AIJA Benchbook

Australian Capital Territory

Court of Appeal

Murphy v R [2025] ACTCA 10 (4 March 2025) – Australian Capital Territory Court of Appeal

‘Appeal against sentence’ – ‘multiple victims’ – ‘whether manifestly excessive’ – ‘assessment of objective seriousness’ – ‘prior family violence as aggravating factor’ – ‘adjustment of start date due to miscounting error’

Proceedings: Appeal against sentence.

Charges: The appellant appealed against his convictions of negligently causing grievous bodily harm (x1- count 3), recklessly inflicting actual bodily harm (x1- count 6), sexual intercourse without consent (x3- counts 9,15,17), assault occasioning actual bodily harm (x3-counts 10,12,17), common assault (x6 – counts 18, 19 and others), damage property (x1), choke, strangle or suffocate (x1- count 1).

Facts: The appellant offended against four female complainants.

Ms A: Ms A was 16 years old; the appellant was 20 years old [9]. The relationship was controlling and aggressive [10]. The appellant negligently caused Ms A grievous bodily harm by instructing her to take a knife and cut herself [12]. The appellant recklessly inflicted bodily harm on Ms A by cutting her with a house key [14]. The appellant engaged in sexual intercourse with Ms A without her consent [17].

Ms B: The appellant was in a relationship with Ms B from July 2012 to November 2018. The appellant assaulted her on four occasions by punching her to various parts of her body. The appellant damaged Ms B’s property – he used a screwdriver to break her phone. He assaulted Ms B occasioning actual bodily harm by lifting her and slamming her on a slate floor. He assaulted Ms B by waterboarding her and by pressing his forearms into her neck with force until she was unable to breathe and became incontinent. The appellant engaged in sexual intercourse with Ms B without her consent on two occasions.

Ms C: The appellant and Ms C were in a relationship from February 2019 to July 2020 [43]. The appellant choked Ms C by putting both arms over her shoulders and around her neck and pressing hard against the front of her neck and throat [50]. The appellant damaged the door and walls of Ms C’s home [53]-[55]. The appellant assaulted Ms C by shoving her four times, grabbing her breast and spitting phlegm into Ms C’s eyes [57]-[58].

Ms D: The appellant and Ms D were in a relationship from July 2021 to January 2022 [60]. The appellant was verbally abusing Ms D [67]. The appellant then assaulted Ms D by pushing her over twice [67]-[68]. The appellant grabbed Ms D’s shoulders and threw her onto a dirt verge – she fell on her hip and hit her head on something hard [68].

Grounds of appeal: The appellant relied on several grounds of appeal:

(a) the sentences imposed on count 3 and count 6 were manifestly excessive;

(b) the primary judge erred in his assessment of the objective seriousness of count 3 and count 6;

(c) the primary judge erred in his assessment of the objective seriousness of count 18 and count 19 by finding these offences as being in “the worst case”;

(d) the primary judge erred in treating prior family violence by the appellant against the victim (Ms B) as an aggravating factor for count 18 and count 19;

(e) the primary judge erred in having regard to an irrelevant consideration for count 19, namely the possibility that the victim had suffered an unproven injury; and

(f) the primary judge erred in failing to have regard to an additional 19 days served by the appellant in pre-sentence custody.

Decision and reasoning: Appeal dismissed.

Ground (a): The appellant submitted that the individual sentences imposed in respect of counts 3 and 6 were manifestly excessive. The sentencing judge found that the first offence (count 3) was at the low end of objective seriousness and that the second offence (count 6) was in the low to mid-range of objective seriousness. The offending involved controlling, manipulative and violent behaviour in circumstances where there was a significant power differential [84].

On appeal, the Court concluded that a consideration of the objective seriousness of the offences in light of the maximum penalty, together with the appellant’s lack of remorse, the need to recognise the harm to the victim and to protect the community, as well as the limited prospects for rehabilitation and absence of remorse, did not reveal the sentences to be outside of the available range as to be “plainly unjust” [99].

Ground (b) and ground (d): These grounds were dealt with together. Ground (b) stated that the sentencing judge had erred by treating the appellant’s behaviour prior to the commission of the offences as an aggravating factor for counts 3 and 6. Ground (d) stated that the sentencing judge erred by characterising count 18 as occurring “within a long-standing context of manipulation, violence and control by the appellant”, and that the primary judge was in error to treat s 34B of the Crimes (Sentencing) Act as operating to increase the objective seriousness of counts 18 and 19.

On appeal, the Court agreed that the appellant’s “controlling and aggressive” conduct aggravated the objective seriousness of counts 3 and 6 [107], and so disposed of ground (b). On ground (d), the Court found that the primary judge had been correct to treat s 34B of the Crimes (Sentencing) Act as operating to increase the objective seriousness of counts 18 and 19 [142]. The primary judge had also been correct to find that count 18 occurred “within a long-standing context of manipulation, violence and control” [141].

Ground (c): The Court found that, whether by reference to “worst category” or “at the very high end” or “at the very upper end of seriousness”, the finding made by the primary judge as to the objective seriousness of the offending was entirely justified [162].

Ground (e): The appellant submitted that the primary judge erred by having regard to an irrelevant consideration in assessing the objective seriousness of Count 19, namely that the victim, Ms B, suffered an unproven injury [164]. The Court found in this instance the victim defecating was relevant not because it was an injury but because it was part of the response she had to the application of force to her neck by the appellant. Just as it was relevant that the victim’s response to the force included that she could not breathe or talk while the force was being applied; so too was her involuntary defecation. It was a factor that informed the nature and extent of the common assault perpetrated against her and thus was a matter that properly informed the objective seriousness of the offence [173].

Ground (f): It was accepted on appeal that the sentencing judge had been provided with the incorrect number of days that the appellant had served by way of pre-sentence custody referable to the offending. As at the date of sentence, the appellant had in fact been held in custody for 207 days (an additional 19 days) [176]. The Court found that the start date of the sentence may be adjusted to fix the error without re-exercising the discretion (as the appellant had been arguing for) [186].

TS v DT [2025] ACTCA 6 (21 February 2025) – Australian Capital Territory Court of Appeal

‘Appeal against extension of final protection order’ – ‘Family Violence Act 2016, s 86’ – ‘relevant criterion for applications to extend protection orders’ – ‘hardship’

Proceedings: Appeal against extension of final protection order.

