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R v Galleghan[2017] QCA 186
R v Galleghan[2017] QCA 186
COURT OF APPEAL
SOFRONOFF P
BODDICE J
FLANAGAN J
CA No 218 of 2016
DC No 80 of 2015
DC No 439 of 2014
THE QUEEN
v
GALLEGHAN, Robert James Applicant
BRISBANE
THURSDAY, 31 AUGUST 2017
JUDGMENT
SOFRONOFF P: The applicant applies for leave to appeal against a sentence imposed upon him on the ground that it is manifestly excessive. On 5 August 2016, the applicant was sentenced to a term of imprisonment of eight years, and the learned sentencing judge made a declaration pursuant to s 161B of the Penalties and Sentences Act 1992 (Qld). The applicant was also sentenced to a term of imprisonment of 12 months in respect of a count of common assault, and six months for threatening to kill in a way likely to cause fear of bodily harm. He does not apply for leave to appeal against those two sentences.
The complainant was BN. She and the applicant began a relationship in August 2011 when Ms BN had just turned 16. The applicant was then 28 years old. Ms BN and the applicant moved into a house together. The relationship was a stormy one. They would argue. As will appear, the applicant threatened Ms BN in a variety of ways. One of these ways was to tell her that he would tie her up and put her in a shipping container at the rear of the house. As will appear, this is one of the things that he eventually did.
On 24 November 2012, after a period of separation, Ms BN attended at the applicant’s house and Mr Scott and Ms Lloyd with their six year old son also attended, as well as another couple. There was drinking, although Ms BN did not drink alcohol herself. At about 8 o’clock, Mr Scott and Ms Lloyd and their son left the house to drive the other couple home. While they were gone, the applicant and Ms BN began to argue. The couple with their young son then returned to the house, where they intended to stay the night. Mr Scott attempted to prevent the argument between the applicant and Ms BN. This was ineffective.
The applicant then stood over Ms BN and put his right thumb to her left temple. He pushed her head down sideways and smashed it down a number of times onto a side table. He put his hand around her neck and held her down on the couch. He used his elbow to hit her about five times to the face. He then picked her up by her hair and, lifting her body in that way, threw her down onto the tiled floor. She landed on her back and suffered pain and was winded. Ms Lloyd and her son then left. Mr Scott stayed in attempt to stop the applicant hurting Ms BN further.
The applicant headbutted Ms BN a number of times. She was bleeding and crying while she begged him to stop. He did not stop. He threw her to the floor and kicked her a number of times in the kidney area. This caused severe pain and difficulty in breathing. He put his foot on her bladder area and stamped down twice, saying, “Now you won’t be able to have kids.” Again, he picked up Ms BN by the hair and pushed her forward. He put his arm around her neck and applied pressure. She lost consciousness.
Ms BN found herself lying on the sofa. The applicant stood over her with his legs on the outside of her legs. He put his thumbs into each of her eyes and pressed inwards. He banged her head against the wall and hit her in the face with open palms. He put two fingers on either side of her mouth and pulled her cheeks away from her teeth, hurting her. He then took out a knife and put the blade of it to her neck and said, “It would be so easy to kill you right now. It’s not hard for me to slit your throat.”
While Mr Scott was attempting to stop him, the applicant swung a number of punches at Mr Scott, connecting twice. This constituted count 2, a charge of common assault. The inference is that the applicant did this so that he, the applicant, could keep torturing Ms BN. The applicant then chased Mr Scott while holding a knife with a 20-centimetre blade. Mr Scott was able to escape in the car driven by Ms Lloyd and which contained the young boy. Mr Scott jumped out of the vehicle to deflect the applicant’s attention from the car, which contained the woman and child.
The applicant said, “I’m going to fucking kill you,” a number of times. He said, “I’m not afraid to do your son as well.” Ms Lloyd said to him, “Please, not in front of my son.” Mr Scott heard her say this. The applicant came within 20 metres of Ms Lloyd’s car. She said, “I’m sorry, I’m sorry, please let me go.” The applicant was able to remove the keys from the ignition of the car. He slammed the door closed and threw the keys away. Mr Scott and Ms Lloyd used a spare key to start the vehicle and they drove to a place of safety where they called triple zero.
