R v C[2000] QCA 154

COURT OF APPEAL

McMURDO P

McPHERSON JA

MACKENZIE J

CA No 34 of 2000

THE QUEEN

v.

C Applicant

BRISBANE

DATE 03/05/2000

JUDGMENT

MACKENZIE J:  The applicant pleaded guilty to a number of offences committed on his de facto wife on two separate days.  At the time he was on bail pending appeal in respect of a sentence of 18 months' imprisonment for offences of aggravated indecently dealing with a 12 year old step-daughter of a previous relationship.  The appeal was subsequently dismissed and a warrant was issued on or about 9 July 1999 in respect of that matter.

The sentences for the offences which we are considering were made cumulative on the imprisonment that the applicant was serving under the earlier sentences.  The applicant and the present complainant had been in a relationship for about six months and she was about 20 or 21 weeks pregnant.

The first offence, assault occasioning bodily harm, occurred when the applicant, who was heavily intoxicated, took offence at being asked to roll the complainant a cigarette, grabbed the complainant by the legs and caused her to fall from the bed on which she was sitting.  She hit the dressing table with her knee in the course of doing so and suffered discomfort for a few days.

A week later, after a day of sporadic arguments, the complainant walked out of the matrimonial home while the applicant was away, leaving a note which he says he interpreted as a threat to harm herself and her unborn child.  Some hours later she returned. 

Although the applicant says that what subsequently happened was a product of his relief and anxiety about her whereabouts, he immediately questioned her fidelity and assaulted her by punching and slapping her and pushing her against the wall.  That was count 4.

Then he dragged her by the hair into another room and indecently assaulted her, allegedly to find out if she had had sex with anyone.  That was count 5.

He then left the room after threatening her and after hitting things and yelling abuse in another room.  He returned and punched her repeatedly again.  That was count 6.

He went out of the room again and then returned and began throttling her and trying to smother her with a pillow.  He also slapped her.  That was count 7.

He left the room again but returned and threatened to strike her with an ash tray and did slap her with his hand.  That formed count 8.

He then left the room again and came back with a pick handle which he used to hit her on the backside and thighs.  Then he grabbed her hair and when she was in a sitting position he aimed a blow with the pick handle at her head which she intercepted by raising her hand which was hurt in the course of intercepting the blow.  That was count 9.

He then left the room again but returned and after accusing her of carrying someone else's child he assaulted her again with his hands.  That was count 10.

The series of events occurred over at least half an hour and perhaps longer.  The evidence is not particularly precise about that and the sentencing Judge appears to have adopted about half an hour as the duration.

After the episodes ended the applicant barred the door with a piece of furniture and the complainant made her escape after a couple of hours by persuading him she had to go to the toilet.  The police were called from a friend's home.

That rather lengthy recitation of the facts is designed to demonstrate that there was a prolonged episode of violence and abuse while the accused was in an uncontrolled rage.

The sentencing Judge imposed an effective sentence of three years cumulative on the sentences the applicant was already serving by imposing that term of imprisonment on count 5, an aggravated indecent assault, count 7, the attempt to throttle and smother and count 9, the assault occasioning bodily harm with the pick handle and one year concurrent sentences for all of the other counts.

The Crown Prosecutor had submitted that an effective sentence of two and half years cumulative was appropriate.  This is one of the factors relied on by the applicant.

The authorities to which the sentencing Judge was referred, the Queen against Hearn and the Queen against Ernst were, in my view, not really comparable.  Hearn did not involve a sustained period of violence of the level involved in this case.  And as the Crown Prosecutor pointed out the sexual element of count 5 was not concerned with gratification of sexual urges but was a form of violence committed on the complainant.  That, in my view, distinguishes it from Ernst.