Charges: N/A

Facts: The appellant appealed an order of the Supreme Court dismissing an appeal from an order of the Magistrates Court extending a final protection order made against him. The respondent is a protected person under the order.

The appellant and the respondent were married. They separated following a domestic violence incident where the appellant assaulted the respondent and their teenage son while brandishing a knife [2]. Some time later, the appellant and the respondent moved back in together into a house they had jointly purchased. They resumed living together until, following another domestic violence incident, the respondent applied for a protection order against the applicant prohibiting the applicant from being at the family home [3]-[4].

Grounds of appeal: The central complaint made by the applicant in the Court of Appeal was that the appeal judge in the Supreme Court failed to address the grounds before him [65]. The applicant had submitted the order should be varied on the basis of hardship caused to the applicant (he was “practically homeless” [14]).

Decision and reasoning: The Court found that the Supreme Court judge had been correct in their interpretation of s 86 of the Family Violence Act 2016 [68]. The criteria that apply to decisions about the making of a family violence order might be relevant to applications to amend an order other than an application for extension [68(e)]. Decisions on applications for extensions are governed by a single criterion – whether the court is “satisfied that a protection order is no longer necessary to protect the protected person from family violence by the respondent”. An application to extend an order is not an invitation to reconsider or redraft provisions of that order.

The Supreme Court judge was therefore not required to consider the appellant’s hardship grounds [71], and the appeal was dismissed [72].

Jewell v DPP [2024] ACTCA 30 (15 November 2024) – Australian Capital Territory Supreme Court

‘Appeal against sentence’ – ‘aggravated threat to kill’ – ‘aggravated stalking’ – ‘breach of family violence order’ – ‘texts and calls’ – ‘attending complainant’s residence’ – ‘manifest excessiveness’ – ‘degree of sentence accumulation’- ‘threats’ - ‘following harassing and monitoring’

Proceedings: Appeal against sentence.

Charges: The appellant had been convicted of making an aggravated threat to kill another person (x1), aggravated stalking (x1), and contravening a family violence order (x1).

Facts: The appellant and the complainant had been in a relationship which commenced in 2021 and concluded in early 2023 [6].

The threat to kill involved the appellant going to the complainant’s house armed with a large knife. He banged on the door and threatened to kick the front door in. The complainant let him in, whereupon the appellant grabbed her, pointed the knife at her and said he was going to kill her. After a while, the appellant handed the complainant the knife and asked her to kill him. He eventually left the house [14].

The aggravated stalking offence included the appellant sending hundreds of text messages and making dozens of phone calls to the complainant in a roughly two-week period. It also involved the appellant texting threats while standing outside the complainant’s house [10].

The breach of the family violence order involved the appellant being served with the Family Violence Order, then calling the victim every day (making a total of 34 calls and sending 9 text messages) [17]. The appellant also attended the complainant’s house on 20, 21, 22, 24, 25 and 27 March. On some of those occasions he was there more than once. On 29 March 2023, the appellant sent the victim threatening texts. The complainant rang the police, and the police located the appellant lying in bushland [19].

Grounds of appeal: In the notice of appeal, the appellant contended that both the individual sentences imposed, and the overall total sentence, were manifestly excessive [36]. In submissions, the appellant sought leave to expand the grounds to include that the primary judge erred in not applying the full 25% discount for the appellant’s guilty plea; and that the primary judge erred in failing to properly apply the Bugmy and Verdins principles [37].

Decision and Reasoning: Leave was refused for the two grounds of appeal raised in submissions (based on these grounds having no merit):

(1) Guilty plea: Counsel for the appellant argued that the appellant should have obtained a 25% guilty plea discount on each offence. In respect of the aggravated stalking and breach of FVO offences, the sentencing judge had found that the prosecution case was overwhelmingly strong and therefore arrived at discounts below 25% [72-73]. The Court found that s 35(4) of the Sentencing Act was correctly interpreted and applied (the subsection states that in deciding any lesser penalties, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case was overwhelming strong) [84].

(2) Bugmy and Verdins principles: There was no dispute that the Bugmy principles were relevant [39]. On appeal, the Court found that the sentencing judge was correct to assess the result of the appellant’s adverse childhood experiences as relevant to the risk he presented of future reoffending and the need for the community to be protected. Therefore, while moral culpability was reduced due to childhood disadvantage, the re-offending risk and need for community protection justifiably pulled in the other direction [52-53].

In relation to the Verdins principles, counsel for the appellant submitted that the appellant’s mental health “could be treated through therapy” and thus her Honour’s view that the appellant’s mental health created a risk to the community was an error. The Court did not agree [60]. The sentencing judge was correct to find that potential for treatment and rehabilitation was not a complete answer to the risk posed to the community due to mental impairment [64]. The appellant may not have been the best vehicle for general deterrence, but specific deterrence was justifiably given special weight [64].

As for the original ground of appeal based on manifest excessiveness, the Court found that this ground was not made out [107]. The Court accepted the respondent’s submission that while the offences were committed in the period of a month and bore factual similarities, the criminality in each was different [103]. In the Court’s view, the different criminalities of the charged offences required separate consideration and sentence [106]. The sentence structure which admitted of a degree of concurrency acknowledged the course of conduct while still paying proper regard to the relationship between the facts of the offences [106].

Robertson v Director of Public Prosecutions [2024] ACTCA 26 (30 August 2024) – Australian Capital Territory Supreme Court

‘Appeal against sentence’ – ‘Premeditation’ – ‘Physical violence and harm’ – ‘Past domestic violence’ – ‘Weapons and threats to kill’ – Attempted murder – ‘Attempted breach of family violence order’ – ‘Guilty plea discount’ – ‘Manifestly excessive’

Charges: Attempted murder x1; attempted breach of a family violence order x1.

Case type: Appeal against sentence.

Facts: The matter was an appeal against a sentence imposed by McCallum J (primary judge) for the defendant’s convictions of attempted murder and attempted breach of a family violence order.

The appellant eavesdropped on the victim’s phone calls outside her home before breaking in while she was in her bedroom. The appellant took the victim’s phone, grabbed a large knife from the kitchen and attacked her, slicing her ear and stabbing her 11 times. As the appellant returned to the kitchen, the victim then fled to the backyard, screaming for help. A neighbour woke up and called emergency services. Meanwhile, the appellant ignited a newspaper on the stove and used a cylindrical spray can to burn the victim’s face, chest, arms and torso. The Police arrived to find the property locked, hearing the victim’s screams and seeing bursts of flames. Upon gaining entry, they restrained and handcuffed him.

