SUPREME COURT OF QUEENSLAND

1. WILLIAMS JA:  I agree with the reasons for judgment prepared by Jones J and with the orders he proposes.

2. JONES J:  The applicant, who is now 27 years old, pleaded guilty in the District Court at Gympie to two offences which occurred on 22 May 2000 namely, that he tortured and that he robbed one Keith Stanley Frost.  The complainant was then 19 years of age.  The applicant at the time of these offences acted in company with another person named Geoffrey Thomas Dack. 

3. The applicant was sentenced to six years imprisonment in respect of the offence of torture and four years in respect of the offence of robbery.  The terms of imprisonment were to be served concurrently and a recommendation was made that he be considered for release on parole after serving two years.  The term of the sentence for robbery was not challenged. A declaration was also made that he had spent a total of 269 days in custody which was time served pursuant to the sentences. Dack had been sentenced by the same judge at an earlier date.  He was sentenced in respect of the offence of torture, to eight years imprisonment with a recommendation for parole after three years. He was also sentenced to four years concurrent for the robbery.

4. When the matter was called on for hearing the applicant informed the court that, until he was notified to the contrary on Friday, 21 September 2001, he believed that legal aid had been granted and that he would be represented on this application. Upon inquiries instigated by the court, it was confirmed that legal aid had been declined. The applicant was then asked whether he wished to seek an adjournment to obtain legal representation or to better prepare himself to argue the case. The applicant indicated that he was familiar with the contents of the appeal record and that he was prepared to argue his application rather than having the matter adjourned.

5. In his oral argument the applicant raised the concern that despite the recommendation concerning parole that he would not be released in accordance with its terms because of the changes brought about by the amendment to the Penalties and Sentences Act which came into affect on 1 July 2001.  He argued that the sentence was manifestly excessive, notwithstanding his counsel suggested a six year head sentence, but, more importantly sought that the period before his eligibility for parole should be reduced to 18 months as was contended for by his counsel.  The applicant submitted that without reduction either in head sentence or the period before eligibility for parole there was not sentencing parity between him and his co-accused.

6. The learned sentencing judge based the difference in penalty for the two accused on the facts that Dack had a more extensive criminal record, was an older person and was already receiving a term of imprisonment to which this penalty was to be concurrent.

7. The circumstances of these offences were presented to the learned sentencing judge mainly in written form, being the agreed parts of the transcript of proceedings in respect of the sentencing of Dack as well as the victim impact statement of the complainant. There were only minor challenges to the accuracy of those details which will be referred to in due course.

The facts

8. The applicant had befriended the complainant about one week before this incident. They later hired a caravan at the Gympie Caravan Park where they intended to stay for a short period.

9. On the day of the incident the applicant met up with Dack who he had not previously known. Dack was then 31 years old. The applicant and Dack spent much of the day drinking and fishing. At approximately 9:00pm the complainant, accompanied by the two of them went to a hotel at Gympie. At the hotel the complainant was involved in a fracas resulting from someone taking the complainant’s mobile phone. The complainant left the hotel soon after and returned to the caravan where he went to sleep. The applicant and Dack returned later and were, according to the complainant, drunk. They accused the complainant of breaking a window at the hotel – a fact which he denied.

10. This led to an argument during which the complainant was kicked whilst he was still in his bed. The applicant and Dack then dragged the complainant from his bed sat him in the kitchen area of the caravan. Dack took a knife from the cupboard and cut the complainant’s nose with it causing extensive bleeding. The applicant said he was not aware that such an attack was likely to happen. The complainant says he was then forced to lick the blood from the floor whilst at the same time the applicant and Dack made threats and abusive comments towards him referring to him as “a dog”.  The applicant denies that he forced the complainant to lick up the blood and the learned sentencing judge proceeded on the basis that he accepted such denial.

11. The complainant attempted to call for help but he was silenced by further threats. Whilst the complainant had his face close to the floor of the caravan a cigarette lighter was produced by one of the two assailants and his hair was burnt. A lighted cigarette was applied to his back causing a small burn. The complainant was pushed to the floor, and whilst in this position and being threatened by Dack, the applicant took the complainant’s wallet from under his pillow. The applicant returned with the complainant’s key card and demanded to be told the relevant PIN. The assault continued during which the complainant’s ear was pierced with a fish hook and he was locked in a cupboard.

12. The complainant was asthma sufferer. The complainant asked the applicant at one stage to get his ventolin puffer which was done. Dack then forced him to open his mouth and sprayed a large amount drug into the complainant’s throat. This caused the complainant to become dizzy.

13. The complainant was, at various times, further threatened with the knife and actually cut on the back of the head. He had a pen poked into his left eye which caused extreme pain. After the complainant gave his assailants the PIN his wrists were tied together with a fishing line. He was later released when the tie was burnt with a lighter.  After uttering threats either to maim or to kill the complainant if the PIN was incorrect or if he complained to the authorities, the applicant and Dack left the caravan.  When it was safe to do so, the complainant sought help.

14. As a result of this torture the complainant suffered physical injuries in the form of lacerations which required suturing, welts, burns and a subconjunctival haemorrhage to his left eye. He suffered psychological damage which resulted in interrupted sleep patterns and a fear of living on his own. He has had difficulty ever since in personal relationships. One of the galling aspects of the attack for the complainant was the fact that the applicant whom he regarded as a friend, joined in the attack rather than in helping him. The conduct of the applicant merited the description given by the learned sentencing judge as being “callous, cruel and inhuman”.

