Scottish High Court of Justiciary Decisons

 

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 118

XC674/13

Lady Paton

Lord Menzies

Lady Smith

OPINION OF THE COURT

delivered by LADY PATON

in

the cause

MICHAEL GEORGE CROMBIE

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Targowski QC, Fyffe Solicitor Advocate;  Paterson Bell, Edinburgh

Respondent:  Scullion AD;  Crown Agent

4 November 2014

Introduction

[1]        On 24 October 2013, after a trial in Edinburgh High Court, the appellant was found guilty of eight charges, which, read short, were as follows:

Charge 1:           7 September 1989 to 1 June 1990:  on various occasions, assaults on AM, to her injury.

Charge 11:         1 March 1993 to 26 April 1994:  on various occasions, assaults on KD, to her severe injury and permanent disfigurement.

Charge 12:         1 March 1993 to 26 April 1994:  on various occasions, abduction of KD by locking her in and detaining her against her will.

Charge 13:         1 March 1993 to 26 April 1994:  on various occasions, assaults on KD, to her injury, and rapes.

Charge 14:         1 March 1993 to 26 April 1994:  on various occasions, assaults on ND to her injury.

Charge 20:         1 January 1996 to 30 June 1996:  on various occasions, abduction of EU and KM by locking them in and detaining them against their will.

Charge 22:         1 January 1996 to 30 June 1996:  on various occasions, assaults on EU to her severe injury and permanent impairment.

Charge 23:         1 January 1996 to 30 June 1996:  on various occasions, assaults on EU to her severe injury and permanent impairment, and rapes. 

 

The jury returned unanimous verdicts in respect of charges 1, 11, 13, and 23, and majority verdicts in respect of charges 12, 14, 20, and 22.  Subsequently, on 14 November 2013, the trial judge imposed a cumulo sentence of 14 years imprisonment.

 

Grounds of appeal
[2]        The appellant’s case and argument summarises the two grounds of appeal as follows:

“[5]         The first ground avers that a miscarriage of justice occurred, the learned trial judge having erred in refusing a motion to desert the trial pro loco et tempore.  The motion followed upon evidence from Crown witness 6, [KD], which, it is alleged, created a risk of prejudice to the fairness of the appellant’s trial such as to necessitate desertion.

 

[6]          The second ground of appeal avers that the sentence imposed was excessive.”

 

Background to the grounds of appeal
[3]        The appellant’s case and argument notes KD’s evidence as follows: 

“[8]         The relevant passages of evidence are narrated by the learned Trial Judge at pages 5 and 6 of his report, and can be separated into three broad categories;  (1) That the appellant had been in prison for significant periods of time;  (2) That the appellant had taken her son on an armed robbery;  and, (3) That the appellant had assaulted her son [S] on an occasion about which the Crown had previously given an undertaking not to lead evidence.

 

Prison

[9]          The learned Trial Judge  notes three passages of evidence where the witness volunteered that the appellant had spent time in prison.  It is not suggested that the Crown was at fault for these responses.  However, the witness’ evidence was to the effect that she had been in a relationship with the appellant for around two years during which time he had stayed with her, but for most of the time they had been in a relationship, the appellant had been in prison.

 

[10]         It is respectfully submitted that it can be inferred from this that the appellant spent significant periods of time in prison.  Whilst there was no explicit evidence that he had been previously convicted resulting in prison sentences, this was a reasonable inference from the suggested frequency and length of time said to have been spent by the appellant in prison.

 

Armed Robbery

 

[11]         Immediately following the passages referred to, the witness was asked whether anything happened to her children.  She responded that the appellant had assaulted the children.  She was asked how old [J] was.  Her response to this question was that [J] was 4 and the appellant took him on an armed robbery.

 

[12]         It is accepted that the witness volunteered this information and that the Crown could not reasonably have anticipated such a response.  However, the effect of this response was that the jury had before it evidence to the effect that the appellant was a man who not only had spent significant periods in prison but had also taken a 4‑year‑old boy to commit an armed robbery.

 

Assault on [S]

 

[13]         The appellant has a conviction from 30^th November 1994 at Perth Sheriff Court in respect of a contravention of Section 12 of the Children and Young Persons (Scotland) Act 1937.  This conviction related to an assault against the witness’ son [S].

 

[14]         The Crown gave an undertaking not to lead evidence in connection with the incident that resulted in this conviction.

