- Notable Unreported Decision
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
R v Spies  QCA 36
CA No 349 of 2016
DC No 100 of 2016
DC No 106 of 2016
Court of Appeal
District Court at Bundaberg – Date of Sentence: 1 December 2016 (Clare SC DCJ)
16 March 2018
4 September 2017
Sofronoff P and Fraser JA and Boddice J
The application for leave to appeal against sentence is refused.
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of doing grievous bodily harm, one count of doing grievous bodily harm with intent to disfigure and one count of torture – where the applicant was sentenced to 10 years imprisonment on the grievous bodily harm with intent to disfigure charge, six years imprisonment on the torture charge and not further punished, but with a conviction recorded, on the grievous bodily harm charge – where the torture and grievous bodily harm with intent to disfigure charges were declared to be serious violent offences – where the sentences were imposed cumulatively – whether the sentences are manifestly excessive and/or the learned sentencing judge erred in imposing the sentences cumulatively
Criminal Code (Qld), s 16, s 317, s 320A
Griffiths v The Queen (1989) 167 CLR 372;  HCA 39, considered
Hili v The Queen (2010) 242 CLR 520;  HCA 45, cited
Pearce v The Queen (1998) 194 CLR 610;  HCA 57, followed
R v Cowie  2 Qd R 533;  QCA 223, discussed
R v Heiser & Cook; Ex parte Attorney-General (Qld)  QCA 14, discussed
R v Nagy  1 Qd R 63;  QCA 175, considered
R v Roelandts (2002) 131 A Crim R 590;  QCA 254, discussed
R v Williams  QCA 142, distinguished
R v Woodman  QCA 197, distinguished
L D Reece for the applicant
J Robson for the respondent
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
- SOFRONOFF P: On 26 March 2015, Victor Charles Christie, a 29 year old man, appeared at the Emergency Department of the Bundaberg Base Hospital. He had burns on his back, left arm, both legs and his genitals. Some of these were deep. Some of them were infected. His jaw had been fractured and dislocated. He had a subdural haematoma in the parietal lobe. His right frontal lobe was bleeding. His nose was broken. The violence to his head left him with a permanent brain injury. He would require physiotherapy to achieve independent movement.
- Mr Christie had no memory about what had happened to him and he had no idea who had caused these injuries or why.
- Police began to investigate and these investigations led them to one Kyle Mott. Mott told police that on the morning of 26 March 2015 the applicant had arrived at Mott’s home. He was driving Mr Christie’s car. Mott had known both the accused and Mr Christie for some time. Mott came out into his driveway to speak to the applicant who said to him, “This silly cunt has told me he’s a paedophile, after I’ve had a bottle of vodka … Just take a look at him, he is in the car.” Mr Christie was in the front passenger seat of the car. The applicant brought Mr Christie into Mott’s home and led him into the shower. Mott heard the applicant say “Just jump in the shower with your clothes on cause your clothes are stuck to your body.”
- The burns he had suffered had welded some of his clothing to Mr Christie’s body.
- The applicant went to a local pharmacy and came back with some burn cream. He put this cream onto Mr Christie’s burns. Mott could see that Mr Christie had suffered severe burns to the back of his neck, his ribs, his buttocks and thighs. He had two black eyes and lacerations to his nose and face. The applicant said, “I’m going to do a fair whack for this, give me some time to think.”
- Mott told the applicant that he wanted him out of the house. He told him that burns can get infected and then they can become hard to control. Mott heard the applicant say to Mr Christie, “You’re a predator, you prey on young girls, no wonder when I took you to New South Wales you didn’t want to get laid, you didn’t wanna do it cause you prey on young girls.”
- The applicant showed Mott, Mr Christie’s phone on which there was a photograph of a young girl in swimwear. Mott heard the applicant say to Mr Christie, “You’re a bad predator aren’t you Victor, you raped a little girl in Victoria four times didn’t you?”