Meanwhile, the applicant attacked Ms BN again. He threw her once more onto the tiled floor and said, “The cops are coming. Hurry up and die.” He struck her repeatedly around the head and face. He said, “There is no way you are making it out of here tonight. You will be dead before they get here.” He said, “I understand I am going to jail now. After I kill you I’m going to sit here and drink my beer in pride. There is no way I am going without a fight.” He then said, “I know what I am going to do. I am going to tie you up in the shed. If the police don’t find you, you will be rotting in there for a month.”
He then put this murderous plan into action. He dragged Ms BN to a shipping container standing in the backyard of the house. He pulled her into it and placed her on a metal trolley, face up. He then attempted to tie her to the trolley with plastic zip ties, but failed. He then returned to the house and brought wire with him. He cut that into pieces and wired her limbs and waist to the trolley. He was careful to do this job neatly. Police later found that each piece of wire had been secured with three or more neatly trimmed twists.
He then ripped at Ms BN’s underwear until it came off. He said, “Make sure you tell the police it was Daniel,” referring to Mr Scott. Ms BN said, “I will say whatever you want me to say.” The applicant then pushed the underwear into Ms BN’s mouth so far that it caused her to gag. She said, “I can’t breathe.” The applicant said, “You still have your nose to breathe with.” He then wrapped wire around Ms BN’s mouth to secure the underwear inside. He then began to laugh and to pour beer over Ms BN. In the course of wiring her to the trolley, some wire went to the entrance of her vagina and penetrated the vulva to a small extent. He put the wire around her neck and placed a yoga mat over her head, which he secured with more wire, thus blinding her. He said, “This is the last thing you will hear or see. You will die in here tonight. The cops will find you.” He then closed the door of the shipping container and laughed.
This continuous assault upon Ms BN constituted the offence of torture. Mr Scott and Ms Lloyd’s call for assistance resulted in two police officers attending at the house within 10 minutes. They saw there were lights on at the house and they could hear metallic scraping from the rear of the house. It was now 12.11 am. They called for the applicant to come out of the house and eventually he did so and was arrested and handcuffed. The arresting police officers asked him where “the girl” was. The applicant began to lie to them. He said that she had left with the others. He appeared calm and cooperative during the conversation that he had with the police.
One of the police officers then saw a knife lying on the vicinity of the shipping container in the backyard of the house. Police tried to open the container but were unable to do so. They asked the appellant again, “Where is your girlfriend?” The applicant continued to lie. He said, “I don’t know. I was knocked out. She’s probably left with Daniel.” He was asked what was in the shipping container and he said that there was nothing in it. Police called out to anybody in the shipping container and heard noises coming from inside. They asked the applicant to open the shipping container for them. He continued to lie. He said, “I don’t know why she’s in there. Daniel must have put her in there.”
The police were able to open the shipping container without any assistance from the applicant. They saw Ms BN wired to the trolley with her head covered by a blue rubber mat. They had great difficulty in releasing her. They were able to find a pair of wire cutters, and using that tool they were able to cut the wire from the parts of her body to which the appellant had applied it. They saw that the wire was around her right wrist so tightly that it was embedded in her skin. As I have said, each piece of wire had been secured tidily by the applicant.
It is by mere luck that Ms BN did not suffer permanent physical injuries from her ordeal. The many injuries that she actually suffered from the applicant’s brutal treatment of her are contained in four pages of the agreed statement of facts that was tendered on sentence. Ms BN’s victim impact statement, written in free verse, says, relevantly:
“I still wake up with your name in my throat sometimes
Where it was caught between your hands when you squeezed
I still wake up with anxiety most nights
Your eyes follow me from every shadow
Every loud sound crowding the edges of my memory
But I still wake up!
…
My damage is enclosed and unseen, I carry it with me.
You took away my worth, my energy, my time, my time, my safety, my intimacy, my confidence, and my own voice, until today.”
As I have said, the applicant was sentenced to a term of imprisonment of eight years for this offence. The prosecutor had submitted that a sentence of at least eight to 10 years was appropriate for this offence, together with a Serious Violent Offence declaration. The applicant’s counsel submitted that a sentence of eight years was appropriate without such a declaration. On the applicant’s behalf, it is now submitted that the sentence was excessive.
It is submitted on his behalf that he had a prejudicial childhood, that he had been born to a heroin-addicted mother and that he was adopted out. His adoptive mother suffered a brain injury as a result of an assault by another family member and the applicant had cared for her until her death, which occurred while he was in custody awaiting trial for this offence. It is said that he has taken significant steps towards rehabilitation and has completed every course available to him. It is said that at the time of the offence, he was abusing alcohol and medication.
