R v Goulding, Peters, Potts & Knox; ex parte Attorney-General
[2016] QCA 65
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- R v Goulding, Peters, Potts & Knox; ex parte Attorney-General[2016] QCA 65
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R v Goulding, Peters, Potts & Knox; ex parte Attorney-General[2016] QCA 65
R v Goulding, Peters, Potts & Knox; ex parte Attorney-General[2016] QCA 65
SUPREME COURT OF QUEENSLAND
CITATION: | R v Goulding; R v Goulding, Peters, Potts & Knox; Ex parte Attorney-General (Qld) [2016] QCA 65 |
PARTIES: | In Appeal No 173 of 2015R In Appeal No 176 of 2015 In Appeal No 177 of 2015 In Appeal No 178 of 2015 In Appeal No 179 of 2015 |
FILE NO/S: | CA No 173 of 2015 CA No 176 of 2015 CA No 177 of 2015 CA No 178 of 2015 CA No 179 of 2015 DC No 135 of 2015 DC No 163 of 2015 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Application Sentence Appeal by Attorney-General (Qld) |
ORIGINATING COURT: | District Court at Southport – Date of Sentence: 16 July 2015 |
DELIVERED ON: | 18 March 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23 February 2016 |
JUDGES: | Gotterson and Philippides and Philip McMurdo JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
Appeal dismissed.
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondents pleaded guilty to torture at the District Court at Southport – where, for the torture offence, each respondent was sentenced to six years’ imprisonment – where the learned sentencing judge declined to make a serious violent offence declaration in respect of the torture offence – where the Attorney-General of Queensland filed a notice of appeal against the sentences imposed on each respondent – where the Attorney-General submitted that the: (1) sentence imposed is manifestly inadequate; and (2) the learned sentencing judge erred in not declaring the offence of torture to be a serious violent offence – where the Attorney-General alleged that the head sentence of six years is, in itself, manifestly inadequate, and, in the alternative, either or both of: (1) the failure to declare the offence a serious violent offence; and (2) ordering early eligibility for parole, renders the sentence manifestly inadequate – where the Attorney-General submitted that the learned sentencing judge failed to properly apply the parity principle – where the Attorney-General alleged that the learned sentencing judge erred in unduly confining the exercise of the discretion to make a serious violent offence order by limiting the consideration to previous decisions – whether the sentence is manifestly inadequate and or the learned sentencing judge erred in not making a serious violent offence declaration CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondents pleaded guilty to torture at the District Court at Southport – where, for the torture offence, each respondent was sentenced to six years’ imprisonment – where the learned sentencing judge declined to make a serious violent offence declaration in respect of the torture offence – where the respondent Goulding filed an application for leave to appeal against his sentence – where he submits that: (1) the sentence is manifestly excessive; and (2) the learned sentencing judge erred in improperly applying the parity principle – where he alleged that the circumstances of his offending differed from those of his co-offenders – whether the sentence is manifestly excessive and or the learned sentencing judge erred in improperly applying the parity principle Criminal Code (Qld), s 320A(1) Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, considered House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v B; ex parte Attorney-General of Qld (2000) 110 A Crim R 499; [2000] QCA 110, considered R v Cowie [2005] 2 Qd R 533; [2005] QCA 223, considered R v Dack [2002] QCA 44, considered R v Mah [2004] QCA 198, considered R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited R v Melling & Baldwin [2010] QCA 307, considered R v Real [2001] QCA 422, considered R v Roelandts (2002) 131 A Crim R 590; [2002] QCA 254, considered The Queen v Pham (2015) 90 ALJR 13; [2015] HCA 39, cited |
COUNSEL: | J J Allen QC for the applicant/respondent, Goulding M R Byrne QC, with S J Farnden, for the appellant/respondent, Attorney-General (Qld) S G Bain for the respondent, Peters C W Heaton QC, for the respondent, Potts M J Copley QC, for the respondent, Knox |
SOLICITORS: | Legal Aid Queensland for the applicant/respondents Director of Public Prosecutions (Queensland) for the respondent/appellant |
At the same hearing, the respondent Peters pleaded guilty to, and was convicted of, an offence charged by way of a separate ex officio indictment of burglary and stealing committed on 3 February 2014.[1] As well, Potts pleaded guilty to, and was convicted of, a summarily charged offence of possession of a grinder and a bong used in connection with the smoking of a dangerous drug committed on 9 February 2014.[2]
Goulding also pleaded guilty to, and was convicted of, two summarily charged offences. One was possession of a bong used in connection with the smoking of a dangerous drug committed on 8 February 2014. The other was of wilful destruction of a T-shirt committed on 8 February 2014.[3]
In addition, Potts was to be re-sentenced for an offence of assault occasioning bodily harm while armed with a knife which he had committed on 1 January 2012. Potts had been placed on two years’ probation for this offence at the Childrens Court at Southport on 10 January 2013, after he had spent 26 days in custody. No conviction was recorded. His offending in February 2014 occurred while he was on probation.