- The applicant and Mr Christie remained at Mott’s house for some hours. Later another man, Joel, came to the house. The applicant said to him, “Oh, well fuck it, I may as well tell ya. Victor told me he had raped a little girl after I drank a bottle of vodka. So he got whipped, stabbed, bashed and burnt.”
- Mott asked Joel to help him take Mr Christie to the hospital and together they did so.
- Having obtained Mott’s statement, police began to look for the applicant. On 19 April 2015 he was found in a vehicle in company with one Deliece Nothdruft and arrested.
- Nothdruft gave police a statement. She said that she had known the applicant for about three weeks and that she knew Mott as well. A few weeks before the applicant’s arrest, she had been at Mott’s house when the applicant had arrived. By then Mott had told Nothdruft what the applicant had done. The applicant then told Nothdruft herself, “I poured lighter fluid on this dirty dog’s cock and balls and he’ll never be touching another kid again. He was rolling around in his own blood to put himself out. Every time he put himself out I’d light him up again.”
- The applicant told her that he had stomped on Mr Christie’s head. He said, “If he wakes up the stupid cunt won’t be able to count to ten.” Indeed, this assault did cause permanent brain damage.
- Another man, Nathan Hill, also gave police a statement. The applicant had been to Hill’s house in Mr Christie’s car together with Mr Christie. He and Hill began drinking vodka. The applicant said to Hill, “Hilly, get a load of this grub. Tell them what you did Victor.”
- Hill said that Mr Christie told him that he had raped a three year old girl in Victoria. Hill told the applicant to get out of the house. Instead, the applicant hit Mr Christie four times in the face. Sometime later he hit Mr Christie again in the ribs. The applicant said to Mr Christie, “Wait till we get home, scum.”
- Mr Christie and the applicant then left.
- One might conclude that the applicant had been exhibiting his work to his acquaintances.
- About a week later the applicant arrived alone at Hill’s house in Mr Christie’s car. The applicant told Hill that Mr Christie was in the hospital. He said, “I’d been torturing him, stabbed him in the balls and set him on fire.”
- Police searched Mr Christie’s unit. The fire alarm outside the bathroom had been covered with a plastic bag. The bedroom had blood spatter on the ceiling, walls and wardrobe door. There was a blood-soaked pillow. The mattress and carpet had blood on them and there were blood smears on drawers in the bathroom. Further investigation showed traces of blood on the bathroom floor and in the shower. There was evidence that there had been an effort to clean the bathroom.
- After his arrest the applicant initially refused to assist police. However, he then began to acknowledge things that he had done and, indeed, to brag about them. He said that Mr Christie was a “kid fucking dog” and that he did not want to apologise for what he had done. He told police that Mr Christie had copped a boot in the head. He accepted that he had told Nothdruft, “I’m not sorry for what I did. I took the law into my own hands. I stopped Victor from fucking another kid.”
- He told police that, “I punched him up, he copped a couple of punches in the head. I rib-shotted him and he got a bit of taste of the lighter fluid. I didn’t torture him or anything, he could have left whenever he wanted”. He said that the complainant was willing and even asked him to put a tennis ball in his mouth so he wouldn’t scream. He said that he had done society a service and should be compensated for what he had done not sent to jail.
- He told police that he had first punched Mr Christie in the mouth and the side of the head when they were sitting at the table in Mr Christie’s lounge room. He admitted punching Mr Christie in the ribs. He admitted spraying lighter fluid onto Mr Christie’s body. He said that he had given Mr Christie a lighter and had asked him to light himself and that Mr Christie did so. He said that he watched Mr Christie burn and that he laughed at what he saw. He admitted that he kicked Mr Christie in the head while he was on the floor.
- The punches to the face and the kick to the head were the basis for count 1, the charge of doing grievous bodily harm. The applicant’s pouring of lighter fluid over Mr Christie’s genitals and setting him alight was the subject of count 2, the charge of doing grievous bodily harm with intent to disfigure. The remaining acts over the course of five days were the subject of count 3, the torture charge.
