had not made the intimidatory statement, her Honour needed to grapple with that evidence, and had not done so. It followed, he submitted, that her Honour had erroneously equated a rejection of the applicant’s account with proof of the offence.

12. [86]

    These submissions rested on a misreading of the applicant’s evidence. In both his recorded interview and in his evidence at trial, the applicant denied making the statement the subject of count 1. He was shown the message he sent to Ms J on the same day (Exhibit C) in cross-examination. His evidence was that Ms J was unhappy in the relationship at the time, for reasons he had no idea about, and he was trying to reassure her. When then taken to his specific reference in the message to having made a joke that he took too far, his evidence was that he did not know what joke he was referring to but whatever it was, it “wouldn’t have been along the lines of that”.

13. [87]

    The trial judge rejected the applicant’s explanation of the message that he sent on 10 January 2021 and found that the message was itself “persuasive evidence that supports the complainant’s evidence on this count”: at [250]. As her Honour stated at [291] in making her ultimate findings on the count, Ms J had given evidence of a very distinct threat the memory of which stayed with her throughout the relationship, to which she had referred in a subsequent message to the applicant in September 2021, and in what she reported to a doctor (Dr Cummins did not make the record that referenced the threat but was taken to the relevant record from the practice) and to Nurse Guzman.

14. [88]

    The fact that, consistently with the applicant’s own text message, Ms J reported that the applicant apologised to her after the event and told her that he was joking did not give rise to a reasonable doubt as to his intent. Rather, as her Honour found at [291], there was no other rational inference in the circumstances available than that he was apologising for the threat that Ms J said he had made. Her Honour’s conclusion at [291] that she had no reasonable doubt that the applicant made the threat and intended to cause mental harm to Ms J involved no Liberato error or reversal of the onus of proof.

15. [89]

    As to count 2, the applicant submitted that the evidence of the applicant’s mother, that the couple would wrestle, made the applicant’s account a possibility which the complaint evidence did not entirely negate, and the trial judge did not give any reasons as to why she rejected the applicant’s version in those circumstances. However, as the trial judge noted specifically in [255], the evidence of the applicant’s mother was “in general that the complainant and the accused would wrestle, albeit she did not speak of the accused ever putting the complainant in a headlock”. Describing the applicant’s mother’s evidence as providing “some very limited support” for his account, her Honour stated expressly at [292] that it did not cause her to have a reasonable doubt as to whether Ms J’s evidence, supported by the complaint evidence, established the offence. No Liberato error is disclosed.

16. [90]

    In relation to count 3, the applicant contended that the trial judge had reversed the onus of proof in describing the applicant’s evidence as a recent invention, given he had failed to mention in his police interview that he and Ms J were re-enacting a scene from a television show. He submitted that the trial judge should have addressed whether his account raised a possibility of having occurred or, if it was rejected, whether the whole of Ms J’s evidence supported her evidence on this count. This is precisely what the trial judge did in [293], accepting Ms J’s version of the slap and thereby finding the offence proved beyond reasonable doubt. That her Honour went on to give a reason as to why she rejected the applicant’s version (having earlier done this at [258]) did not amount to reversing the onus of proof.

17. [91]

    In relation to count 4, the applicant submitted that all that the trial judge had done was reject the applicant’s evidence in preference for Ms J’s evidence, without explaining why his account was not possibly open and why, if disregarded, the evidence led by the Crown was sufficient proof. That her Honour did not refer to the applicant’s version in finding the offence proved beyond reasonable doubt was consistent with her Honour having earlier rejected his evidence and put it to one side, as Liberato required her to do. Her Honour acknowledged that there was no other evidence supporting Ms J’s version, but found that she was very clear about what had happened and found her account to be clear and persuasive, including her evidence that she clearly said no, and the applicant ignored her. As the Crown submitted, the reasons her Honour gave in this regard were sufficient in circumstances where the resolution of count 4 turned upon findings of credibility: see W v R [2014] NSWCCA 110 at [147]-[148].

18. [92]

    The applicant submitted that her Honour relied on the rejection of his evidence on counts 5 to 8 in determining his guilt beyond reasonable doubt. However, as was the case with count 4, in finding the statutory alternative to count 5, and counts 6 to 8, were proved, the trial judge did not rely on the applicant’s evidence in this manner. It is apparent from her Honour’s findings on counts 5 to 8 at [296]-[300], read against the background of the balance of the reasons, that her Honour considered the evidence in the Crown case on each count. As her Honour stated at the outset of her reasons, Ms J’s evidence was central and her Honour examined it in detail. Her Honour made specific findings about Ms J’s reliability, her accuracy and her honesty, and considered her evidence to be supported by a body of complaint evidence as well as messages between her and the accused, before ultimately concluding that she could accept it and that the evidence established the elements of the statutory alternative on count 5 and the offences the subject of counts 6 to 8 beyond reasonable doubt. Her Honour’s reasons do not disclose a Liberato error in this respect.

19. [93]

    In oral submissions, the applicant submitted that the trial judge did not consider the evidence about the safe word in the context of counts 5 to 8. Counsel for the applicant submitted that in circumstances where there was evidence that Ms J and the applicant had a safe word in the context of consensual sexual activity, it was necessary for the trial judge to look at the evidence about the safe word. Counsel referred to Ms J’s evidence that the safe word was spoken about during the course of the conduct comprising counts 5 to 8, and submitted that it did not follow from her evidence (that she did not perceive that she could use it) that the Crown had established that the applicant knew she was not consenting. In the course of argument on this issue, counsel accepted that the submission he was ultimately putting was that in circumstances in which Ms J and the applicant had discussed the potential for their sexual activity to cause pain or injury and agreed upon a safe word, the applicant was entitled to believe that when Ms J chose to say “no”, or “stop”, she did not really mean that.

20. [94]

    Contrary to the applicant’s submission, the trial judge did address the safe word but found it of limited relevance in circumstances where Ms J and, significantly, the applicant both gave evidence that the words “no” and “stop” retained their ordinary meaning in the context of their sexual activities: at [294]. Having put the applicant’s version of events to one side, her Honour was satisfied that on Ms J’s evidence, she had:

    1. (1)

       expressly withdrawn her consent to the fellatio that was the subject of count 5, having said to him, “Stop, I’m going to be sick”;

    2. (2)

       expressly withdrawn her consent to the conduct constituting count 6 after the initial stages, by saying “stop”; and

    3. (3)

       by the time that the acts constituting counts 7 and 8 occurred, Ms J had clearly told the applicant to stop penetrating her anus.

21. [95]

    As with the other counts, her Honour’s approach on counts 5 to 8 involved an orthodox application of the Liberato direction. It follows that I would dismiss ground 1.

