SUPREME COURT OF VICTORIA
COURT OF APPEAL	
S EAPCR 2022 0087	

TRISTAN MOREY (A PSEUDONYM)	Applicant	
		
v		
		
THE KING	Respondent	

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JUDGES:	BEACH, T FORREST and KAYE JJA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	21 June 2023	
DATE OF JUDGMENT:	23 June 2023	
MEDIUM NEUTRAL CITATION:	[2023] VSCA 153	
JUDGMENT APPEALED FROM:	[2022] VCC 955 (Judge Chambers)	

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CRIMINAL LAW – Conviction – Appeal – Rape (3 charges) and intentionally causing injury (1 charge) – Whether convictions were unreasonable or not supported by the evidence – Open to jury to convict – Convictions not unreasonable – Evidence – Tendency evidence – Whether tendency evidence admitted at trial admissible – Whether tendency evidence had significant probative value – Whether probative value of tendency evidence substantially outweighed prejudicial effect – Tendency evidence not admissible – Appeal allowed – Retrial ordered.
CRIMINAL LAW – Sentence – Whether sentence of 18 months’ imprisonment for theft of motor vehicle manifestly excessive – Whether sentence should be varied pursuant to s 277(3) of Criminal Procedure Act 2009 – Sentence of 18 months set aside – Applicant resentenced to 1 month’s imprisonment.
Crimes Act 1958, ss 36(1), 36A and 38; Evidence Act 2008, ss 97 and 101(2); Criminal Procedure Act 2009, s 277(3).
M v The Queen (1994) 181 CLR 487, Dansie v The Queen (2022) 403 ALR 221, Hughes v The Queen (2017) 263 CLR 238, Henderson v The Queen [2017] VSCA 237, referred to.
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Counsel	
Applicant:		Mr C Mylonas	
Respondent:		Mr C Boyce KC	
	
Solicitors	
Applicant:		Brown McComish	
Respondent:		Ms A Hogan, Solicitor for Public Prosecutions	

BEACH JA
T Forrest JA
kaye JA:
1	In March 2022, the applicant was tried in the County Court on ten charges arising out of incidents alleged to have occurred on three separate days: 9 February 2019, 6 April 2019 and 7 April 2019. The complainant was Matilda Provan. At the time of the alleged offending, the applicant and Ms Provan had been in an intimate relationship for approximately two years. The relationship was a volatile one, marked by drug abuse and periods of homelessness. The charges were as follows:
•	9 February 2019: causing injury intentionally (charge 1); alternatively, causing injury recklessly (charge 2); and contravening a family violence intervention order intending to cause harm or fear for the safety of a protected person (charge 3);
•	6 April 2019: causing injury intentionally (charge 4); alternatively, common assault (charge 5); and rape (charges 6, 7 and 8); and
•	7 April 2019: common assault (charge 9); and making a threat to kill (charge 10).
2	Following the conclusion of evidence and final addresses by counsel, the judge directed the jury to acquit the applicant on charge 10. Subsequently, the jury convicted the applicant on charges 5, 6, 7 and 8, acquitting him on the balance of the charges. In the result, the applicant was acquitted of all charges that arose out of the incidents that were alleged to have occurred on 9 February and 7 April 2019. In relation to the incident alleged to have occurred on 6 April 2019, the applicant was acquitted of the charge of causing injury intentionally, but convicted of the alternative charge of common assault, and convicted on the three charges of rape.
3	Following a plea hearing, which included the applicant’s plea of guilty made prior to trial to a charge of theft, the applicant was sentenced as follows:
	Charge		Offence		Maximum		Sentence		Cumulation	
	Trial Indictment	
	5		Common assault		5 years		10 months		1 month	
	6		Rape		25 years		9 years		18 months	
	7		Rape		25 years		9 years		18 months	
	8		Rape		25 years		9 years		Base	
	Plea Indictment	
	1		Theft		10 years		18 months		3 months	
	Total Effective Sentence:		12 years and 4 months	
	Non-Parole Period:		8 years	
	Pre-sentence Detention:		1,092 days	
4	The applicant now seeks leave to appeal against conviction on two proposed grounds of appeal: first, that his convictions are unreasonable or cannot be supported by the evidence (conviction ground 1); and secondly, that the judge erred in ‘ruling the tendency evidence admissible’ (conviction ground 3).