 

[15]         As noted above at paragraph [11], the witness was asked questions about her other son, [J].  She was then asked by the learned Advocate Depute, “What about [S]?”  Her response was that the appellant had assaulted [S] one night and she had to get the police involved.   This response referred to the conviction that was the subject of the agreement, it being the only occasion where the police were involved.”

 

[4]        On 15 October 2013, at the conclusion of KD’s evidence‑in‑chief, the defence solicitor‑advocate moved the trial judge to desert the trial pro loco et tempore.  The trial judge refused the motion, for the reasons given at pages 7 to 8 in his report to this court, as follows:

“I note that it is accepted for the appellant that the references to him having been in prison, and to an armed robbery, were volunteered by the witness and were not attributable to fault on the part of the Crown.  In the course of the arguments before me as to whether there had in effect been a breach of section 101 of the Criminal Procedure (Scotland) Act 1995, the advocate depute indicated that the answers given had not been anticipated and indeed could not have been expected given the terms of the particular questions put.  In relation to the third reply, the witness’s answer had been inconsistent with her police statement. 

 

As to the matter of the witness’ response to the effect that the appellant had assaulted her son, [S], that was a matter plainly covered by charge 16.  The agreement reached with the Crown in this respect, as noted in the relevant minute, dated 20 August 2013, was that ‘no questions will be asked from any witnesses in relation to the conviction of the accused at Perth Sheriff Court on 30 November 1994’.  It did not appear to me that the question which elicited the witness’ response was in breach of that agreement or that, given the terms of charge 16, the answer was prejudicial.

 

I was referred to several authorities.  The solicitor advocate for the appellant made reference to Graham v HMA 1983 SCCR 314 for the consideration by the court in that case of the comparable remark ‘That cow’s got me the jail again’.  For the Crown I was referred to Fraser v HMA (2013) HCJAC 117 at paragraphs (27) and (28), (44)‑(51), and (56)‑(58);  and Hill v HMA 2005 JC 259 at paragraph (25).  The submission for the appellant was made on the basis that, given the references to him having been in prison, and to an armed robbery, there was a material risk that the jury would form the view that he had been the subject of previous conviction.  In reply, the advocate depute pointed out that, in relation to an earlier Crown witness on the previous day, evidence relating to a sexual assault by the appellant on her son, an allegation which did not feature in the indictment, had been elicited in cross-examination in the course of reference to the witness’s police statement.  It was suggested that in the context of this particular trial, such evidence relating to sexual abuse carried greater moral opprobrium than a reference to armed robbery.

 

In repelling the submission, I had regard to the guidance set out in Fraser (supra).  I took into account the following factors:

 

(1)        the starting point in considering the matter was whether in the light of the evidence which had emerged, it was still possible for there to be a fair trial.

(2)        the matter had to be considered in the round, and not solely in relation to those parts of the evidence relied upon in justification of the submission, taken in isolation. 

(3)        part of the context was the evidence brought out on the previous day by defence questioning in similar circumstances, amounting to an allegation of sexual assault on a young boy.  That allegation was of similar effect, in this context, to the allegation that the appellant had taken part in an armed robbery.  Neither allegation was referable to the charges in relation to which the relevant witnesses were speaking.  Neither allegation, in itself, breached the prohibition on disclosure of prior criminal convictions.  I accepted that in the context of the charges before the jury, greater moral opprobrium might be attached to the allegation of sexual abuse of a child than to that of armed robbery.

(4)        the three responses by [KD] containing references to imprisonment, viewed objectively, could not have been anticipated as answers to the questions put.  In that regard, it could not be said that the Crown was at fault.

(5)        I noted that although reference to imprisonment was not per se a reference to conviction, there was, nevertheless, an adverse inference which might be drawn.

(6)        In the exercise of any discretion, given the comments made in Fraser, I considered whether an appropriate direction would be sufficient to preserve the appellant’s right to a fair trial.  In that regard, I recognised the presumption that the jury would follow directions given.  In that context, while it was said for the appellant that credibility was a critical factor in the case, that was a matter which the jury could determine against the background of proper directions.

 

Having regard to the whole circumstances and in particular the context in which the various answers were made, I took the view that, given appropriate direction, the comments made by the witness had not compromised the trial such that desertion was imperative.  I therefore refused the motion.  In the light of that decision, I invited comment on the merits of directing a jury immediately in addition to any direction to be given subsequently in the course of my charge.  For the appellant, no representation was made in that regard.  In the event, I gave the jury an immediate direction in terms similar to that recorded in the decision in Fraser at paragraph (28).  I subsequently repeated that direction in the course of my charge (transcript:  page12, line 5‑page 13, line1)”.