- The applicant had also been charged with certain summary traffic offences, had pleaded guilty and been sentenced for these. They are immaterial to this application.
- The applicant pleaded guilty to the three charges. Mr McMillan, who appeared for the applicant on sentence, rightly acknowledged to the learned sentencing judge, Clare DCJ, that the most serious of the three counts was count 2, the charge of doing grievous bodily harm with intent to disfigure. That offence carries a maximum penalty of imprisonment for life. The offence of torture carries a maximum penalty of 14 years imprisonment as does the offence of causing grievous bodily harm simpliciter. Mr McMillan submitted to Clare DCJ that a head sentence should be imposed in respect of count 2 and lesser, concurrent, sentences should be imposed in respect of the other two counts. Clare DCJ put to Mr McMillan that another approach could be to sentence the applicant on each of the counts and to make them cumulative while ensuring that the resulting punishment was not disproportionate to the whole course of offending. Mr McMillan did not take exception to this proposal and both approaches are orthodox. In the result the learned judge adopted the second of these courses. She sentenced the applicant to imprisonment for 10 years in respect of count 2. She sentenced him to imprisonment for six years in respect of the torture offence. No further punishment was imposed in respect of count 1, the offence of causing grievous bodily harm, but a conviction was recorded in respect of it. The terms of imprisonment were to be served cumulatively.
- The applicant now seeks leave to appeal against the sentences on the ground that they were manifestly excessive. He contends that the offences he committed were committed as part of a single enterprise – as they undoubtedly were. He argues that, as a consequence, the sentences should not have been ordered to be served cumulatively, “because counts 1 and 2 should properly have been considered as particulars of the offence of torture”.
- In my respectful opinion this submission should not be accepted.
- Section 320A of the Criminal Code creates the offence of torture:
“320A(1) A person who tortures another person commits a crime.
Maximum penalty – 14 years imprisonment.
- In this section –
pain or suffering includes physical, mental, psychological or emotional pain or suffering, whether temporary or permanent.
torture means the intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasion.”
- I would make three observations about this section. First, the act or acts constituting torture must, of course, have been intentional in the sense of being voluntary. Secondly, however, the section requires proof of another element of intention. The act which causes pain or suffering must have been an act done whilst the offender held an intention to inflict “severe pain or suffering” upon the victim. Third, it is not an element of the offence that the victim has suffered any bodily harm.
- The offence was created by s 51 of the Criminal Law Amendment Act 1997. Section 320A was inserted into the Criminal Code as the result of a case in which an offender had applied electric shocks to a five year old child. He had caused no injury to the child by this maltreatment and, as a consequence, it had not been possible to charge him with assault occasioning bodily harm or with any other offence of which causing injury to a person was an element. It had only been possible to charge him with common assault under s 335 of the Code for which, at the time, the maximum penalty was imprisonment for one year. The 1997 Act increased the penalty under that provision to a maximum of imprisonment for three years. However, s 320A was enacted to deal with acts done with the intention of causing serious pain or suffering in circumstances warranting a much more severe penalty than can be imposed in respect of simple assault. Accordingly, the infliction of injury is not an element of the offence but, nevertheless, the offence carries a maximum penalty of 14 years.
- On the other hand, s 317 has been in the Code since its inception. It provides for a maximum penalty of life imprisonment for, relevantly, doing grievous bodily harm with intent to disfigure. The distinction between s 317 and s 320A lies in the element of intention. The criminal law, whether codified or at common law, is replete with examples of pairs of offences in which the distinguishing feature is the presence or absence of a particular intention. The archetypal example is, of course, manslaughter and murder.
- Count 2 in the indictment was, as Mr McMillan rightly observed, the most serious of the three counts. This was because the act of doing grievous bodily harm to Mr Christie was an act that was accompanied by an intent to injure him by way of disfigurement. Count 3, the torture offence, also requires proof of an intention, but not one involving the causing of injury.
