Exit Distraction Free Reading Mode
- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v TAQ  QCA 200
CA No 357 of 2019
Court of Appeal
Appeal against Conviction & Sentence
District Court at Townsville – Date of Conviction & Sentence: 28 November 2019 (Farr SC DCJ)
15 September 2020
20 July 2020
Holmes CJ and Philippides and Mullins JJA
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES INVOLVING MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – IMPROPER ADMISSION – where the appellant was found guilty by a jury of one count of rape, nine counts of common assault, one count of assault occasioning bodily harm, and four counts of assault occasioning bodily harm, while armed – where the prosecution led evidence from a witness that the appellant had said that he had raped the complainant and threatened her with violence unless he got sex – where the statement did not make reference to any particular circumstances of rape – where the primary judge concluded that the statement was not reasonably capable of being construed as an admission to the specific rape charged – whether the primary judge erred in admitting the statement into evidence as tendency evidence
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – JUDGE’S SUMMING UP – CONSIDERATION OF SUMMING UP AS A WHOLE – where the appellant was found guilty by a jury of one count of rape, nine counts of common assault, one count of assault occasioning bodily harm, and four counts of assault occasioning bodily harm, while armed – where the jury was not expressly directed not to reason from the evidence the appellant was violent to his partner that he would be more likely to have committed rape – where the primary judge had directed the jury to consider each count separately – where the primary judge structured the summing up to deal separately with specific directions for the offences of violence from the specific directions for the count of rape – whether there was a failure to direct the jury to avoid impermissible reasoning
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was found guilty by a jury of one count of rape, nine counts of common assault, one count of assault occasioning bodily harm, and four counts of assault occasioning bodily harm, while armed – where the appellant was sentenced to six years and six months’ imprisonment for rape, 12 months’ imprisonment for each of the counts of common assault and 18 months’ imprisonment for each count of assault occasioning bodily harm, while armed, and the count of assault occasioning bodily harm – where the sentences for rape and common assault were concurrent with each other, the sentences for all the assaults occasioning bodily harm were concurrent with each other but cumulative on the sentence for rape – where the appellant had a lengthy period of non-declarable pre-sentence custody – where this time was taken into account only in reducing the head sentences – whether the primary judge erred in giving credit for the non-declarable pre-sentence custody in respect of the period of time to be served in actual custody before being eligible for parole – whether the primary judge erred in sentencing cumulatively for the assault occasioning bodily harm offences
R v Bowditch  QCA 157, cited
J A Greggery QC with B R Bilic for the appellant/applicant
Legal Aid Queensland for the appellant/applicant
- HOLMES CJ: I have had the benefit of reading the judgment of Mullins JA in draft and agree with the orders her Honour proposes, as well as her reasoning, with one exception, which is minor in the scheme of things.
- In my view, in the evidentiary context of this case, the statement which Mr P attributed to the appellant, that he had raped the complainant, could properly have been left to the jury as reasonably capable of being construed by them as an admission to the anal rape charged in count 15. It came in a context in which there was only one penile rape alleged. The complainant alleged, and the appellant acknowledged in the relevant conversation, that she had regularly been made to perform oral sex on him. Those acts were, in legal terms, capable of amounting to rape, but it was most unlikely that the appellant would have perceived them as rape, and he does not in fact seem to have referred to them in that way. The statement that if the appellant “didn’t get what he wanted, he would take it” appears to have been additional to the admission of rape and was capable of being regarded as a more general allusion to the force he used to control the complainant in a variety of ways.
- But the issue is not a significant one, because I agree with Mullins JA that if the statement regarding rape were not to be regarded as sufficiently unequivocal to amount to an admission of the offence charged, it was admissible as relationship evidence on the basis her Honour identifies. And, like Mullins JA, I do not consider that there was any risk that the jury would have misunderstood the trial judge’s directions as indicating that uncharged violent acts had any relevance to count 15.