It was submitted on behalf of the applicant that the sentences of three years were manifestly excessive.  It was submitted that the sentencing Judge did not justify in her reasons why she had departed from the Crown Prosecutor's submission as to the appropriate level of sentence.  The submission was that there was insufficient justification for doing so and that the sentencing Judge erred in doing so, given that a timely plea of guilty was entered and the sentences were to be cumulative.

The sentencing Judge was not bound by the submissions of the counsel.  She did, furthermore, not depart from the Crown Prosecutor's proposed sentence without foreshadowing her intention to do so to the defence.

She had indicated that she had in mind a sentence of three and a half years on the major counts.  It is in my view not surprising that no truly comparable previous sentences have been found. 

It was submitted that the sentencing Judge failed to give due weight to the fact that the injuries inflicted were not as serious as they might have been.  It was also submitted that insufficient weight was given to the early plea of guilty.  Finally, it was submitted that factors personal to the accused were not given sufficient weight. 

Those included the stormy relationship between the applicant and the complainant.  The applicant's reaction, it was submitted, was not inexplicable in the light of the note left by the complainant and in the light of his level of intoxication.  It was also submitted that account should have been taken of his good work history and his troubled family background.

In addition to submitting that the outcome in Hearn suggested that three years was manifestly excessive and that Ernst was less serious and did not support a three year sentence for the offence, reliance was also placed on Millar in which 18 months' imprisonment was substituted for a three year sentence imposed by the sentencing Judge.  Millar did not have the element of degradation or humiliation inherent in the applicant's conduct and is of no real comparative value. 

Millar is a fairly unremarkable case of a girl in a drunken stupor being molested by a drinking companion and as I have already said Ernst and Hearn do not have the prolonged features of violence involved in this case.

Further, in Hearn, I note that the 12 months sentence which was not increased on an Attorney-General's appeal was one where there were indications that the Court thought that that sentence was at the low end of the range but bearing in mind the principles relating to Attorney-General's appeals did not see fit to increase it.

In short, the cases to which reference has been made provide no reliable guide in the present case.  The case is one where the complainant was subjected to prolonged repetitive violent assaults and other degrading and abusive conduct extending over at least half an hour and probably longer.

Having said all that, the question still remains whether the sentence overall is manifestly excessive.  As I have said the sentencing Judge indicated at one stage that she thought that three and a half years might be appropriate but in the event she sentenced the applicant effectively to three years cumulatively.  It is apparent from her remarks that she considered the three counts to which I previously referred as the serious ones.  They were committed in an uncontrolled violent rage exacerbated by alcohol and drugs over an extended period of time. 

The applicant left the bedroom on several occasions and came back to resume the assaults.  The victim was a pregnant woman and clearly therefore at risk of greater than average injury.  He subjected her to verbal and physical obscenities as well as using the pick handle and throttling and trying to smother her.  The offences were committed while he was on bail pending appeal on a charge of indecently dealing. 

In my view the repetitiveness and viciousness of the episode puts it in a different class from the vast majority of domestic assaults of a non-fatal variety which find their way to this Court and in my view the sentence imposed by the learned sentencing Judge was an appropriate one in all of the circumstances and in no way manifestly excessive.  I would therefore refuse the application for leave to appeal.

THE PRESIDENT:  I agree.  Offences of this kind involving domestic violence have a great potential to cause very serious injury.  It is fortunate the complainant was not much more seriously injured.  The final count involved the use of a pick handle as a weapon. 

The facts set out by Justice Mackenzie demonstrate that the offences constituted a serious example of domestic violence over an extended period.  Particular and general deterrence is an important factor in sentencing in such cases. 

The applicant had a significant criminal history which included breaches of domestic violence orders and other offences of violence.  The sentence of three years imprisonment was properly made cumulative upon an unrelated offence of indecent dealing with a 12 year old child.  These offences occurred whilst the applicant was on bail pending appeal for that offence.  The sentence is not manifestly excessive.  I too would refuse the application.

McPHERSON JA:  I agree.

THE PRESIDENT:  The order is the application is refused.

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