Submissions on sentence were heard on 15 July 2015. The respondents were sentenced on the following day. A conviction was recorded for each of the offences including Potts’ 2012 offence.[4]
For the torture offence, each respondent was sentenced to six years’ imprisonment. Peters was sentenced to 12 months’ imprisonment for the burglary and stealing offence. Potts was sentenced to three months’ imprisonment for the possession offence. Goulding was sentenced to three months’ imprisonment for each of the possession offence and the wilful destruction offence. All sentences are to be served concurrently. The learned sentencing judge stated that this additional offending would be reflected in differing parole eligibility dates.
At the sentence hearing, the prosecutor had submitted that a serious violent offence declaration ought to be made in respect of the torture offence.[5] The learned sentencing judge declined to make the declaration sought.
Each respondent had been placed in custody following arrest for the torture offending. By the date of sentence, Knox and Goulding had each been in custody for 523 days and Potts for 522 days. Peters, who had spent some time on release, had been in custody for 285 days. These respective periods of custody were declared to be time served.
His Honour concluded his sentencing remarks as follows:
“Knox, normally, you would be eligible for parole after serving one-third of the six year sentence. I take into account the 17 months you’ve been in pre-sentence custody, and I fix a parole eligibility date for you of the [15th] of February 2016. In your case, Potts, the same pre-sentence custody applies, but your parole eligibility date will be a month longer to reflect your additional criminality, namely, the [15th] of March 2016, and the same applies to you, Goulding, [15th] of March 2016. Now, in your case, Peters, you have about nine months’ pre-sentence custody. Normally, your parole eligibility date would be the [15th] of October 2016, but it will now be the [15th] of January 2017, an additional three months to take into account the additional indictable offence. …”[6]
It may be noted that in Knox’s case, the parole eligibility date is in fact at a point when he will have served two years and one week of his sentence.[7] That characteristic is reflected in the parole eligibility dates set for the other respondents.
The Attorney-General’s appeal and Goulding’s application
On 11 August 2015, the Attorney-General of Queensland filed a notice of appeal against the sentences imposed on each respondent.[8] The appeal is made pursuant to s 669A(1) of the Code. On 7 August 2015, the respondent, Goulding, filed an application for leave to appeal against his sentence.[9] Both the appeal and the application were heard together on 23 February 2016.
Circumstances of the torture offending
The circumstances of the torture offending are set out in a Schedule of Facts[10] which was received as Exhibit 8 at the sentence hearing. The contents of that document have been summarised in the written submissions filed on behalf of the appellant Attorney-General. Three of the respondents expressly accepted this summary as an accurate one.[11] The other respondent did not challenge the accuracy of the summary in written or oral submissions.
It is convenient, therefore, to set out the appellant’s summary in these reasons. It is as follows:
“5.2The complainant in the torture offence, MJ, was an 18 year old male and the boyfriend of Shandal Baker. About 6 months prior to the offence date Ms Baker was assaulted, which resulted in some scratches. She believed the assault had been organised by the complainant. She told Knox of her belief a few days prior to the offence date.
5.3MJ and Baker continued to see each other and on the morning of 7 February 2014 she and the complainant had an argument. Ms Baker left the house they were at (apparently Knox’s house) crying and told Goulding, Knox and Peters that he was “doing my head in”.
5.4What then followed over what must have been about a total of 7 hours was a course of conduct that was intended to humiliate and seriously assault the complainant, apparently as a form of punishment for his causing distress to Ms Baker, as well as provide a form of amusement for the defendants.
5.5Goulding, Knox and Peters confronted MJ. Knox started drawing on the complainant’s body with a marker pen, telling him not to look, as did Goulding. The complainant thought they were just paying(sic) around and went along with it. Knox then obtained a pair of female boxer shorts and told the complainant to put them on; threatening him with a bashing when he resisted. Goulding and Peters at this time were watching and laughing. Once he changed into them the complainant was walked out into the back yard where he was handcuffed to a pole.
5.6After about 10 minutes Potts arrived at the house and told the complainant, in the presence of the other three, “I love violence, we’re going to have fun with you”.
5.7Potts went into the house and returned carrying tools. On another occasion he brought out a cup of urine and had the complainant drink it. When it was spat out, Knox kicked him in the side of the head and told him to drink it, which he did.
5.8The complainant was told to crawl to a bed frame that was in the back yard and was handcuffed to that. He was spray painted blue over effectively the whole of his face and body. Potts attached car battery jumpers(sic) leads to the complainant’s nipples. He was burnt with lit cigarettes. Knox forced squeezed orange juice into the complainant’s eyes whilst he was tied there, causing stinging and pain.