- Finally, I agree with Mullins JA’s reasons and conclusion in relation to the sentence. Having concluded that a serious violent declaration was not warranted, it seems probable that after a taxing and unpleasant trial, his Honour simply overlooked the relevance of the undeclared time already served to the non-parole portion of the sentence as well as the head sentence. That view is reinforced by his Honour’s observation that he intended to leave it to the parole board to decide whether the appellant should be released on parole after serving “at least the statutory 50% of the sentence” that he had just imposed.
- PHILIPPIDES JA: I agree with the reasons of Mullins JA and the orders proposed by her Honour.
- MULLINS JA: The appellant was tried in the District Court before a jury on an indictment that contained 24 counts. He was acquitted of counts 1 to 4, 7, 12, 17, 20 and 21. He was convicted of nine counts of common assault, one count of assault occasioning bodily harm, four counts of assault occasioning bodily harm, while armed, and one count of rape (count 15). On 28 November 2019, he was sentenced to imprisonment for six years and six months for count 15. For each of the counts of common assault, he was sentenced to 12 months’ imprisonment. He was sentenced for each of the counts of assault occasioning bodily harm, while armed, and for the one count of assault occasioning bodily harm (count 8) to 18 months’ imprisonment. The sentences for rape and common assault were concurrent with each other, while the sentences for counts 8, 9, 11, 18 and 24 were concurrent with each other, but were cumulative upon the sentence for the rape. The period of imprisonment was therefore eight years. The appellant had spent 752 days in pre-sentence custody which was not able to be declared as time already served under the sentences.
- The appeal against conviction is confined to count 15. The grounds of the appeal are that a miscarriage of justice was occasioned by the wrongful admission of the evidence of Mr P and the failure to direct the jury to avoid impermissible reasoning. The appellant applies for leave to appeal against his sentence on the ground that it is manifestly excessive. There are two aspects relied on by the appellant. The first is the learned trial judge erred in not taking into account time not able to be declared in determining the non-parole period and, second, it was an error for the sentences for counts 8, 9, 11, 18 and 24 to be ordered to be served cumulatively on the sentence for count 15. The appellant seeks that the sentences for counts 8, 9, 11, 18 and 24 be ordered to be served concurrently with the sentence for count 15 and for the date that the appellant is eligible for parole to be fixed at 27 November 2021 which would be after serving two years from the date of sentence, in addition to the non-declarable pre-sentence custody.
Summary of the facts
- The complainant was the appellant’s former de facto partner. They met in October 2005 and commenced living together in early 2006. They moved to a different town in October 2006. There were four children in the relationship born between 2007 and 2011. The complainant described the appellant as charming in the early stages of their relationship, but he commenced showing violence after an argument in May 2006 and she described an increasingly violent and controlling relationship during which numerous charged and uncharged assaults occurred. She was able to identify the date on which counts 15 and 16 occurred as 8 October 2011, as it was associated with a significant event for the appellant. He announced on that evening that “tonight was the night” he would “do anal to [her]”, but she did not want to and that is what she told him. The appellant had previously requested anal intercourse from the complainant, but the complainant had managed to fob him off on those occasions.
- During the evening of 8 October 2011, the appellant had been drinking at home with a couple of friends. The friends were still there, when the complainant went into the appellant’s bedroom with him. He said to her “If you love me, darling, you’ll do it. If you don’t do it, I am going to turn you over and rape you”. He told her to lower her bottom onto his penis. The complainant started to, but it hurt. He told her to stop, she sighed with relief, but he grabbed her hands “and he went … to all the way up [her] bum and it was the worst pain ever” and the complainant described how he “pumped” repeatedly. His penis was covered in faeces and blood, but he then demanded oral sex and told her, if she did not do it, he was going to turn her over and rape her again. When she went to give him oral sex, he hit her in the head (which was the assault that was the subject of count 16). The complainant confirmed in cross-examination that when the appellant penetrated her anus, she screamed loudly, as she was in quite some pain.