5	He also seeks leave to appeal against sentence on three proposed grounds in which he complains about the judge’s characterisation of the objective gravity of his offending as ‘serious’ (sentence ground 1); complains about the judge’s application of the standard sentencing regime (sentence ground 2); contends that the judge erred in finding that offending in 2018 was a relevant sentencing consideration in respect of the rape charges (sentence ground 3); and contends that his sentence is manifestly excessive (sentence ground 4).
Conviction ground 1: were the applicant’s convictions unreasonable?
The Crown case
6	The Crown case in respect of charges 5 to 8 was that, on 6 April 2019, the complainant and the applicant were arguing when the complainant threw a glass ‘crack pipe’ at the applicant. The applicant then placed his hands around the complainant’s throat and choked her (charge 5 – common assault). Following the argument, the applicant penetrated the complainant’s mouth with his penis (charge 6 – rape), then penetrated her vagina with his penis (charge 7 – rape), and then penetrated her anus with his penis (charge 8 – rape). During the course of these penetrations, the complainant was crying and begging the applicant to stop. The complainant gave evidence in accordance with the Crown case as follows.
7	The applicant and complainant began to fight about drugs. The applicant called the complainant a junkie, and she threw an ice pipe at him. The complainant said that she turned to run away but only took two steps before the applicant was on top of her. The applicant had his hands around her throat and was screaming at her. She said that she was gasping for air and then it ‘went black’. She thought she was going to die. When she regained consciousness, the applicant was walking around, yelling. She tried to get up and run but the applicant caught up to her and was standing over the top of her holding a hollow metal pipe. He then threatened to use the pipe on her.
8	The applicant then approached the complainant with a belt and put it around her neck and tightened it. He said ‘If you wanna act like a fucken dog, I’ll treat you like a fucken dog’, and then told her to ‘Fucken now, crawl, bitch. You’re a dog, act like one. Now crawl’. The applicant made the complainant crawl through the hallway to the lounge-room door. He then made her sit at his feet while he pulled his pants down. He ‘shoved’ his penis into the complainant’s mouth while she was crying. She said she did not have the opportunity to say ‘no’. He was still holding onto the belt which was around her neck. The applicant was penetrating the complainant’s mouth with his penis.
9	The applicant then told the complainant to get up on the couch and to ‘do as you’re told, be a good dog’. He rammed her head down so she was face down into the couch. He then inserted his penis into her vagina while she was crying and saying ‘No, please don’t’. The belt was still around her throat. After some time, he grabbed a bottle of olive oil that was in the lounge-room and lubricated his penis with it before inserting his penis into her anus. The complainant continued crying and begging him to stop, but he kept shoving her head further into the couch. The applicant ejaculated into the complainant’s anus, pulled out his penis and walked off. The complainant pulled up her pants and left the house.
10	After the complainant left the house, she rang Kelly-Anne Tate and Brendan Bushell as she did not have her keys or car. The complainant told Ms Tate that the applicant had raped her and that she needed a lift. Ms Tate told her that she could not help her because she did not have money for fuel. In a series of text messages between the complainant and Ms Tate, the complainant told Ms Tate that she had a sore throat and anus, and that the applicant had nearly killed her. She sent a photograph of her face to both Ms Tate and Mr Bushell. She also told Mr Bushell about the incident and Mr Bushell said that he could not drive to pick up the complainant as he had been drinking alcohol.
11	Later, the complainant called the applicant and she said that he seemed like he had calmed down. She returned home and went to bed, and the applicant joined her a short time later. She said that the applicant got on top of her and they had consensual sex. The complainant then rolled over and went to sleep. She said that she did not put up a fight and just ‘let him do what he had to do’.
