R v Oakes[2012] QCA 336

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  I agree with the reasons of Gotterson JA and the order he proposes.

[2] WHITE JA: I have read the reasons for judgment of Gotterson JA.  I agree with his Honour’s reasons and the order which he proposes.

[3] GOTTERSON JA:  On 8 March 2012, at the conclusion of a trial before a judge and jury, the applicant, Rowan Paul Oakes, was found guilty and convicted on one count of unlawfully causing grievous bodily harm to the complainant, KAB, with intent to do so.  The jury found him not guilty on a count of unlawfully attempting to kill the complainant.  He had been charged in the alternative on the count on which he was convicted.  Both counts were based on events which occurred on 6 May 2009 at Brisbane.

[4] The applicant was sentenced on 9 March 2012 to a term of imprisonment for seven years.  A declaration that the applicant offender was convicted of a serious violent offence was made as part of the sentence.[1]  In consequence of that declaration, the applicant’s parole eligibility date will not occur until he has served 80 per cent of the term if imprisonment.[2]  Fifty-Five days of pre-sentence custody were declared as time served under the sentence.

[5] An application for leave to appeal against sentence was filed on 30 March 2012.  The sole proposed ground of appeal is that “[t]he sentence is manifestly excessive, particularly the serious violent offender declaration”.[3]  At the commencement of the hearing of the appeal, counsel for the applicant informed the court that the main point to be argued was that the serious violent offence declaration ought not to have been made.

[6] In determining this appeal, it is necessary for this Court, as it was for the learned judge, to have regard to matters which include aspects of the applicant’s and complainant’s relationship, the circumstances of the offending and the impact of the harm done to the complainant.  Each of those three matters require some elaboration.

The applicant’s and complainant’s relationship

[7] The applicant and the complainant met in 1997.  Their first child, J, was born in December 1998.  They moved to Queensland in 1999.  A daughter was born in 2000.  The relationship was a troubled one.  The applicant was drunk frequently.  He attempted suicide in 2004.  The couple separated.  He returned to Brisbane and the youngest child, T, was born in 2007. 

[8] Although they co-habited at the same multi-storey townhouse, for about 18 months prior to the offending conduct, they had not shared the same bed or bedroom.  The applicant slept on a lounge downstairs.  In the months before the offending conduct, on most evenings, the applicant would be at the back of the dwelling drinking while the complainant was tending to the children and domestic chores.

[9] In April 2009, under the pretext of holidaying with the children in Cairns, the complainant left them with her grandmother and travelled to Paris and then to Algiers to meet up with a long term male friend with whom she had become romantically involved and to whom she became engaged during this excursion.  On her return to Australia on 21 April 2009, she told the applicant of the engagement.  She displayed a background picture of her fiancé on her computer desktop.  She also told a neighbour that she was determined to get rid of the applicant. 

[10] On 3 May 2009, the applicant cut a length of hose pipe, got into the car and said that he was going to kill himself.  The complainant called him “a loser” and contacted the police.  On admission to hospital, he was found to have a very high blood alcohol level.  After prompting from the hospital staff, the complainant allowed the respondent to return to the dwelling. 

Circumstances of the offending

[11] As noted, the offending conduct occurred on Wednesday, 6 May 2009.  That afternoon the complainant returned home from a computer course at about 3.30 pm.  She noticed that the applicant was at the back of the dwelling and in a morose mood.  He asked to speak with her.  She did not do so as she was late before collecting the children from childcare.  When the complainant returned, she noticed that the applicant was still at the back of the dwelling.  He again asked to speak to her.  She said she did not have time to do so and continued with her domestic chores.

[12] The complainant noticed that the applicant had placed a carved, purple soap flower in a box with chocolates and a Mother’s Day card which were obviously intended for her.  The applicant asked if she had read the card and whether she liked the gift.  The complainant told him that she had not read the card and did not want the gift.  She returned to her chores and tried to ignore the applicant.