22. [96]

    There was no dispute between the parties about the principles. In Baker v R [2023] NSWCCA 262, which involved an appeal from a conviction following a trial by judge alone, Beech-Jones CJ at CL summarised the principles that apply on an unreasonable verdict ground as follows:

23. [97]

    The following paragraphs from Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 address the relevance to a ground of this nature of the reasons produced by a trial judge sitting without a jury:

24. [98]

    In the joint judgment of Gageler CJ, Gleeson, Jagot and Beech-Jones JJ in R v ZT (2025) 281 CLR 137; [2025] HCA 9, their Honours referred to the requirement in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 independently to assess the sufficiency and quality of the whole of the evidence. Their Honours observed that this assessment is undertaken “in a context in which an appeal is as much of an adversarial process as the criminal trial from which the appeal is brought and in which it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal”: at [11].

25. [99]

    The central focus of the applicant’s submissions on ground 2 was his own account of the relevant events, in both his interview with the police and his evidence in the trial. The evidence he gave and relied upon squarely negated each of the allegations. The applicant submitted that there was, at the least, the possibility of his account being correct, which must have raised a reasonable doubt as to his guilt.

26. [100]

    In his written submissions, the applicant raised his denial of the conduct constituting count 1 and the evidence he gave that the apology in his text message of 10 January 2021 did not relate to the alleged threat. On count 2, he again pointed to his denial and his evidence, and that of his mother, that he and Ms J would play fight and wrestle. The applicant submitted that he had also denied count 3, but did admit that he “tapped” Ms J and used the words “I’m the boss, I’m in charge” in re-enacting a scene from a television show. He submitted that this showed his honesty and reliability as a witness, as did his acknowledging that the morning after the conduct the subject of counts 5 to 8, Ms J told him she was bleeding from the anus. Similarly, in relation to count 4, the applicant referred to his “clear account” of consensual penile vaginal intercourse and that his evidence was in direct challenge to the evidence adduced in the Crown case. As to counts 5 to 8, the applicant pointed to his “clear and coherent” denials that the sexual activity the subject of those counts occurred in circumstances where Ms J had either withdrawn consent (counts 5 and 6) or was not consenting (counts 7 and 8).

27. [101]

    On the other hand, the applicant submitted that the credibility of Ms J’s evidence should have been adversely affected, including having regard to the content of the memes that she sent to the applicant. The applicant contended that the memes supported the applicant’s case that Ms J was the instigator of unconventional sexual activity necessitating the designation of a safe word, and that she was interested in exploring new things. Together with the text messages that were tendered in his case, he contended that the memes showed that contrary to the controlling and non-consensual conduct the subject of the counts on the indictment, it was Ms J who was seeking sexual engagement with the applicant, and that his responses were not angry, controlling denials or demands. The first two memes also showed that play fighting was a part of the relationship between Ms J and the applicant, which was relevant to the first three counts.

28. [102]

    The applicant also relied on Ms J’s initial failure to provide the memes to the investigating police officer, which he submitted cast real doubt on her reliability and accuracy. This was a focus of counsel’s oral submissions on the appeal. He pointed to the officer in charge’s evidence that he did not place any limits on what Ms J should provide from her phone, from which it followed that her failure to provide the memes undermined her credibility and reliability. Senior Constable Hollingworth’s evidence was that he had asked to see Ms J’s phone and had seen the messages about the sexual assaults, and he had asked her to go away and save them on to a USB for him (which she did). He also said that he would have asked her to provide him with any other messages that might be relevant to the investigation.

29. [103]

    In relation to counts 5 to 8, specifically the element of the applicant’s knowledge or recklessness as to the withdrawal of consent, the applicant sought to rely on his having raised the safe word. The applicant submitted that in circumstances where the sexual activity commenced consensually, in the absence of Ms J using the safe word the Crown had not established that he clearly knew that consent had been withdrawn or was reckless as to whether consent had been withdrawn.

30. [104]

    Although the applicant sought to undermine the credibility of the evidence that Ms J gave, and rely on the version of events that he gave in the face of its rejection by the trial judge, he submitted that the present case was not exclusively a “word on word” case, such that the trial judge’s advantage in seeing and hearing them give evidence was not capable of resolving a doubt experienced by this Court. In relation to the alleged sexual offending, for example, he submitted that the fact that there was corroborative evidence about the safe word, and evidence concerning the applicant’s denial (on 2 July 2022) that he heard Ms J say stop, rendered the trial judge’s advantages in seeing and hearing Ms J and the applicant less significant. The applicant submitted that even if the trial judge had some doubts about the applicant’s evidence on certain counts, that should not have infected the remainder of his evidence.

31. [105]

    In so far as the applicant relied upon the narrative in his own evidence as giving rise to a reasonable doubt, the following observations of Kirk JA in Lee v R [2023] NSWCCA 203 are pertinent (setting out the argument and the first part of his Honour’s response):

32. [106]

    As the respondent submitted on the appeal, the present case was one of competing evidence which made it necessary for the trial judge carefully to examine the honesty, credibility and reliability of Ms J and the applicant: see LS v R [2024] NSWCCA 110 at [252] (Ward P). Contrary to the applicant’s submissions, in undertaking that task the trial judge had a clear advantage in terms of observing the tone and manner in which they each gave their evidence and conducted themselves, their maturity, their emotional state and intelligence: ZT at [10]. That the trial judge was influenced by her observations in this respect was apparent from the terms in which she assessed Ms J to be a credible, reliable and honest witness (see [77] above).

33. [107]

    I do not accept that the memes Ms J sent to the applicant, and the evidence Ms J gave in respect of them, undermined her credibility. Ms J was candid in her evidence about sending memes of a sexual nature to the applicant, agreeing that she and the applicant were exploring their sexuality and trying “new things”. She agreed that she sent more memes to the applicant than he sent to her, and while she did not accept that each of the memes shown to her had a sexual character, she accepted that most of them displayed sexual acts, including bondage and “discipline”. As the respondent submitted, Ms J’s acceptance of these matters enhanced her credibility rather than undermined it. Further, Ms J was consistent in her evidence that at the time she sent the memes she and the applicant were exploring their relationship in a consensual space. Her evidence was that the applicant eventually stopped engaging in dialogue with her and did what he wanted.

34. [108]

    Nor do I accept that Ms J’s non-provision of the memes to police adversely affected her credibility or reliability in any material respect. It is apparent from Senior Constable Hollingworth’s evidence that in relation to the contents of her phone, the police left the relevance inquiry up to Ms J. As I have noted above, and consistently with Ms J’s evidence, Senior Constable Hollingworth said that he would have asked her to provide anything that was relevant, requiring her manually to go through her messages with the applicant, screenshot those which she considered to be relevant, and save them to a USB for the police to review. Ms J’s explanation, that she found this task re-traumatising and did her best in the circumstances, was very plausible.