The defence response to the Crown case
12	The applicant denied the allegations the subject of each of the offences with which he was charged. On 6 April 2019, contrary to the complainant’s evidence, the applicant and the complainant had consensual sex. They regularly engaged in sexual practices involving play and bondage throughout the course of their relationship. In respect of the offending alleged to have occurred on 6 April 2019, the applicant gave evidence at trial as follows.
13	The applicant was sitting in the lounge-room of the complainant’s house when she came out of the bedroom and saw him with her glass pipe. She started yelling at him, telling him that he was not going to be using drugs while she had to go out, and then she ran at him, grabbed the pipe and threw it at him. She then turned to run off, but tripped over as she left the lounge-room. He grabbed her ankle to stop her running away, as he wanted to have a conversation with her.
14	The applicant said that they then had an argument about why she had made him come back to her house if she was going to go out anyway. He denied strangling the complainant or threatening to use the metal pipe on her. He said that she suggested they have sex to resolve the argument. He denied looping the belt around her neck and leading her through the house. He said that they both walked to the lounge-room.
15	The applicant said that the complainant performed oral sex on him which led into vaginal sex and then anal sex. The complainant took her own pants off and got onto the couch. He said that they used the olive oil as lubricant, as they had done before, and that he did not put his arms around the complainant’s neck whilst they were having sex. He said that the complainant did not say ‘no’ or similar at any stage during the oral, vaginal or anal sex. Following this, he went to sleep and the complainant left. She retuned around 5:00 pm and left again, before joining him in bed around 7:30 or 8:00 pm. They had sex again. He gave evidence that all of the sexual encounters between them were consensual.
The applicant’s contention under conviction ground 1
16	The applicant’s contention in relation to conviction ground 1 is a narrow one. It relies upon text messages sent by the complainant to Ms Tate after the applicant had allegedly raped her, and evidence given about those text messages by the complainant in evidence-in-chief.
17	In the text messages, the complainant said:
	I’ve just got a sore throat and arse.
	…
	I’m a block away from home.
	He reckons he hasn’t hurt me.
	…
	He nearly killed me tonight.
	…
	I blacked out and all.
	…
	Why do I let him keep doing this to me.
	…
	And he didn’t hurt me according to him.
18	The texts ‘Why do I let him keep doing this to me’ and ‘And he didn’t hurt me according to him’ were superimposed upon photographs of the complainant which showed red marks on the right side of her neck.
19	In her evidence-in-chief, the complainant was asked about these photographs and the text captions as follows:
	And photograph 7 and 8 seem to be the same photograph and 9 with the caption, ‘And he didn’t hurt me according to him’. What were you indicating by writing that?---Well, he reckons – he reckoned that he was making love to me. He thought - - -
	When did he say that?---Afterwards. Like because on the way home, on my walk home from the shop, like after I bought the smokes I rang him just to see what mood he was in to see whether I – if it was safe for me to go home yet to see if his anger levels had come down enough that he wasn’t going to attack me again.
20	The applicant’s contention under conviction ground 1 was that the complainant’s evidence, that the applicant said that he was ‘making love’ to her, required the jury to have a reasonable doubt about whether the Crown had proved the absence of ‘the subjective element of consent’. Put another way, the complainant’s evidence that the applicant ‘reckoned that he was making love to [her]’ required the jury to have a reasonable doubt about whether the Crown had proved that the applicant did not believe that the complainant was consenting to his sexual penetrations of her.
Relevant principles
21	Conviction ground 1 is based upon s 276(1)(a) of the Criminal Procedure Act 2009, which provides that the Court must allow an appeal if it is satisfied that a verdict of the jury is ‘unreasonable or cannot be supported having regard to the evidence’. The governing principles relevant to this proposed ground of appeal have been set out and discussed by the High Court in a number of cases, including M v The Queen, R v Baden-Clay, Fennell v The Queen, Pell v The Queen and Dansie v The Queen. In considering whether a verdict of a jury is unreasonable or cannot be supported having regard to the evidence, this Court is required to ask itself whether it thinks, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. As this Court said in Palliyaguruge v The Queen, in determining that question, this Court must:
	(a)	give full weight to the principle that the jury is the body entrusted with the responsibility of determining the guilt or innocence of the accused, and has the advantage of having observed the witnesses, and of having aspects of the evidence explained to it in a visual form;
	(b)	undertake an independent assessment of the whole of the evidence, as to its sufficiency and its quality;
	(c)	assume, in a case of this type, that the complainant’s evidence was assessed by the jury to be credible and reliable, but nonetheless examine the record to see whether ‘either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence’ the jury, acting rationally, ought nonetheless have entertained a reasonable doubt.