Grounds of appeal:

1. In respect of the offence of attempted murder, the primary judge erred in awarding a discount of 10% for the appellant’s plea of guilty; and

2. Each of the individual sentences, the total effective sentence (27 years and 3 months’ imprisonment) and the non-parole period (20 years) were manifestly excessive.

Held:: The Court (Mossop ACJ, Baker and McWilliam JJ) dismissed the appeal.

Ground 1: The Court found no error in the approach the primary judge had taken, or the 10% discount applied.

The discount was calculated consistently with legal principles and legislative requirements. Given the family violence context, the previous assaults on the victim, and the appellant’s lack of remorse, the offence was classified as within the “worst category” for offending of that kind [30]. While recognising the utility of providing consistent discounts for guilty pleas, the primary judge determined that applying a discount greater than 10% would result in a penalty unreasonably disproportionate to the offence, this justified a departure from ordinary sentencing ranges [31]. Fixing the indeterminate life imprisonment sentence at 30 years before applying the 10% discount to reduce it by 3 years was appropriate [32].

Accordingly, no error was established.

Ground 2: The Court found no basis to conclude that the individual sentences, aggregate sentence, or the non-parole period were manifestly excessive.

For the attempted murder offence, the extreme physical, emotional and psychological harm the offending had on the victim, the appellant’s recent recidivism, and the appellant’s lack of remorse all justified imposing a sentence of 30 years’ imprisonment prior to the discount [36-38]. The attempted breach of the family violence order, in the context of the recent attempted murder, demonstrated an extraordinary disregard for the victim’s suffering. The Court treats breaches of these orders seriously, therefore the three-month sentence was well-within the appropriate range [42-49].

The court observed: ‘The appellant is reported to have “felt bad” upon seeing the victim’s injuries, and then stated that a way of preventing his unlawful behaviour from occurring again in the future was to find a more reliable partner, as her actions were the cause of his offending behaviour. The lack of insight is disturbing.’ [38]

The Court accepted there was no basis for sentences to be served concurrently [55], and that consecutive sentencing properly reflected the overall criminality [56]. The non-parole period, a substantial portion of the sentence, was necessary to meet the deterrent and punitive aims of sentencing, hence it was not manifestly excessive [59].

Deng v Australian Capital Territory [2024] ACTCA 10 (15 March 2024) - Australian Capital Territory Court of Appeal

‘Appeal against jurisdiction’ – ‘Arbitrary detention’ – ‘Prevention order’ – ‘Family Violence Act’

Proceedings: Appeal against jurisdiction and finding that remand was not arbitrary.

Charges: 1x Breach of prevention order

Facts: The applicant was arrested in 2019 and charged with destroying or damaging property. The Magistrate initiated a prevention order pursuant to s 112 of the Family Violence Act (ACT), prohibiting the applicant from engaging in certain conduct “until all related charges are finalised’. Four months later, another Magistrate finalised the relate charge by convicting the appellant and fining him $2000. This had the effect of ending the restrictions imposed by the prevention order. Two months later, the appellant visited the house of his ex-partner and was subsequently arrested and charged for breaching the prevention order. The applicant was remanded in custody and released 58 days later as the restrictions on the prevention order had terminated months earlier:

As a result of the wording of the family violence order, there was, in fact, no prohibition upon his being at his former partner’s house … as the only “related charge” had been finalised before that date [14]

Grounds of appeal: The applicant contested the legality of the Magistrate’s order, arguing:

The Magistrate(s) acted without jurisdiction by making remand orders for a breach of a restriction which had terminated;

The primary judge failed to consider the effect s 40C of the Human Rights Act (which concerns legal proceedings in relation to public authority actions).

Decision and Reasoning: Appeal dismissed.

The Court (McCallum CJ, Mossop and McWilliam JJ) agreed with reasoning of the primary judge: the fact that certain restrictions of a prevention order might end does not mean the prevention order also ends. The prevention order is only ended by operation of the Family Violence Act:

The inclusion of a statement as to the circumstances in which the prohibitions would cease (“until all related charges are finalised”) was unnecessary because s 30 of the FV Act itself determined when the order ended. Section 30 describes four specific circumstances in which an SIFVO [Special Interim Family Violence Order] comes to an end. That these describe the only circumstances in which the order may be ended is made clear by the language of the section: “A special interim order ends only when the first of the following happens …” [33]

Giving full effect to the terms of the statute and the terms of the order meant that the prohibitions upon being at a particular address or within a specified distance of a particular person within the order came to an end when “all related charges [were] finalised”. But the order itself, without any operative prohibitions, would continue in effect until, by operation of s 30, it came to an end [35]

Further, it was within the jurisdiction of the Magistrates Court to hear any arguments related to the charge and deal with the applicant, including by making remand orders where appropriate:

If the elements of an offence under s 43(2) were not established in the Magistrates Court beyond reasonable doubt, then there would be no jurisdiction to convict the appellant or impose a penalty. However, that there may not ultimately be jurisdiction to convict the appellant or impose a penalty does not deny the Magistrates Court jurisdiction to commence to hear the proceedings, including making any decisions about bail in the meantime, and determine whether or not the appellant is guilty or not guilty [44]

Director of Public Prosecutions v Padreny [2024] ACTCA 4 (16 February 2024) — Australian Capital Territory Court of Appeal

‘Appeal against sentence’ – ‘Manifestly inadequate’ – ‘Factual error’ – ‘Physical violence and harm’– ‘Damaging property’– ‘Threat to kill’– ‘Strangulation/choking’– ‘History of domestic and family violence’

Proceedings: Prosecution appeal against sentence.

Charges: 1x reckless threat to kill, 1x forcible confinement, 2x act endangering health (choke/suffocate/strangle), 3x common assault, 3x damage property less than $5000 in value, 2x assault occasioning actual bodily harm, 1x damage property, 1x make a demand with a threat to endanger health, safety, or physical well-being.

