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R v AAW

 

[2015] QCA 164

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v AAW [2015] QCA 164

PARTIES:

R
v

AAW
(applicant)

FILE NO/S:

CA No 298 of 2014

DC No 144 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maryborough – Unreported, 16 October 2014

DELIVERED ON:

4 September 2015

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2015

JUDGES:

Fraser and Gotterson and Philippides JJA

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on a plea of guilty to a count alleging an offence against s 320A of the Criminal Code (Qld) – where the applicant was sentenced to seven years’ imprisonment and a serious violent offence declaration was made – where a period of 118 days in custody was declared to be time served under the sentence – where the complainant was a teenage boy and the applicant was the complainant’s aunt – where the applicant and her daughter subjected the complainant to numerous indecencies over a period of five months as outlined in the Statement of Facts provided by the Crown – where the applicant had two prior convictions for offences of violence and a conviction for ill-treating a German shepherd dog – where the learned sentencing judge outlined the applicant’s offending which she described as “a depraved and protracted course of conduct” and considered that personal deterrence was an important part of the sentence – whether the sentence imposed was manifestly excessive

Criminal Code (Qld), s 320A

Penalties and Sentences Act 1992 (Qld), s 161B

R v B; ex parte Attorney General of Qld (2000) 110 A Crim R 499; [2000] QCA 110, considered

R v HAC [2006] QCA 460, considered

COUNSEL:

The applicant appeared on her own behalf

D Balic for the respondent

SOLICITORS:

The applicant appeared on her own behalf

Director of Public Prosecutions (Queensland) for the respondent

[1] FRASER JA:  I agree with the reasons for judgment of Gotterson JA and the order proposed by his Honour.

[2] GOTTERSON JA:  On 3 February 2014 at the District Court of Maryborough, the applicant, AAW, was convicted on a plea of guilty to a count alleging an offence against s 320A of the Criminal Code (Qld), namely, that between 30 November 2011 and 4 May 2012 at Coonambula, she tortured WWP.  At a hearing on 16 October 2014, the applicant was sentenced to seven years’ imprisonment and a serious violent offence declaration was made.  A period of 118 days in custody was declared to be time served under the sentence.

[3] On 17 November 2014, the applicant filed an application for leave to appeal against sentence.[1]  The sole ground upon which the applicant wishes to appeal is that the sentence is manifestly excessive.

The circumstances of the offending

[4] The complainant was a teenage boy aged 15 years at the time of the offending.  The applicant was aged 45 to 46 years.  She is the complainant’s aunt.  She became the complainant’s guardian about six months before the commencement of the period alleged in the count.  She did so in circumstances where the complainant had been subject to abuse on the part of his mother, the applicant’s sister.

[5] At the time, the applicant was living at Coonambula with her daughter who was about eight years older than the complainant.  A Statement of Facts[2] was tendered at the sentence hearing.  The applicant was represented by counsel.  Her counsel confirmed that his client did not contest “the particular facts and circumstances”.[3]  Until that point, the applicant had challenged the facts.

[6] The Statement of Facts narrates a course of conduct over a period of about five months, in which the daughter also participated.  The conduct involved neglect on the part of the complainant’s health and hygiene.  He was forced to eat burning hot foods, such as a mouth full of chillies, without a drink.  Before school, he was overdosed on laxatives, such as worming tablets and castor oil.  Inevitably, he would lose control of his bowels yet he was forced to go to school in a soiled state.  He was ostracised by his peers such that his school life was a “living hell”.  At home, the complainant was refused use of the shower or toilet at times.  He was disciplined for attempting to use deodorant.

[7] There were times when the appellant made the complainant strip so that she could whip his buttocks.  She pushed him in the face; cut his hand with a pocket knife; tried to stab him with a needle; and terrified him with threats to pierce his testicles and rip off his finger nails and foreskin with pliers.

[8] The applicant humiliated the complainant sexually.  She made him shave his genital area.  She forced him to penetrate his own anus with a vibrator and threatened that if he did not comply, her daughter would ram it into him and that super glue and toothpaste would be put in his anus.  The applicant derived amusement from these episodes.  She encouraged her daughter to film them and threaten to use the footage to humiliate further the complainant.