5.9One of them, it is unknown which one, suggested that they pull his underpants down, which they did, and Potts was heard to say “Let’s tie it up”. Potts whipped him across the chest with a rope and then tied it tightly around the complainant’s genitals. Knox ran it over a downpipe attached to the house and tied the end off leaving the complainant’s genitals under continual tension from the tied rope. A coloured plastic bag was put over the complainant’s head so he could not see and someone kicked him in the head. Knox told him that the defendants needed a break for about half an hour and he was left there.
5.10When they returned the plastic bag was removed and Potts hit him in the hip about 10 times and on each knee with a hammer. Potts then unsuccessfully used vice grips in an attempt to remove firstly an upper and then a lower tooth. Peters then used them attempting to remove a lower tooth resulting in one breaking off. This caused the complainant a lot of pain. He was again burnt a few times with a cigarette. All this was recorded on the complainant’s mobile phone which was ultimately retrieved by police and it can be heard in that footage that apparently all (respondents) are laughing and encouraging the conduct. The (respondents) then left him, with the bag back on his head, as they went inside.
5.11(That footage was tendered at sentence (Exhibit 16) and played…[12])
5.12A little time later two of them returned and were stomping on his head, as well as kicking and punching him. He could not see who it was because the bag was still on his head but he could hear that the voice of one of them was Potts’ and Knox was there where(sic) the bag was removed. Goulding and Peters walked over to them and both Knox and Potts again punched the complainant in the face.
5.13They returned inside after one of them said that Knox’s mother had woken up from a sleep but returned about 20 minutes later, at which time Potts and Knox resumed punching the complainant in the face. Potts then started tugging on the rope causing the complainant’s genitals to be stretched and causing him more pain. Potts was laughing and Knox kept punching him in the face. Shortly after this Potts left the premises and played no further role in the offending.
5.14Later Knox untied the complainant’s genitals and also uncuffed him from the bed frame and told him to go inside and shower, which he did. He was permitted to watch a movie with them and, somewhat bizarrely, Knox’s mother.
5.15Knox had left the house for about 1½ hours during which no offending conduct occurred. When he returned he told the complainant to go out the back where he again punched and kicked him, this time in Goulding’s presence. He was again told to go and shower, this time because he was bleeding from the nose and ear.
5.16About two hours later Knox again told him to go into the back yard and, in the presence of Goulding, he was told to get on all fours and Knox kicked and punched him. This attack caused his noose(sic) to bleed “like a waterfall” and was probably the time that the later diagnosed nasal fracture occurred.
5.17When the complainant went inside Knox’s mother showed no concern for him and he was told to again shower. After showering he was walked from the house by Knox, Goulding and Peters. Knox punched him in the face again a few times causing dizziness and they all ran off. The complainant went to a nearby house and sought help.
5.18The complainant was medically examined. It is sufficient to note that the examining doctor noted a large number of lacerations, bruises and abrasions to the face, head, trunk and all four limbs off(sic) the complainant, in addition to the fractured nose, broken tooth and a number of cigarette burn marks. The injuries suffered were consistent with the account of the complainant, although they do not amount to grievous bodily harm.
5.19(Each of Peters, Potts and Knox declined to be interviewed by police when apprehended. Goulding participated in an interview and made some limited admissions.)”
The summary concluded with the following non-contentious account of the impacts of the torture treatment on the complainant:
“5.20Unsurprisingly, the complainant has been deeply affected by the offending conduct, both physically and psychologically. He continues to suffer physical pain but of perhaps deeper impact is the profound psychological affect that he continues to suffer. It permeates much of his daily activities in a particularly adverse manner.”[13]
His Honour described what was done to the complainant as “sadistic, cruel, callous, worrying, disturbing, abnormal, vicious, degrading”. It was “a terrifying attack” which lasted from about 11 am until early evening.[14]
Circumstances of the other offending
In Peters’ case, the burglary was of an unoccupied dwelling house. There was a forced entry. A significant quantity of jewellery and electronic devices was stolen. His involvement was detected from his DNA found on scissors used to cut a screen at the rear of the house.
In the course of the police investigation of the torture offence, Goulding and Potts were found in possession, at their respective residences, of the utensils used for smoking cannabis referred to in the charges. Goulding’s additional charge arose out of his shredding of a T-shirt that had been issued to him at the watchhouse after his apprehension for the torture offence.
Potts was aged 15 years and nine months at the time of the January 2012 assault. He and a group of males had been drinking in a park. The victim arrived. For no good reason, Potts grabbed him from behind and placed a knife to his throat. The victim’s neck was slightly scratched. This offending occurred while Potts was subject to probation orders.
The respondents’ personal circumstances and histories of offending
Goulding was 20 years old at the time of the offending. He left school at 14 years of age and became a heavy user of cannabis daily at 15 years of age. He would drink heavily on a daily basis when he worked in the mines in Western Australia. Dr Andrew Aboud, consultant forensic psychiatrist, considered that it was likely that when he offended, Goulding was suffering from cannabis dependence and alcohol abuse disorders. He also appeared to harbour some anti-social personality traits. According to Dr Aboud, assessment of the risk that he would re-offend would depend upon whether his own version of the torture offending, in which he sought to portray himself as someone who tried to help MJ through it, was accepted by the court.[15] Goulding had no prior convictions.