Facts: The male respondent was convicted and sentenced to 5 years and 7 months’ imprisonment for 14 offences committed against his female intimate partner over an eight-month period (February–October 2020). [128]

Grounds of appeal: The prosecution appealed the original sentence on four grounds:

The sentencing judge erred in allowing a 25% discount for the respondent’s plea of guilty with respect to the offence of making a demand with a threat to endanger health, safety or physical wellbeing;

The sentencing judge erred in allowing a discount in excess of 10% for the respondent’s pleas of guilty with respect to the offences of making a reckless threat to kill, assault occasioning actual bodily harm, and two instances of common assault and

The sentencing judge erred in the assessment of the objective seriousness of the offence of assault occasioning actual bodily harm, by failing to take into account and/or misstating the material facts relevant to that assessment; and

The sentence imposed was manifestly inadequate. [58]

Decision and Reasoning: Appeal allowed. Respondent sentenced to 8 years and 9 months’ imprisonment. [171]

With respect to the first two grounds of appeal, the Majority (McWilliam and Abraham JJ) held that there was no ‘evident justification’ for the plea discounts. [90] The respondent’s plea of guilty were arrived at late [92]; [97].

With respect to ground three, the Majority held that the sentencing judge’s assessment of the objective seriousness of the conduct constituting the charge of occasioning actual bodily harm was premised on a factual error. The sentencing judge mistook the extent of the harm caused by the impugned conduct as requiring surgical procedures when it did not. [104]–[105]

With respect to ground four, the Majority held the sentences to be manifestly inadequate. In comparison to relevant cases, the sentence imposed for the offence of choking, threat to kill, making a demand with a threat to endanger life were ‘substantially lower’. [127]; [132]; [133]; [138]; [140]

With respect to choking, the Majority summarised the following relevant factors in assessing objective seriousness:

For this offence, without being exhaustive, the following have been referred to: (1) the length of time during which the “choking” persisted; (2) the amount of force used; (3) whether the victim’s breathing was restricted; (4) whether verbal threats were made at the time of the choking; (5) whether the victim sustained any injuries; (6) whether any aides like rope or cable were used; (7) the vulnerabilities of the victim; (8) whether the conduct was deliberate and sustained, designed to threaten and inflict harm; and (9) whether the conduct occurred in a family violence context [131]

In dissent, Loukas-Karlsson J regarded ‘leniency in sentencing’ to not ‘equate to manifest inadequacy’. [2] For Loukas-Karlsson, the Prosecution failed to demonstrate ‘that a successful appeal on … grounds one and two would amount to anything more than “tinkering” with the sentence, that is, nothing but a slight adjustment in sentence’. [13] In effect, the sentence was neither ‘unreasonable or plainly unjust’ [26]; [43]

Day v R [2023] ACTCA 39 (11 October 2023) — Australian Capital Territory Court of Appeal

‘Appeal against sentence’ – ‘Physical violence and harm’ – ‘Strangulation/choking’ – ‘Prevention order’ – ‘pro-social conduct’

Charges: 2x choke, suffocate or strangle, 1x threat to kill, 1x contravention of prevention order, 1x transfer offence (damage property)

Proceedings: Appeal against sentence

Facts: The applicant was sentenced to 4 years and 6 months’ imprisonment for offences committed in a domestic violence context. The applicant and complainant/victim had a short relationship 2015–16 that recommenced in 2019. In September 2021, the applicant, unprovoked, pushed the complainant off their bed, and manually strangled her on the floor. Despite demanding the victim to leave, the applicant obstructed her from doing so and strangled her again. [8]–[12] The complainant managed to escape the house, and three months later sought a prevention order against the applicant. [13] Grounds of Appeal: The applicant appealed the sentence on the following grounds:

The sentencing judge failed to take into account the appellant’s subjective circumstances;

The accumulation of the individual sentences was excessive or the sentencing judge failed to take into account totality; and

The individual sentences, the aggregate sentence and the non-parole period imposed were manifestly excessive.

Decision and Reasoning: Appeal dismissed.

The applicant did not establish any of the grounds of appeal. With respect to ground 1, the sentencing judge demonstrated no error in their approach to the subjective circumstances of the applicant [48]:

In any event, the matters identified by the appellant as “strikingly pro-social” going to rehabilitation, which he submitted were not identified or taken into account in sentencing, or not having been dealt with appropriately were, save for one limited matter, expressly identified by the sentencing judge. It may be accepted that they were not referred to with the emphasis or in the manner that the appellant might have desired, but the references reflected the material before the sentencing judge. The matter not referred to is that he has had a stable housing record since 2016 and has a positive relationship with his neighbours. It is unclear how, in the context of family violence offences, this matter could be characterised as strikingly pro-social conduct such as to materially impact on the sentencing [33]

With respect to the remaining grounds, the Court upheld the sentence as not manifestly excessive nor in discordance with the principle of totality [66];[69]. In so doing, the Court stressed the limitation of considering current sentencing practice:

Current sentence practice is only one sentencing consideration. The Crown referred the sentencing judge to a number of other cases during the sentencing hearing but observed that they were not really comparable. Simply because a case has different features does not mean it may not provide assistance generally as to the range of sentences being imposed. Factually comparable cases are difficult to find, as the facts of the offence and the offender are both relevant. Given that reality, a sentence imposed in a factually more serious case (or less serious case) may, with other cases, provide some guidance. The assistance depends on the facts of the given cases. This is bearing in mind, the relevant inquiry for manifest excess is not just a comparison between cases. His Honour considered the cases referred to, analysing the circumstances in which the sentences were imposed [63]

Vuolo v Fall [2023] ACTCA 33 (3 August 2023) — Australian Capital Territory Court of Appeal

‘Appeal against sentence’ - ‘Manifestly excessive’ - ‘Stalking’ ‘Following, harassing and monitoring’ - ‘family law’

Charges: 1x stalking

Proceedings: Appeal against sentence

Facts: Before a Magistrate, the applicant was found guilty of one charge of stalking and placed on a good behaviour order for 12 months. The offence was proven in relation to the applicant stalking his ex-partner, with whom he had been married between 2010 and 2017, on ‘six occasions, in just over a three-month period in the same year’. [1] The stalking occurred following handover of their children per shared-custody arrangements. [7]

The sentence was appealed, and subsequently overturned by a single judge of the Supreme Court (‘primary judge’) in favour of the complainant: the applicant was resentenced by a conviction and a good behaviour order imposed for a period of 12 months backdated to the original date of sentence.