Conviction ground 1: analysis
22	In order to prove the charges of rape, the Crown was required to establish that the applicant intentionally sexually penetrated the complainant; and that the complainant did not consent to the penetrations; and that the applicant ‘[did] not reasonably believe that [the complainant] consent[ed] to the penetration[s]’. The issue in the present case is whether the Crown proved beyond reasonable doubt that the applicant did not reasonably believe that the complainant consented to his sexual penetrations of her.
23	The question of whether or not the applicant reasonably believed that the complainant was consenting to his sexual penetrations of her depended ‘on the circumstances’.
24	Applying the principles set out above, and having regard to the whole of the evidence called at trial, we are of the view that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of charges 5, 6, 7 and 8. The complainant’s recitation of the applicant’s statements that he did not hurt her and that he thought he was making love to her did not require the jury to have a doubt about his lack of any reasonable belief that she was consenting to his sexual penetrations of her. Specifically, given the complainant’s description of the applicant’s offending against her, it was open to the jury to conclude beyond reasonable doubt that the applicant had no belief that the complainant was consenting (giving full agreement); or to conclude that any such belief that he might have had was not reasonable in the circumstances. Nothing in the evidence relied upon by the applicant required the jury to have a reasonable doubt about the guilt of the applicant on charges 5, 6, 7 and 8.
25	It follows from the above that conviction ground 1 must be rejected.
Conviction ground 3: was tendency evidence wrongly admitted?
The tendency notice
26	Prior to trial, the prosecution gave notice pursuant to s 97(1)(a) of the Evidence Act 2008 that it would seek to adduce tendency evidence at trial. The tendency notice stated that the prosecution would seek to rely upon the tendency of the applicant to act in a particular way, namely:

(a)	To threaten to assault, or cause harm to [the complainant], if she did not comply with his demands.
(b)	To threaten to kill [the complainant], or members of her family, if she did not comply with his demands.
(c)	To assault [the complainant] in order to compel her to comply with his demands.
27	The tendency notice also stated that the prosecution would seek to rely upon the tendency of the applicant to have a particular state of mind, namely:
(a)	A belief that [the complainant] would do as he demanded if he threatened to assault, or cause harm, to her.
(b)	A belief that [the complainant] would do as he demanded if he threatened to kill her or members of her family.
(c)	A belief that [the complainant] would do as he demanded if he assaulted, or caused harm to her.
28	The tendency notice provided that the references in it to ‘demands’ included demands that the complainant not report the applicant’s ‘misconduct’ to the police.
29	In the tendency notice, the prosecution gave notice that the issues to which tendency reasoning applied were whether the applicant committed the acts that were the subject of charges 1 to 11; and whether he committed those acts with the intent necessary to find him guilty of the offences alleged in those charges. So far as is relevant for present purposes, the tendencies set out in the notice were relied upon in support of charges 5 to 8 ‘as making more likely the facts founding those charges’. Specifically, in relation to charge 5, the facts in issue to which the evidence related were whether the applicant assaulted the complainant, and whether the applicant intended to assault the complainant; and in relation to charges 6 to 8 (the rape charges), the facts in issue to which the evidence related were whether the applicant raped the complainant, and whether he intended to sexually penetrate her while not holding a reasonable belief that she consented to the act of sexual penetration.
30	The evidence relied upon to establish the tendencies alleged in the notice was set out in a table (Table A) in the tendency notice. Table A was broken into three self-explanatory columns: ‘Substance of evidence relied upon to support tendency’; ‘Features of evidence establishing the tendency’; and ‘Relevant witnesses and depositions reference’.
