SUPREME COURT OF QUEENSLAND

[1] JERRARD JA: In this application I have read the reasons for judgment of Cullinane J, and the orders proposed by His Honour, and respectfully agree with those reasons and orders.

[2] CULLINANE J: The Applicant seeks leave to appeal against a sentence of five years to be suspended after two years with an operational period of three years for the offence of torture to which he pleaded guilty in the District Court at Mackay on 15 March 2006.

[3] This offence was one of three indictable offences to which he pleaded guilty at that time. One of these was an offence of deprivation of liberty for which he was sentenced to a concurrent term of 2 years imprisonment.  The Respondent conceded that no further penalty should have been imposed in respect of that count in accordance with what was said in R v Robinson & Stokes; ex parte Attorney-General [2000] 2 Qd R 413.

[4] At the same time that he was dealt with for these offences he was also dealt with for four summary offences. For present purposes the only relevant summary offences were two offences of breaching a domestic violence order.

[5] The Applicant had spent some 249 days in pre-sentence custody and this was declared to be imprisonment already served under the sentence imposed.

[6] The Applicant has a limited criminal history.  It includes breach of a domestic violence order which took place on 28 November 2001.  He was subsequently dealt with for breach of a probation order and a community service order imposed in respect of the breach of the domestic violence order.

[7] The Applicant and the Complainant had lived in a de facto relationship for some six years.  Two domestic violence orders had been made against the Applicant for the protection of the Complainant. The various offences of breaching a domestic violence order (to which reference has been made) related to orders made for the benefit of the Complainant.

[8] At the time of the commission of the offence the subject of the application, the Applicant and the Complainant had one child (then sixteen months) and the Complainant was pregnant with their second child.

[9] The first protection order was breached by the conviction on 11 December 2001, the offence having occurred on 28 November 2001.

[10] A subsequent protection order was made in September 2004. It was breached in April 2005 and this was the first of the two summary offences for breach of a domestic violence order dealt with on 15 March 2006.

[11] On 6 July 2005 the Applicant and the Complainant had attended a party at which the Applicant had consumed a prodigious quantity of alcohol.

[12] As they returned to their home an argument broke out. The Complainant fearing violence on the Applicant’s part took the baby some distance beyond their house. This precipitated the events which gave rise to the counts of torture and deprivation of liberty.  An agreed statement of facts was tendered to the court, and it is I think desirable if I set out the agreed facts from that point (exhibit 2).[1]

“The prisoner yelled out ‘where do you think you are going, how far do you think you’ll get?  The complainant replied ‘how can I go inside?  I don’t feel safe.’

The prisoner yelled at the complainant to get inside, the complainant refused, the prisoner then went inside and locked the door.  With this the complainant being in fear for herself and her son has headed off down the street.  At the end of the street the prisoner has run up behind her and heading towards her, she evaded him by side stepping.  The prisoner has then grabbed hold of the pram and returned the house [sic].  The complainant followed.  The prisoner locked the complainant out of the residence.

The prisoner emerged and told the complainant to get inside; she refused as she thought the prisoner would harm her if she went in.  The prisoner said that if she did not get in the house he would kill their son; she refused thinking that her son was safe as he was locked in the house and they were outside.  The prisoner has then said ‘say goodbye to your son then’. The complainant then entered the house; the prisoner placed the child in his cot and closed the door.

On returning the prisoner told the complainant to sit down in a chair next to the front door.  He then started to punch her to the head a number of times with a clenched fist.  When he finished punching her, he head butted her a couple of times.  The complainant said that this seemed to go on for ages.

The prisoner left the complainant; he then returned after a period of time and grabbed her by her left arm twisting it around to the rear of the chair.  He did this two or three times whilst continually verbally abusing her.

The prisoner then went to the kitchen where he removed a butter knife and started to stab himself in the arm.  He began to bleed from the cut.  The prisoner then grabbed a steak knife and said to the complainant ‘I am going to kill you’.  He has then approached the complainant armed with the knife and grabbed hold of her right hand twisting her arm around trying to get her wrist facing upwards.  The complainant has tried to resist believing that the prisoner was going to cut her wrist.  In the struggle the prisoner ran the knife over the complainant’s wrist causing scratch marks. The complainant’s fingers were also twisted, one of which she said felt as though it was dislocated.