Sentencing issues

15. In terms of criminal responsibility there is, in my opinion, no basis for distinguishing between the conduct of the two assailants. Whilst the applicant submitted that he was not as involved as Dack in carrying out the attack, he used the threats and the attack to give effect to the robbery in which he played the major role.

16. The learned sentencing judge was concerned to achieve parity between the two offenders. As I have said, the distinction which he relied upon was based on Dack being older, having a worse criminal record and his already being imprisoned on another offence which was to be served concurrently. The applicant’s criminal record was extensive but prior to this offence, he had never been sentenced to imprisonment. His record shows a number of offences of dishonesty and vehicle offences but also, relevantly, four common assault offences and five breaches of domestic violence orders. On 8 January 2000 he was due to appear in the Penrith Local Court on a charge of assault occasioning bodily harm. When he did not do so a warrant was issued for his arrest. There is no record of that charge ever having been dealt with. About that time he appears to have moved to Queensland where he was found to have committed three offences prior to the commission of the offence under review.

17. The learned sentencing judge properly considered the matters personal to the applicant which were raised in mitigation. The applicant has had an alcohol abuse problem since the age of 13 years and this has clearly been a factor in some of his criminal behaviour. The applicant was given credit for his co-operation and his plea of guilty.

18. Torture has been defined as an offence in Queensland only since 1997. The essence of the defence, as set out in s. 320A of the Criminal Code, is the intentional infliction of severe pain or suffering – whether physical, mental, psychological or emotional and whether temporary or permanent.  The maximum penalty is 14 years imprisonment.

19. There are a few cases now which provide some guidance as to an appropriate range of penalty for cases where there is a less serious outcome resulting from the criminal conduct. Consequently, it is not necessary to resort to earlier cases where analogous conduct resulted in charges of doing grievous bodily harm.  Inevitably, the circumstances and type of conduct to satisfy this offence will be so varied that the appropriate punishment range will be quite wide.

20. One of the cases taken from a time prior to the amendment of the Criminal Code upon which the prosecutor relied was the judgment of this court in R v Ambrose (Unreported No. 5 1995 – 21.03.95).  The court upheld the imposition of six years imprisonment where the offender, having armed himself with a length of chain and a screw driver, entered the house of the complainant in company with another and there attacked the complainant by striking him across the shoulders and back with the chain.  When the complainant jumped behind a sofa and called out to someone else “get the gun”, the offender stabbed the complainant with the screwdriver which caused him a wound but no serious continuing harm.

21. In R v Burns [2000] QCA 201, a sentence of five years was reduced to 3 ½ years where the conduct constituting the torture involved the offender punching his de facto wife seven times leaving bruising on her breasts and chest, her mid back, left cheek, chin and right forearm.  The assailant carried out the prolonged assault as a punishment for the complainant’s alleged infidelity.

22. In R v B; ex parte A-G [2000] QCA 110, this court dismissed an Attorney-General appeal against the imposition of seven years imprisonment on a man who pleaded guilty to the torture of his 17 year old daughter over a six weeks period.  The young lady was seriously injured as the result of a series of attacks the last occurring whilst the offender was on bail for the earlier assaults.  The worst of her multiple injuries was a stab wound in her chest which was life threatening.  The Court of Appeal expressed the view that the appropriate sentencing range for that conduct was between seven and ten years.

23. In light of those decisions the respective penalties imposed on both Dack and the applicant are quite high for conduct which, whilst frightening for the complainant, did not continue for an extended period and did not produce any lasting injuries. This being the case, the question that must be looked at is whether the penalty imposed on the applicant is outside the range and whether sufficient regard has been had to the different matters in order to achieve the parity in sentencing for which his Honour strove.

24. Prior to being sentenced for these offences, Dack had served only four months of an eighteen month sentence to which the penalty for torture was made concurrent. This meant that Dack’s eligibility at the end of three years and the applicant’s eligibility at two years resulted in there being for the offence of torture, little difference between the two sentencing outcomes. Perhaps the most important distinction between these two offenders was the fact that the applicant, then aged 26 years, previously had never been convicted of an offence which merited imprisonment. When this fact is compared with the conduct of Dack, a serious repeat offender with a number of terms of imprisonment for offences relating to assaults, theft, house breaking and drug offences, it seems to me that insufficient allowance has been made in the head sentence for these differences between the two.

25. The need to maintain parity with the sentence imposed upon Dack constrains somewhat the extent to which the original order can be varied. However, in my view, the parity considerations, as well as the level of criminality in the applicant’s conduct, suggests that the head sentence should be reduced to five years imprisonment. Having regard then to the applicant’s conduct in indicating an early plea of guilty and other matters personal to him, particularly the fact that he has not previously been imprisoned, I would recommend that he be given the benefit of having the term of imprisonment suspended after he has served two years with an operational period of four years.

26. The orders of the Court should therefore be:

1. grant the application and allow the appeal;

2. set aside the sentence for the offence of torture and in lieu thereof sentence the appellant to imprisonment for a period of five years and order that terms of imprisonment for torture and robbery be suspended after the appellant has served two years, with an operational period of four years;

3. the other orders at first instance on sentence to stand.

27. DOUGLAS J:  I agree with the reasons for judgment prepared by Jones J and with the orders he proposes.