- Preliminary complaint evidence was given by a friend of the complainant who had a conversation with her in about April 2013. Apart from a difference about the date on which the rape occurred, the friend’s evidence of what the complainant disclosed to her was consistent with the complainant’s account. The friend also gave evidence that at their meeting in April 2013 the complainant handed her a copy of what the complainant had written in a notebook which contained various handwritten accounts of events, including the event the subject of count 15. The account of the event the subject of count 15 was also tendered as a preliminary complaint (exhibit 15).
- After the appellant assaulted her on either 2 or 3 December 2012, the complainant decided to leave the appellant with the assistance of the friend. The complainant left the town where the family had been residing and took the four children to an undisclosed location and had no contact with the appellant from that time. The complainant did not make a complaint to the police about the matters the subject of the charges until 7 December 2016.
- Mr P had first met the complainant at school and then met the appellant, when the appellant and the complainant were living next door to Mr P. Mr P relocated to another town to which the appellant and the complainant also moved in October 2006. Eventually, they lived relatively close to one another and would visit each other. Mr P observed bruises and swelling and marks on the complainant’s legs. He had seen her with welts on her legs and upper thighs. Her arms were constantly bruised. The complainant told Mr P that the appellant caused those injuries to her. Mr P noticed that in the second house in which the appellant and complainant lived in this town there were holes in the walls that looked like fists had been put through gyprock, doors kicked in and furniture destroyed. Mr P had an argument with the appellant at Mr P’s engagement party about how the appellant was treating the complainant. The appellant told Mr P that it was none of his business. The last time Mr P spoke with the appellant was in late December 2012, when he went to the house with his cousins T and N, after he heard that the complainant was not there. The appellant told him that he had threatened the complainant with violence “unless he got sex or food or whatever he was after at the time”. Mr P stated that the appellant said the complainant was his alarm clock and had to wake him by sucking his penis and “he’d raped – raped her and, if he didn’t get what he wanted, he’d take it”.
- One of Mr P’s cousins who had accompanied him on the visit to the appellant’s house in late December 2012 gave evidence. He recalled the appellant saying:
“Yeah, he said he – he never treated her well. Only treated her badly and he was glad that she had gotten out.”
- The other cousin who accompanied Mr P when he visited the appellant also gave evidence. He could not remember exactly what the appellant said, but he did recall the appellant said “that he didn’t treat her right” and “he was abusive towards her” and “he understood why she’d left”. This cousin also “vaguely” remembered the appellant saying that he used to hit the complainant on occasion.
- The appellant did not give or call evidence. The appellant’s case was that he did not commit any of the assaults or the rape charged on the indictment and that the complainant’s evidence could not be accepted, having regard to inconsistencies, improbabilities and deficiencies in her memory.
Whether Mr P’s evidence of the conversation with the appellant should have been admitted
- The prosecutor in her opening had referred to the evidence that would be given by Mr P, stating that he would tell the jury of what he saw of the complainant’s injuries, the language that the appellant would use to talk to the complainant and the damage to the house. The prosecutor opened the conversation that Mr P had with the appellant after the complainant had left him in these terms “he’ll tell you of that conversation and that the [appellant] admitted to him some pretty vile things, in his own words.” The prosecutor also opened that the jury would hear from Mr P’s two cousins and what they recalled of that conversation as well.
- The appellant’s counsel at trial did not object to the evidence given by Mr P.
- The issue at the trial in respect of count 15 was whether the act the subject of that count occurred. Consistent with that approach, consent was not an issue raised by the appellant.