31	Broadly speaking, the tendency notice identified six items of evidence relied upon to support the tendencies alleged:
(1)	First, the prosecution relied upon evidence of events said to have occurred between 1 April 2017 and 7 April 2019 when, on occasion, the applicant perceived that the complainant had ‘done wrong’ by him. It was alleged that, on those occasions, he would threaten to kill her and put her in a ‘shit dam’. He was also alleged to have told her that he would get rid of her fingernails, teeth and the serial number on a medical component that had been surgically inserted into her heart.
(2)	Secondly, the prosecution relied upon a series of threatening SMS messages sent by the applicant to the complainant on 2 February 2018, in respect of which the applicant subsequently pleaded guilty and was convicted of using a carriage service to harass and making a threat to kill. Those messages (as typed) included:
•	‘Your got a death wish coming’.
•	‘Don’t fuck with me bitch’.
•	‘U will die tonight. And then ill go after the rest of u lying cunts’.
•	‘Im bring me gun in so don’t fuck with me. U will die tonight if I find out where she [the wife of one of the applicant’s friends] is’.
•	‘Its all fun and games until someone dies. Then im the only one laughing …. trust me, ever dog gets there day. God aint real … I am God’.
(3)	Thirdly, the prosecution relied upon events which allegedly occurred on 9 February 2019. These events included the incidents alleged to form the basis of charges 1 to 3, and other uncharged acts. Specifically, the applicant is alleged to have grabbed the complainant’s head and slammed it into the side window of a car; pulled the complainant out of a car; punched her to her face; kicked her in the back; hurled insults at her; and threatened to stab her with a knife.
(4)	Fourthly, the prosecution relied on events alleged to have occurred on 6 April 2019 and which formed the basis of charges 4 to 8, together with other acts which occurred on that day, but which were not the subject of a charge. We have already described the circumstances of the charged acts. The uncharged acts included the applicant standing over the complainant, threatening to hit her in the head; and his statements ‘You wanna act like a dog, I’ll treat you like a dog’.
(5)	Fifthly, the prosecution relied upon the events which allegedly occurred on 7 April 2019 and were the subject of charges 9 and 10. These included an argument between the applicant and the complainant, during which the applicant told the complainant that she was either driving him where he wanted to go, or he was going to take her car. Following the argument, the complainant ran away. The applicant chased her and ‘flipped her off the path and into the bushes’, where he jumped on her and held her head down before yelling, ‘Don’t you ever call the cops on me ever! If you send me back to prison, I’m going to kill all of your family!’.
(6)	Finally, the prosecution relied upon a letter written by the applicant in May 2019 to his family. The letter was alleged to have contained a page, intended to be provided to the complainant, containing coded messages, threatening to kill and injure the complainant. The prosecution alleged that the coded threats were designed to compel the complainant to comply with the applicant’s demand not to report his misconduct to the police.
The tendency ruling
32	The prosecution’s application to lead tendency evidence was heard prior to trial. On 16 April 2021, following a two day argument in February 2021, the judge who heard the application (who was not the trial judge) granted the prosecution’s application to admit and use items (1) to (5) as tendency evidence pursuant to s 97 of the Evidence Act. The application to admit and use item (6) was rejected by his Honour.
33	The judge observed that, in respect of the rape charges, the prosecution was required to prove that the complainant was not consenting (that is, not giving her free agreement to the penetrations) and ‘that any ultimate compliance, was out of well-founded fear of the accused and was not to be interpreted as evidence of actual consent or free agreement’. The judge described this requirement as ‘critical to the question of the admissibility of the tendency evidence’. As the judge put it:
	These matters are the central facts in issue. What gives the tendency issue added importance is that the accused’s defence is that the prosecution cannot prove that the various acts of violence and threats actually happened, and further the defence contend that while the penetrations occurred, the complainant consented.
34	The judge commenced his analysis by noting that the central question was whether the tendency evidence alone, or in combination, had significant probative value. His Honour said that he was first required to consider the extent to which the evidence establishes the alleged tendency; and secondly, to consider the extent to which the tendency makes it more likely that ‘the accused committed the acts in dispute and with the requisite intent’.