- As Professor H.L.A. Hart has observed, all civilised penal systems make liability to punishment for serious crime dependent not merely on the fact that the person to be punished has done the outward act of a crime, but also on his or her having done the act with a certain state of mind. In the criminal law the most prominent of these mental elements is intention.
- It is the character of the intention in s 320A and s 317 respectively that justifies the differences in the maximum punishment imposed under each section.
- Because the offence of torture does not contain, as an element, the infliction of injury, the cases in which torture has also involved causing grievous bodily harm have resulted in multiple counts on an indictment. The present case is one of these. It is correct, as the applicant argues, that the offences charged in the three counts on the indictment were all committed as part of a single enterprise. However, it does not follow that counts 1 and 2 are mere particulars of the charge of torture. On the contrary, when an episode of torture has consequences beyond the mere infliction of pain and suffering, it is right that a distinction should be made in the drawing of charges so that a serious offence, such as count 2 in the present case, is not wrongly subsumed into the lesser offence as the applicant has invited the Court to do. The commission of the serious, but lesser, offence of torture cannot reduce an offender’s culpability for the more serious offence of causing grievous bodily harm with intent simply because the applicant committed the offences in the course of a single episode of offending.
- Not only are the offences legally distinct, but in the circumstances of this case at least, they are factually distinct. The applicant had punched and kicked Mr Christie, breaking his jaw and permanently damaging his brain. That assault was the subject of count 1 and did not involve proof of any intention of any kind. Torture can be inflicted without committing that offence and the fact that the assault was committed in order to cause pain and suffering is beside the point. The act of burning Mr Christie with the intention to disfigure him was an act that was distinct from all other acts done by the applicant with the intention of causing pain and suffering. That act might have been done in order to cause pain and suffering but, as the applicant admitted by his guilty plea, it was also done with the intention of disfiguring Mr Christie and with the actual result that he suffered grievous bodily harm. That it was an act that was done with the concurrent intention of causing pain is beside the point and is certainly not a factor in mitigation.
- In sentencing the applicant, Clare DCJ appreciated perfectly well the significance of both s 16 of the Criminal Code and the authority of Pearce v The Queen. Section 16 and Pearce require a sentencing judge to take care not to impose a double punishment upon a person being sentenced for multiple offences that, to any degree, overlap. There was no such risk in this case. Despite some overlap, the three counts were manifestly distinct and the acts and surrounding circumstances that constituted each offence were factually distinguishable by reason of the nature of the offences. These offences called for separate treatment in sentencing as her Honour well understood. It was for that reason that her Honour was at pains to ensure that the sentence which she imposed for torture was a sentence that took no account of what the applicant had done to commit the offence that was the subject of count 2.
- In my respectful opinion her Honour was right in observing during the course of argument that it was open to her to impose consecutive sentences of reduced length instead of imposing a head sentence appropriate to the total criminality, with all sentences to be served concurrently. She was not required to subsume count 2 within count 3 for the purposes of sentencing.
- Nevertheless, it remains necessary to consider whether the sentences that were imposed were, overall, excessive. It is submitted on the applicant’s behalf that the overall total sentence of 16 years imprisonment “was a crushing one, and one which was disproportionate to the criminality of the offending conduct”.
- R v Williams was a case of causing grievous bodily harm with intent. The applicant had pleaded guilty. He too poured methylated spirits over his victim and then set her alight. She suffered extensive burns and was held in intensive care for eight days. The sentencing judge in that case considered that the appropriate range of imprisonment was between 12 and 14 years. A sentence of 11 years imprisonment was in fact imposed and not disturbed on appeal.
- R v Woodman was also a case of doing grievous bodily harm with intent. The applicant pleaded guilty and was sentenced to 11 years imprisonment. He had thrown methylated spirits onto his victim’s face and arms and had set her alight. McMurdo P observed that the only mitigating features in the case were the early plea of guilty, the applicant’s youth and efforts at rehabilitation and that his actions were committed without premeditation and while drunk. Leave to appeal was refused.