- The prosecutor at the trial took the position that the statement that Mr P said the appellant made to him in December 2012 that he had raped the complainant could amount to an admission in relation to the incident that was the subject of count 15. The trial judge was doubtful that the jury could infer that was an admission to that specific incident. The prosecutor did not press for a direction that it could amount to such an admission. The prosecutor conceded in submissions before the trial judge that the complainant did not give evidence of being raped on other occasions, as the only occasion of rape she referred to in her evidence was the incident the subject of count 15. Although not a contention that was pursued on this appeal, the court invited submissions from the parties on whether the evidence of the statement made by the appellant to Mr P about having raped the complainant could have been left to the jury as evidence of an admission to count 15.
- Both parties’ further submissions referred to R v Caulfield  QCA 204 which concerned the admissibility of apologies made by Mr Caulfield to the complainant’s mother in a telephone conversation on day after the assaults occurred. The complainant’s mother’s evidence was that Mr Caulfield kept saying “I’m sorry, I’m sorry” over and over. It was argued that the statements were not admissible as they were not “capable of being found to be an unambiguous and unequivocal apology for an admission to” the subject assaults. Muir JA (with whom de Jersey CJ and White JA agreed) stated the test for admissibility at  as:
“If words spoken by an accused are reasonably capable of being construed as an admission by the accused, they are admissible.”
- Muir JA also observed at  that upon admission into evidence, it was for the jury to decide “whether a statement, whether oral or written, viewed as whole and in context constitutes an admission”.
- The appellant seeks to distinguish the application of Caulfield to the evidence of Mr P of what the appellant said to him, on the basis that the content of Mr P’s evidence was equivocal about whether the appellant was admitting to the anal intercourse and the statement was made by the appellant in circumstances that did not suggest he was explaining any particular conduct.
- The conversation that Mr P had with the appellant was more than 12 months after the date the complainant identified for the anal intercourse and in circumstances where the appellant was not being questioned about specific incidents with the complainant, but was having a conversation with friends about the complainant’s having left the family home.
- The appellant submits that for a statement to be admissible as an admission of commission of a particular offence, there had to be a level of cogency due to the circumstances in which the statement was made that would allow the conclusion that the appellant’s statement was reasonably capable of being construed as an admission by the appellant to anal intercourse without the consent of the complainant. The factors relied on by the appellant for the lack of sufficient cogency to enable the statement to be construed as an admission of count 15 are lack of temporal connection between the content of the statement and the specific allegation of anal intercourse, the general nature of the conversation and that it was not responsive to a specific allegation put to the appellant.
- The respondent submits that, in context, the words spoken by the appellant to Mr P did describe an act of rape that was distinctive and amounted to unlawful conduct and that it was a question that could have been left to the jury, as to whether it was an admission to the act charged as count 15 or as a piece of circumstantial evidence about the relationship between the appellant and the complainant. It was relevant that the complainant made reference to one specific occasion of rape in her evidence which was arguably consistent with the specific reference to one rape by the appellant, when speaking to Mr P.
- Even though the complainant gave evidence in the trial of only one specific incident of rape that was the subject of count 15, if the jury accepted the evidence of Mr P about the admissions made by the appellant in the conversation in December 2012, the admissions to raping the complainant were to the effect that it occurred on more than one occasion. That can be inferred from the express statement by the appellant that he raped the complainant, if he did not get what he wanted, but that he also admitted to threatening the complainant with violence unless he got sex.
- The factors relied on by the appellant to show the lack of sufficient cogency to enable this evidence to be considered as an admission to the anal rape support the trial judge’s conclusion that the statement made to Mr P was not reasonably capable of being construed by the jury as an admission of count 15.