Peters was 18 years old at the time of this offending. He left school at the end of Year 10 and had worked from time to time in warehouse environments. He had a minor and, for present purposes, inconsequential criminal history. Mr Peter Stoker, forensic psychologist, described him as having had a dysfunctional familial background which would have had an adverse effect on his psychological development. At the time of the torture offending, Peters was using cannabis and was suffering from a depressive disorder.[16]
Potts was 17 years old at the time of the torture offending. He completed Year 10 and had an intermittent work history thereafter. According to Mr Craig Holt, psychiatrist, he was suffering from a stimulant use disorder (methylamphetamine) when he offended. His history is indicative of severe abuse, violence and trauma during his early childhood.[17] Potts had three prior convictions in the Childrens Court for a property offence and two offences of violence, including the 2012 assault to which I have referred. The other offence of violence was an assault committed in a street fight on 11 November 2011. The wilful damage to property offence was committed on 17 October 2011. In each instance, a conviction was not recorded.[18]
Knox was 18 years old at the time of the torture offending. Dr Jeremy Butler, psychiatrist, diagnosed him as suffering from an attention deficit hyperactive disorder since early childhood and a moderately severe conduct disorder in childhood and adolescence. The disorders, together with a polysubstance dependence and a childhood in which he witnessed and experienced violence, has led to a relatively entrenched tendency towards violence on his part.[19] Knox was expelled from school at the end of Grade 8. Thereafter he did not have a stable residential address. Nor did he engage in any occupational training and was for the most part unemployed. He had two prior, and relatively minor, convictions for offences of violence, one in 2010 and one in 2011. These and other less relevant offences were dealt with in the Childrens Court where, for each offence, a conviction was not recorded.
Other matters referred to by the learned sentencing judge
The learned sentencing judge referred to the following additional matters:
(a)notwithstanding that the complainant had denied any earlier attack by him on Ms Baker, even if that had taken place, clearly, it could not have justified what was done to him;
(b)whereas Knox and Peters did not attempt to distinguish their culpabilities, each of Peters and Goulding submitted that his own culpability was less, and on that account, ought to be sanctioned by a lesser penalty than that for Knox and Peters;
(c)each of the four offenders was equally responsible for the torture, each contributing in a different way with the consequence that, in his Honour’s view, it was not appropriate that different sentences be imposed for the offence;
(d)the torture offence did not warrant the making of a serious violent offence declaration as it would have the consequence that each offender would have to serve eighty per cent of the sentence; and
(e)each offender had taken steps towards rehabilitation and had expressed remorse.
The Attorney-General’s appeals
In each appeal, the Attorney-General relies on the following grounds:
“1.The sentence imposed is manifestly inadequate;
2.The sentencing judge erred in not declaring the offence of torture to be a Serious Violent Offence.”[20]
In respect of Ground 1, the Attorney-General submits that, in each case, the sentence imposed for torture is manifestly inadequate because the head sentence of six years is, in itself, manifestly inadequate. In the alternative, it is submitted that either the failure to declare the offence to be a serious violent offence or the order for “early eligibility for parole”, or both of them together, has rendered the sentence manifestly inadequate. An elaboration of this ground is that the learned sentencing judge misapplied the parity principle with the consequence that, on that further account, the sentences for Knox and Potts are manifestly inadequate.
As developed in submissions, Ground 2 contends that the learned sentencing judge limited consideration of a serious violent offence declaration to a comparison with other cases and in this way erred by unduly confining the exercise of the discretion to make such a declaration.[21] This ground raises a discrete point. It is convenient to deal with it first. The separate issue of whether the absence of a serious violent offence declaration has rendered the sentences manifestly inadequate falls for consideration under Ground 1.
Ground 2
This ground of appeal is centred upon the following passage from the sentencing remarks:
“The issue of whether I should make a serious violent offender (sic) declaration has been raised and reference was made initially by Mr McGhee to what the Court of Appeal said in the case of The Queen against Brown, namely:
It is likely that a person who is convicted of the crime of torture, particularly where it involves intentional infliction of pain or suffering on more than one occasion, will be declared a serious violent offender.
If such a declaration is made, you would be required to serve 80 per cent of the sentence. In my view, the offence does not warrant the making of a serious violent offender (sic) declaration. The offence consisted of one occasion only, albeit an extended one, one which extended over some seven hours. It was not committed on more than one occasion, such as over weeks and on separate occasions, and the injuries suffered by the complainant here are less serious than those in other cases, in particular, Mah, and in Brown’s case, there were three separate occasions described in the case of Real as a series of attacks, so I’m not satisfied that the circumstances justify the making of a serious violent offender (sic) declaration.”[22]
In these remarks, his Honour referred to three decisions of this Court which had been cited to him in submissions, namely, R v B; ex parte Attorney-General,[23] R v Real[24] and R v Mah.[25]
In R v B (Brown), an Attorney-General’s appeal against a sentence of seven years’ imprisonment with a serious violent offence declaration for torture was dismissed. The victim was the offender’s 17 year old daughter. The torturing to which the offender pleaded guilty, took place over six weeks. The worst of the victim’s multiple injuries was a life threatening stab wound to the chest.