- This can be contrasted with the position of the applicant in this case. He too pleaded guilty and signified an intention to do so at an early stage. However, nothing else can be said for him. His acknowledgment of his offending to police and his description to them about what he did, as well as his plea, were not acts done in any spirit of penitence or even regret. Rather, he proudly asserted his actions as having been justified. It should also be observed that the applicant’s firm conviction that Mr Christie had been guilty of offences against children was not established and, indeed, at sentence no attempt was made to establish that fact as a plausible justification for the applicant’s horrible offences.
- The applicant’s lack of remorse can also be inferred from his parting insults to the sentencing judge at the conclusion of proceedings.
- R v Roelandts was a case of torture. The torture was committed over a period of hours and involved the infliction of pain as well as threats of death. Among other acts of torture, the applicant in that case held the victim’s head under water so that she could not breathe and strangled her with a towel until she passed out. No actual physical harm was inflicted. De Jersey CJ considered that the starting point in the case was a penalty of eight to 10 years imprisonment which should be reduced to six years for the plea of guilty.
- R v Cowie was another torture case. The applicant was sentenced to 12 years imprisonment on a guilty plea. The applicant, with four other offenders, kidnapped their victim and took him to a place where they punched, kicked, choked and assaulted him. They also burnt him with a cigarette lighter. That sentence was not disturbed on appeal.
- There are, of course, variations between the facts of each of those cases as between themselves and as between them and the present case. Nevertheless, in my view they demonstrate that sentences of imprisonment for 10 years on count 2 and six years on count 3 were not excessive taken individually. Indeed, so considered they were low. Further, in my respectful opinion, there was no error in Clare DCJ’s decision to impose those sentences cumulatively. The two offences were distinct both legally and factually, as I have sought to demonstrate.
- Within those two categories there are variations between the facts of the cases; and there are variations between each of them and the facts of this case. Nevertheless, in my view, these cases show that, taken individually, sentences of imprisonment of 10 years on count 2 and six years on count 3 are very low for the circumstances of the offences that the applicant committed. They are low for two reasons. The first reason is that the learned judge gave the applicant the benefit of a discount for his guilty plea. That discount could not (or should not) have been great because he pleaded guilty in the face of an overwhelming Crown case and he did so without any remorse or regret. The second reason is that the terms of imprisonment were ordered to be served cumulatively and, necessarily, they have to be reduced to ensure that the total term of imprisonment is not disproportionate to the gravity of the offending viewed as a whole. That explains, for example, the term of six years that was imposed in respect of the torture offence when, on any view, absent this consideration (and some discount for the plea) the torture in this case would have warranted a term of more than 10 years. It also explains her Honour's decision to impose no penalty for count 1, an offence that is also legally and factually distinct from the other two offences and which resulted in permanent brain damage, a factor that is, in my opinion, of great significance in this case.
- In my respectful opinion, her Honour did not err in imposing cumulative sentences. That was a decision that paid due regard to the character and to the gravity of these horrific offences considered separately and together.
- I would refuse leave to appeal.
- FRASER JA: I agree with the reasons for judgment of Sofronoff P and the order proposed by his Honour.
- BODDICE J: The President’s judgment concisely sets out the factual circumstances of the applicant’s offending conduct. I gratefully adopt that analysis.
- I agree with the President’s conclusions that there was no error on the part of the sentencing judge in the approach of imposing cumulative sentences for the applicant’s reprehensible criminal conduct.
- However, I do not agree with the President’s conclusion that the sentences imposed, overall, were not manifestly excessive. The detailed analysis of comparable cases undertaken by the President allows me to state shortly my reasons for that conclusion.
- The respondent’s criminal conduct, although brutal and persistent over an extended period, occurred in the context of one continuing episode. The respondent made significant admissions to police in respect to his actions, albeit after some initial resistance. The respondent ultimately pleaded guilty to all three offences.