 

Submissions for the appellant
Conviction
[5]        Senior counsel submitted that the trial judge erred in refusing to desert the trial pro loco et tempore.  It was not suggested that the judge had applied a wrong test in coming to the decision he did.  What was contended was that he had not exercised his discretion correctly.  He had failed to attach appropriate weight to the cumulative prejudicial effect of the evidence.  The prejudice was such that it could not be cured by direction, and the proper course was to desert the trial pro loco et tempore.

[6]        The trial judge had referred to a comment from the witness EU made during cross‑examination by the defence.  That witness had alleged that the appellant had sexually assaulted a young boy.  The judge seemed to adopt some sort of balancing formula, and to take the view that greater moral opprobrium was likely to arise from such a comment than from KD’s evidence.  But that was not the proper approach:  the proper approach was to consider the effect of KD’s evidence taken as a whole.  KD’s evidence was so prejudicial to a fair trial that such a balancing act could not safely be accomplished. 

[7]        Further, the appellant had given evidence at the trial, and his credibility was an important issue.  Evidence that the appellant had previously been in prison (as outlined in paragraph [3] above) would count against him when the jury were considering credibility.  Prior to the trial, both the Crown and the defence had recognised the prejudicial effect of revealing that the appellant had been in prison.  The indictment had originally covered a wider time-frame, but the defence had pointed out that during certain times the appellant had been in custody.  In order to avoid references to prison, charges 11 to 19 of the indictment had been amended so as to restrict the time-period in the libel.  While it was conceded that, during the trial, the defence solicitor-advocate had himself elicited evidence that the appellant had been in prison on remand at certain periods, he had only done so after the judge’s refusal to desert the trial, and with a view to undermining the complainer’s allegations of abduction and detention during such a period.

[8]        The evidence had been of such a nature that a direction such as that given by the judge was insufficient to overcome the prejudice.  The cumulative effect of the evidence that (i) the appellant had been in prison for significant periods of time;  (ii) he took a four‑year‑old child on an armed robbery;  and (iii) he assaulted another child, was highly prejudicial.  On one view, the answers given in evidence suggested that the appellant was a serious criminal who had spent periods of time in prison, and who was of such a reprehensible character that he would involve a young child in the commission of an armed robbery.  The proper course would have been to desert the trial.  Failure to desert had resulted in a miscarriage of justice, and the conviction should be quashed.

 

Sentence
[9]        In the circumstances, a cumulo sentence of 14 years was excessive.  The appellant had no analogous convictions.

 

Submissions for the Crown
Conviction
[10]      The advocate depute invited the court to refuse the appeal.

[11]      A decision for the trial judge:  The trial judge was best placed to decide whether there was any potential prejudice to a fair trial, or whether there had been any implied breach of section 101 of the 1995 Act, so compromising the trial that desertion pro loco et tempore became imperative.  The trial judge had considered Fraser v HM Advocate 2014 JC 115, 2013 SCCR 674, and the guidance contained therein.  He also took into account all the relevant factors.  The judge had a choice of ways in which to deal with the matter which had arisen.  In the circumstances, he was entitled to conclude that there was nothing exceptional about the trial such that the matter could not be dealt with by directions. 

[12]      The judge summarised, at page 5 of his report, the three categories of evidence that gave rise to the motion for desertion.  The circumstances were very similar to those in Fraser, where there had been more than one reference to the accused having been in prison for a previous incident (Fraser cit sup, paragraphs [27], [31]-[32], [51]-[52]).  The circumstances in Fraser were more serious than those in the present case, as:

• there was a reference to Mr Fraser having been imprisoned “for a previous incident”, whereas in the present case the reference was much more general, and did not suggest that the appellant might previously have been in prison in connection with previous assaults on females;
• there was a reference to Mr Fraser being banned from his home, and the witness Mr Dick stating “I think that was to do with the assault” (of which Mr Fraser had been convicted in 2000); 
• there was reference to the deceased staying in a women’s refuge. 

