R v Burns[2000] QCA 201

SUPREME COURT OF QUEENSLAND

1. McMURDO P, McPHERSON JA & DOUGLAS J:  The appellant was brought to trial in 1998 in the District Court at Rockhampton and arraigned on an indictment charging him with having committed four offences in the course of conduct alleged to have been committed against his wife on 30 October 1997. There was a count charging assault occasioning bodily harm to which the appellant pleaded guilty, and three other charges to which he pleaded not guilty and which went to trial and verdict.  Those three charges were torture, rape and a second count of rape.  The appellant was found guilty of all three offences at that first trial, but on appeal the convictions were set aside and a new trial ordered: R v Burns CA 427 of 1998; May 28, 1999.

2. At the second trial in November 1999, the jury returned a verdict of not guilty of the first count of rape, but were unable to agree on the second count of rape. As regards the count charging torture, the appellant claimed that his earlier plea of guilty and conviction gave rise to a defence under s 17 of the Criminal Code. The learned trial judge asked the jury for a special verdict on the torture count, and, on being directed on s 17, they returned a verdict of guilty in respect of that offence. An appeal against that verdict and the direction that preceded it was withdrawn at the hearing before this Court.

3. The matter before us is now confined to the sentence of imprisonment for four and a half years imposed in respect of the offence of torture, which is count 1 in the 1999 indictment. The essence of that offence under s 320A is the intentional infliction of "severe pain or suffering", which may be mental or emotional only, and either temporary or permanent. In the present case, the appellant punched the complainant about the breasts and chest leaving extensive bruising in that area, and also on her left cheek, mid-back, right forearm, left upper chin, and right thigh. There is a photograph of the injuries she sustained, which were most severe on her right breast and chest. The attack was carried out in an isolated location where the complainant had no apparent prospect of obtaining assistance. The jury were, on this and other evidence at the trial, plainly entitled to conclude that the complainant suffered severe pain or suffering as a result of the injuries she sustained.

4. A particular problem generated by the sentence appeal in this case can be briefly explained. The prosecution at trial gave particulars of the act, or series of acts, said to constitute the offence of torture in count 1. They included a series of punches delivered by the appellant to the complainant's chest and breasts, as well as various other acts and conduct on his part. When asked for their special verdict or finding on the matter, the jury foreman said that the torture was "the act of punching at Limestone Creek", and that that was the only one which all 12 of the jurors had been able to agree on "… the only one of agreement". The appellant had said in evidence that at Limestone Creek he had punched her seven times telling her as he did it in effect that each punch represented punishment for each of the men with whom he suspected her of having had sexual relations. In contrast, the complainant herself testified that the appellant had punched her "dozens of times".

5. In the result, his Honour in imposing the sentence of imprisonment for four and a half years rejected both the appellant's explanation of his conduct and, either expressly or by implication, the evidence of the appellant as to the number of punches delivered. In substance, that means that the only act or series of acts capable of constituting the offence of torture that the jury agreed had been committed consisted of the "dozens of punches" that the complainant said he had delivered to her in this isolated location, coupled perhaps with some accompanying remarks and other actions on his part designed to frighten, humiliate, degrade and hurt her.

6. The question is whether, compelled as we are to approach that aspect of his conduct in a rather confined and artificial way, a sentence of four and a half years imprisonment is excessive. After giving the question careful consideration, we are driven to the conclusion that it is. The crime of torture under s 320A is a relatively recent innovation in the Criminal Code. The maximum penalty capable of being imposed is 14 years. The only two cases to which we are referred are R and S  [1999] QCA 181; (1999) 106 A Crim R 51 and R v B; ex parte A-G [2000] QCA 110; CA 379 of 1999; April 4, 2000, where sentences of imprisonment for 11 years and eight years respectively were imposed.  Another example is R v G; ex parte A-G CA 486 of 1998; March 19, 1999 where a sentence of six years was imposed; but both it and R and S were instances of infliction of horrifying suffering on little children. Serious as was the conduct of the appellant in the present case, the acts and pain and suffering inflicted by the offenders in each of the first two cases were substantially more severe.  The process of arriving at the proper sentence to be imposed at somewhat lower levels of seriousness for offences under s 320A has not yet had time to develop sufficiently to furnish any precise or firm guidelines in circumstances of this kind.

7. The essence of the offence being, as we have said, the intentional infliction of severe pain or suffering whether temporary or permanent, some comparison with sentences for other intentional offences involving the infliction of serious injury to the person may be legitimate. Intentionally doing grievous bodily harm, which ordinarily involves proof of the likelihood of danger to life or permanent injury to health, is perhaps capable of providing an analogy. Even if in some cases the motive of deliberately inflicting pain or suffering may be absent, the maximum penalty for that offence is life imprisonment: see s 317 of the Code. Terms of imprisonment imposed for offences of that character cover a wide range, but periods of as little as two years or less are not unknown depending on the seriousness of the injury and the pain involved: cf R v Grimley [2000] QCA 64; CA 362 of 1999; March 14, 2000.

8. As to the appellant's personal circumstances, he was 42 years old at the time of the offence, and a cabinet maker by occupation, who was subject at the time to a domestic violence order to protect the complainant. He has a number of prior convictions beginning in 1975, of which two episodes of escaping from custody were associated with his arrest for this offence and attracted sentences of imprisonment of five months and three months respectively. Otherwise his recorded offences between 1994 and 1998 are for comparatively minor forms of assaulting police, stealing, wilful damage, and breach of fine option orders, which were penalised in ways falling short of imprisonment. He has shown a predilection for using force against his wife; but we would not, on that account alone, be justified in fixing a high sentence as a measure of preventive detention. The learned sentencing judge did not consider that the appellant's record or conduct justified the making of a declaration that he was a serious violent offender, and no attempt has been made by or on appeal to disturb that conclusion. It would have been difficult to do so in the light of the jury's finding as to the acts constituting the offence of torture.

9. His Honour correctly considered that it was not proper to add a further punishment for the assault occasioning bodily harm, which, at least for sentencing purposes, is "subsumed" in the more serious offence of torture. See the earlier decision of this Court in R v Burns CA 427 of 1998; May 28, 1999. The real concern is the appellant's continuing resentment against the complainant which was apparently exacerbated by the terms of the property settlement that followed the matrimonial breakdown. Appreciating the danger to the complainant which the appellant may continue to present when released, the judge recommended to the parole authorities that his future conduct should be monitored very carefully. We indorse that recommendation. The appellant has already spent 544 days in custody and we were informed that, under the sentence imposed, his parole eligibility date would arrive in August this year. It will be accelerated if the term of imprisonment is reduced.

10. Having in mind the factors we have mentioned, we nevertheless consider that the application should be granted and the appeal allowed to the extent of reducing the sentence of imprisonment imposed on count 1 from four and a half to three and a half years. As already mentioned, it is not intended to disturb the recommendation to the parole authorities.