35. [109]

    To the extent that the present case was not solely a word-on-word case, the evidence did not assist the applicant. Such supporting evidence as was before the trial judge largely supported Ms J’s version of events. Thus, Ms J’s evidence as to count 1 was supported by the terms of the text message that the applicant sent to her on 10 January 2021 in which he apologised and accepted he had taken things too far. That the incident occurred, and that it stood out in Ms J’s memory, was further supported by the consistency with which she recounted the terms of the threat to a doctor at Dr Cummins’ practice and, subsequently, to Nurse Guzman.

36. [110]

    Ms J’s evidence in relation to counts 2 and 3 was also supported by evidence of complaint to the same individuals. It is the case that in relation to count 2, there was evidence from the applicant’s mother about the applicant and Ms J play fighting and wrestling. However, as I have noted above on ground 1 that evidence was in general terms, thus warranting her Honour’s description that it provided “some very limited support” for the applicant’s version in circumstances where, as the respondent submitted, Ms J’s evidence on both counts 2 and 3 was cogent and logical.

37. [111]

    In relation to counts 4 to 8 on the indictment, the applicant did not deny that sexual intercourse of the general nature of that alleged took place. The trial judge observed at [259] that the key issue at trial was whether the Crown had proved beyond reasonable doubt that Ms J did not consent, and that the applicant knew that she did not consent or was reckless as to that matter. Additionally, for counts 5 to 8, the question was whether the Crown had proved beyond reasonable doubt the circumstances of aggravation. The applicant’s trial counsel made limited submissions in relation to the circumstances of aggravation on which the Crown relied.

38. [112]

    Dealing first with count 4, which did not allege such a circumstance, the applicant relied on his denial and submitted that his evidence in cross-examination did not undermine the account that he gave. Ms J, however, gave evidence which included that she told the applicant “no”, that he ignored this, and, after he had penile vaginal intercourse with Ms J, said to her that when she said no, it really meant yes. It followed from her Honour’s acceptance of Ms J’s evidence of this last statement that her Honour accepted that the applicant expressly acknowledged that Ms J had said no. The applicant’s submission that it was not open to her Honour to be satisfied beyond reasonable doubt that he knew Ms J was not consenting in relation to count 4 cannot be accepted.

39. [113]

    In relation to the applicant’s knowledge of Ms J’s lack of consent for counts 5 to 8, the applicant again pointed to the evidence from Ms J that the safe word was referred to in the course of the conduct said to comprise those counts, submitting that its being elicited from Ms J for the first time in cross-examination should have diminished her credibility. I do not accept that submission. As I have noted above, both the applicant and Ms J gave evidence that it was the applicant who raised the safe word. Ms J’s evidence on the subject included a very cogent explanation as to why she did not feel she could use the safe word on that or, indeed, any other occasion. Further, both Ms J and the applicant gave evidence that use of the safe word was not to the exclusion of other words, most obviously “stop” and “no”.

40. [114]

    Ms J’s evidence was that she communicated, both verbally and non-verbally, her lack of consent, and this was accepted by her Honour (see [94] above). As the respondent submitted, the trial judge had supportive complaint evidence from Ms J’s friend, Nurse Guzman and Dr Cummins, to which I have referred above, in which Ms J also said that she had told the applicant to stop. It was well open on the evidence for the trial judge to be satisfied beyond reasonable doubt that Ms J: (i) withdrew her consent in the course of the sexual intercourse the subject of count 5 to the knowledge of the applicant; (ii) withdrew her consent in the course of the sexual intercourse the subject of count 6 to the knowledge of the applicant; and (iii) did not consent to the sexual intercourse the subject of counts 7 and 8 to the knowledge of the applicant.

41. [115]

    In the course of the hearing of the appeal on the unreasonable verdict ground, the Court raised an issue regarding the circumstance of aggravation found for each of counts 6, 7 and 8. For each of those counts, the Crown charged s 61J(1) (aggravated sexual assault), and relied upon the circumstance of aggravation in 61J(2)(a) (infliction of actual bodily harm):

42. [116]

    In McIntyre v R [2009] NSWCCA 305; (2009) 198 A Crim R 549 at [44], Johnson J said the following about the meaning of “actual bodily harm” in the context of s 59 of the Crimes Act:

43. [117]

    Although pain and discomfort are not themselves “actual bodily harm”, pain, in particular, can be an indicator of actual bodily harm: Irmak v R; Dagdanasar v R [2021] NSWCCA 178 (“Irmak”) at [164]. It is not essential for there to be medical evidence of the actual bodily harm relied upon in order for the trier of fact to draw an inference that it was inflicted, although the availability of that inference will depend on the circumstances: Irmak at [164].

44. [118]

    In Rajendran v R [2010] NSWCCA 322; (2010) 206 A Crim R 316 at [19], Simpson J described the aggravating circumstance in s 61J(2)(a) as creating “a trichotomy between the occasioning of actual bodily harm — ie it may be immediately before, and at the time of, or immediately after the offence”. In Papadopoulos v R [2007] NSWCCA 274 (“Papadopoulos”), a charge on indictment averred that while in company, the applicant Topcu (relevantly) had sexual intercourse with AB, without her consent and knowing that she was not consenting “and at the time of the sexual intercourse did maliciously inflict actual bodily harm on her”. Section 61JA(1) has since been amended to replace “maliciously” with “intentionally or recklessly” (as has s 61J(2)(a)). One of the grounds of appeal alleged that the Crown case on that count could never satisfy the elements of the offence and the trial judge erred in not directing an acquittal. Hulme J described the argument as follows:

45. [119]

    His Honour accepted the first argument and rejected the second. As to the first argument, his Honour stated:

46. [120]

    As Hulme J stated at [49], the happening of the sexual intercourse “defines and circumscribes” the relevant time for the intentional or reckless infliction of actual bodily harm. The act of inflicting actual bodily harm is to have “a relationship both in fact and in time to the [offence] and not be regarded as a matter unassociated with that event”: R v Hitchins & Elliott [1983] 3 NSWLR 318 at 324 (Lee JA, Street CJ and Enderby J agreeing) (said of the offence in s 98 of the Crimes Act, of robbing or assault with intent to rob and, “immediately before, at the time of, or immediately after such robbery, or assault, wounds, or inflicts grievous bodily harm”). The precise ambit of the phrase will fall to be determined in light of the facts and circumstances of the individual case: R v Attard (Court of Criminal Appeal (NSW), Gleeson CJ, with whom Priestley JA and Campbell J agreed, 20 April 1993, unrep).

47. [121]

    The provision does not require that the sexual intercourse cause the actual bodily harm. The actual bodily harm must be inflicted “at the time of, or immediately before or after”, the sexual intercourse, but it need not happen as a result of the sexual intercourse. So much must be accepted not least because the temporal formulation expressly envisages that the actual bodily harm may be inflicted “immediately before” the commission of the offence, and may be inflicted upon a person who is not the complainant.