[13] The applicant wandered in and out of the kitchen.  He was crying and calling out that he wanted the complainant back and that he wished that he had not been the way that he was.  The complainant told him that things were the way they were and that he could not change them.  She continued with her duties.  The applicant tried to kiss and hug her and to stroke her hair as she worked in the kitchen.  She reproached him, telling him not to touch her.

[14] At about 8.30 pm the complainant went upstairs to shower and to prepare the family for bed.  The older children were told to go to bed in their bedroom.  T went upstairs with his mother.  It was his habit to sleep in her bedroom at the time.  The complainant showered and then went downstairs to prepare T’s bottle and to clean the kitchen.  She returned to her bedroom.  The two older children were in a bunk bed in their bedroom.

[15] At about 9.05 pm the applicant knocked at the complainant’s bedroom door.  He complained that he had not had a chance to say goodnight to T.  The complainant replied, “For crying out loud, make it quick”, opened the door and then returned to the far side of the bed.  The applicant leaned in towards T as if to kiss him.  He then questioned the complainant, asking whether she loved her fiancé.  She replied that she did. 

[16] The applicant then started to move around the bed towards the complainant.  As he did so, he told her that she was never going to hold or see her fiancé again.  The complainant began to move out of the bed.  As the applicant neared her he stated, “You are never going to get married.  I’m going to kill you”.  He pulled two steak knives from the pockets of his shorts.

[17] The complainant began to scream.  As she screamed, the applicant swung the knives, one in each hand, towards her stomach.  She arched her body, attempting to move out of the way.  One blow cut across her stomach, a second went in towards her stomach and into the skin.  The complainant positioned her arms in order to protect herself from the blows as she moved.  She received a shallow cut across an arm, another near a breast.  A further blow scraped across just below a breast.  The complainant continued shielding herself with her arms, moving to avoid swinging blows from the knives.  Yet another blow struck her across her back as she moved.  The complainant said that she recalled an upward blow from a knife going into the back of her thigh.  She was bleeding heavily.

[18] The complainant lunged into the applicant, pushing him against a wall.  She grabbed his left hand, smashing it against the window.  He dropped the knife which he was holding in that hand.  He then took the complainant by the throat with his left hand and put her into a headlock.  She grabbed his right hand, trying to force the knife he was holding in it away from her head.  The knife cut across her face.  The complainant used her hands to push his right hand away and then to pull his left hand towards her mouth.  She bit it hard.  The applicant swung the knife in his right hand down in towards her back. 

[19] The complainant managed to shoulder the applicant into the wall.  He lost balance.  She tried to hold him there.  She grabbed at the knife in his right hand with her left hand.  It caught the blade, lacerating the middle and ring fingers. 

[20] The son, J, arrived on the scene, jumped on the applicant, pushed him and urged him not to kill the complainant.  J managed to wrest the knife from the applicant’s right hand.  The applicant and the complainant continued fighting.  The complainant called to her children to “ring 000”.  J picked up the knife and ran from the room.  The applicant followed him. 

[21] In his s 93A interview, J stated that the applicant then ran downstairs, took a carving knife from a set of knives and returned to the complainant’s bedroom door.  In the meantime, the complainant had closed her bedroom door and locked it.  She wrapped some clothing around her injured hand and called 000 on her mobile phone.

[22] The complainant heard sounds at the bedroom door as if someone was trying to kick it forcefully.  She heard J on the other side of the door yelling at his father.  J then called to the complainant saying that the applicant was on that side of the bedroom door.  She told J to close and lock the front door which he did.

[23] The police arrived at about 10.20 pm.  They found the applicant curled up under a bush near the front of the dwelling.  The complainant was taken by ambulance to the Department of Emergency Medicine at Royal Brisbane and Women’s Hospital.  Some months later, a neighbour handed the complainant the carving knife that belonged to the set.  The complainant had noticed that this knife was missing after she returned from hospital.

[24] The applicant was not breath tested; nor was a blood alcohol concentration sample take from him for analysis.  However, other evidence suggests that he was significantly affected by alcohol at the time of the offending.  The complainant gave evidence that he had been drinking on the day.  J described him as looking drunk and slurring his speech.  The applicant was confused and could not remember what had happened when the police found him that evening and empty alcohol bottles were found at the dwelling.