In Real, the offender was sentenced to six years’ imprisonment for torture of a nineteen year old male. No serious violent offence declaration was made. The offending occurred over the one night. It consisted of a number of assaults and threats which caused physical injuries in the form of lacerations requiring suturing, welts, burns, and a sub-conjunctival haemorrhage to an eye, as well as psychological damage. The offender’s sentence to torture was reduced to five years’ imprisonment, to be suspended after two years for an operational period of four years.
The offending in Mah involved systematic mistreatment of a 23 year old autistic man. Over a period of a fortnight to a month, the offender hit the complainant with a steel pipe about the head, face, chest, shoulders and upper back. This occurred daily at first, and then with increased frequency. The offender’s application for leave to appeal against his sentence of six years’ imprisonment with a serious violent offence declaration was refused. In his reasons, de Jersey CJ, (with whom Jerrard JA agreed) observed:
“The applicant referred us to a number of cases where lesser penalties were imposed. R v Burns,[26] R v Roelandts,[27] Egan and Litfin, a sentence imposed on 15th February 1999, R v Dack,[28] R v Real and R v Edwards.[29] What distinguishes all of those cases from this one, is that they all concern maltreatment on the one occasion or in the course of the same day. This course of torture occurred over a period of a fortnight to a month with daily beatings and more frequently as time went on. Geddes offers a much more helpful basis for comparison because the torture there occurred over a substantial period.”[30]
Here, the Attorney-General submits that the learned sentencing judge confined his consideration of whether a serious violent offence declaration ought to be made to a comparison of the duration of the offending in them to that in the case before him.[31] An error of that kind would be one of failing to take into account other material considerations.[32] In written submissions, an error of a different kind is suggested. It is that his Honour implicitly acted upon an erroneous principle, namely, that a serious violent offence declaration order ought only be made for torture offences where the torturing is carried out in a series of episodes over a prolonged period of time.[33]
There is a premiss which underlies each alleged error. They are not the same. However, in my view, neither premiss is valid. I do not accept that his Honour confined his consideration to a comparison of the duration of the offending in the cases cited to him and in the case before him; nor do I accept that he adopted and applied such a principle.
In the course of submissions, the learned sentencing judge was provided with a copy of the decision of this Court in R v McDougall and Collas.[34] He was taken specifically to the observations of the Court[35] concerning the exercise of the discretion to make a serious violent offence declaration when the circumstances of the offending are not beyond the norm for that type of offence.[36] There, the Court stated that the considerations that may be taken into account are the same as those which may be taken into account in other aspects of sentencing and cautioned that factors must exist which warrant an exercise of the discretion. His Honour, in terms, gave an assurance that the range of considerations would be taken into account in exercising the discretion.[37]
Further, his Honour’s sentencing remarks to which I have referred were made after he had recounted in detail the course of the offending, the complainant’s injuries and continuing suffering, the pleas of guilty, the offenders’ respective ages, their antecedents and time spent in custody. This sequence indicates that those were all factors which were taken into account in deciding how the discretion was to be exercised. It also undermines the proposition that his Honour implicitly adopted and applied a principle of the kind attributed to his reasoning in written submissions.
I therefore conclude that this ground of appeal is not made out. It remains to note that while the appellant questioned whether the offending here was within the norm for torture, no submission was made, nor could it creditably have been made, that the circumstances of the offending compelled the exercise of the discretion in favour of a declaration such that the decision not to make a declaration was so unreasonable that no court acting reasonably could have made it.
Parity principle
Although not a separate ground of appeal, the criticism made by the appellant of a failure on the part of the learned sentencing judge to apply properly the parity principle warrants consideration at this point. If the criticism is valid, the consequence that such a failure would have here needs to be identified clearly as a prelude to a consideration of Ground 1.
I have referred to his Honour’s view that the respondents were equally responsible for the torture offending. He said:
“In my view it is not appropriate that different sentences for torture be imposed on each of you. You were, in my view, equally responsible for what occurred, contributing in different ways. You were all present encouraging the other in what was going on. The violence extended over an extended period. It included assaults, abuse, sexual interference, and injuries were suffered by the plaintiff. There appears, in my view, certainly after viewing exhibit 16, the film, a degree of abstract pleasure for all of you in the cruelty being inflicted on the complainant.”[38]
The appellant does not take issue with this finding insofar as it recognises the enthusiastic participation of each of the respondents and their respective contributions to the offence. The criticism made is that if fails to recognise “the greater and driving role played, jointly and separately,” by Knox and Potts.[39] This criticism is made notwithstanding that the prosecutor at sentence did not submit for different sentences in order to ensure parity in sentencing.