48. [122]

    What the aggravating circumstance in s 61J(2)(a) does require is specificity as to the actual bodily harm inflicted, and, consistently with Papadopoulos, its infliction within the prescribed timescale. The Court of Criminal Appeal so held in Irmak. In that case, the Crown charged the two offenders (Irmak and Dagdanasar) with ten counts of sexual intercourse without consent, in company, and immediately before, or at the time of, or immediately after the sexual intercourse, recklessly inflicting actual bodily harm, contrary to s 61JA(1) Crimes Act. The Crown case was that Irmak, Dagdanasar and another man (who was not apprehended) engaged in a joint criminal enterprise to sexually assault the complainant, Ms A, over multiple hours. The Crown particularised the act of intercourse relied upon for each of the counts but did not particularise the nature of the actual bodily harm, or when it was occasioned.

49. [123]

    The jury convicted both men of one count of the aggravated offence which involved anal intercourse (count 2) and of the statutory alternative in relation to four of the other ten counts. The jury acquitted on a further count of anal intercourse (said to have been committed by the third man, but attributable to the two defendants on the basis of the joint criminal enterprise). On appeal, the Court inferred that the acquittal on this count was because the jury was not satisfied as to the joint criminal enterprise component, not because the jury was not satisfied that the intercourse had not taken place. This made the timing of the injury to the applicant’s anal region particularly relevant, because if the anal injury was suffered in the course of this later incident of anal intercourse, it could not be attributed to the two offenders in respect of count 2 and, accordingly, could not aggravate that count.

50. [124]

    The applicant Irmak complained on appeal that the verdict of guilty on count 2 was unreasonable on the basis that it was not open to the jury to find the element of reckless infliction of actual bodily harm proved beyond reasonable doubt. He pointed to the Crown’s “global” reliance upon the multiple injuries to Ms A which were recorded upon medical examination and were regarded as consistent with the assaults complained of. The Court (Johnson, Wilson and Cavanagh JJ) identified the difficulty with this approach as throwing up multiple injuries that Ms A sustained and effectively inviting the jury “to take its pick as to whether any or all of the injuries were inflicted in the time period encompassed by the phrase ‘before, or at the time of, or immediately after’ individual acts of intercourse averred on the indictment”:

51. [125]

    The Crown must also prove that an accused inflicted actual bodily harm “intentionally or recklessly”. That state of mind must be contemporaneous with the infliction of the actual bodily harm relied upon. Thus, for example, if an accused has unlawful sexual intercourse with a person and immediately afterwards punches the person, the accused will be guilty of the offence if the accused was reckless as to the infliction of actual bodily harm at the time he punched the person. The Crown does not have to prove that the accused was reckless as to the infliction of bodily harm at the time of the unlawful sexual intercourse.

52. [126]

    In relation to the element of the offence comprising the infliction of actual bodily harm, the Crown relied, as the Crown Prosecutor put it, “upon one very specific injury caused during a very specific time period committed by the same person during an ongoing course of conduct without a break”. As the trial judge noted at [280], the actual bodily harm that the Crown relied on for each of, relevantly, counts 6, 7 and 8 on the indictment was “anal bleeding”. The Crown contended that the applicant recklessly inflicted actual bodily harm on Ms J, being anal bleeding, during or immediately before or after the acts of penetration respectively constituting counts 6, 7 and 8.

53. [127]

    The only submission that the applicant’s counsel at trial made was immediately following the Crown’s submissions in relation to Irmak, before the Crown commenced closing. At that stage, counsel noted that although he had not read the case closely, he was concerned that on Ms J’s evidence it was only after the event that she said there was an injury and that the Crown had not particularised at what point that injury occurred. When the trial judge raised with counsel that the way the Crown was putting its case was that the applicant inflicted the actual bodily harm “at the time of, or immediately before or after” the sexual intercourse respectively constituting counts 5 to 9 (consistently with Papadopoulos), the applicant’s counsel reserved his position until he had read Irmak. He did not return to the issue in his closing address.

54. [128]

    I have referred to Ms J’s evidence of the circumstances of the sexual intercourse constituting those counts, which her Honour accepted. It was apparent from her evidence that the digital (count 6), penile (count 7) and digital (count 8) anal intercourse occurred as part of an episode of offending, which commenced with the oral intercourse the subject of count 5. When the applicant first inserted his fingers into her anus, Ms J said that it was very rough and it hurt, and that she asked the applicant multiple times to get the lubricant before he did so. After putting the lubricant on his fingers and reinserting them into her anus he was rough and it hurt. After she expressly communicated her withdrawal of consent during that first digital penetration (count 6), she could feel the applicant’s knuckles inside her and her evidence was that the pain continued. It increased to the level of excruciating pain during the penile penetration (count 7) and the further digital penetration (count 8), which she described as extremely painful and during which she could feel the applicant’s fingernails inside her anus.

55. [129]

    It is the case that Ms J only found out after the event, when she “hobbled to the bathroom” and went to the toilet, that she was bleeding from the anus, seeing blood when she wiped her bottom and blood in the toilet bowl. However, I am satisfied to the criminal standard on her evidence that the applicant recklessly inflicted actual bodily harm “at the time of, or immediately before or after”, the digital penetration the subject of count 6, the penile penetration the subject of count 7, and the further digital penetration the subject of count 8. The Crown did not need to prove that the anal bleeding was caused by the relevant penetrative act, in the sense of being the result of that act. The only causative aspect that it needed to prove was that the applicant inflicted actual bodily harm on Ms J, being the anal bleeding, “at the time of, or immediately before or after” the relevant penetrative act. It established this beyond reasonable doubt in respect of each of counts 6, 7 and 8.

56. [130]

    Having considered the arguments that the applicant advanced in support of this ground individually and collectively, and made my own independent assessment of the evidence, I have concluded that the evidence led in the trial was sufficient in nature and quality to eliminate any reasonable doubt that the applicant was guilty of each of the offences that the trial judge found proved. I would grant leave to raise ground 2 but I would dismiss the ground.

57. [131]

    Ground 1 did not require leave. I would grant leave on ground 2 of the conviction appeal and I would dismiss the appeal.

Application for leave to appeal against sentence

1. [132]

   As I noted above at [4], the applicant sought leave to appeal against the sentence imposed following trial by Baly SC DCJ (referred to in what follows as the sentencing judge) on five grounds.

2. [133]

   The aggregate sentence imposed was one of 18 years imprisonment with a non-parole period of 10 years. The following table sets out the eight offences for which the applicant was sentenced, the applicable maximum penalties and any standard non-parole period (SNPP) and the indicative sentences her Honour found for each offence:

3. [134]

   Her Honour incorporated her findings from the judgment on verdict and otherwise referred briefly to the salient facts. Her Honour noted that the evidence led at the trial as context evidence was relevant on sentence because it demonstrated that the offences were not isolated acts. Her Honour found that the offender exhibited controlling behaviours at times during the relationship. Her Honour accepted the Crown’s submission that he sought to dominate Ms J during the course of their relationship, whilst emphasising that she was not sentencing him for a course of misconduct but for individual offences “committed during a controlling domestic violence relationship”: at [6]-[7].