- It then remains to consider whether Mr P’s evidence of the conversation he had with the appellant in December 2012 in which the appellant said he had raped the complainant and would threaten the complainant with violence, unless he got sex, should have otherwise been admitted into evidence. In the summing up, the trial judge explained to the jury that, apart from the complainant’s evidence relevant to count 15, the prosecution also led evidence from Mr P “of other incidents in which the [appellant] has through his actions, demonstrated a sexual interest in the complainant even when she is not consenting and was prepared to act on that interest in such circumstances”. After then reminding the jury of Mr P’s evidence, the trial judge explained that the prosecution relied on the evidence of what Mr P said he was told by the appellant in relation to raping the complainant, if he did not get what he wanted “[t]o prove that the [appellant] had sexual interest in the complainant and was prepared to act upon it even when she was not consenting to it”. The trial judge’s direction continued as follows:
“The prosecution argues that this evidence makes it more likely that the [appellant] committed the offence the subject of count 15. You can only use this other evidence if you are satisfied that the [appellant] did act as that evidence suggests, that is, that the [appellant] did say the things that [Mr P] said that he said, and that he was speaking truthfully when he spoke those words, and that the conduct described demonstrates that he had a sexual interest in the complainant which he was willing to act upon even in the absence of her consent.
If you do not accept that this evidence proves to your satisfaction that the [appellant] had such a sexual interest in the complainant, that is, one that he was prepared to act upon even if she was not consenting, then you must not use the evidence in some other way to find that the [appellant] is guilty of the offence in count 15. And if you are satisfied that one or more of these other acts did occur, as stated to [Mr P], it does not follow that the [appellant] is automatically guilty of count 15. You cannot infer only from the fact that this other conduct occurred that the [appellant] did that which is alleged in count 15. You must still decide whether, having regard to the whole of the evidence, that count 15 has been proved to your satisfaction beyond reasonable doubt.”
- The appellant submits that Mr P’s evidence could not satisfy the test of rationally affecting, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the trial: HML v The Queen (2008) 235 CLR 334 at . See also The Queen v Bauer (2018) 266 CLR 56 at . The appellant submits the issue in respect of count 15 was whether the act occurred which depended on the complainant’s credibility and that the reasoning in IMM v The Queen (2016) 257 CLR 300 should apply. The respondent characterises this submission as suggesting that admissions by the appellant to raping the complainant in the course of the relationship the subject of the trial is remote or of a different order to a charge of rape of that complainant during the course of the relationship the subject of the trial.
- The respondent also relies on R v Sakail  1 Qd R 312 as making the evidence of Mr P admissible on the basis that an admission to a rape which is not charged can be used as evidence of the nature of the relationship relevant to the charged rape. In Sakail, the offender was convicted on a charge of rape and acquitted of another charge of rape of the same complainant. The offender had admitted to the police that he may have had sexual intercourse with the complainant against her will on one occasion, but the occasion he described was neither of the two occasions in respect of which he was charged. The admission was treated (at 319) as circumstantial evidence showing an important aspect of the relationship between the complainant and the offender and therefore capable of supporting the complainant’s allegations. The appellant seeks to distinguish Sakail on the basis that the admission made by the offender in that case occurred in a police interview and in regard to sexual conduct between the offender and the complainant in circumstances where the offender was married and the complainant was a guest in his house. These factual matters do not affect the principle for which Sakail is authority.
- The appellant also relies on an argument that the direction that was given by the trial judge focused on improper sexual interest which does not sit well with a marriage type of relationship in which the sexual relationship was lawful.
- Where the act in issue for count 15 was the act of anal intercourse without the consent of the complainant, evidence of other sexual acts between the appellant and the complainant as a result of the appellant’s threats or without the consent of the complainant was evidence that could rationally affect the assessment of the probability of the occurrence of the anal rape, as described by the complainant. The direction given by the trial judge focused on the nature of the conduct to which the appellant admitted in his conversation with Mr P which was a willingness to act on his sexual interest in the complainant in the absence of her consent. The evidence of Mr P was admissible as relationship evidence that revealed a tendency of the appellant to engage in sexual acts with the complainant without her consent.
- The appellant does not succeed on the ground of appeal that Mr P’s evidence was inadmissible.
Whether there was a failure to direct the jury to avoid impermissible reasoning
- The appellant’s complaint is the jury were not directed that they could not use the evidence of violence alleged in respect of counts 1 to 14 and 16 to 24 in support of count 15. It is submitted on behalf of the appellant that, by not giving that warning, there was a risk that the jury would impermissibly reason from evidence that, as the appellant was violent in the domestic situation, he was also a rapist.