The appellant has referred to the observations made by Dawson and Gaudron JJ in Postiglione v The Queen[40] that the parity principle is an aspect of equal justice, requiring that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. It follows, it is submitted, that a failure to impose different terms of imprisonment to reflect relative differences in offending may constitute a misapplication of principle.[41]
Insofar as the appellants’ criticism categorises Knox and Potts’ offending as distinctly worse than that of the other two, it encounters some difficulty. Whilst there is a factual basis for finding that the intensity of the violence increased after Potts’ intervention, he arrived well after the offending had begun and departed several hours before it finished. He was not present when the fracture to the complainant’s nose appears to have been caused.
Further, to regard Peters’ conduct as significantly less culpable than that of Knox and Potts gives insufficient recognition, in my view, to the worst aspect of it. Peters used the vice grips to break one of the complainant’s lower teeth in an attempt to extract it forcibly.
It is significant for present purposes that the criticism made, even if valid, will only avail the appellant if the sentences that have been imposed are manifestly inadequate. In argument, counsel for the appellant accepted that unless the sentence of any of the offenders, particularly Knox and Potts, is manifestly inadequate, then a misapplication of the parity principle in his favour is not a sentencing error which would permit re-sentencing him to a harsher penalty.[42]
Ground 1
In The Queen v Pham[43] French CJ, Keane and Nettle JJ recently described the conclusion that an appellate court must reach in order to intervene for manifest excessiveness or inadequacy in a sentence. Citing Wong v The Queen[44] and Barbaro v The Queen,[45] their Honours said:
“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that had been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”[46]
In Hili v The Queen,[47] the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) reminded that the misapplication of principle in this context is one to be inferred from orders by a sentencing judge that are “unreasonable or plainly unjust”. That description is the hallmark of discretionary error of the last kind mentioned in House v The King.[48]
The appellant argued that a comparison with other sentencing decisions for torture justified a conclusion that the sentences imposed here are unreasonable or plainly unjust. The court was referred to Real to which I have referred. The factors that the attack there was over a shorter period, that the injuries, though similar, were not as extensive, and the absence of aspects of humiliation and of sexual overtones were mentioned in order to make a contrast with the present case. It was, however, conceded, that the 27 year old offender was older and that he had a record of “extensive prior offences including common assault”. His re-sentence reflected parity considerations with his co-offender Dack.
In R v Dack,[49] Real’s co-offender was 32 years old. He had an extensive criminal history including offences of violence for which he had been imprisoned on a number of occasions. His sentence of eight years’ imprisonment with parole eligibility after three years was reduced to seven years with the same parole eligibility.
The appellant drew the Court’s attention to an observation made in R v Roelandts[50] some months after Real and Dack had been decided. There, de Jersey CJ, with whom Jerrard JA and Wilson J agreed, suggested that that case should be regarded as signalling a need to strengthen the approach to sentencing for torture. In Roelandts, the offending was described as “close to attempted murder” of the offender’s pregnant fiancée. It was said of the effective sentence of four years’ imprisonment that it was “manifestly low” and certainly was not manifestly excessive.
Reference was also made by the appellant to the later decision in R v Cowie[51] in which, after a trial, an effective sentence of 12 years’ imprisonment was imposed. Cowie and four co-offenders took the complainant, an 18 year old backpacker to an inner-city squat. He was subjected to punching, choking with a chain and assaults with a wooden bat over a number of hours in an attempt to obtain his Bankcard PIN. He was left with psychological disturbance and permanent injuries to an eye and to a finger. Cowie was 26 years old. He had a lengthy criminal history which included prison sentences of up to two years for offences of violence and convictions for drug offences. His application for leave to appeal against the sentence which carried with it a mandatory serious violent offence declaration, was refused. The Court noted that two of the co-offenders who had pleaded guilty were sentenced to eight years’ imprisonment with serious violent offence declarations. Neither had a significant criminal history for violence.[52]
Both the appellant and the respondents referred in submissions to the more recent decision of this Court in R v Melling & Baldwin.[53] There, the offenders were friends who were aged 44 and about 24 years respectively. The complainant, a young man, had been in a relationship with Melling’s niece. There was a dispute between them over the complainant’s claim to paternity of the niece’s child. The offenders determined to give the complainant “a slap around” because he had been harassing the niece. In her reasons for judgment, Holmes JA, with whom McMurdo P and Applegarth J agreed, described the torture that ensued in the following terms:
“… [T]he restraining and assault by punching of Mr Murray at some time after 8.00 pm; the firing of shots near him; his being placed and transported in the back of Melling’s truck, including his fall onto the road; the occasioning of the toenail injury, though not with any specific intent to remove it; his placing and movement in an injured state, tightly bound and with his mouth taped, in Melling’s boat. He was eventually rescued by police at about 11.45 pm. One can infer that, for most, if not all, of that three and a half hour period of time, he feared for his life …”[54]
(Her Honour acknowledged that other injuries then inflicted of a skull fracture and resulting brain injury and of facial injuries could not be regarded as part of the torture, they having been the subject of a separate count of grievous bodily harm to which the offenders had also pleaded guilty).