4. [135]

   Her Honour considered the offences individually. In relation to count 1, her Honour found that the threat of mutilation was an explicit and extremely violent threat, that “caused ongoing fear and distress”: at [9]. Her Honour accepted that the applicant had apologised in the text message he sent on 10 January 2021, but nonetheless found that this was “a very serious example of an offence of its kind” and was extremely intimidating: at [10].

5. [136]

   In relation to count 2, the sentencing judge found that the choking incident was a violent act that caused Ms J physical and mental distress. Her Honour accepted that it was a spontaneous offence but rejected the submission that the applicant was recklessly engaging in play fighting which went too far. Having regard to the duration of the offence and its circumstances, her Honour found that it fell in the lower range of objective seriousness in comparison to offences of its type: at [13].

6. [137]

   As to count 3, the sentencing judge accepted that the applicant’s slapping Ms J to her face twice was not planned but also accepted that the accompanying words, “I’m in charge, I’ll do what I want”, evinced an attempt to control her by use of violence. The offence was a reasonably serious example of an assault, although her Honour accepted that it did not cross threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”) and did not warrant a custodial penalty: at [14].

7. [138]

   Her Honour considered count 4, an offence of penile vaginal intercourse without consent, to be a serious example of its kind, occurring after Ms J had showered and in circumstances where the applicant knew that she was not consenting. Her Honour referred to the applicant mocking her after the event, when he said, “So when you say no it really means yes” and accepted that this must have been humiliating for her. Her Honour also noted that the offence had particularly adverse consequences on Ms J, referring to the victim impact statement in which Ms J said she had since trained her dog to guard the shower door while she is showering: at [16].

8. [139]

   In relation to counts 5 and 6, which occurred on 1 July 2022, the applicant argued that her Honour’s finding that consent was withdrawn rendered the offences objectively less serious: at [19]. Her Honour noted that this submission was not supported by any case law, and that the Crimes Act makes no distinction in terms of penalty. Further, whilst withdrawal of consent was a relevant fact and circumstance surrounding the offence, in her Honour’s view “that factor alone should not render the offence any less or any more serious”: at [27]. Further, neither count 5 nor count 6 was committed in isolation, but formed part of “a series of forceful violent sexual assaults following on in quick succession while the victim was in extreme pain”: at [28].

9. [140]

   Her Honour found that Ms J made it clear to the applicant that she had withdrawn her consent on count 5 (the penile oral penetration) by saying, “Stop it, like I’m going to be sick”, to which he replied, “I don’t care”, and that he “must have and did know she did not consent”: at [20]-[21]. On count 6 (digital anal penetration), her Honour found that Ms J withdrew consent when the applicant “thrust his fingers deeper into the victim’s anus and tried to insert his fist or hand”, that she communicated her withdrawal of consent when she said “stop”, and that he must have and did know that she did not consent: at [22]. Her Honour made the same finding, that the applicant knew that Ms J did not consent to count 7 (penile anal penetration) and count 8 (digital anal penetration), noting that by this stage Ms J had said stop a number of times: at [24].

10. [141]

    Noting that there is no hierarchy of seriousness based on the form of penetration involved, her Honour accepted that each offence was “humiliating, degrading and painful”: at [26]. In relation to counts 6 to 8, her Honour rejected the applicant’s submission that the fact that he and Ms J had had consensual anal intercourse in the past was relevant: at [29].

11. [142]

    Her Honour did not distinguish between counts 5 through to 8 in terms of each being “a serious sexual assault”: at [30]. Counts 6, 7 and 8 however were “more serious on account of the circumstance of aggravation”, being the reckless infliction of anal bleeding: at [31]. Her Honour noted that in the absence of medical evidence, she did not know the precise injury that caused the anal bleeding, but found that "it must have been a laceration or tear of some description, and it was to a sensitive part of the victim’s body”. Her Honour found that the actual bodily harm caused Ms J to be “in extreme pain”: at [31]. Her Honour then stated at [32]:

12. [143]

    In terms of aggravating factors, the applicant’s counsel accepted that counts 3, 4, 5, 6, 7 and 8 were aggravated by virtue of having occurred in Ms J’s home (s 21A(2)(eb) of the Sentencing Procedure Act), and counts 5, 6, 7 and 8 were aggravated due to the offending having taken place in the vicinity of the infant child (s 21A(2)(ea)): at [33]. Although Ms J was in a position of “situational vulnerability” on account of being a new mother, her Honour did not accept that the offences were aggravated by s 21A(2)(l) of the Sentencing Procedure Act: at [35]. The sentencing judge set out parts of Ms J’s victim impact statement on the basis that she could not otherwise do justice to it.

13. [144]

    On the applicant’s personal circumstances, the primary judge first took into account his lack of remorse or insight: at [38]. He had no criminal history for offences involving domestic violence or sexual assault and was entitled to some leniency on that basis: at [39]. Her Honour also noted the good character evidence led at trial and on sentence, although this was tempered somewhat by the period of time over which the offending occurred: at [40]. Nonetheless, she noted that he had a great deal of support from his social network, that he was a contributing member of the community and was highly regarded, and accepted that the offences were out of character for him: at [41]-[42]. The sentencing judge found that the offences were not part of planned or organised criminal activity: at [43].

14. [145]

    In response to the submission that her Honour should find that he was unlikely to reoffend and had “some” reasonable prospects of rehabilitation, her Honour described the evidence as pointing in both directions. Ultimately, her Honour considered his lack of insight was a weighty factor against a positive finding that either of these two mitigating factors were established: at [44]-[48]. There was nothing in the applicant’s childhood that created any disadvantage or deprivation: at [49]. He may have had, and possibly still has, attention deficit hyperactivity disorder, and clearly suffered from depression as at the time of sentencing, following from the loss of contact with his child and the consequences of the guilty verdicts, but her Honour noted that it was not contended that he would experience hardship over and above that which ordinarily follows from incarceration: at [49].

15. [146]

    The sentencing judge referred to the general sentencing principle of taking the harm into account, as well as the principles of denouncing the offender’s conduct, punishing the offender and general deterrence. Her Honour stated that it must be emphasised that the Courts and the community take domestic violence related offending seriously and “there must be some stern sentences imposed or indicated for this serious offending”: at [50].

16. [147]

    After indicating the sentences for each offence, her Honour referred to the principle of totality and stated that a degree of notional accumulation must be built into the aggregate sentence, but that the degree of accumulation would be far less as between counts 5 to 8: at [52]. Her Honour found special circumstances on account of the applicant’s severe depression and his relative youth, and determined to vary the statutory parole period ratio on that basis: at [53].

