Habambo v R [2023] NSWCCA 328

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Habambo v R [2023] NSWCCA 328 Hearing dates: 3 November 2023 Date of orders: 15 December 2023 Decision date: 15 December 2023 Before: Ward P; Rothman J; Davies J Decision: In relation to the conviction appeal: 1. Leave is refused in relation to each of the grounds of appeal. 2. Dismiss the appeal. In relation to the sentence appeal: 1. Grant leave to appeal. 2. Dismiss the appeal. Catchwords: CRIME – Appeals – Appeal against conviction – Where evidence of text conversations between complainant and relative of applicant had been admitted by the primary judge – Whether evidence was admitted in error – Whether admission of evidence caused a miscarriage of justice CRIME – Appeals – Appeal against conviction – Where evidence of messages sent by the complainant had been obtained improperly but were admitted on the basis of relevance – Where the evidence was not admitted until the complainant and other Crown witnesses had already been cross-examined – Whether the failure to determine the admissibility of the evidence until after the Crown witnesses had been cross-examined was an error or caused a miscarriage of justice CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Whether failure of counsel to object to admission of evidence occasioned a miscarriage of justice CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Whether failure of counsel to determine admissibility of evidence prior to cross-examination of the complainant caused a miscarriage of justice CRIME – Appeals – Appeal against sentence – Where two counts of intimidation also involved suffocation – Whether sentencing judge fell into De Simoni error by sentencing on the basis of findings constituting a more serious offence CRIME – Appeals – Appeal against sentence seriousness – Where count of common assault constituted fourth of four counts in final episode of abuse after nine years of domestic violence – Whether sentencing judge erred in finding count was at the mid-range of objective CRIME – Appeals – Appeal against sentence – Where offending involved 28 counts of domestic violence over nine years – Whether aggregate sentence was manifestly excessive Legislation Cited: 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 Cited: Alkheir v R [2016] NSWCCA 4 Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 Antouny v R [2020] NSWCCA 203 Aravena v R [2015] NSWCCA 288 ARS v R [2011] NSWCCA 266 Crofts v The Queen (1996) 186 CLR 42; [1996] HCA 22 Dedeoglu v R [2023] NSWCCA 126 Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 Dogan v R [2020] NSWCCA 151 FDP v R [2008] NSWCCA 317 Flood-Smith v R [2018] NSWCCA 103 GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Glennon v The Queen (1994) 179 CLR 1; [1994] HCA 7 Hamilton (a pseudonym) v R [2020] NSWCCA 80 Hanna v R [2022] NSWCCA 7 Hilton v Legal Profession Admission Board [2017] NSWCA 232 IW v R [2019] NSWCCA 311 James v The Queen [2014] HCA 6 Kapanadze v The Queen [2017] NSWCCA 69 Kirby v R [2021] NSWCCA 162 Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220 McIlwraith v R [2020] NSWCCA 274 Nudd v The Queen [2006] HCA 9 Osolin v R (1993) 86 CCC (3d) 481 Panayi v Deputy Commissioner of Taxation [2017] NSWCA 93; (2017) 319 FLR 228 Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20 Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 Poniris v R [2014] NSWCCA 100 R v Esho [2001] NSWCCA 415 R v Miletic [1997] 1 VR 593 Roach v R [2019] NSWCCA 160; (2019) 344 FLR 429 Salafia v R [2015] NSWCCA 141 Severino v The Queen [2017] NSWCCA 80 Stack v Western Australia [2004] WASCA 300 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Tsiakas v R [2015] NSWCCA 187 XY (A Pseudonym) v R [2023] NSWCCA 50 Category: Principal judgment Parties: George Habambo (Applicant) Rex (Respondent) Representation: Counsel: S Holt KC with D McMahon (Applicant) G Newton SC (Respondent)