35	The judge described the tendency relied upon by the prosecution as ‘sufficiently clear and cogent and … not some generalised assertion of general bad character’. He concluded that items (1) to (5) ‘powerfully establish[ed] that the accused has the tendency asserted by the prosecution’.
36	His Honour then turned to the issue of to what extent the tendency made it more likely that the applicant had committed the offences with which he was charged with the requisite intent. With respect to the charges arising out of the incidents that occurred on 6 April 2019 (described by his Honour as ‘the second incident’), the judge said:
	In relation to the second incident when the complainant was going out and leaving the accused with, as he said, ‘nothing to do’ and an argument broke out with the crack pipe thrown, the accused resorted to violence and threats, before escalating to using the dog leash and the sexual violence over her protests. In other words, he resorted to acting in accord with the tendency. When there was defiance, he was willing to act with domineering or overbearing violence. Again, I consider the tendency evidence makes it significantly more likely that the accused acted in the way alleged by the complainant on 6 April 2019.
	…
	With respect to the charges 6–8, the tendency evidence is significantly probative of whether the complainant’s account is of non-consensual penetration. Also it is significantly probative when added to all the circumstances of determining that the accused could not have held a reasonable belief in her consenting to what he was doing. The accused’s defence that the sex was consensual and an example of earlier sexual behaviours, including bondage is, or it is anticipated will be, rejected by the complainant. The tendency evidence as to what the accused does when she argues back, or does not do as he demands, is powerful evidence to rebut the defence’s contention of consent and a reasonable ground for a belief in consent to this particular instance of sexual penetration.
37	The judge concluded that the evidence set out in items (1) to (5) of the tendency notice were of significant probative value, particularly when considered with all of the evidence the prosecution proposed to adduce. As the judge put it, ‘Those pieces of tendency evidence overcome the hurdle established by s 97(1)(b)’.
38	In relation to s 101(2) of the Evidence Act, his Honour said that he considered that ‘orthodox directions about the proper use of this tendency evidence [items (1) to (5)] and how it cannot be used will adequately deal with any prejudicial effect’. The judge concluded:
	The directions (if sought) can be especially forceful with respect to the prior misconduct as set out in items 1 and 2. Further, the separate consideration direction will operate to ensure the jury do not use any, or all, of the tendency evidence in a way that the charges are resolved as a job lot or by not properly applying proper consideration to the evidence that goes to establish each charge.
Applicant’s contentions
39	The applicant contended that the pre-trial judge erred in ruling the tendency evidence admissible. His submissions in support of that contention concentrated on items (1) and (2) of the tendency notice. He particularised his complaint of error as follows:
(a)	The judge erred in finding that the tendency evidence showed the applicant acted in a particular way that was significantly probative of the sexual offences on indictment.
(b)	The judge erred in finding that the tendency evidence showed the applicant had a particular state of mind that was significantly probative of the sexual offences on indictment.
(c)	The judge erred in finding that the 2017 threats of dumping the complainant in a shit dam was significantly probative of the offences of rape.
(d)	The judge erred in finding that the 2018 SMS messages of threats made by the applicant in the context of frustration regarding a friend’s marriage breakup were significantly probative of the offences of rape.
(e)	The judge erred in finding the 2017 and 2018 threats as not unfairly prejudicial.
(f)	The judge erred in finding the 2017 and 2018 threats was not a generalised assertion of general bad character.
(g)	The judge erred in finding the 2017 and 2018 threats was probative of committing the rapes with the requisite intent.
40	The applicant submitted that, in respect of the rape charges, the tendency alleged by the prosecution was ‘too remote and not probative given the sexual nature of the offending and the non-physical nature of the threats’. He submitted that the threats should not have been admitted as tendency evidence on the rape charges, because they lacked significant probative value. Specifically, he submitted:
(a)	They were remote in time.
(b)	They were remote conceptually in that both the 2017 and 2018 threats were in the context of a relationship estrangement.
(c)	The threats were communicated via a carriage service and not in person.
(d)	There was no evidence the 2017 and 2018 threats were acted upon. In fact it is clear that the threats were not actioned. In those circumstances her fear of him may or may not have had a rational basis and the jury were not permitted to speculate on this.
