R v George[2006] QCA 1

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  The applicant pleaded guilty on 29 July 2005 to assaulting his estranged wife and doing her bodily harm and to being in her premises and unlawfully assaulting her and doing her bodily harm.  He was sentenced to two-and-a-half years' imprisonment.  The maximum penalty on each count was respectively seven years and 14 years' imprisonment.

The indictment containing those charges to which he pleaded guilty also charged two counts of indecent treatment with a circumstance of aggravation.  Those counts were tried separately and the applicant acquitted on them immediately before he pleaded guilty to the two counts that concern this Court.

The applicant contends that the learned primary judge erred as to the burden of proof on factual issues on sentence, gave insufficient weight to mitigating factors and that the sentence was manifestly excessive. 

The applicant and the complainant married in 1983.  They had separated but continued to live in the same house for some years.  Each had children from earlier relationships.  The complainant had grandchildren.  One granddaughter lived with the complainant.  In March 2004, that granddaughter complained that the applicant had sexually abused her.  A complaint was made to police and the applicant was charged.  He then ceased to live in the complainant's house.  It was made clear to him that he was not welcome there.  The complainant gave a statement to police that she had seen the applicant interfere with the granddaughter and was therefore an important prosecution witness in the trial on those counts.

The complainant's sworn statement to police was tendered at sentence.  On that account, at about 8.15 p.m. on 22 June 2004, the complainant had just showered and was about to leave the bathroom when someone forcibly opened the door pushing her back into the bathroom and turned off the light.  This intruder punched her to the face.  She screamed and yelled for help.  After a time, she felt her attacker's face and realised that it was the applicant.  He tried to place something over her head and punched her to the ribs.  She fell to the floor.  She called him by name.  He said, "Shut up.  Stop screaming or else I'll kill you."  He held her on the floor and covered her mouth with his hand.  She bit his hand and managed to free her mouth but he then grabbed her throat and started to throttle her.  She felt she was losing consciousness.  She struggled.  He punched her again saying, "This is all your fault because you wouldn't even talk to me.  I just wanted you to talk to me."  He then took her to a nearby couch.  He continued to cover her mouth but agreed to remove his hand if she promised not to scream.  He did something with an object in his hands which the complainant could not make out. 

The applicant was later found to have taken a knife tool and a piece of rope with him to the house and these items were subsequently found in the bathroom area although the complainant was not aware of any knife or rope being used in the attack on her.  The Crown Prosecutor at sentence invited the judge to ignore the knife and rope for the purposes of the complainant's version.

The complainant said that the applicant insisted that she go with him in his car so that they could talk.  She told him she needed a drink of water.  He marched her upstairs into the kitchen and released her only upon her assurance that she would not scream or run away.  She immediately and wisely took advantage of the opportunity that arose to run to neighbours and get assistance.

The complainant received medical assistance.  She suffered a fractured left zygoma and a fractured seventh left rib.  She had marked swelling around the nose, left cheek and left mandible and a tender left ribcage.  She was hospitalised for seven days.  Photographs of her injuries were tendered at sentence.  This Court has viewed those photographs which show that she was severely bashed.  She was 54 years old at the time of the attack, had her arm in a plaster cast and was suffering from pre-existing back problems.

In a police interview on 25 June 2004, the applicant told police he had been receiving death threats by telephone and allegations had been made that he had taken property from the complainant's home.  He decided to confront the complainant about these matters.  He thought the person in the bathroom was the complainant's male friend.  He told police he:

"Just lost it.  Just started hitting and throwing and then [indistinct] and she was screaming and the more she screamed the more I [indistinct], 'Shut up, be quiet.'  The next thing I know, we are outside the bathroom on the floor and um I - I just stopped and helped her get up and she sat on the seat and she did say to me, 'Why, why?'"

He told police he placed a piece of skirt or something across her mouth.  He agreed he had a piece of rope in his jacket and some masking tape and a multi-purpose tool with him but he denied he took these with him to tie up or injure the complainant.  It was clear from that interview that he admitted continuing to assault the complainant after he became aware of her identity.