Complainant’s injuries

[25] Fortunately for her, most of the complainant’s physical injuries were superficial and healed without lasting symptoms.  The two fingers that were lacerated required surgery to repair tendon and nerve damage.  She was hospitalised for five days and then required extensive follow up treatment.  She was unable to work for eight weeks and endured substantial pain.  She continues to have limited sensation in the two fingers.  She cannot straighten them.  Her left hand grip has been adversely affected.  She has an aversion to using a steak knife.[4]

Other matters

[26] Other relevant matters of which the learned judge took account were the applicant’s good work history and modest criminal histories in both Queensland and Victoria involving offences which did not reveal any tendency towards violence.  His Honour noted that the applicant had not displayed remorse for his offending conduct.[5]

The approach taken by the learned judge

[27] The learned judge proceeded on the footing that the applicant was seriously upset emotionally and heavily intoxicated at the time.[6]  However, he was not prepared to regard as a mitigating factor, the emotional distress arising from the applicant’s realisation that his relationship with the complainant was over.  His Honour took into account the observations of the President in R v Mallie, ex parte A-G (Qld)[7] that serious violence intentionally committed by one party to a romantic relationship against the other party who seeks to end it is seriously anti-social conduct warranting a condign sentence to appropriately reflect society’s disapprobation and the need for general and specific deterrence.[8]  The applicant does not challenge the approach taken in this respect.

[28] The learned judge noted that with respect to the other sentences to which he was referred for comparative purposes by counsel for each side, most of them were sentences upon pleas of guilty.  That may be said also of the cases to which this Court was referred.  In reply to a question asked of him by the Court during the course of the hearing, the applicant’s counsel advised that there was no basis for a submission that the applicant would have pleaded guilty to the count on which he was convicted had it not been an alternative to the count of attempted unlawful killing.

[29] His Honour remarked that some of the cases cited to him related to individuals with very serious criminal histories which included violence as grave as manslaughter.  He expressed the view that the applicant did not fall within that category and observed that he was nevertheless required to consider whether or not the circumstances called for a declaration of conviction of a serious violent offence.[9]  This observation was clearly correct given the provisions of s 161B(3)(b) of the Penalties and Sentences Act 1992 (Qld) (“P&SA”) and the submissions for each side which contemplated a sentence range beginning at no less than five years.

[30] The learned judge then turned to consider the issue of a declaration.  He referred to the decision of this Court in R v McDougall and Collas[10] and in particular to what was said at paragraphs [18] to [21] in the judgment.  His Honour observed:[11]

“The making of a declaration is of course discretionary and there must be factors which exist to warrant its exercise and if there are such factors and if the discretion is exercised, then the head sentence must be viewed in that light, that is, there has to be an overall approach taken. …”

[31] These observations accurately reflect what was said in McDougall and Collas.  His Honour then read the following passage from [21] of the judgment in that case:[12]

“The exercise of the discretion will usually reflect an appreciation by the sentencing judge that the offence is a more than usually serious, or violent, example of the offence in question and, so, outside “the norm” for that type of offence.”

[32] In the sentence which precedes that one, the Court explained that it was those characteristics of an offence which aggravated it in a way which would suggest that protection of the public or adequate punishment required a longer period in actual custody than otherwise would be required by the P&SA having regard to the term of imprisonment imposed. 

[33] The words of the learned judge to which I have just referred, indicate that he correctly instructed himself as to the task at hand.  The applicant does not suggest any misapprehension on his part in that respect.

[34] The learned judge then identified the features of the offending which in his view were “particularly relevant” to the issue of the declaration.  They were the evident pre-meditation involving the arming of himself with the knives; the pretence in gaining entry to the complainant’s bedroom which was closed; the protracted nature of the assaults; the fact that they were delivered in the presence of a young child; the fact that the assaults ceased not upon a decision of the applicant, but upon the intervention of the elder son; and the fact that the injuries to the fingers will leave the complainant with lasting disabilities.  His Honour considered that, together, these features took the case outside the norm and that a longer period in actual custody before eligibility for parole – which, but for a declaration, would be upon serving 50 per cent of the sentence – was justified.[13]

The serious violent offence declaration

[35] The applicant submitted that an offence of intentionally causing grievous bodily harm necessarily involves a degree of violence with intent and, hence, consistently with authority to which I have referred, the presence of other factors beyond the violence required to inflict the harm is necessary in order to justify the making of a serious violent offence declaration.