Her Honour considered and distinguished the circumstances in Mah, R v B, and Cowie, saying:
“[49]… The appellants’ victim was not, as in Mah, disabled and vulnerable; nor was he in any special relationship with them as was the victim in B: she was the daughter of the offender and under his control. The desire to harm Mr Murray was at least motivated by some perceived wrongdoing on his part towards Melling’s niece, in contrast with the sheer love of cruelty for cruelty’s sake exhibited in B and Mah.
[50]This case is distinguishable, too, from Cowie, relied upon by the Crown (in which the applicant was sentenced to 12 years imprisonment for torture) in respective of motive, level of cruelty, and criminal antecedents of the offenders. In Cowie, the complainant was held by five men over several hours and assaulted in a number of ways, including burning with a cigarette lighter, in order to obtain his property, particularly the PIN for his Bankcard. The applicant there had a lengthy criminal history which revealed, according to the court, a ‘proclivity to offences involving personal violence’.”
Turning to the case before her, Holmes JA continued:
“[51]In the circumstances of this case, having regard to the limited period of time over which the appellants’ abuse of Mr Murray occurred, the fact that their actions were, although appallingly cruel, not motivated by an abstract pleasure in cruelty, and their lack of any previous convictions for violence and their co-operation, I would set aside the sentence of eight years imprisonment on the torture count and, in each case, substitute a sentence of six years imprisonment without any recommendation for eligibility for parole. In imposing that sentence, I would not distinguish between the appellants: any credit which might be given to Melling for his additional co-operation in identifying the location of his firearm is off-set by his greater age and the probability that Baldwin was led into the offending by him. No particular submissions were made as to a proper range for sentencing for the burglary. In the circumstances, I would not interfere with the sentence of three years imposed in each case.”
It is common ground that the injuries to the complainant here are broadly comparable with those sustained by the complainant in Melling & Baldwin.[55] They also were inflicted during the one episode of torture. A further similarity is that there was a motivation to punish for a perceived wrong done by the complainant to a third party although, of course, the mode of punishment adopted in each instance was utterly disproportionate and entirely without justification.
A point of difference is that in Melling & Baldwin, there was no aspect of abstract pleasure in inflicting the cruelty. However, the abstract pleasure which the learned sentencing judge found accompanied the violence here, needs to be placed in the context that each of the offenders was suffering a childhood-related psychological disorder. The abstract pleasure may be said to have been adjectival to the violence. That is to say, the course of violent conduct was not embarked upon for the purpose of self-gratification.
A further point of difference is that the offenders in Melling & Baldwin were both mature men. Here, on the other hand, the immaturity of youth was a significant factor. The decision not to make a parole eligibility recommendation in the former case is one that was made without the need to consider the moderating influence of this factor.
Drawing upon this comparative analysis of the present case with Melling & Baldwin, and having regard to the circumstances relevant to sentencing here to which I have referred, I am driven to the conclusion that although the sentences imposed by the learned sentencing judge are towards lenient in respect of the actual time required to be served, they are not unreasonable or plainly unjust. However, I am unpersuaded that they were arrived at by some misapplication of principle such as would warrant intervention by this Court on the basis that they are manifestly inadequate. This ground of appeal, therefore, has not been made out.
As neither ground of appeal has succeeded, the Attorney-General’s appeal against sentence must be dismissed.
Goulding’s application
There are several significant respects in which Goulding’s circumstances differ from those of the other co-offenders. In the first place, he was not an active participant in the more egregious aspects of the infliction of torture on the complainant. Apart from his conduct in the drawing on the complainant’s body with a marker pen, he did not make physical contact with the complainant’s body either with his own body or with an object wielded by him. His role was one of an encourager and observer.
Another point of difference is that Goulding did participate in an interview with police and made partial admissions whereas his co-offenders did not. Further, Goulding had no criminal history at the time. The other comparatively minor offending for which he was punished at sentence occurred after this offending. By contrast, Potts, in particular, had a significant record of prior offending including offences of violence.
In these circumstances, it is legitimate to question whether the parity principle has been properly applied in Goulding’s case. Once recognition is given to these differences, it cannot fairly be said that his relevant circumstances and those of the other co-offenders were so alike as to call for the same treatment in sentencing. Some concession in his favour ought to have been made on account of those differences. To my mind, the parity principle was not properly applied in this instance. Goulding should be granted leave to appeal against sentence, his appeal allowed, and the sentence set aside.