Thus in Fraser, there was not only a reference to his having been in prison, but there was other material which could be viewed as potentially prejudicial.  Further, there was the cumulative effect of those episodes.  But the appeal court had not taken issue with the trial judge dealing with the matter by directions, and had not suggested that the cumulative effect fettered the judge’s discretion.  The appeal court had also held that a reference to having been “in prison”, or the revelation of a previous conviction, would not necessarily prejudice a fair trial:  the question in Fraser was whether one could infer that Mr Fraser had previously assaulted the deceased.  There had to be something further about the conviction or having been in custody which would give rise to some sort of prejudice in the trial.  There was nothing in the present case amounting to the sort of prejudice envisaged in Fraser.

[13]      Further, in Binks v HM Advocate 1984 SCCR 335, the Crown conceded a breach of section 160 (the precursor of section 101).  As was explained at pages 343-344, that might have no effect on the trial.  The present case was similar to Fraser and Binks in that there had been no deliberate breach of the prohibition by the prosecutor.

[14]      The witness KD had indicated that the appellant had taken her son on an armed robbery.  But it had to be remembered that the circumstances of this particular case involved an examination of the daily lives of people who had considerable problems – for example, drug‑taking.  In such a case, there was an obvious risk that when witnesses were describing events which had occurred a long time ago, they might go beyond the libel.  Moreover the appellant’s position, from a very early stage in the trial, was that the indictment was a tissue of lies, and there was nothing the witnesses would not say in order to attack him.  The solicitor-advocate representing the appellant at the trial had recognised this, as was evidenced by his cross-examination of Crown witnesses.  That was why the solicitor‑advocate dealt with EU’s allegation that the appellant had sexually abused her son by putting to her that the appellant had faced no such criminal charge;  that she simply wanted to throw as much mud as possible at the appellant;  and that when giving evidence, she had done her best not to tell the truth about her relationship with the appellant.  KD’s evidence alleging that he had taken her child on an armed robbery fell into the same category, and was dealt with in the same way by the defence solicitor‑advocate.  The trial judge was therefore entitled to take the view that such allegations, made in context, were not of such weight that they removed the judge’s discretion to deal with the motion to desert pro loco et tempore by directing the jury to ignore any remarks which did not form part of the libel in the indictment, or did not form part of evidence relevant to the libel.  In such circumstances the trial judge was correct in his assessment that, despite what had been said in evidence, it was still possible for the appellant to have a fair trial if appropriate directions were given.

[15]      As for the evidence-in-chief from the witness KD that the appellant had assaulted her son S, charge 16 alleged that on various occasions between 1 March 1993 and 31 August 1994 the appellant repeatedly assaulted S.  The Crown had given an undertaking not to lead evidence about one assault which resulted in the appellant’s conviction for that assault.  At one stage during examination‑in‑chief the advocate depute asked “what about [S]”, and the witness responded by referring to a time when the police had been called.  If that had been, technically, a breach of the undertaking, it was submitted that it had no impact upon the appellant.  As charge 16 remained part of the libel against the appellant, the Crown were entitled to lead evidence about assaults on S, and about police being involved, provided that no evidence of the previous conviction was elicited.  Charge 16 had eventually been withdrawn.  There could be no prejudice as a result of the small piece of evidence which had been led.

[16]      In any event, no miscarriage of justice:  When the trial was considered as a whole, it could be seen that there had been no miscarriage of justice as a result of the trial judge’s decision to deal with the matter by directions.  The appellant’s position at the trial was that the complainers and their supporting witnesses had lied.  Apart from two admitted assaults on complainers AM and EU, the appellant’s position was that all the other evidence was false, the witnesses had lied, and indeed were prepared to say anything to blacken his character.  For example, as could be seen from the defence cross-examination of the complainer KD, the defence solicitor‑advocate used the fact that the appellant had been in prison on remand to undermine her evidence in several ways (for example, how could she be “abducted” or detained against her will when the appellant was in prison;  why did she take her baby to visit the appellant in prison).  The jury’s discriminating verdicts in respect of charges concerning the same complainer KD (guilty by majority of charge 12, abduction, but guilty unanimously of charges 11 and 13, assault to severe injury, permanent disfigurement, and rape) reflected that undermining of the complainer’s evidence.  This was not a case where corroboration arose from the Moorov doctrine:  as could be seen from pages 54 to 60 of the charge, AM’s evidence in relation to charge 1 was corroborated by the evidence of her sister CM (resulting in a unanimous verdict of guilty);  KD’s evidence in relation to charge 2 was corroborated by the evidence of SC and ND (resulting in a unanimous verdict of guilty).  KD’s evidence in relation to charge 13 was corroborated by SC (resulting in a unanimous verdict of guilty).  There had therefore been a significant body of evidence against the appellant, and the jury’s discriminating verdicts (charges 1, 11, 13, and 23 unanimous, with the rest by majority) entitled the appeal court to conclude that the jury had followed and properly applied the judge’s directions, considering and weighing the relevant evidence, and not being influenced by the evidence that the appellant had previously been in custody.