(e)	The threats were not of a sexual nature so that R v Bauer [2018] HCA 40 and the line of authority dealing with a sexual interest and an associated willingness to act is distinguished. Furthermore it is contended there is an inferential step required to give the tendency based on the threats relevance to a sexual offence. This is stated by the prosecution in terms of that she submitted because of a general fear of him. But there was no evidence of any threats or conduct at the time of the alleged rapes that made the threats in the tendency evidence probative in that way.
41	The applicant submitted that, in these circumstances, ‘no jury could have used this evidence a predisposition to threaten as a tendency to commit actual sexual violence of rapes (sic)’. The applicant submitted that it was highly prejudicial for the prosecution to put its case on the basis that, because the applicant had made threats in the past (2017 and 2018), he therefore did not reasonably believe that the complainant was consenting to being sexual penetrated on 6 April 2019.
Respondent’s contentions
42	The respondent contended that the judge did not err in admitting the evidence referred to in the tendency notice as tendency evidence. It submitted that the evidence was relevant, as it was capable of rationally affecting the probability of the existence of a fact in issue to a significant extent. In support of its contentions that the evidence referred to in the tendency notice was admissible as tendency evidence under s 97, the respondent submitted:
(1)	The evidence of the applicant threatening to assault or cause harm, or to kill, the complainant, and the evidence of him assaulting her if she did not comply with his demands, demonstrated the applicant’s tendency to act in a violent and/or threatening manner, and to have a belief that the complainant would do as he demanded if he acted in a violent and/or threatening manner.
(2)	The tendency evidence of earlier threats and acts of violence, and the belief of the applicant that the complainant would do as he demanded, had ‘significant probative value in respect of the fact in issue being whether the offending occurred, whether the complainant was consenting and the state of mind of the applicant at the time’.
43	In relation to s 101(2), the respondent submitted that the probative value of the tendency evidence substantially outweighed any prejudicial effect it may have had upon the applicant. It submitted that this was not a case where the jury would give the tendency evidence disproportionate weight or have an emotional response to the tendency evidence. Additionally, it was submitted that the tendency evidence could not be said to be prejudicial ‘in light of other non-tendency evidence in the trial’.
44	Finally, the respondent submitted that, in any event, the tendency evidence was not misused by the jury — as demonstrated by the acquittals on charges 1–3, 9 and 10.
Conviction ground 3: analysis
45	In analysing the tendency issue in this case, it is important to focus on the precise fact that the prosecution sought to prove by adducing tendency evidence. The fact was a tendency of the applicant to assault and/or threaten to assault or kill the complainant (and/or, so far as threats were concerned, members of her family) if she did not comply with his demands, and in order to compel her to comply with those demands. A critical element of the tendency sought to be established was that the conduct of the applicant alleged in the tendency notice was engaged in for the purpose of compelling the complainant to comply with the applicant’s demands. Without that element, the tendency alleged may have suffered from the defect identified in Henderson v The Queen, of being ‘no more or less than what might be described as the tendency of the abusers in [domestic] relationships to engage in … abusive behaviour towards their partners’.
46	Analysing whether the tendency evidence had significant probative value in relation to each of charges 5 to 8, as required by s 97(1)(b) of the Evidence Act, involved a consideration of two separate but interrelated matters. The first matter was the extent to which the evidence supported the tendency alleged; and the second matter was the extent to which the tendency made more likely the facts making up the charged offences.
47	Consistently with the tendency notice, the judge directed the jury that the evidence relied upon by the prosecution as tendency evidence was relevant because it demonstrated a pattern for the applicant to engage in threats of violence in the belief that they would compel the complainant’s compliance. There are two basic problems with that proposition. First, the five items of evidence which the prosecution were permitted to rely upon barely established the asserted tendency. While the evidence established that the applicant had made threats to the complainant, it only faintly bore upon whether or not the applicant made those threats in order to secure the complainant’s compliance about some demand made by the applicant.