Defence counsel at sentence disputed the following factual issues.  First, whether the applicant forced the door of the bathroom open and turned off the light.  Second, whether the applicant's possession of the rope and knife at the house was mere coincidence.  Third, defence counsel emphasised the applicant's distressed state and justifiable apprehension because of the false allegations made by the complainant's grandchild and the applicant's subsequent harassment, intimidation and public vilification.  Defence counsel submitted that the applicant went to the complainant's home to seek out her male friend who he believed was responsible for this.  When he initially punched the person in the bathroom, he believed he was punching the male friend.  Defence counsel also emphasised that after committing the offences, the applicant attempted to commit suicide and expressed contrition for his conduct.

Counsel for the prosecution and the defence agreed that the sentencing judge should determine the disputed factual issues on the material before him.  Defence counsel specifically eschewed calling the applicant to give evidence on the disputed facts.  This procedure was open and appropriate in the circumstances: compare R v Clayton [1989] 2 Qd R 439 and   s 15 Penalties and Sentences Act 1992 (Qld).

Under s 132C Evidence Act 1977 (Qld), before acting on an allegation of fact on sentence the judge was required to be satisfied of it on the balance of probabilities, conscious of the effect of adverse findings on the offender.

His Honour, in his sentencing remarks, referred to the trial on the counts concerning the complainant's grandchild and stated that he accepted the jury's verdict as final but on the issue of whether the applicant was falsely accused, a matter about which he needed to be satisfied on the balance of probabilities taking into account the adverse consequences to the applicant of such a finding, he was not satisfied that the applicant was falsely accused.  His Honour, nevertheless, accepted that the applicant's judgment was clouded to a significant degree by what appears to have been a number of incidents of harassment and public vilification arising out of those sexual charges.  His Honour was not, however, satisfied that the complainant in these counts was directly involved in orchestrating such harassment and public vilification.  His Honour preferred the account given by the complainant in her statements to police where it conflicted with the applicant's self-serving statements.  His Honour accepted that the applicant's possession of the multi-purpose pocket knife tool, which was found with an open blade and a length of rope at the complainant's home, was not merely an unhappy coincidence.  His Honour noted the applicant's remorse and plea of guilty but stated that he considered the offence was a bad example of a home invasion. 

It is true that in fact the applicant did not plead guilty to an offence of home invasion but the offence of being in premises and assaulting the complainant doing her bodily harm was still a serious offence and one punishable by the same maximum penalty of 14 years' imprisonment.

His Honour was not precluded by the jury verdict of acquittal in respect of the sexual charges from finding on the sentence on these counts that on balance the sexual complaints were not false allegations.  The jury verdicts of acquittal meant only that the jury were not satisfied beyond reasonable doubt of the guilt of the accused on the counts of indecent treatment.

In any case, had the allegations in fact been false, it was hardly a mitigating factor that the applicant took the law into his own hands and in an act of retaliation severely bashed a middle-aged woman with her arm in a cast and with a history of back problems in her own home at night time.  On any view, the applicant's conduct was extremely serious and warranted a salutary penalty by way of specific and general deterrence.  Although the applicant had no prior criminal history, he was a mature man who well knew that such violent, brutish behaviour was completely unacceptable.  Although he pleaded guilty, the submissions made on his behalf at sentence did, as the learned sentencing judge recognised, suggest some absence of real remorse and insight. 

The sentence imposed was within the comparable range (see R v Miles [1999] QCA 325; CA No 96 of 1999, 20 August 1999 and R v Brelsford [1995] QCA 594; CA No 301 of 1995, 14 September 1995).

I would refuse the application for leave to appeal against sentence.

...

McPHERSON JA:  In my opinion, the question whether or not the applicant had been falsely accused of committing a sexual offence against the complainant's step-granddaughter is largely if not completely irrelevant to the sentence imposed here or its propriety.  The applicant assaulted the complainant in her own home at night in the dark breaking her jaw as well as a rib.

It was for this offence that the applicant was sentenced on this occasion.  The extent and severity of the assaults can be gathered from the photographic exhibits of her injuries after the event.  The offence committed by the applicant merited the sentence imposed and I can see no reason for allowing the application for leave to appeal.

Like the President, it is my opinion that it should be dismissed.

MUIR J:  I agree with the reasons of the President and of Justice McPherson and with the order proposed.

THE PRESIDENT:  The application for leave to appeal is refused.