17. [148]

    The applicant contended that in determining the objective seriousness of the offending constituting count 1, the sentencing judge did not assess the individual criminality. The applicant emphasised in this regard her Honour’s statement that it may have been that if the offence stood on its own it would not attract a custodial sentence, and her Honour’s reference in this context to other threats and actual violence during the relationship. The applicant submitted that in so far as her Honour may have been referring to other charged acts, there was impermissible double counting of those acts in passing the sentence on count 1 and separately passing the sentence for the counts arising out of those acts. Her Honour had thus acted on a wrong principle, or had taken into account extraneous matters, and fell into House v The King error, resulting in an impermissible indicative sentence that materially affected the aggregate sentence, rendering the aggregate manifestly excessive.

18. [149]

    The sentencing judge’s reasons on count 1 do not demonstrate that her Honour failed to consider the seriousness of the offence on its own. As I have set out at [135] above, her Honour found that the threat the applicant issued was an explicit and extremely violent threat. Further, as her Honour said immediately after the statement the applicant relied upon as indicating double counting, the making of the threat was not an isolated offence in the context of the relationship having regard to the other threats and actual violence, this being a reference to the findings her Honour made as to those matters in the verdict judgment which her Honour had earlier incorporated into her remarks on sentence. Her Honour was not impermissibly assessing the criminality of count 1 by reference to uncharged or charged conduct not the subject of that count. Rather, read in context, her Honour was declining to grant the applicant leniency he might have otherwise earned if the offence was an isolated incident: see eg MJL v R [2007] NSWCCA 261 at [17] (Hidden J, Campbell JA and Smart AJ agreeing). No error is disclosed.

19. [150]

    The applicant submitted that in light of her Honour’s finding that the offence the subject of count 2 was in the lower range of objective seriousness in comparison to offences of its type, her Honour indicated a sentence of 2 years which, like the sentence passed for count 1, contributed to a manifestly excessive aggregate sentence. The applicant also submitted that there was no clear process of reasoning as to the sentence imposed and no clarity as to why imprisonment was the only available option.

20. [151]

    I do not accept that submission. As the Crown submitted, the applicant’s submissions disregarded the obvious and integral role of the findings her Honour made in the course of the verdict judgment, which she expressly incorporated into her remarks on sentence. In respect of count 2, her Honour had accepted Ms J’s evidence as to what happened, which included that the choking was such that Ms J could not breathe, became dizzy and almost passed out, and that the applicant told her to “just tap out” and laughed. As her Honour found at [12] of the remarks on sentence, this was “a violent act that caused the victim physical and mental distress”. Those remarks, together with the findings in the verdict judgment, sufficiently demonstrate her Honour’s path of reasoning in determining the objective seriousness and arriving at the indicative sentence for this count.

21. [152]

    As to count 4, the applicant submitted that the description of the offence as being “a serious example of an offence of its kind” was not adequately explained by the reasons, which did no more than touch on the evidence of lack of consent and the impact on Ms J. He submitted that the absence of reasoning as to how the significant starting point for the sentence and its non-parole period was arrived at showed a failure in the “process” of arriving at the indicative sentence on the objective seriousness assessment, such that it was not necessary separately to address whether the aggregate sentence was erroneous in the sense of being manifestly excessive.

22. [153]

    The applicant relied for this submission on KS v R [2024] NSWCCA 147 (“KS”) at [62]-[63]. The Court there rejected a submission that an error in an indicative sentence, such as manifest excess, would lead to an error in the aggregate sentence unless it could be positively established that it did not affect the outcome. The Court stated, by way of explication of the reasoning in AJ v R [2023] NSWCCA 158, on which the applicant in KS relied, that in that case there was a patent error which affected two of the indicative sentences, with the sentencing judge either applying the incorrect maximum penalty or misapprehending the principle that a penalty close to the maximum is to be reserved for the worst type of case: at [62]. In those circumstances, it was not necessary to address whether the result was erroneous because the result was necessarily affected by the erroneous process: at [63].

23. [154]

    In the present case, the applicant’s submission was that her Honour’s formulation of the objective seriousness of count 4 was vague and imprecise, and her path of reasoning was not clear. That submission was not made good on a fair reading of the remarks on sentence. The requirement imposed on the sentencing judge was to adequately identify the facts, matters and circumstances informing the (aggregate) sentence to be imposed: Sharma v R [2017] NSWCCA 85 (“Sharma”) at [63] (Hulme J, Beazley P and Walton J agreeing). The sentencing judge’s reasons on count 4 met that requirement by reference to the conduct her Honour found in the verdict judgment to which her Honour cross-referred. In so far as her Honour made a finding of objective seriousness by reference to a scale of seriousness, Hulme J observed in Sharma at [64] that it was not inappropriate to make an assessment in that manner, and that while greater precision may be desirable it is not essential. No error is disclosed.

24. [155]

    The focus of the applicant’s submissions in relation to counts 5 to 8 was the sentencing judge’s statement at [30] that, “In terms of seriousness, I do not distinguish between Counts 5 through 8”. The applicant pointed to what he submitted was a distinguishing feature for counts 5 and 6 compared with counts 7 and 8, in that both counts 5 and 6 commenced with the withdrawal of consent during (up to that point) consensual sexual activity, while the sexual intercourse underlying counts 7 and 8 was non-consensual in their entirety. The applicant submitted that the sentencing judge applied a “blanket” assessment of objective seriousness, the implication of this submission being that the features the applicant identified should have sounded in a different assessment of the objective seriousness as between counts 5 and 6, and counts 7 and 8.

25. [156]

    The statement that forms the basis for this ground of appeal needs to be considered in context. Her Honour first addressed each of counts 5 to 8 individually: at [20]-[26]. Her Honour next rejected two submissions that the applicant advanced on sentence. The first was that counts 5 and 6 were less serious on account of the fact that there was a withdrawal of consent, which her Honour addressed at [27]-[28]. The second was that counts 6 to 8 needed to be viewed in the context of anal intercourse being part of the ordinary sexual activity between the applicant and Ms J, which her Honour addressed at [29]. Immediately after rejecting these two submissions, at [30], her Honour made the statement that she did not distinguish between counts 5 through 8 and that each was a serious sexual assault.

26. [157]

    The respondent submitted that where there is some prevarication or at least initial consent by a complainant, the ensuing offence may be considered less serious if it affects the finding made about the state of mind of an accused: Kramer v R; R v Kramer [2023] NSWCCA 152 at [186] (McNaughton J, Hamill J agreeing with additional reasons at [123]). The respondent submitted that the present case was not of that kind, the sentencing judge having found that the applicant knew the complainant was not consenting in each of counts 5, 6, 7 and 8. I accept that submission. Particularly having regard to the context in which the sentencing judge made the statement that formed the basis for the applicant’s challenge on this ground, I would dismiss this ground.