Grounds of appeal: The applicants seeks to quash or set aside the orders of the Supreme Court judgement, and reinstate the orders imposed in the Magistrates Court. The applicant sought to appeal the order on seven grounds, which can be summarised as followed:

•

Grounds 1 and 4: The primary judge erred in finding that the non-conviction order (made by the Magistrate) was ‘an outlier’ [13]

•

Ground 2: The primary judge erred in finding that the use of a vehicle (to stalk) was relevant and aggravating [48]

•

Ground 3: The primary judge erred in adopting the Magistrate’s summary of the facts, which noted that the victim “felt fearful and harassed” by the applicant [52]

•

Ground 5: The primary judge erred in reasoning that if the sentence was treated as a guide for future decision, ‘it would lead to a wide range of offending not attracting punishment’ [28]

•

Ground 6: The primary judge erred in finding that the original sentence was manifestly inadequate [61]

•

Ground 7: The primary judge erred in failing to find that the Court on a review appeal retained a residual discretion to decline to interfere with the sentence even where error has been established [62]

Decision and Reasoning: Appeal dismissed.

The Court (Backer, McWilliam and Abraham JJ) dismissed grounds 1 and 2. The Court found no error in the primary judge’s conclusion that the sentence was an outlier. Previous sentences were considered, each including a term of imprisonment where the offending was objectively serious [21] (Ground 1 and 4). The Court held that ‘using a motor vehicle to follow a person is objectively more serious than other conduct which may also fall within the definition of stalking’ [50] (Ground 2).

The Court upheld the fifth ground of appeal, finding that the primary judge’s reasoning was not ‘directed to explaining why the sentence [of the Magistrate] is manifestly inadequate, but rather at the consequences of failing to correct it’. [45] The impugned statement was that a failure to correct the sentence would ‘erode sentencing standards’. [40] Consequently, the Court considered grounds 3, 6 and 7 in light of reconsidering the sentence.

The Court held the primary issue in dispute to be whether a conviction should have been recorded. [70] Having regard to sentencing objectives and considerations (Sentencing Act ss 7, 33), the Court held the original sentence (i.e. a good behaviour order without conviction) was manifestly inadequate and insufficient to meet the need for general deterrence. [86]–[88] The offending is ‘punishable by two years’ imprisonment’ [72]: it ‘was sustained conduct … sufficiently concerning to prompt evasive action by the victim’ and occurred in the context of family violence [73]–[75].

NS v Hotchkis [2021] ACTCA 13 (2 June 2021) – Australian Capital Territory Court of Appeal

‘Breach of protection order’ – ‘Common assault’ – ‘Evidence issues’ – ‘Protection orders’ – ‘Self-represented litigant’

Charges: Common assault x 1; Contravening a Family Violence Order x 1.

Proceedings: Appeal from ACT Supreme Court against convictions imposed in the ACT Magistrates Court.

Facts: The male appellant and female complainant were married and living together. The appellant kicked the complainant’s leg during an argument. The applicant breached a family violence order by engaging in offensive or harassing behaviour towards the complainant or by harassing, threatening or intimidating her. The complainant made an audio-recording and a central issue in the appeal was whether the magistrate in the initial hearing had erred in ruling that the audio recording was admissible. The appellant’s appeal to the Supreme Court against his conviction was dismissed: NS v Hotchkis [2019] ACTSC 309 (8 November 2019).

Grounds of appeal: The primary appeal judge erred in dismissing the first appeal on grounds that:

The magistrate erred in ruling that the audio recording made by the complainant was admissible (pursuant to ss4 and 5(2)(d)-(e) of the Listening Devices Act 1992 (ACT) (LDA).

The convictions were unreasonable and could not be supported having regard to the evidence.

Held: Appeal dismissed.

Ground 1: There was no error in the primary judge’s conclusion that ss 4 and 5 were not breached, as the complainant believed, on reasonable grounds, the recording was necessary for the protection of her lawful interests. Further, there was no error in concluding there was no prohibition in s 10 for the admissibility of the conversation. No question of the application of s 138 of the Evidence Act arose.

Ground 2: The primary judge reviewed the evidence, set out findings of fact and reasons given by the magistrate, and referred to the appellant’s submissions that the statements made did not breach the family violence order. There was no error in the primary judge’s conclusion:

“I have no hesitation in agreeing with the Magistrate that the evidence established a breach of the family violence order. Having listening to the recording on numerous occasions, I am satisfied that his conduct was, and was intended to be, harassing and intimidating. I agree with the Magistrate that he was yelling at [the complainant], and that his tone was aggressive. His suggestion that he was talking to the dog is improbable, but in any event I am satisfied that his conduct was really directed towards [the complainant], and intimidating her.”

“In finding the appellant guilty of assault, the Magistrate was entitled to take into account the clear aggression demonstrated by the appellant at the time that [the complainant] says she was kicked. She was also entitled to find that the appellant had threatened to “snot” [the complainant], and that this was a threat to hit her. The Magistrate was also entitled to find that the accused had kicked the rubbish bin just before he kicked the complainant, although his intention may have been to scare the dog. These were all circumstances supportive of the evidence of [the complainant]. Finally, the Magistrate had the benefit of seeing and hearing [the complainant] cross examined and the appellant giving his evidence. Her finding that [the complainant] was a credible witness, and the appellant was not, should not lightly be interfered with. I am satisfied that there was ample evidence upon which the Magistrate was entitled to convict the appellant.”

TS v DT [2020] ACTCA 43 (27 August 2020) – Australian Capital Territory Court of Appeal

‘Accommodation’ – ‘Appeal of family violence order’ – ‘Exclusion from home’ – ‘Ongoing risk’ – ‘Past domestic and family violence’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Protection orders’ – ‘Self-represented litigant’

Proceedings: Appeal of Family Violence Order.

Facts: The matter was an appeal to the Court of Appeal following a final Family Violence Order (FVO) made against the appellant by the Chief Magistrate, and upheld on appeal by the Primary Judge: TS v DT [2019] ACTSC 295 (25 October 2019). The appellant sought that the FVO made by the Chief Magistrate be quashed, and no further orders made excluding the appellant from the premises of the family home (where the respondent was living).