- The trial judge gave the usual direction to the jury about considering each charge separately and evaluating the evidence relating to that particular charge to decide whether the prosecution had proved its essential elements beyond reasonable doubt. The trial judge gave a specific direction relating to the charges of violence which were identified as counts 1 to 14 and 16 to 24:
“Now, in relation to those charges, the [appellant], of course, is charged only with the offences set out in the indictment. And the prosecution has led evidence of conduct in relation to each of those alleged events. Additionally, though, the prosecution has also led evidence of other incidents in which the complainant says that the [appellant] was verbally abusive towards her or where other acts of physical violence occurred or where the [appellant] displayed domineering or controlling behaviours directed towards the complainant, either in her presence or not.
Now, that evidence has been placed before you for a limited purpose. If you accept the evidence of some or all of those things, it does not make it more probable that the [appellant] committed the alleged offences. This evidence – this additional evidence is relevant only to answer questions which you might naturally have about the background to the incidents which the prosecution has alleged as the charged offences. It may show the nature of the relationship that existed between the complainant and the [appellant] at the relevant time and, therefore, may properly contextualise the alleged charged events.
Now, the prosecution relies upon this evidence, at least in relation to other acts of violence not the subject of a charge, to show that the [appellant] had a propensity or tendency to commit acts of violence against the complainant. It is for you to decide whether you are satisfied that this other conduct occurred and, if so, what you make of it. You must not decide that the [appellant] is guilty of any charged act only on the basis of this additional evidence. If you are not satisfied that it shows a propensity or tendency to commit an offence of the type which is alleged in this case, you must not use it to assess whether the [appellant] is guilty of any of the offences charged.
Now, you may think that if the [appellant] did these other things, it reflects poorly on his character. But that does not matter if you do not think that it demonstrates a propensity to commit this type of offence.”
- After giving this direction on the charges of violence which were all the counts on the indictment, except count 15, the trial judge turned specifically to count 15, dealt at length with the evidence in relation to count 15 and then gave directions that related only to count 15, including the tendency direction arising from Mr P’s evidence.
- The trial judge did not expressly direct the jury not to reason from the evidence the appellant was violent against his domestic partner, that he would be more likely to have committed the offence that was the subject of count 15. It was a clear inference from the structure of the trial judge’s summing up that the direction given specifically in relation to the charges of violence and the evidence of other incidents of domestic violence was relevant only to counts 1 to 14 and 16 to 24. There was therefore no real risk of the impermissible process of reasoning that was referred to in this ground of appeal. The appellant therefore does not succeed on this ground of appeal.
- The appellant was aged between 23 to 29 years at the time he committed the offences. The appellant had been in custody in relation to the matters since 6 November 2017 which was a period of just over two years. He had been in custody since mid-July 2017, because he was facing other charges of violence in relation to a different complainant. That period of time is not declarable, but the period of two years and three weeks will be taken into account in determining the sentence. The appellant had prior convictions of no particular significance. The offending conduct had a significant impact on the complainant. The appellant’s behaviour caused her emotional, social, psychological and financial harm and impacted on other family members, including the children of the relationship and the complainant’s parents.
- Before the trial judge, the prosecutor had submitted that, taking into account the significant time in custody that was not declarable, a range of eight to 10 years for the totality of the offending was appropriate. The appellant’s counsel did not cavil with the range of eight to 10 years for the rape, but ultimately submitted for a sentence of eight years’ imprisonment with no serious violent offence declaration before taking into account the non-declarable pre-sentence custody.