The prisoner was unable to access the complainant’s wrist; he then placed the knife against the right side of her neck.  The complainant states that she was not sure what happened once the knife was against her neck, however, the complainant had a mark on her neck where the knife had been pressed.

The prisoner has then grabbed the complainant by the throat and started to squeeze her neck.  The complainant says that the squeeze was so hard that it felt like her tongue was outside of her mouth.  The complainant started to struggle with the prisoner, the prisoner has then released the complainant from his grip.

The prisoner then started to flick blood over the complainant’s face and upper body from the open wound from his wrist.  The prisoner has then smeared the blood over her face and has tried to force his wrist into her mouth.

This incident occurred over a time period of an hour.  Throughout this time the complainant was physically and verbally abused.  The prisoner has intentionally inflicted pain and suffering on the complainant.

The prisoner continually threatened to kill the complainant and their son.  He assaulted her around the head and upper body whilst she was 4-5 months pregnant.

Once the ordeal was over the prisoner continued to harass the complainant by taking her into the bathroom and look at her injuries [sic].

The prisoner told the complainant that she was not going to tell the authorities what had happened and that she will say that she was bashed by a group of aboriginals.

As a result of the torture the complainant suffered swelling and bruising to the left side of her face above her eye, large bruising to her upper arm, tenderness and soreness to the bridge of her nose. Bruising and tenderness to her lower arm and wrist.  She also suffered from stiffness to the wrist.”

[13] There was a victim impact statement tendered (exhibit 3).[2] It was dated 14 September 2005.  In that the Complainant outlines her fear, indeed terror, on the evening as a result of the Applicant’s conduct.  She was concerned not only for her own safety but also for that of the baby and the unborn child.  The Complainant says that she felt “like he was enjoying what he was doing and only needed an excuse to be pushed to take it further. I was so frightened and too scared to move or do anything”.  She said she remained in fear of the Applicant.

[14] Subsequently on 3 March 2006 the Complainant wrote to the Applicant (exhibit 5).[3] There was some discussion before the learned sentencing Judge as to the effect of this letter. It was said by the prosecutor that the effect of the letter was that the Complainant wished to know what the Applicant’s intentions were upon his release as she continued to be fearful of him.  For the Applicant it was said that the letter revealed a change of heart on the part of the Complainant towards the Applicant and a willingness to resume contact with him.

[15] His Honour seems to have taken the view that the Complainant had mixed sentiments towards the Applicant.

[16] At the time of the breach of the protection order in April 2005 the Applicant abused the Complainant while she was on a telephone. He then threw the telephone and pushed her to the floor.  Although police were called she would not provide a statement but he was subsequently issued with a notice to appear which he ignored.  A warrant issued for his arrest and as the learned sentencing judge pointed out he was on bail for this offence at the time that he committed the offence, the subject of this application.

[17] A medical report was tendered (exhibit 6)[4]. This was the report of a general practitioner who had seen the Applicant some time prior to the relevant date.  He diagnosed him as suffering from severe depression with suicidal ideation and personality disorders secondary to alcohol and illicit substance abuse.  There was no psychological evidence placed before the court which might have linked the conduct of the Applicant on this occasion to any psychiatric problems.  His Honour thought that alcohol and the contents of exhibit 6 gave some insight into the actions of the Applicant.

[18] The learned sentencing judge justifiably described the conduct of the Applicant as “extremely brutal, cowardly, directed towards a defenceless and pregnant de facto woman, including threats to her life, humiliating to her---”.

[19] There can be added the continuous threats to the baby.  The Applicant induced the Complainant to enter the house by making such a threat.  Subsequently he repeatedly threatened to kill the child and the Complainant.  This is a serious aspect of the offence.

[20] There seems to have been a desire on the part of the Applicant not merely to inflict suffering by his assaults and threats but also to humiliate the Complainant by smearing his blood over her face and taking her into the bathroom and forcing her to look at her injuries.