 

Discussion:  appeal against conviction
Whether the trial judge erred in refusing to desert pro loco et tempore
[17]      As was explained by Lord Justice Clerk Carloway in Fraser v HM Advocate 2014 JC 115, 2013 SCCR 674 at paragraph [58]:

“ … even if there had been an implied breach of the prohibition [against the  disclosing of previous convictions contrary to section 101 of the Criminal Procedure (Scotland) Act 1995], it would have remained for the trial judge to determine in the first instance whether the breach had so compromised the prospects of a fair trial, in the domestic sense, that desertion became the imperative, if a potential miscarriage of justice were to be avoided.  In this area, the court places considerable weight on the views of a trial judge making the decision at first instance.  He has the benefit of presiding over the trial and judging the context of the answers within what, in this case, was a lengthy trial process.  He has a considerable advantage over an appellate court in understanding the realities of the situation.  The trial judge is best able to assess the likely, and possible, impact of the answers on the jury in the light of all that has happened during the trial.  Thus, he is afforded a wide discretion in deciding whether:  (i) to ignore the offending evidence and do nothing, lest the matter be emphasised;  (ii) to direct the jury to ignore that evidence and, as here, to advise the jury that they should do so because it has ‘no bearing on the matter before them’;  and (iii) to desert the diet because of the inevitability of an unfair trial as a result.  In this case, the court considers that the trial judge took into account all of the relevant factors before deciding upon the appropriate course of action.  He reached a balanced and reasonable decision based upon these factors.  In such circumstances the court is unable to find fault in his decision.”

 

[18]      Thus in circumstances where there has been a breach of section 101 of the 1995 Act, or where answers referred to the accused’s having spent time in prison, or some other matter was thought to result in the possibility of prejudice to the conduct of a fair trial, it is open to the trial judge to adopt any of the above options.  His choice is an exercise of his discretion in the context of the particular facts of the case.  

[19]      In the present case, it is not contended that there was a breach of section 101, but rather that the cumulative effect of the answers noted in paragraph [3] above was of such a nature, and caused such a prejudicial effect, that directions were insufficient to overcome that prejudice.  It was not said that the trial judge applied the wrong test, but that he had not exercised his discretion correctly in the context of the particular facts of this case.

[20]      We note that the context of the particular facts of this case included an examination of the past lives and lifestyles of people with problems which sometimes took them onto the wrong side of the law (for example, illegal drug-taking by KD);  an accused who denied the majority of the allegations against him, claiming that the complainers and their supporters were simply making things up;  complainers and supporters who may have given the impression of taking every opportunity to blacken the appellant’s name (for example, EU during defence cross-examination volunteering an allegation that the appellant had sexually abused a young boy);  and finally the approach adopted by the defence solicitor‑advocate – admittedly after his motion for desertion was refused – when he chose to put it to at least one complainer that her claimed abduction by the appellant at the relevant time could not have occurred as the appellant had been in prison at the time.  The context of this case further included the fact that the answers complained of, outlined in paragraph [3] above, did not suggest previous assaults or rapes of women such as the complainers, but were either more general references to the appellant having spent time in prison without specification as to the underlying reason (whether on remand or following conviction and if the latter, for what sort of offence);  an allegation that the appellant had taken a 4-year-old boy on an armed robbery;  and allegations that he had assaulted KD’s son S without any reference to any conviction therefor.

[21]      In such a context, it is our opinion that the trial judge, who had the benefit of presiding over the trial and judging the context of the answers by the witnesses, cannot be criticised for exercising his discretion in the way he did.  We note that the evidence complained of in Fraser v HM Advocate, outlined in paragraph [12] above, was arguably potentially more prejudicial to the possibility of a fair trial in that case, in that the appellant there faced a charge of murdering his wife.  The decision in Fraser also makes clear that the cumulative effect of answers said to be prejudicial will not per se close off the option of giving directions.  In the result we are not persuaded that the trial judge in this case erred in the exercise of his discretion when he decided, for the reasons he gives in his report, to refuse the motion for desertion and to give the jury directions (the terms of which are not criticised) both immediately and subsequently in his charge to the jury.