- The trial judge’s sentencing remarks can then be summarised as follows. The appellant demonstrated a complete and absolute absence of remorse for his behaviour. The offending conduct extended over a lengthy period of time of about five years. The offence of rape was particularly serious. It was an anal rape and accompanied by a threat to rape the complainant, if she did not consent. She did not consent. There were two other adults in the house at the time and the appellant’s behaviour was “extraordinarily brazen”. The complainant suffered immense pain in the commission of the offence which caused an injury to her anus which bled. The appellant’s behaviour towards the complainant immediately afterwards was humiliating. The offence of rape was premeditated. The offending conduct only ended because the complainant screamed and the appellant was aware there were other adults in the house. Overall, the picture of the appellant is of a man “who is cowardly, and selfish and has a complete disregard for the welfare and wellbeing of his female partner and who enjoyed being in a position of control – or, at least, as he perceived what is meant by that term”.
- The appropriate range of sentence for the charge of rape would be one of eight to 10 years, but as the events did not involve further violence than that which was used for the purposes of committing the offence, nor did it involve the use of a weapon, the sentence falls towards the lower end of eight years’ imprisonment. The true criminality of the other offences can only be gauged by viewing them in their entirety or the cumulative effect that such behaviours had on the complainant in terrorising her for that lengthy period of time. The period of 752 days spent in pre-sentence custody which cannot be declared, because it also relates to some other charges, is taken into account by reducing what would otherwise be the appropriate sentences. The sentence for count 15 is imprisonment for six years and six months which has been calculated by deducting 18 months from the appropriate sentence of eight years’ imprisonment. The sentence of 18 months’ imprisonment on each of counts 8, 9, 11, 18 and 24 is the result of reducing the appropriate sentence otherwise by a period of six months to account for the pre-sentence imprisonment. The overall sentence of eight years’ imprisonment therefore has taken into account the two years spent in pre-sentence custody. Were it not for that fact, a sentence of 10 years’ imprisonment would have been appropriate and that would have brought with it an automatic declaration of being convicted of a serious violent offence. The trial judge then concluded:
“But, given that this is not a position where an automatic declaration occurs, I am not persuaded that it is appropriate that there are features in this matter that would warrant the exercise of the discretion to make such a declaration, and I decline to do so.”
Whether there was an error in how the trial judge dealt with the non-declarable pre-sentence custody
- The appellant submits that the process of his sentencing has resulted in an anomalous result, when he was sentenced to a period of imprisonment of less than 10 years (which avoided an automatic serious violence offence declaration) and the sentencing judge concluded that the features of the offending did not warrant the exercise of the discretion to make a serious violent offence declaration. The appellant will serve effectively six years three weeks in custody before being eligible for parole at the halfway mark in respect of a period of eight years’ imprisonment and, if parole is then granted, will be under a parole order for the remaining four years of the sentence. The anomaly is due to the fact that the trial judge reduced the head sentences for the offences to take account of the pre-sentence custody of about two years that was not declarable, but did not make any adjustment to the date on which the appellant would otherwise be eligible for parole. The appellant submits that it is a principle that time in custody which was not able to be declared as time already served must be taken into account in fixing the head sentence and the non-parole period, in reliance on R v Carlisle  QCA 258 at .
- The respondent submits that the process of sentencing dealt rationally with the pre-sentence custody, as the trial judge expressly referred to the appropriate overall sentence being a period of 10 years’ imprisonment before taking into account the pre-sentence custody. Had the appellant’s pre-sentence custody been declarable, the trial judge would have been able to impose sentences resulting in a period of 10 years’ imprisonment and the appellant would have been eligible for parole only after serving 80 per cent of that period or eight years of his sentence (including the pre-sentence custody). The respondent therefore argues that the appellant has gained a significant, technical, benefit to having non-declarable pre-sentence custody, as he has received an effective sentence of eight years’ imprisonment with parole eligibility after serving a further four years in addition to the pre-sentence custody of two years three weeks which results in an overall lesser time served in custody.