Issues: The male appellant applied to adduce additional evidence in the appeal. The appellant also raised 12 grounds of appeal: the decisions of the Chief Magistrate (Ground 1) and Primary Judge (Ground 2) were unreasonable and not supported by evidence; the Chief Magistrate erred in running a final hearing on the FVO application (Grounds 3 and 10), making an FVO that was too long (2 years from final hearing) (Ground 4) and applying the Browne v Dunn principle (Ground 5); the Primary Judge attempted to cover up the Chief Magistrate’s alleged misconduct (Ground 6); the Chief Magistrate erred in law by relying on 2018 convictions (Ground 7) and the 2007/8 incident to support the making of the FVO (Ground 8); there was judicial misconduct by the Chief Justice in the conduct of the final hearing (Ground 9); and there was failure to have regard to evidence including relating to “property law issues” and the accommodation difficulties of the appellant (Grounds 11 and 12).

Decision and reasoning: The application to adduce additional evidence was refused ([52]-[64]), and the grounds of appeal were dismissed ([65]-[162]).

On Grounds 1 and 2, the decisions of the Chief Magistrate and Primary Judge were not unreasonable and were supported by evidence (including specific instances of violence against the respondent and her son, further supported by criminal convictions of the appellant) ([66]-[87]).

On Grounds 3 and 10, there was no error in making a final order excluding the appellant from access to the family home as the proceedings were run as a final hearing ([88]-[100], [142]-[143]). On Ground 4, the FVO’s duration was grounded in statute. Further, the Chief Magistrate weighed the competing interests of the appellant and the respondent (including the appellant’s accommodation difficulties) but found these could only be remedied by excluding the appellant from the family home ([101]-[112]). On Ground 5, there was no error in application of the Browne v Dunn principle ([113-[122]) and on Ground 6, there was no evidence of judicial bias ([123]-[125]).

On Ground 7, there was no miscarriage of justice relating to the 2018 convictions (which confirmed findings of instances of violence and substantiated the respondent’s fear) ([126]-[131]) and on Ground 8, appropriate regard was had to an incident in 2007/8 ([132]-[137]). On Ground 9, the Chief Magistrate’s conduct during the hearing was unremarkable ([138]-[141]).

On Grounds 11 and 12, the Chief Magistrate and Primary Judge had due regard to the evidence presented by the appellant, including evidence relating to “property law issues” and the accommodation circumstances of the appellant ([142]-[161]). On the property law issues, at [153]-[154], the Court noted:

“The appellant contends that the respondent had an additional purpose in seeking as a condition of the final FVO that the appellant be excluded from the family house – namely, an objective on the respondent’s part to obtain sole ownership of the family home. As I noted earlier, irrespective whether this was the case, there was clear evidence before the Chief Magistrate that the respondent would have difficulty relocating her place of residence and, further, that there was a history of violent conduct on the part of the appellant towards the respondent which supported the final FVO being made.

Further, and notwithstanding the submissions of the appellant to the contrary, the ultimate proper disposition of assets is a matter for the family law proceedings. That the respondent may seek sole ownership of the matrimonial home in those proceedings does not mean that her claims under the FV Act had no basis.”

Laipato v The Queen [2020] ACTCA 35 (7 July 2020) – Australian Capital Territory Court of Appeal

‘Appeal against conviction and sentence’ – ‘Evidence’ – ‘Inconsistent verdicts’ – ‘People affected by trauma’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Unreasonable, unsafe and unsatisfactory verdicts’

Charges: Burglary x 1 (guilty); Unlawful confinement x 1 (guilty); Choking x 1 (guilty); Indecent assault x 1 (not guilty); Choking x 1 (not guilty); Intentionally causing property damage x 3 (not guilty); Stealing CCTV hard drive x 1 (not guilty).

Proceedings: Application for leave to amend notice of appeal and for leave to appeal (grounds 3, 4, 6 and 7) and appeal against conviction and sentence.

Facts: The trial court found that the appellant man broke into his former partner’s (the complainant’s) house before dragging her from bed and strangling her. The complainant’s evidence was that the appellant ‘made her stay’ in the room by threatening to strangle her if she tried to leave, strangling her multiple times and threatening to kill her. The appellant allegedly committed property damage. There was some delay before the complainant alleged that the appellant had indecently assaulted her. The appellant allegedly ripped out the CCTV hard drive before leaving. The appellant also allegedly slashed the tyres of the complainant’s car.

Grounds of appeal: (1) Verdicts were inconsistent; (2) Verdicts were unreasonable, unsafe and unsatisfactory; … (6) Trial judge erred in making factual findings; (7) Sentences were manifestly excessive.

Decision and reasoning:

Grounds (1)-(2) Dismissed. There were rational explanations why the jury may have acquitted the appellant of some charges while finding the appellant guilty on others. One factor identified was that the complainant was upset and frightened; she ‘may have misremembered matters or failed to appreciate details’, although the complainant did make some errors in her evidence and did not directly witness some of the alleged charges/events. Where there were inconsistencies in the complainant’s evidence, the jury may have accepted that this was because she had just ‘survived a gruelling series of events’ [101].

Ground (6) Allowed. Two of the trial judge’s factual errors did not reduce the objective seriousness of the offence to something less than ‘midrange’:

[155] The offence was committed in the complainant’s home, during the night. It was motivated by a desire to vent anger and assert physical control over the complainant in response to her termination of the relationship. The offence was of not insignificant duration. It was associated with violence and a threat to kill; whether the violence was properly described as “extreme violence” poses a semantic question that is unnecessary to answer.

A third factual error of substance required the Court of Appeal to resentence on Counts 1, 2 and 3.

Ground (7) Allowed. Total sentence reduced from 5 years and 5 months to 3 years and 6 months.

R v UG [2020] ACTCA 8 (27 February 2020) – Australian Capital Territory Court of Appeal

‘Alcohol abuse’ – ‘Children’ – ‘Damaging property’ – ‘People with mental health issues’ – ‘Physical violence - threat to kill child - suicide threat- weapon’

Offences: Common assault x2; possessing offensive weapon with intent x1; d amaging property x 2; make demand with threat to kill x1; aggravated dangerous driving x1

Proceedings: Appeal against sentence

Issues: The Crown submitted that the sentences were manifestly inadequate:

•

The length of sentence for the offence of making a demand with threat to kill failed to reflect the objective seriousness of the offence;

•

The very limited degree to which the offences were cumulative meant that the total sentence was manifestly inadequate; and

•

The actual imprisonment period of four months was manifestly inadequate having regard to relevant sentencing purposes.