48	Secondly, and more significantly, none of charges 5, 6, 7 or 8 involved any threat by the applicant to the complainant that she comply with his requirements, otherwise he would be violent towards her. The evidence of the complainant in respect of each of these charges was to the effect that the applicant was violent to her and overcame her; it was not to the effect that the applicant threatened her and by those threats induced her to comply with his advances. 
49	In respect of the three rape charges, the critical issue in the case was whether, in fact, the applicant was violent towards the respondent in respect of each of the three acts of penetration, relied on by the prosecution. The complainant’s evidence (as we have just stated) was to the effect that he physically overcame her. The applicant’s evidence was that the sexual encounter was entirely consensual. There was no suggestion on either side that, in some way or other, the applicant, by a threat, induced the complainant’s consent; or that the complainant complied with the applicant’s demands ‘out of [a] well-founded fear of the [applicant]’.
50	It follows that the purported tendency evidence had no probative value at all. Certainly, it could not be described as having ‘significant probative value’ as required by s 97(1)(b). On that ground alone, proposed ground 3 must be upheld. An additional basis upon which ground 3 should be upheld is that the purported tendency evidence — and, in particular, the texts constituting item 1 of the tendency notice, which had passed between the parties one year before the events giving rise to charges 5 to 8 — was highly prejudicial to the applicant. Any probative value the purported tendency evidence had was substantially outweighed by the prejudicial effect that the admission of that evidence would have had on the applicant, and the evidence was thus also inadmissible pursuant to s 101(2) of the Evidence Act.
Sentence
51	In the light of our conclusion on conviction ground 3, the applicant’s convictions and sentences on charges 5 to 8 on the trial indictment will be set aside. In the circumstances, it is not necessary for us to consider the applicant’s application for leave to appeal against those sentences. There is, however, one matter that remains. In sentence ground 4, the applicant contends that the sentence imposed upon him, on the plea indictment, for the theft of the complainant’s motor vehicle (18 months, of which 3 months was cumulated on the sentences imposed on charges 5 to 8 on the trial indictment) was manifestly excessive.
Circumstances of the theft charge
52	On 7 April 2019, the day after the events giving rise to charges 5 to 8, the applicant and the complainant left the complainant’s residence. While out, they had an argument. The applicant returned to the complainant’s residence ahead of her. When the complainant arrived home, she found the applicant stacking food and alcohol into the back of her car. The applicant told the complainant never to contact him again, and threw a dildo at her before driving off at a fast rate of speed in her car.
Applicant’s contentions
53	The applicant submitted that, in all the circumstances, including that he had pleaded guilty to the theft of the complainant’s motor vehicle prior to trial, a sentence for the theft of that vehicle of 18 months was manifestly excessive — and particularly so, having regard to his ‘limited prior criminal history’.
Sentence ground 4: analysis
54	In circumstances where the applicant fell to be sentenced for raping the complainant on the day before he stole her car, it could not be said that a sentence of 18 months (of which only 3 months was cumulated on the other sentences imposed on the applicant) for stealing the complainant’s motor vehicle was manifestly excessive. Bearing in mind that the sentences on the trial indictment have now been set aside, however, a sentence of 18 months following a plea is, in all the circumstances, manifestly excessive — or at least one which requires alteration pursuant to s 277(3) of the Criminal Procedure Act.
55	While s 282(1)(b) of the Criminal Procedure Act gives this Court the power to remit the sentencing of the applicant on the theft charge to the County Court so that he may be sentenced for that offence together with any for which he is subsequently found guilty on a retrial of the rape charges, no party suggested that we should take this course. In the circumstances, it seems to us that the sentence for theft should be set aside, and in its place, the applicant should be resentenced to a term of imprisonment of 1 month on that charge.
Conclusion
56	Leave to appeal will be refused on conviction ground 1, but granted on conviction ground 3; the appeal will be allowed; and the applicants convictions and sentences on charges 5 to 8 on the trial indictment will be set aside. The applicant will be retried on those charges (charges 5 to 8 on the trial indictment).
57	The sentence of 18 months imposed on the plea indictment will be set aside, and in its place, the applicant will be sentenced to a term of imprisonment of 1 month for the theft of the complainant’s motor vehicle.
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