R v Mills[2002] QCA 264

COURT OF APPEAL

DAVIES JA

WHITE J

WILSON J

CA No 89 of 2002

THE QUEEN

v.

WAYNE MILLS

BRISBANE

DATE 25/07/2002

JUDGMENT

DAVIES JA:  The applicant pleaded guilty in the District Court on 28 February this year to four counts:  one of burglary, one of deprivation of liberty, one of assault occasioning bodily harm whilst armed, and one of assault with intent to rape.  On each of the offences of burglary and assault with intent to rape he was sentenced to three and a half years imprisonment, on the deprivation of liberty count he was sentenced to two years imprisonment, and on the charge of assault occasioning bodily harm whilst armed he was sentenced to two and a half years imprisonment.  He seeks leave to appeal against that total sentence of three and a half years imprisonment.

At the time he committed these offences on 1 May 2001 the applicant was 34 years of age.  The female complainant with whom the applicant had been living in a de facto relationship for various short periods, was 41 years of age.  Their relationship was unstable and at times violent.  The complainant had obtained a protection order under the Domestic Violence (Family Protection) Act 1989 (Qld) against the applicant on 5 February 2001, a breach of which the applicant committed on 12 April 2001.  He also had a previous conviction of assault occasioning bodily harm in 1992.

The applicant and the complainant had parted after an angry argument earlier in the day in question, though their respective versions about what had caused this differed.  At about 5 p.m. that day the applicant went to the complainant's house.  The complainant and her 12 year old daughter were inside and did not answer the applicant when he knocked on the door.  He yelled some abuse and left.  He returned half an hour later and again called out.  Again she did not answer and again he left.  There were then several telephone calls which she did not answer. 

The applicant returned at about 7.20p.m.  He walked around the outside of the house calling out initially that he loved her but later threatened to kill her.  He pulled a screen off a front window of the house attempting to get in.  When he could not do so by that means he smashed a glass sliding door with a shovel, gaining entry by that means.  It is of some significance that he brought the shovel with him for the express purpose of breaking in. 

The complainant's daughter ran to the neighbour's house to get help.  Once inside the applicant grabbed the complainant by the throat and told her she was going to die.  He dragged her by the hair into the main bedroom pulling out a clump of hair in doing so.  He tipped the mattress causing her to fall.  He then barricaded the windows with mattresses and the door with a dressing table.  He was still armed with the shovel. 

He commenced to swing the shovel around.  She put her hand up to protect her face and felt pain in her right arm.  It emerged later that she had a fracture of her right wrist, although it is not entirely clear whether that was caused by a blow from the shovel or not.  He continued to make threats that she was going to die.  He also threatened to permanently maim her.  He took off his shorts and underpants and ripped off her underwear.  He told her that he was going to knock her out and he punched her with a closed fist forcing her head against a gyprock wall.  He swung the shovel in the direction of her head but fortunately it did not connect.  By this time the police had arrived and were forcing the door of the bedroom.  He then put the shovel down and lay on top of her. 

As a result of this frightening episode the complainant suffered the following physical injuries:  multiple abrasions over the right arm, laceration to the left upper lip, tenderness and swelling to the left wrist and a right wrist Colles fracture.  She was admitted to hospital, the fracture was reduced and she was discharged on painkillers.  It is unclear whether her physical injuries will resolve though six months after their occurrence she was still unable to hold a cup of coffee in her right hand without pain. There remains some scarring to her top lip.

By far the most serious permanent impact on the complainant is psychological.  She lives in fear of the applicant.  She has re-lived the events of the evening many times and has sought counselling to help her recover.  She has difficulty with sleep.  She has felt compelled to move from Townsville where she lived and worked and still lives in fear of him. She still carries a personal alarm at all times and gets constant headaches from stress.

The applicant had consumed a quantity of beer before he inflicted this frightening episode on the complainant.  No doubt that is some explanation for his conduct but of course it is no excuse.  He is plainly a man who, at least when affected by alcohol, is violent.

In the applicant's favour the learned sentencing judge took into account his relative youth, although he was, as I have said 34 years of age at the time, his plea of guilty and his good references and reputation with employers.  His Honour took these into account, not by making a recommendation for parole but by reducing the overall sentence which might otherwise have been imposed. 

Both counsel referred us to a number of cases as being arguably comparable.  The applicant's counsel referred us to R v. McNamara, CA No 399 of 1996, 8 November 1996; R v. Savins, CA No 372 of 1996, 13 December 1996; R v. Miles [1999] QCA 325, CA No 96 of 1999, 20 August 1999; and R v. C [2000] QCA 154, CA No 34 of 2000, 3 May 2000. 

The respondent's counsel refers to R v. Billy, CA No 208 of 1997, 17 July 1997, and R v. Gill [1999] QCA 358, CA No 230 of 1999, 26 August 1999.  Perhaps unsurprisingly none of these cases is closely comparable factually to the present nor do I find it necessary to discuss them at length.  The one which is perhaps most closely comparable to the facts of the present case of those which I have mentioned is R v. C.  This also involved a plea of guilty for violent conduct by a man against his de facto wife.  The sentence imposed on him was one of three years imprisonment, imposed cumulatively upon a term of imprisonment which the applicant was then serving.  This Court held that that sentence was not manifestly excessive. 

There are a number of differences between that case and this.  One is that the acts of violence were more numerous and more prolonged, on two separate days.  On the first occasion an assault was committed which was relatively minor.  Then a week later after sporadic arguments there were a number of more specific and more serious assaults than the first.  One was by punching and slapping the complainant and pushing her against a wall, then dragging her by the hair and indecently assaulting her.  She was then punched again, attempting to throttle and smother her and finally hitting her on the bottom and thighs with a pick handle with which he also aimed a blow at her head which fortunately missed.  This second series of events lasted for about half an hour.  He, like the present applicant, was plainly a violent man with an anger management problem.  Absent in that case, however, were the continuing threats to kill and permanently maim although, no doubt in that case also, the complainant feared for her life.  The applicant in that case was on bail and he appears to have had a somewhat more serious criminal history.  Nevertheless it appears from the reasons for judgment of Justice Mackenzie in the Court of Appeal in that case that the learned trial judge originally had a minor sentence of three and a half years imprisonment which was apparently reduced to three years because the sentence was imposed cumulatively.  This Court did not suggest that there was anything excessive in that. 

That case and indeed the others to which I have referred indicate in my opinion, at least in a general way, that a sentence of three and a half years, after allowance for the plea of guilty, whilst a high one as it seems to me, was not manifestly excessive. 

I would therefore dismiss the application.

WHITE J:  I agree.

WILSON J:  I agree.

DAVIES JA:  The application is dismissed.