 

Whether a miscarriage of justice
[22]      In our opinion, the judge’s charge at pages 54 to 60 demonstrates that the Crown had led a substantial body of evidence against the appellant.  For example, corroboration in relation to charge 1 (assaults on AM) came from the complainer’s sister CM; corroboration in relation to charges 11 and 13 (assaults and rapes of KD) came from witnesses SC and ND.  The jury returned unanimous verdicts of guilty in respect of each of those charges.  Standing the apparent strength of the Crown case, and the discriminating verdicts delivered by the jury reflecting their careful assessment and weighing of the evidence in relation to each complainer, all as outlined by the advocate depute in paragraph [16] above, we are unable to accept that any miscarriage of justice has occurred.

 

Discussion:  sentence
[23]      In his report, the trial judge comments on the appeal against sentence as follows:

“In sentencing the appellant, I took full account of the plea in mitigation on his behalf and the content of the criminal justice social work report.  The appellant refused to take responsibility for the effect of his crimes on his victims.  A victim impact statement, by EU, the complainer in charges 20, 22 and 23, indicated her firm belief that although she had eventually escaped from her home and the appellant, she was convinced that had she not managed to do so he would have killed her.  She remained deeply traumatised.  As a result of his assaults on her she has an ongoing fear of suffocation and cannot bear anything on her face.  She suffers from PTSD, shakes continuously and is unable to work.  It appeared to me that the convictions returned by the jury indicated a course of criminal conduct.”

 

[The trial judge gave details of the charges of which the appellant was convicted and continued:]

“In sentencing the appellant I made the following remarks:

 

‘The events set out in charge 1 occurred during the period from September 1989 to June 1990.  During that period you repeatedly assaulted woman A in her own home and in your flat after she moved in with you there. 

 

The events set out in charges 11, 12, 13 and 14 occurred over a period of about a year between March 1993 and April 1994.  You moved into the home of woman B and thereafter repeatedly assaulted her there, to her severe injury and permanent disfigurement, by punching and kicking her, head butting her and on at least one occasion by hitting her with a poker.  As a result of these assaults, she sustained scars and was frequently seen to be marked, bruised, bleeding and to have black eyes.  You locked her in her own home for days at a time.  You repeatedly raped her using violence or the threat of violence to force her submission, and you repeatedly assaulted her young daughter who was aged only 4/5 years at the time.

 

The events set out in charges 20, 22 and 23 occurred between January and June 1996.  After meeting woman C, you moved into her home and repeatedly assaulted her there, to her severe injury and permanent impairment, by punching and kicking her.  She was described in evidence as having been battered, bruised from head to toe and being seen with black eyes.  You repeatedly locked her in her own home, on one occasion, when another woman was living there and was also detained by you against her will, for a period of 2 weeks.  Woman C eventually managed to get away by escaping with her children through a window into the arms of her relatives.  You repeatedly raped woman C in her own home forcing her by violence or fear of violence to succumb.

 

In considering sentence it is appropriate to recognise that these charges cover three distinct periods.  Applying that approach, had I been looking at your conviction on charge 1 in isolation, I would have imposed a sentence of 2 years imprisonment.  Had I been considering, in isolation, your convictions of charges 11, 12, 13 and 14, all of which relate to another period, I would have imposed a cumulo sentence of 11 years imprisonment.  Had I been considering, in isolation, your convictions on charges 20, 22 and 23, all of which relate to a further period, I would have imposed a cumulo sentence of 9 years imprisonment.  Making these sentences consecutive, on the basis that they relate to different periods and involve different women, would result in an aggregate sentence which was excessive.  On the other hand, making the sentences concurrent would result in the crimes being insufficiently punished.  A single cumulo sentence, in relation to all of these offences, is appropriate.  The cumulo sentence which I impose on you in one of imprisonment for 14 years.  That sentence will be backdated to 24 October

2013, when you were first detained in custody in relation to these charges.”

 

[24]      In our opinion, the appellant has been convicted of a horrifying catalogue of abuse of women over a protracted period.  His victims underwent enormous suffering and have been left scarred, both physically and psychologically, by what they went through.  In all the circumstances, we consider that a cumulo sentence of 14 years fell well within the range of reasonable disposals open to the trial judge.  We are not persuaded that the sentence imposed was excessive.

 

Decision
[25]      For the reasons given above, we refuse the appeals against conviction and sentence.