Counsel for Goulding submitted that his client should be re-sentenced to a term of imprisonment of between four and five years. Given that by the time of the hearing of the application, Goulding had served more than two years, the further submission was made on his behalf that there ought be an immediate suspension of the balance of any substituted head sentence.
In my view, the appropriate sentence Goulding should serve for the torture offence is five years’ imprisonment. There is no good reason to suspend any part of the substituted sentence. Against suspension is the consideration that his prospects of rehabilitation are likely to be promoted by a requirement on his part to observe parole conditions. The parole eligibility date originally set at 15 March 2016 should be affirmed.
Orders
I would propose the following orders:
(a)In CA No 176 of 2015, CA No 177 of 2015, CA No 178 of 2015 and CA No 179 of 2015:
Appeal dismissed.
(b)In CA No 173 of 2015:
(i)Application for leave to appeal against sentence granted.
(ii)Appeal allowed.
(iii)Sentence of Christopher Samuel Goulding on Count 1 on Indictment No 135 of 2015 at Southport be varied by substituting for the sentence of six years’ imprisonment, a sentence of five years’ imprisonment.
(iv)The said sentence is otherwise confirmed.
[1] PHILIPPIDES JA: I agree with the orders proposed by Gotterson JA for the reasons given by his Honour.
[2] PHILIP McMURDO JA: I agree with Gotterson JA.
Footnotes
[1] Code, s 419(4).
[2] Drugs Misuse Act 1986, s 10(2)(b).
[3] Code, s 469(1).
[4] For that offence, his Honour also discharged the probation order and sentenced Potts to two months’ imprisonment, declaring the 26 days to be time already served.
[5] Transcript 1-9 ll15-17.
[6] Sentence p 7 ll34-43.
[7] That is attributable to the fact that Knox had spent 17 months and one week in custody whereas his Honour thought that it was 17 months. This misapprehension is not relied on by the Attorney-General as an appealable error in sentencing: Written Submissions paragraph 7.2.
[8] Appeal Record Book 209-216.
[9] Application Record Book 94-96.
[10] Appeal Record Book 104-112.
[11] Written Submissions for Goulding, paragraph 1; Written Submissions for Potts, paragraph 1; Written Submissions for Knox, paragraph 1. In Goulding’s case, the admission was subject to one qualification which has been adopted in the recitation of the appellant’s summary set out in these reasons.
[12] The footage was viewed by this Court during the hearing of the appeal.
[13] Victim Impact Statement, Exhibit 10; Appeal Record Book 114-115.
[14] Appeal Record Book 84 ll33-35.
[15] Report dated 19 June 2015: Appeal Record Book 203-208.
[16] Report dated 20 January 2015: Appeal Record Book 183-190.
[17] Report dated 16 April 2015: Appeal Record Book 168-173.
[18] Evidence of these offences was admissible on sentence pursuant to s 148(3)(a) of the Youth Justice Act 1992 (Qld).
[19] Report dated 26 June 2015: Appeal Record Book 143-157.
[20] Appeal Record Book 210, 212, 214, 215.
[21] Written Submissions, paragraph 7.26.
[22] Appeal Record Book 88.
[23] [2000] QCA 110; reported sub nom R v Brown (2000) 110 A Crim R 499.
[24] [2001] QCA 422.
[25] [2004] QCA 198.
[26] [2000] QCA 201.
[27] [2002] QCA 254.
[28] [2002] QCA 44.
[29] [2001] QCA 366.
[30] At p 5-6.
[31] Written Submissions, paragraph 7.26.
[32] House v The King (1936) 55 CLR 499 at 505.
[33] Written Submissions, paragraph 7.25.
[34] [2006] QCA 365; [2007] 2 Qd R 87.
[35] At [19] cited in R v Risley; ex parte Attorney-General [2009] QCA 285 at [41].
[36] Appeal Record Book 61; Tr1-25 ll13-30.
[37] Appeal Record Book 80 Tr1-44 ll4-18.
[38] Appeal Record Book 85 ll30-36.
[39] Written Submissions, paragraph 7.14. The respondent Goulding supports this criticism: Written Submissions, paragraph 4.
[40] (1997) 189 CLR 295 at 301.
[41] Written Submissions, paragraph 7.11.
[42] Appeal Transcript 1-8 ll16-34; 1-30 l40.
[43] [2015] HCA 39; (2015) 325 ALR 400.
[44] [2001] HCA 64; (2001) 207 CLR 584 at [58].
[45] [2014] HCA 2; (2014) 253 CLR 58 at [61].
[46] At [28].
[47] [2010] HCA 45; (2010) 242 CLR 520 at [58].
[48] At 505.
[49] [2002] QCA 44.
[50] [2002] QCA 254.
[51] [2005] QCA 223; [2005] 2 Qd R 533.
[52] At [11].
[53] [2010] QCA 307.
[54] At [41].
[55] Appellant’s Written Submissions, paragraph 7.17; Knox’s Written Submission, paragraph 8.