Facts: R (the appellant man) and C (the complainant woman) were in a relationship at the time of offending. An argument had broken out after R told C he wanted to commit suicide. R grabbed C as she tried to leave their shared bedroom and pushed her onto the bed (first common assault). He then retrieved a large axe from their wardrobe. R pushed C to the ground while they struggled over the axe (second common assault) and swung the axe at her head, narrowly missing. R used the axe to damage items within the house before forcing the couple’s four children into his car. He left and returned several times to demand C get in the car. He eventually threatened to kill their eldest daughter with the axe if C did not get in but drove away once more as police approached his vehicle. This led to a large-scale search. The R was located and arrested later that evening. While all four children were physically unharmed, the eldest daughter was later assessed by a paediatrician who thought it was likely that the offences significantly impacted her emotional and behavioural wellbeing.

On the day of offending, the respondent had failed to take his prescribed antidepressant medication and had consumed a significant quantity of alcohol.

Initially R pleaded not guilty to all charges. Following discussions between the parties the respondent pleaded guilty to six charges and was committed to the Supreme Court for sentence.

The sentencing judge imposed a total sentence of 16 months’ imprisonment.

Judgment: In addressing the first aspect, the Court noted that while the offender’s mental health condition somewhat reduced his moral culpability, it was still necessary to consider the sentencing purposes of general deterrence and denunciation. By failing to reflect these purposes, along with the high objective seriousness of the offence, the sentence starting point of 18 months’ imprisonment for the offence of making a demand with threat to kill was "plainly unreasonable" [69-71]. For the second aspect, the Court believed the degree of cumulation failed to achieve a total sentence that was just and appropriate to reflect the overall criminality [73]. The Court did not make a decision as to the third aspect as they had found they had already found the sentences to be manifestly inadequate for other reasons. Despite finding the sentences manifestly inadequate, the Court refused to resentence the offender on the basis that the appeal raised no point of principle, had limited precedent value and would disrupt the offender’s rehabilitation [97].

The Court also discussed the preliminary issue of the correct approach to sentencing for family violence offences and the correct manner of dealing with the effect of a sentence of imprisonment on the offender’s family [44]. The Court rejected the Crown’s contention that family violence offences constitute a special category of offence in relation to which different sentencing principles apply, and instead provided that absent a statutory provision to the contrary, the same sentencing standards should apply to all offenders (Bugmy v The Queen) [48]-[51].

R v Wyper [2017] ACTCA 59 (11 December 2017) – Australian Capital Territory Court of Appeal

‘Appeal against conviction’ – ‘Complainant's credibility’ – ‘Crown appeal against sentence’ – ‘Intensive correction order’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Post-separation violence’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charges: Engaging in sexual intercourse without consent and being reckless as to whether the person was consenting x 1.

Appeal type: Defendant’s appeal against conviction and Crown appeal against sentence.

Facts: The complainant and defendant were in a relationship ([11]). The defendant asked the complainant to leave the house; she did not want to leave. The complainant alleged that the defendant held her down and digitally penetrated her ([13]). The defendant denied that he digitally penetrated the complainant, and alleged that she damaged a number of his belongings ([14]). The defendant called the police about the property damage, and the complainant called the police about the sexual assault 2 hours later ([20]-[21]). A medical examination of the complainant revealed abrasions consistent with assault ([23]).

The defendant was convicted at trial. He was sentenced to 2 years and 6 months’ imprisonment, served by way of intensive correction order (‘ICO’), and 100 hours’ community service ([2]).

Issues: The defendant appealed against conviction on 3 grounds: (a) the verdict was unsafe and unsatisfactory; (b) the trial judge caused a miscarriage of justice by failing to fairly put the defence case to the jury; and (c) the trial judge caused a miscarriage of justice by failing to direct the jury that the complainant had a motive to lie.

The Crown appealed on the ground that the sentence was manifestly inadequate.

Decision and Reasoning: Both the defendant’s appeal against conviction and Crown appeal against sentenced were dismissed ([8]).

Appeal against conviction

On ground (a), the defendant argued that the verdict was unsafe and unsatisfactory having regard to the unreliability of the complainant’s evidence. The Court (Murrell CJ, Bromwich J and Robinson AJ) held that while it was ‘somewhat implausible’ that the complainant did not cause the property damage, it was open to the jury to convict the defendant ([53]).

On grounds (b) and (c), the defendant argued that the judge should have directed the jury on the complainant’s possible motive to lie to avoid the consequences of her causing the property damage. However, the Court stated that the summing up was fair, given that the motive to lie was not a large issue in the trial ([66]-[68]).

Crown appeal against sentence

The Crown argued that by ordering an ICO, the trial judge failed to give adequate weight ‘to the principle that, for family violence offences, the sentencing purposes of general deterrence and denunciation are particularly important’ ([96]). The Court reiterated the importance of general and specific deterrence in sentencing family violence offenders ([97]), however, the Court emphasised the exceptional nature of the offending at [99]:

This was not a typical offence of family violence. There was no evidence of a history of domestic violence, controlling behaviour or psychological abuse. There were none of the typical indicia of power imbalance. Rather, the offence occurred in the context of a relationship ending, without those features apparently being present.

Imposing an ICO, while lenient, was justified by the defendant’s subjective circumstances, such as his lack of criminal history, and the fact that there was no history of domestic violence in the relationship ([129]-[130]).

O’Brien v R [2015] ACTCA 47 (15 May 2015) – Australian Capital Territory Court of Appeal

‘Assault occasioning bodily harm’ – ‘Double jeopardy- sentencing’ – ‘Exposing a child’ – ‘Perverting the course of justice’ – ‘Physical violence and harm’ – ‘Risk factor- strangulation’ – ‘Sentence cumulation’ – ‘Sentencing’ – ‘Systems abuse’ – ‘Trafficking in cocaine’

Charge/s: Trafficking in cocaine, assault occasioning actual bodily harm (two counts), forcible confinement, perverting the course of justice. Grievous bodily harm.

Appeal Type: Appeal against sentence.