27. [158]

    The applicant accepted that the starting point for leave to appeal against an aggregate sentence was not the indicative sentences. Nonetheless, the indicative sentences were very much the focus of ground 6, in support of the submission that the sentencing judge did not properly recognise the totality principle. While it is permissible to rely on indicative sentences to support a misapplication of the totality principle in an aggregate sentence, there are recognised limits on the utility of that approach. Beech-Jones CJ at CL addressed this issue in Noonan v R [2021] NSWCCA 35 (“Noonan”), stating at [33] (Bathurst CJ and Wilson J agreeing):

28. [159]

    Accepting the last sentence of this extract, in his written submissions in support of ground 6 the applicant submitted that counts 5 to 8 were one course of conduct that could be dealt with by passing a wholly concurrent sentence. Having regard to the indicative sentences that her Honour imposed for those counts, if wholly concurrent they reflected approximately half of the non-parole period and half of the head sentence. On that assumption, the applicant submitted that counts 1, 2 and 4 added 4 years and 6 months to the non-parole period.

29. [160]

    As the respondent submitted, the applicant’s ultimate submission on ground 6, that the aggregate sentence passed did not properly reflect the criminality involved, was one that was more aptly directed to whether the sentence was manifestly excessive. As Hulme J stated in Aryal v R [2021] NSWCCA 2 (“Aryal”) at [50] (Johnson and Wilson JJ agreeing):

30. [161]

    The second ground of appeal in Aryal was manifest excess. Beech-Jones CJ at CL articulated the relationship between a complaint as to totality and manifest excess in his Honour’s reasons in Noonan at [37], which I have set out below with the preceding paragraph for context:

31. [162]

    The applicant’s written submissions on ground 7 essentially relied on the submissions advanced on grounds 3, 4 and 5. He submitted that: counts 1 and 2 did not require a sentence of imprisonment given the criminality involved; the criminality involved in count 4 did not warrant a significant term given the absence of aggravating features; and the conduct in counts 5 to 8 were one course of conduct that reflected different aspects. He further submitted that there did not appear to be significant aggravating factors such as gratuitous cruelty, or vulnerability. The applicant submitted that he relied on comparable cases to indicate that the sentence was excessive in the circumstances, but did not cite any cases.

32. [163]

    In support of the submission that the aggregate sentence was open in her Honour’s sentencing discretion, the respondent pointed to the following factors:

    1. (1)

       The violence involved in the offences in counts 5 to 8, and the context of control and domination should not be downplayed.

    2. (2)

       Although her Honour found that s 21A(2)(l) of the Sentencing Procedure Act did not apply, her Honour did accept that Ms J was in a position of situational vulnerability, particularly in terms of being a new mother at the time with a difficult baby.

    3. (3)

       Counts 6, 7 and 8 had the significant maximum penalty of 20 years imprisonment, while for counts 4 and 5 the maximum penalty was 14 years imprisonment.

    4. (4)

       In terms of the general and immediate context of the individual offences, they were committed during a controlling, violent relationship and were not isolated events.

    5. (5)

       For all of the sexual offences, her Honour found that the applicant had actual knowledge that Ms J was not consenting to his acts.

    6. (6)

       The sentencing judge found special circumstances on account of the applicant’s severe depression and relative youth, with a ratio of 55.56%, which preserved proper reflection of the seriousness of the offences whilst allowing the applicant a generous period on parole to reintegrate into the community.

    7. (7)

       There was considerable notional concurrency of the indicated sentences in the aggregate sentence.

    8. (8)

       While the applicant’s subjective case had some favourable features, it did not warrant material amelioration of the sentence. The degree of leniency for good character was tempered by the length of time over which the offending took place, and he lacked insight into his offending. Her Honour could not make a positive finding that he was unlikely to reoffend or that he had good prospects of rehabilitation.

    9. (9)

       The sentencing judge appropriately recognised the seriousness with which the courts and the community view domestic and family violence, and the substantial role of general deterrence in this context.

33. [164]

    In relation to comparative cases, the respondent referred to Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53] and the care that needs to be taken in using what has been done in other cases. The respondent submitted that there was a lack of utility in this case in relying on a series of cases and statistics given the various objective circumstances and subjective features in offending against, particularly, ss 61I and 61J(1) of the Crimes Act. The respondent did refer to R v SS [2022] NSWCCA 258 as tending to support that the sentence in the present case was within the sentencing discretion.

34. [165]

    I do not accept the applicant’s submission that any of the indicative sentences were individually excessive. The real question in the present appeal, which the respondent recognised in the submissions on ground 6, was the one that Hulme J posed in Aryal at [50] by reference to JM.

35. [166]

    Her Honour’s specific observations in relation to totality were correct. However, as Hamill J observed in Towney v R [2025] NSWCCA 166 at [96], such correctness “does not defeat the argument that the aggregate sentence was excessive or that something went wrong in applying the legal principles to the facts of the case”. His Honour continued:

36. [167]

    As the sentencing judge recognised, counts 5 to 8, each of which her Honour considered to be a serious sexual assault, occurred in one course of offending. As her Honour further recognised, in relation to the counts of aggravated sexual intercourse without consent (counts 6 to 8), there was one (not insignificant) injury which was caused or contributed to by the acts of intercourse. Her Honour’s recognition of that feature of the offending was also important, reflecting the need not to punish the applicant more than once for the infliction of that harm. In light of the indicative sentences that her Honour found for each of counts 6 to 8 (9 years with a 5 year and 6 month non-parole period), even taking into account the other offences and the features of the case to which the respondent properly called attention, an aggregate sentence of 18 years is disproportionate to the total criminality that her Honour found. The offending conduct called for a stern sentence, but the aggregate sentence imposed was manifestly excessive. I would uphold ground 7.

37. [168]

    It is necessary to resentence in accordance with the decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 to exercise the sentencing discretion afresh and re-sentence the applicant. The applicant relied on additional evidence in the event that the Court moved to resentence, although he did not make any submissions on the additional material, or on resentence generally. He did not seek to disturb any particular findings of the sentencing judge other than as part of the grounds of appeal that I rejected.

38. [169]

    I have taken into account the maximum penalties of imprisonment for each of the offences, and, in the case of s 61I and s 61J of the Crimes Act, the standard non-parole periods. The maximum penalties and standard non-parole periods are legislative guideposts to be borne in mind when considering the appropriate sentence, having regard to the objective seriousness of the offences and the subjective circumstances of the applicant: see Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.

39. [170]

    I adopt the findings of the sentencing judge as to the objective seriousness of each of the offences, with which I agree, along with her Honour’s findings as to aggravating factors. I also adopt the findings her Honour made that the applicant has no criminal history of domestic violence or sexual assault, for which he is entitled to some degree of leniency, and that before the period of the present offending he was a person of good character.