- The respondent is attempting to justify the sentence by reference to circumstances that did not eventuate in the sentencing. The flaw in the respondent’s argument is seeking to justify the sentence by comparing the actual sentence to the outcome from an automatic serious violent offence declaration that was not part of the sentence, and where the trial judge made a specific finding that the features of the offending did not warrant the exercise of the discretion to make a serious violent offence declaration.
- There is implicit acceptance in the submissions of both parties that where a prisoner is being sentenced and has spent time in pre-sentence custody that is also attributable to other offences for which the prisoner has not been dealt with, the pre-sentence custody should be taken into account on the first occasion that the prisoner is before the sentencing court. That is usually the appropriate course: R v Fabre  QCA 386 at -.
- In the appellant’s case the extent of the pre-sentence custody of 752 days is significant. It is actual custody that has been served. It is not correct to say, as submitted by the appellant, that it is a “principle” that non-declarable pre-sentence custody is to be taken into account in fixing the head sentence and the non-parole period. How the non-declarable custody is taken into account is a matter for the exercise of the sentencing judge’s discretion in the circumstances of the particular case. The reference in Carlisle at  was to the approach in a typical case of non-declarable pre-sentence custody being taken into account in fixing both the head sentence and the non-parole period, but that is not the invariable means for taking the non-declarable custody into account. As the appellant’s circumstances show, the benefit of taking the pre-sentence custody into account may not be truly reflected without consideration being given to the consequences for the prisoner’s time in actual custody.
- Where the circumstances did not warrant a declaration that the appellant had been convicted of a serious violent offence, the outcome of the sentencing that the appellant is to serve over six years in custody before being eligible for parole in respect of a period in custody which, after the sentencing, has the potential of being 10 years was unreasonable. The appellant has therefore succeeded in showing error in how the trial judge dealt with the pre-sentence custody.
Did the trial judge err in sentencing cumulatively for the AOBH offences?
- The appellant submits that it was an error to conclude that the offences of assault occasioning bodily harm, some while armed, had to be served cumulatively to the sentence of count 15, as those counts did not have any features, such as being committed whilst on bail for other offences, to warrant being imposed cumulatively. It is therefore submitted that the sentencing discretion miscarried and the proper exercise of the discretion called for all sentences to be concurrent.
- It is a matter for the sentencing discretion where there are a number of offences for which an offender is being sentenced whether a sentence is fixed for the most serious offence that reflects the overall criminality and for all other sentences to be concurrent or whether some sentences are ordered to be cumulative on others, so that the effective sentence reflects the overall criminality of the offending: R v Bowditch  QCA 157 at . The question of whether the sentencing discretion miscarried by ordering the sentences for some offences to be cumulative cannot be separated from a consideration of the sentences imposed on each of the offences and the effect of the sentence overall. Even though all of the offences were committed in the course of the relationship between the appellant and the complainant and the anal rape was a much more serious offence than the other offences, the other offences had the quality identified by the trial judge of causing a cumulative effect on the complainant by terrorising her over a long period of time. It cannot be said that the overall sentence of eight years’ imprisonment was not an appropriate sentence for all the appellant’s offending for which he was being sentenced. There was therefore no error in the trial judge sentencing cumulatively for the offences of assault occasioning bodily harm.
- The only aspect that requires adjustment in the resentencing is the error of the trial judge in dealing with the non-declarable presentence custody. The error can be addressed by fixing a date on which the appellant is eligible for parole at about halfway of that period in custody which will be 27 November 2022. The halfway mark is appropriate, as the appellant was sentenced after trial.
- It follows that the orders should be:
- Appeal against conviction dismissed.
- Grant application for leave to appeal against sentence.
- Appeal against sentence allowed.
- Fix the date on which the appellant is eligible for parole as 27 November 2022.
- In all other respects, confirm the sentences imposed by the trial judge.
- Published Case Name:
R v TAQ
- Shortened Case Name:
R v TAQ
 QCA 200
Holmes CJ, Philippides JA, Mullins JA
15 Sep 2020