[36] By way of illustration, reference was made to R v Lyon.[14]  In that case, the day after he was convicted of two breaches of a restraining order made on the complaint of his ex-wife, the offender who had been drinking that day, took up a machete, sharpened it and then drove to his ex-wife’s residence.  He kicked in the front door and attacked her with swinging blows.  The assault ceased upon the intervention of the 12 year old son.  The victim was struck at least one glancing blow and sustained a slash to her face and cuts to her neck, the upper left arm and her left middle finger.  She had flashback episodes and feelings of pain.  The offender was acquitted of attempted murder but was convicted of unlawful wounding with intent to do grievous bodily harm and of entering the dwelling with intent to commit an indictable offence with circumstances of aggravation.  He was sentenced to nine years imprisonment on the count of unlawful wounding and to a concurrent term of five years for the burglary offence.  A serious violent offence declaration was made.  On appeal against sentence, a sentence of seven years was substituted for the nine years and the declaration was maintained.

[37] Counsel for the applicant identified the breach of the domestic violence orders, the use of the sharpened machete and the conviction on the additional burglary count as aggravating features which could be seen as justifying the declaration in that case.  A contrast was drawn with two other cases, R v Beer[15] and R v Dempsey.[16]

[38] In Beer, the complainant who was larger than the offender, was lacerated with an oyster knife in the throat and abdomen areas when he assisted his stepdaughter to retrieve belongings from a residence at which she had formerly lived with the offender.  On conviction of causing grievous bodily harm with intent, the offender was sentenced to eight years imprisonment and a serious violent offence declaration was made.  On appeal, a term of seven years without a declaration was substituted. 

[39] In Dempsey the attack was upon an ex-defacto wife.  The offender stabbed her causing her lungs to collapse.  Alcohol was involved.  There was a relevant previous conviction.  The sentence of seven years imprisonment without a declaration upon conviction on a count of causing grievous bodily harm with intent was affirmed by this Court.

[40] In my view, there are particular features in the present case which serve to distinguish it relevantly from Beer and Dempsey.  They are that the violent offending took place in the presence of a young child and that the assaults were both pre-meditated and sustained as was evidenced not only by the matters which the learned judge particularly identified but also by the applicant’s conduct in returning to the complainant’s bedroom door with the carving knife he had taken from the kitchen.

[41] Of the three cases to which I have referred, factually, this case is closer to Lyon.  It can fairly be said that the degree of aggravation in the violence there was somewhat more extreme than here.  However, it is not the case that the degree of aggravation that must be present before a serious violent offence declaration may be made in any case must equal or exceed the degree that was exhibited in Lyon.  To my mind, it was open to the learned judge to conclude that the degree of aggravation in the violence of the offending in this case was sufficiently outside the norm as to warrant the making of the declaration.  Whilst it was not a compelling case which necessitated the making of the declaration, the learned judge did not err in making it. 

The sentence overall

[42] It remains to consider whether the sentence of seven years imprisonment with the serious violent offence declaration is manifestly excessive.

[43] Reference was made by the respondent to a number of other cases[17] in which declarations were made.  In those cases, the sentences were imposed upon conviction on counts of unlawfully doing grievous bodily harm with intent.  The terms of imprisonment imposed ranged from seven to nine years.  In each of those cases the sentence was imposed upon a plea of guilty.

[44] It is unnecessary to refer to the detail of those cases.  They, together with Lyon, indicate that this sentence was within the range for the type of offending involved.  Although Lyon would suggest that the sentence was at or towards the higher end of the range, it is not manifestly excessive.

Disposition

[45] For these reasons, I consider that the application for leave to appeal against sentence should be refused. 

Order

[46] I would propose the following order:

1.Application refused.