[9] At sentence, two victim impact statements[4] made by the complainant were tendered.  It is evident from them that the complainant is haunted by the abuse he suffered at the applicant’s hands.  He has struggled to come to terms with it.  His capacity for maintaining interpersonal relationships has been adversely affected.

The applicant’s criminal history

[10] The applicant had two prior convictions for offences of violence and a conviction for ill-treating a German shepherd dog.[5]  She was convicted and fined for those offences.

The sentencing remarks

[11] The learned sentencing judge outlined the applicant’s offending which she described as “a depraved and protracted course of conduct”.  She referred to its impact upon the complainant.  She considered that, in the circumstances, personal deterrence was an important part of the sentence.

[12] Her Honour regarded the plea of guilty as the most favourable factor for the applicant, given that the time and costs of a trial had been avoided.  She noted that its utility was tempered by the lateness in the withdrawal of the challenge to the facts.  The complainant had not been spared the anxiety of an impending cross-examination.  Her Honour was satisfied that the applicant’s health issues could be accommodated in prison.

[13] The learned sentencing judge explained the imposition of the declaration in the following terms:

By its very nature, torture raises consideration of whether the particular conduct was a serious violent offence within the meaning of section 161B of the Penalties and Sentences Act.  A declaration carries serious consequences for the deferment of parole eligibility.  Yours was a serious example of torture.  The repeated infliction of intense pain and suffering was a drawn out course of conduct. It was not so much a lack of control or passing anger.  There was focus, deliberation and sadism in what you did.  There was the sexual humiliation.  It was committed against a record for significant violence.  Those features, in my view, make this an appropriate case for the postponement of parole eligibility.  I am satisfied that this is a proper case for the exercise of the discretion under section 161B.”[6]

Applicant’s submissions

[14] The applicant represented herself at the hearing of the application for leave to appeal.  She had lodged three handwritten submissions[7] with the court prior to the hearing.  To one of them she attached a typed witness statement made by her to police on 28 September 2011.

[15] The tenor of these submissions, which the applicant re-asserted at the hearing of the application, was to protest an absence of guilt on her part to the offence to which she had pleaded guilty.  She claimed to have “belted” the complainant twice only and then for justifiable reasons, and she conceded that she had shaved his head.  In her written submissions, she painted herself and her daughter as the victims of predatory sexual behaviour on the part of the complainant.

Consideration

[16] The applicant did not identify any aspects of the sentencing remarks which she contended demonstrated legal error on the part of the learned sentencing judge.  No facts were said to have been misstated or misunderstood.  No relevant circumstance was said to have been overlooked; nor any irrelevant circumstance taken into account.  Her Honour did not say that she regarded the plea of guilty as indicative of remorse on the part of the applicant.  It may fairly be observed that the appropriateness of her not having done so is eloquently demonstrated by the applicant’s protestations in her submissions on this application.

[17] Nor did the applicant refer this Court to sentences imposed in other cases in order to illustrate how her sentence is manifestly excessive.  Had she attempted to do so, she would have encountered great difficulty, in my view.

[18] In R v B; ex parte Attorney General,[8] this Court dismissed an Attorney’s appeal against a sentence imposed on a male offender who was convicted on pleas of guilty of a range of offences against his 17 year old daughter and one offence against her aunt.  One of the counts was for torture of the daughter for which the offender was sentenced to seven years’ imprisonment with a serious violent offence declaration.  Shorter sentences on the other counts which, to a major extent were in respect of offending incidents that manifested the torture, were to be served concurrently.

[19] In that case, the torture alleged was over a period of some six weeks.  It began with an altercation with the daughter over her boyfriend in which the offender slapped the daughter repeatedly on the face with an open hand.  A second series of incidents occurred.  It included punching the daughter in the stomach and face; hitting her with a shovel handle on both arms, in the back and in the stomach; grabbing her around the throat and choking her; dragging her across the floor by the hair; jumping on her; and terrifying her with a steel chain and an axe.

[20] Moynihan SJA and Atkinson J (with whom McPherson JA agreed in these respects) observed:

[30]The appropriate sentencing range in the circumstances of this case appears to us to be imprisonment of 7 to 10 years with a declaration that the respondent is a serious violent offender.