- Whilst those pleas of guilty may have been entered against the background of an overwhelming Crown case, and with an acknowledgement that the applicant had not expressed remorse or regret, the pleas of guilty saved the community a significant amount of time and money and were indicated at an early stage. That cooperation also saved the victim the trauma and distress of having to give evidence at trial.
- Notwithstanding that cooperation with the administration of justice, the sentence imposed on the applicant was 10 years imprisonment for count 2 and six years imprisonment on count 3 to be served cumulatively. Both counts were declared to be serious violent offences. As a consequence, the applicant is required to serve a minimum of 80 per cent of the 16 years imprisonment, namely, 12 years and eight months.
- The sentence of 10 years imprisonment imposed on the applicant for the offence of grievous bodily harm with intent, was more favourable than the head sentences imposed in Williams and Woodman for similar offending behaviour involving burning of the victim. However, the sentence for that count cannot be considered in isolation. It must be viewed in the context of the additional sentence of six years imprisonment in respect of the torture offence, to be served cumulatively, and the declaration that that offence was a serious violent offence.
- As was observed by this Court in R v Heiser & Cook; Ex parte Attorney-General (Qld), whilst it is permissible in offences involving a single enterprise to require some sentences to be served cumulatively upon others, the punishment imposed must be proportionate to the total criminality. Particular care must also be taken when imposing cumulative sentences to ensure the overall sentence is not a crushing sentence.
- In the present case, an effective head sentence of 16 years imprisonment, after early pleas of guilty, with declarations that both offences were serious violent offences, was not proportionate to the applicant’s total criminality. Such a sentence did not properly reflect the cooperation shown in the administration of justice by the applicant’s pleas of guilty.
- Such a sentence was manifestly excessive. It supports a conclusion that there was a misapplication of principle with the consequence that the effective sentence is “unreasonable or plainly unjust”. This conclusion requires that the sentencing discretion be exercised afresh.
- Balancing the exacerbating and mitigating features of the applicant’s conduct, and giving proper regard for his pleas of guilty, an overall head sentence of 14 years imprisonment properly and fairly reflects the applicant’s total criminality.
- Adopting the sentencing judge’s approach of imposing cumulative periods of imprisonment in respect of counts 2 and 3 of the indictment, such a sentence is fairly achieved by the imposition of a sentence of 10 years imprisonment in respect of count 2 of the indictment and four years imprisonment in respect of count 3 of the indictment, such sentences to be served cumulatively.
- The consequence of the re-exercise of the sentencing discretion is that only count 2 on the indictment can be declared a serious violent offence. That declaration is automatic, having regard to the sentence imposed on that count.
I would order:
- Leave to appeal the sentence be granted.
- The appeal be allowed.
- The sentences imposed on counts 2 and 3 of the indictment be set aside.
- The applicant be sentenced to 10 years imprisonment in respect of count 2 of the indictment and four years imprisonment in respect of count 3, such sentences to be served cumulatively. Count 2 is declared a serious violent offence.
- The sentences in respect of count 1 of the indictment and the summary offences be as imposed at first instance.
 Responsibility and Punishment, Second Edition, Oxford University Press at page 114.
 (1998) 194 CLR 610.
 Griffiths v The Queen (1989) 167 CLR 372 at 393 per Gaudron and McHugh JJ; R v Nagy  1 Qd R 63 at - per Williams JA.
  QCA 142.
  QCA 197.
  QCA 254.
  2 Qd R 533.
  QCA 142.
  QCA 197.
  QCA 14.
 Hili v The Queen (2010) 242 CLR 520, 538 at , .
- Published Case Name:
R v Spies
- Shortened Case Name:
R v Spies
 QCA 36
Sofronoff P, Fraser JA, Boddice J
16 Mar 2018
- White Star Case:
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC100/16; DC106/16 (No Citation)||01 Dec 2016||Date of Sentence (Clare DCJ).|
|Appeal Determined (QCA)|| QCA 36||16 Mar 2018||Application for leave to appeal against sentence refused: Sofronoff P and Fraser JA (Boddice J dissenting).|