40. [171]

    In relation to his subjective circumstances, the applicant read an affidavit affirmed by him on 1 August 2025, which annexed Corrective Services records and Justice Health records. That affidavit was read without objection save for one paragraph which was not read, and I have taken the material into account on resentence, in addition to the evidence on which he relied before the sentencing judge. The additional evidence indicates that since entering custody, the applicant has experienced significant weight gain and has been diagnosed with hypoparathyroidism and hypertension, which is being treated with medication. The applicant stated that he has been advised that he has an elevated white blood cell count, potentially indicating impaired kidney function, although this was not detailed in the Justice Health records. The Justice Health records indicated that he has undergone testing for sarcoidosis, the results of which likely post-date the affidavit. The applicant also has sleep apnoea and uses a CPAP machine nightly while in custody. In addition to these health issues, the applicant gave evidence that he has not been able to see his child for 3 years (the absence of contact with his child was the subject of evidence on sentence), and was unable to attend the funeral of his grandfather, who passed away in May 2025 and with whom he was very close.

41. [172]

    The applicant has completed two educational courses while in custody and has been selected as the inmate delegate of his “pod”. He has been consistently employed while in custody and has been promoted. These matters are to his credit. However, and unsurprisingly given the conviction appeal, there is nothing in his affidavit expressing remorse or insight into the offending. In the absence of any expression of remorse or insight the concerns that her Honour expressed in declining to make positive findings about his prospects of rehabilitation and the likelihood of his reoffending remain.

42. [173]

    I have considered the sentencing principles in s 3A of the Sentencing Procedure Act. Of particular importance in the present case is the recognition of the harm to the victim, denunciation the offender’s conduct, and general deterrence. Recent decisions of this Court that emphasise that domestic violence offending is to be regarded with the utmost seriousness, and that sentencing must reflect proper recognition of the need to denounce the conduct, vindicate the dignity of the victims and recognise the harm done to them, and to protect the community, where appropriate, by imposing punitive and strongly deterrent sentences: R v Sharrouf [2023] NSWCCA 137 at [181]-[186]; R v Stephens [2024] NSWCCA 170 at [175].

43. [174]

    In relation to counts 5 to 8, it is important that the conduct constituting those counts occurred as part of the one course of conduct. This fact is significant in considering the total sentence.

44. [175]

    The respondent did not seek to disturb the sentencing judge’s finding of special circumstances. I also make that finding. That said, I am cognisant that the non-parole period is “the minimum period of actual incarceration that the offender must spend in custody having regard to all the elements of punishment, including rehabilitation, the objective seriousness of the offence and the offender’s subjective circumstances”: MD v R [2015] NSWCCA 37 at [39] (Gleeson JA, Johnson and Hall JJ agreeing). In light of the aggregate sentence I propose I have imposed a higher ratio than the sentencing judge imposed, although I have sought to limit the upwards adjustment.

45. [176]

    I propose the following indicative sentences:

    1. (1)

       Count 1: a sentence of imprisonment of 2 years.

    2. (2)

       Count 2: a sentence of imprisonment of 2 years.

    3. (3)

       Count 3: no further sentence pursuant to s 10A of the Sentencing Procedure Act

    4. (4)

       Count 4: a sentence of imprisonment of 6 years, with a non-parole period of 3 years and 8 months.

    5. (5)

       Count 5: a sentence of imprisonment for 6 years, with a non-parole period of 3 years and 8 months.

    6. (6)

       Counts 6: a sentence of imprisonment of 7 years, with a non-parole period of 4 years and 3 months.

    7. (7)

       Count 7: a sentence of imprisonment of 7 years and 6 months, with a non-parole period of 4 years and 6 months.

    8. (8)

       Count 6: a sentence of imprisonment of 7 years, with a non-parole period of 4 years and 3 months.

46. [177]

    There will be a degree of notional accumulation to reflect the applicant’s overall criminality, although in the case of counts 5 to 8 the notional accumulation will be less. I propose an aggregate sentence of imprisonment of 13 years and 6 months, with a non-parole period of 8 years. The sentence is to date from 19 March 2024.

Conclusion

1. [178]

   I propose the following orders:

   1. (1)

      Leave is granted to file an application for leave to appeal against conviction and sentence with effect from 1 July 2025.

   2. (2)

      Grant leave to appeal against conviction on ground 2.

   3. (3)

      Dismiss the appeal against conviction.

   4. (4)

      Grant leave to appeal against sentence.

   5. (5)

      Allow the sentence appeal.

   6. (6)

      Quash the sentence imposed on the applicant in the District Court at Campbelltown on 21 June 2024.

   7. (7)

      In lieu of the sentence imposed in the District Court, sentence the applicant to an aggregate term of imprisonment of 13 years and 6 months to commence on 19 March 2024 and expire on 18 September 2037, with a non-parole period of 8 years. The earliest date on which the applicant will be eligible for release on parole is 18 March 2032.

2. [179]

   CAVANAGH J: I have had the benefit of reviewing the draft judgment of Mitchelmore JA. I agree with her Honour that the conviction appeal must be dismissed.

3. [180]

   I have carried out my own independent assessment of the whole of the evidence and I am satisfied that it was open to the trial judge (being the tribunal of fact) to be satisfied beyond a reasonable doubt that the applicant was guilty of each of the offences (of which the trial judge found him guilty).

4. [181]

   On the hearing of the appeal, a question was raised as to whether the Crown had proved the circumstances of aggravation in respect of counts 6 to 8. Having reviewed all of the evidence, in particular the complainant’s evidence of her contemporaneous complaint of pain and indeed extreme pain as well as anal bleeding, I am satisfied that the Crown has discharged its onus in establishing the elements of each offence comprising counts 6 to 8.

5. [182]

   Whilst it is not permissible in cases like this for the Crown to simply treat each separate count as all one offence for the purposes of proving aggravation, there was sufficient evidence from the complainant about her experience of pain during or after each event to support the trial judge’s findings. The evidence of bleeding was sufficient to establish the happening of the actual bodily harm. The complaints as to her increasing level of pain is indicative of the happening of actual harm during the first penetration followed by aggravation or new actual harm with each additional penetration.

6. [183]

   As observed by Mitchelmore JA, it is not necessary for the Crown to adduce medical evidence of the actual bodily harm. The contemporaneous complaints from the person alleged to suffer the harm can be sufficient to establish the existence of actual bodily harm. That may not be so in all cases but is so in this matter.

7. [184]

   As far as the sentence appeal is concerned, I agree with Mitchelmore JA that the total sentence imposed is manifestly excessive and the applicant must thus be resentenced. I agree with the orders proposed.

8. [185]

   McGUIRE J: I have had the benefit of reading the draft judgment of Mitchelmore JA. I am of the view, having reviewed the record of the trial for myself, and for the reasons given by Mitchelmore JA, that it was well open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty. I agree with her Honour’s orders and the reasons provided.