[31]The circumstances warranting that range include on the one hand the repeated and escalating violence used, the serious injuries the complainant suffered, the breach of trust of the father-daughter relationship, the desire of the respondent to impose his will through terror and violence both to control his daughter’s behaviour and more significantly to cause her to drop the charges laid against him, and on the other hand, his early plea of guilty, previous good relationship with his daughter and his age and good employment history.

[32]It is likely that a person who is convicted of the crime of torture particularly where it involves the intentional infliction of pain or suffering on more than one occasion will be declared a serious violent offender. …”

[21] The decision in R v B was referred to by Jerrard JA (with whom Williams and Holmes JJA agreed) in R v HAC,[9] in respect of both duration of sentence and the imposition of a serious violent offender declaration.  In that case, a sentence of 10 years for torture over a six month period was reduced to seven and a half years with a serious violent offender declaration.  The resentencing followed upon the upholding of the offender’s conviction of torture on “a little less horrific” scale of offending.

[22] In HAC, the offender was a husband and the victim, his wife.  The relevant acts constituting the offence of torture was summarised by his Honour as follows:

“…

  • insisting that his wife eat chillies and chilli powder when Mr HAC considered she was telling lies (by denying she had an affair which he believed she had had, when separated earlier in their marriage);
  • on one occasion, after she had vomited when forced to each chillies, making her eat the vomit;
  • forcing her to eat chillies or powder from a glass jar, which broke, resulting in her cutting her tongue;
  • insisting that she sleep outside the house, and without access to amenities such as a toilet;
  • hitting and kicking her, including hitting her with a wooden slat;
  • spitting on her, including in the face;
  • hosing her;
  • twisting her arm when it was in a plaster cast after being broken, and pouring beer into the cast;
  • insisting that the children refer to her by demeaning names such as “slut”, “whore”, “moll”, and not “mother”, or “mum”, and insisting the children not show affection for her;
  • pointing an unloaded rifle at her on one occasion;
  • repeatedly making her search in hot weather for a hose nozzle in a paddock when wearing Wellingtons and a jumper;
  • frightening her by riding a motorcycle at her, threatening to kill her; and
  • generally treating her in a humiliating and abusive manner, including attempting to persuade her to engage in a sexual act with a dog.”[10]

[23] These two decisions provide useful guidance for comparative purposes because of the relative comparability of the offending with that of the applicant.  Although, unlike here, threats to life were made to the victim in each of those cases, the applicant’s conduct, in some other respects, was more egregious.  The offending was over a much longer period than in R v B.  Compared with the victim in HAC, the complainant was much younger and was someone for whom the applicant had responsibility as guardian.  Neither case involved sexual humiliation of the victim.  Here, there was humiliation of that kind which was exacerbated by the filming of it and the threats to show the film footage to others.

[24] These two decisions illustrate that the sentence imposed was appropriate to the applicant’s offending.  They foreclose any possible argument that it is manifestly excessive.  For these reasons, the application for leave to appeal against sentence must be refused.

Order

[25] I would propose the following order:

Application for leave to appeal against sentence refused.

[26] PHILIPPIDES JA:  I agree, for the reasons given by Gotterson JA, that the application for leave to appeal against sentence should be refused.

Footnotes

[1] AB159-161.

[2] Exhibit 3; AB36-41.

[3] AB13; Tr1-2 ll12-16; AB24; Tr1-13 ll24-26.

[4] Exhibit 4; AB42; Exhibit 9; AB156-158.

[5] AB34.

[6] AB32 ll24-33.

[7] Received on 12 May 2015, 30 June 2015 and 19 August 2015 respectively.

[8] [2000] QCA 110.

[9] [2006] QCA 460.

[10] At [3].

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Editorial Notes

  • Published Case Name:

    R v AAW

  • Shortened Case Name:

    R v AAW

  • MNC:

    [2015] QCA 164

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Gotterson JA, Philippides JA

  • Date:

    04 Sep 2015

Litigation History

Event Citation or File Date Notes
Primary Judgment - - Criminal
Appeal Determined (QCA) [2015] QCA 164 04 Sep 2015 -

Appeal Status

{solid} Appeal Determined (QCA)