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Court of Criminal Appeal 15 December 2023

Habambo v R

[2023] NSWCCA 328

Assault & violenceDomestic & family violence
CRIME APPEALS APPEAL AGAINST CONVICTION WHETHER EVIDENCE WAS ADMITTED IN ERROR APPEALS APPEAL AGAINST CONVICTION

Citation: Habambo v R [2023] NSWCCA 328
Court: NSW Court of Criminal Appeal
Date: 15 December 2023
Judges: Ward P; Rothman J; Davies J

Background

The applicant was convicted in the District Court following a jury trial on 28 of 34 counts of domestic violence offences against his former wife. The offending spanned approximately nine years, from late 2011 or early 2012 through to August 2020. Charges included common assault, intimidation, assault occasioning actual bodily harm, property damage, intentionally choking a person with recklessness, and intentionally suffocating a person without consent.

The applicant was sentenced to an aggregate term of 10 years imprisonment with a non-parole period of six years in relation to ten of the counts. Conditional release orders and community correction orders were imposed for the remaining counts.

The applicant sought leave to appeal both his conviction and his sentence. The conviction appeal raised six grounds (with two supplementary grounds added later) relating primarily to the admission of two categories of evidence. The sentence appeal raised four grounds, including a claim that the aggregate sentence was manifestly excessive.

  • Whether text messages between the complainant and the applicant's sister (Exhibit C) were properly admitted into evidence, and whether defence counsel's failure to object to their admission caused a miscarriage of justice
  • Whether the trial judge erred by not resolving the admissibility of WhatsApp messages (Exhibit 11) before Crown witnesses, including the complainant, had been cross-examined
  • Whether defence counsel's handling of Exhibit 11 constituted incompetence amounting to a miscarriage of justice
  • Whether the sentencing judge fell into "De Simoni error" by sentencing for counts 3 and 11 on the basis of findings that constituted a more serious, uncharged offence
  • Whether the sentencing judge erred in assessing the objective seriousness of count 34 (common assault) at the mid-range
  • Whether the aggregate sentence of 10 years was manifestly excessive

Decision

On the conviction grounds relating to Exhibit C (grounds 1, 1A and 2), the Court found the text messages were both admissible and relevant. Their relevance arose from a dispute about what the complainant had told the applicant's sister, which bore directly on the sister's credibility as a witness. The trial judge was not obliged to intervene to exclude the evidence, and the absence of an objection from defence counsel did not constitute a miscarriage of justice.

On the grounds relating to Exhibit 11 (grounds 3, 3A and 4), the Court accepted there had been some confusion about the objections raised during trial. However, defence counsel had been permitted to cross-examine on the topics covered by the messages and did not seek to recall any witnesses after the messages were admitted. The Court treated this as a forensic decision by counsel. The decision not to forewarn the Crown or the complainant about the Exhibit 11 messages was also characterised as a deliberate forensic choice, and no miscarriage of justice was established.

On the sentence grounds, the Court rejected the De Simoni error argument (grounds 5 and 6). The remarks on sentence showed the sentencing judge was aware of the principle, carefully sentenced for the offences charged, and did not treat the applicant as guilty of any uncharged, more serious offence. On the objective seriousness of count 34 (ground 8), the Court noted the assault formed part of the final episode of a nine-year pattern of violence, occurred at the complainant's home in front of the couple's children, and included a threat to throw the complainant from a balcony before the applicant jammed her in a door. The sentencing judge had presided over the entire trial and was well-placed to assess comparative seriousness.

The manifest excess ground (ground 7) also failed. The Court found that the indicative sentences for the individual counts at issue were each open on the evidence and in context. Given the nine-year duration of the offending, the gravity of individual offences including two choking or suffocation counts, and the fact that the applicant received a favourable adjustment to the statutory non-parole ratio (from 75% to 60%), the aggregate sentence, while described as stern, was not plainly unjust.

Orders Made

  • Conviction appeal: leave to appeal refused on each ground; appeal dismissed
  • Sentence appeal: leave to appeal granted; appeal dismissed

Key Takeaways

  • Admission of third-party text messages is not automatically in error where the messages are relevant to a witness's credibility on a contested issue at trial.
  • A failure by defence counsel to object to evidence, or to seek an early admissibility ruling, will not constitute a miscarriage of justice where those decisions can reasonably be characterised as forensic choices.
  • Under the De Simoni principle, a sentencing judge must not sentence on the basis of conduct amounting to a more serious uncharged offence; the Court of Criminal Appeal confirmed here that explicit awareness of the principle and careful reasoning in the remarks on sentence can demonstrate compliance.
  • Contextual factors, including the location of an assault, the presence of children, and the cumulative history of violence between the parties, are relevant to the objective seriousness of an individual count even where that count involves a relatively common offence such as common assault.
  • In dismissing the manifest excess ground, the Court confirmed that an aggregate sentence across a large number of counts for prolonged domestic violence will not be disturbed where individual indicative sentences are open and the overall term reflects the pattern and gravity of the offending.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), s 22B
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Crimes Act 1900 (NSW), ss 37, 59, 61, 308
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Evidence Act 1995 (NSW), ss 38, 43, 44, 55, 56, 76, 137, 138, 192
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- FDP v R [2008] NSWCCA 317
- Hanna v R [2022] NSWCCA 7
- Salafia v R [2015] NSWCCA 141
- XY (A Pseudonym) v R [2023] NSWCCA 50
- Kirby v R [2021] NSWCCA 162
- R v Esho [2001] NSWCCA 415
- GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40
- Crofts v The Queen (1996) 186 CLR 42; [1996] HCA 22