Facts: The sentence imposed at first instance related to three distinct instances of criminality: the drug offence, the domestic violence offences and the perverting the course of justice offence. The domestic violence offences involved the appellant severely beating his then domestic partner which caused horrific injuries. He also choked her in the presence of his young son, restrained her from leaving their premises and forced her to take prescription sedatives so as to prevent her from seeking medical treatment which would reveal the assaults. He detained her for 24 hours. The perverting the course of justice offence involved the appellant encouraging his (by then former) partner not to attend court in relation to the domestic violence charges and encouraging her to produce false evidence about her psychological frame of mind. The aggregate sentence imposed was 12 years and 11 months’ imprisonment with a non-parole period of 8 years and 4 months.

Issue/s: Whether the aggregate sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The appellant submitted that the domestic violence sentences should not have been made cumulative on the sentences for the drug offences. He also submitted that the sentencing judge did not apply the totality principle. The Court held that while the aggregate sentence could be considered by some to be somewhat harsh, it was not unreasonable and was appropriate having regard to all the circumstances. There was no overlap in the three instances of criminality, nor could it be said that the three incidents arose from a single episode or course of conduct, ‘such that the criminality involved in one of the incidents was subsumed or comprehended in the others’ (see at [29]). The sentencing judge did take accumulation, concurrency and totality into account and did impose a degree of concurrency.

Kien v R [2012] ACTCA 25 (24 May 2012) – Australian Capital Territory Court of Appeal

‘Choking so as to render unconscious’ – ‘Exposing a child’ – ‘Intentionally inflicting actual bodily harm’ – ‘Physical violence and harm’ – ‘Provocation’ – ‘Risk factor- strangulation’ – ‘Sentencing’

Charge/s: Intentionally inflicting actual bodily harm, choking so as to render unconscious.

Appeal Type: Appeal against sentence.

Facts: The appellant’s marriage with his wife ended and she obtained a domestic violence protection order against him (though this was not in place at the time of the offence). The appellant went to the family home and an argument ensued, which developed into a physical fight. The appellant then took a chair from his wife (which she was threatening to throw at him) and struck her with it so forcefully that it broke into pieces. He then choked her until she became unconscious. He then wrapped a towel around her neck and used both hands to pull the material down toward the floor. A domestic violence protection order was previously in place in favour of the victim. He was subject to a good behaviour order at the time of the offences imposed for a prior breach of the protection order. He was sentenced to a total of four years and seven months’ imprisonment with a non-parole period of three years and one month.

Issue/s:

Whether the sentencing judge erred in finding that the offences were unprovoked.

Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed.

The appellant submitted that the fact the offences were not unprovoked should have mitigated the severity of the sentence. This argument was rejected — the actions of the victim were all in response to the appellant coming to the matrimonial home where he was not welcome. He was asked to leave but did not do so. His response to his wife’s actions were so disproportionate that they could not have been seen as provocative.

Counsel for the appellant submitted that two comparable cases showed the sentence was manifestly excessive. This argument was rejected, with the Court holding that the offences were serious and resulted in severe facial injuries committed in a context where the appellant was not welcome in the house. While they were heavy sentences, they were proportionate to the criminality involved.

Stevens v McCallum [2006] ACTCA 13 (30 June 2006) – Australian Capital Territory Court of Appeal

‘Assault’ – ‘Contravention of a protection order’ – ‘Evidence issues’ – ‘Hearsay’ – ‘Hostile witness’ – ‘Incompetence of counsel’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Unco-operative witness’

Charge/s: Assault, contravention of a protection order.

Appeal type: Appeal against conviction and appeal against sentence.

Facts: The appellant was charged with assaulting his female partner (‘the complainant’) and contravening a protection order in her favour. He pleaded guilty to assault but not guilty to contravening a protection order. The offending came to light after a police officer (‘the informant’) attended the complainant’s premises. The informant observed that the complainant was very distressed and had bruises on her body. A conversation between the complainant and the informant was recorded. In this conversation, the complainant made some allegations that the appellant had hit her but she was largely unresponsive to questions and was affected to a considerable degree by alcohol (See [41]-[43]). At trial, the prosecution sought to prove the tape and transcript of this conversation only for its possible use in refreshing the complainant’s memory. However, counsel for the appellant, Mr Elmaraazey, tendered this document as evidence (‘exhibit 3’).

The complainant was called to give evidence after the informant. When asked about whether there was an incident between her and the appellant, she stated ‘I can’t remember the exact details’ and proceeded to give an account of the evening that made no reference to any physical violence. She agreed that she had a conversation with the informant but could not recall its contents. The prosecution then proceeded to cross-examine the complainant about the various bruises that had been observed on her that evening. The complainant said she could not remember how the bruises happened. The prosecution applied to the magistrate for leave to cross-examine the complainant on the basis that the witness had made a prior inconsistent statement with reference to exhibit 3. Mr Elmaraazey did not object. The complainant’s response was to accept that exhibit 3 accurately reflected what she had told the informant but she could neither confirm nor deny that it represented what actually happened (See [26]-[40]). Accordingly, absent the tender of exhibit 3 as evidence, there would have been insufficient evidence to convict the appellant (See [47]).

The magistrate found the appellant had assaulted the complainant and sentenced him to 12 months imprisonment for the assault and 3 months imprisonment for the breach of protection order. He was sentenced to an additional 6 months imprisonment for breach of an earlier imposed recognisance.

Issue/s:

The incompetence of counsel for the appellant, Mr Elmaraazey, led to a miscarriage of justice.

The sentencing magistrate erred in assuming that the injuries sustained by the complainant were the result of a ‘violent and prolonged’ assault.

Decision and reasoning: The appeal was allowed. First, in the absence of the tender of exhibit 3 by Mr Elmaraazey, it was, at the very least, unlikely that the statement would have been admitted as evidence that the appellant assaulted the complainant. It was open to the prosecutor to seek leave to give the statement to the complainant to refresh her memory, if s 32 of the Evidence Act were satisfied. However, the failure of this process to refresh the complainant’s memory meant the prosecutor could not tender the prior statement as evidence of the truth of its contents (See [145]-[180]). There was a resulting miscarriage of justice (See [181]-[191]).

Second, the sentencing judge erred in assuming that all the injuries resulted from the charged assault. Even if the terms of exhibit 3 had been properly proved, they included an allegation of assault that had occurred the previous evening. The only unequivocal allegation of recent violence was that the appellant hit her in the face on their return from the shops. It was an error not to attempt to distinguish between the violence inflicted the previous night and those in the hours preceding the interview with the informant (See [196]-[207]).

Last updated: August 2025