[21] The Applicant advanced an argument that the learned sentencing judge should not have taken into account (as it appears from his remarks during submissions, he did) any psychological impact of the Applicant’s conduct on the Complainant in the absence of any evidence of this and its nature and duration from some presumably qualified source.  Given the nature of the conduct and especially the threats to the baby as well as the Complainant and given the contents of the victim impact statement, His Honour was quite entitled to conclude there was, to use his words, ‘a psychological component to what’s happened here’.  There is nothing to suggest he sentenced the Applicant on the basis there was permanent and ongoing psychological damage.

[22] It was contended on behalf of the Applicant that the sentence of five years suspended after two years is manifestly excessive. Emphasis was placed upon the fact that the injuries sustained were not of a life threatening nature and that the violence did not subsist beyond a discreet period of an hour.  It is also pointed out that the Applicant desisted and called the ambulance.

[23] We were referred by both counsel to a number of cases, some of them common to each. As pointed out by Jones J in R v Real [2001] QCA 422 the circumstances and type of conduct which will constitute this offence will vary greatly and there will thus be a wide sentencing range.

[24] In R v Roelandts [2002] QCA 254 the Applicant who had a prior conviction for torture of a previous partner pleaded guilty to a count of torture.  The Complainant was his pregnant fiancée. He held her head under water, inflicted a number of blows with his fist and threatened to kill her while driving her vehicle. He also dragged her by a towel around her neck.  He appealed against a sentence of three years accompanied by a declaration that he had been convicted of a serious violent offence.

[25] Ultimately the application was abandoned.

[26] In the course of giving judgment the Chief Justice said at page 10 that the sentence appealed against was unsustainably lenient “indeed absurdly so”.  He went on to say “I consider the appropriate starting point was eight to ten years, reduced to six for the plea of guilty. I suggest that this case should be regarded as signalling a need to strengthen the approach to sentencing for torture.”  It can be accepted that Roelandts (supra) is a somewhat more serious case than the present.

[27] Both parties referred us to the cases of R v Burns [2000] QCA 201 and R v Edwards [2001] QCA 366.  These, of course, predate Roelandts.

[28] The first of these involved torture in breach of a domestic violence order. It involved the infliction of a number of blows by the Applicant to various parts of his wife’s body in an isolated area.  He had pleaded not guilty to the count of torture. The effect of the jury’s verdict was to limit the conviction to a number of punches (seven times on the Applicant’s account and dozens of times on the Complainant’s account) at one location. The Court of Appeal reduced the sentence from a term of four and a half years to one of three and a half years.  In Edwards (supra) a victim was assaulted by a group of people. She was shot in the leg and the lip with plastic bullets as well as being punched. She was abducted and her clothes were removed and further violence was inflicted upon her. The Applicant was regarded as one of the lesser offenders although she had inflicted some of the violence. She was sentenced to four years imprisonment which included an allowance for substantial cooperation and provision of information. She had not previously been convicted.  Leave to appeal against the sentence was refused.

[29] In R v Real [2001] QCA 422 a sentence of six years imprisonment was reduced to 5 years suspended after 2 years.  The conduct involved cutting off the Complainant’s nose, burning his hair with a lighter, piercing his ear with a fish hook and forcing him to lick his own blood.  In that case, as with a number of cases we were referred to, it is possible to identify features not present in this case and vice versa.  I have already mentioned the seriousness of the Applicant’s conduct in threatening to kill the baby and using this to draw the Complainant into the house where he again made the same threat repeatedly as well as threatening to kill the Complainant.

[30] The seriousness of the conduct involved in the offence of torture here cannot be underestimated.  It has to be viewed against a history of breaching domestic violence protection orders and the fact that he was on bail for such an offence when this offence was committed.

[31] It may be accepted that the sentence imposed was a substantial one but a consideration of the cases to which we were referred satisfies me that it is within the limits of a sound sentencing discretion and that sufficient allowance has been made for the Applicant’s plea of guilty on an ex officio indictment and for the other matters to be taken into account in his favour by the suspension of the imprisonment after two years.

[32] I would allow the application and grant the appeal only to the extent of setting aside the sentence of two years imposed on the count of unlawful deprivation of liberty but otherwise refuse the application.

[33] JONES J: I agree with the reasons stated by Cullinane J and the orders proposed by him.