The applicant has a previous criminal history. This includes a conviction for assault occasioning bodily harm in 2002, a conviction for wounding in 2004 and a conviction for serious assault in 2010. He had also been convicted of assaulting a police officer on 10 May 2012. He was sentenced to a term of imprisonment of nine months for that offence and other offences for which he was dealt with on that same day. However, he was ordered to be released immediately on parole. Consequently, the present offence was committed while he was on parole.
It is submitted on the applicant’s behalf that the learned sentencing Judge gave insufficient weight to the plea of guilty, to the applicant’s prejudicial background and his efforts to rehabilitate himself whilst in custody. Of course, that is not a proper ground of appeal. In Gronow v Gronow (1979) 144 CLR 513, Aickin J said at page 537:
“Statements of the general principles to be applied by an appellate court when asked to set aside an order made in the exercise of a judicial discretion generally include a reference to the trial judge giving inadequate weight to some factors and excessive weight to others. It is however a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge.”
In an earlier case, Lovell v Lovell (1950) 81 CLR 513, Kitto J said at page 533:
“The proposition that the appeal court will consider whether ‘no sufficient weight’ has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction; even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully.”
It was also submitted on behalf of the applicant that the offence occurred “on a single occasion” and that:
“…the most serious aspect of the applicant’s offending… occurred over a period of approximately 10 minutes.”
In my respectful opinion, this is of no relevance whatsoever. The crucial fact is not how long the ordeal lasted. The crucial fact is the nature of the ordeal itself. It’s also submitted that, despite the ordeal, the complainant did not suffer serious physical injury. This is true. And the applicant is entitled to be sentenced on that basis. However, there is no reason whatsoever to suppose that the learned sentencing judge sentenced the applicant on any other basis. It’s also submitted that the offending was not premeditated. That is so. But, again, there is no reason to think that the applicant was sentenced upon a wrong basis in that respect.
In addition, it is relevant to the exercise of sentencing discretion that there were several indicators, to which I have already referred, that show that while the applicant’s cruelty was not premeditated, it was the product of cool deliberation when he was torturing his victim. It is further submitted that the applicant was affected by drugs and alcohol and emotion at the time of his offending. I am not sure whether that can be regarded in the circumstances of this case as a matter in mitigation of sentence. It may equally be a matter in aggravation of sentence. But, in any event, there is no reason to suppose that his Honour misconstrued its significance.
The question then remains whether the sentence of eight years imprisonment was outside the proper range of sentences that were within the exercise of discretion. The cases relied upon by the applicant are four in number. They are R v Roelandts (2002) 131 A Crim R 603; [2002] QCA 254, R v West [2007] QCA 347, R v BH; ex parte A-G [2000] QCA 110, R v HAC [2006] QCA 460. Each of these cases contains its own idiosyncratic set of brutal acts constituting torture. It’s not instructive, in my view, to relate them or to compare them each with the other, or with this case. It’s enough to refer to a number of brief aspects of three of them.
In R v Roelandts, a sentence that was, effectively, one of four and a half years was imposed. And the applicant in that case appealed it. De Jersey CJ said:
“My own view is that the sentence of three years which, as I have said, translates, allowing for time already served, to four years or a little more, should be regarded as unsustainably lenient, indeed absurdly so. It is certainly obviously not manifestly excessive. Offending of this substantial proportion warrants a condign response from the Court. The nature of this offence was close to attempted murder.
I consider the appropriate starting point was eight to 10 years reduced to six for the plea of guilty.”
The second case relied upon was R v BH. In that case, the sentencing judge sentenced the applicant to imprisonment for seven years and declared him to be a serious violent offender. That sentence was not disturbed on appeal. In the course of their reasons, Moynihan SJA and Atkinson J said that the appropriate sentencing range in the circumstances of that case was imprisonment of between seven and 10 years, together with a declaration that the respondent was a serious violent offender.
In R v Cowie [2005] 2 Qd R 533; [2005] QCA 223, the sentencing judge imposed a sentence of 12 years. This was not disturbed on appeal. The court was prepared to act upon the basis that the appropriate range was between 10 and 12 years.
A consideration of those cases does not suggest that the sentence imposed in this case was outside the exercise of proper discretion on the basis that it was manifestly excessive. This offence was one that involved painful, sadistic and calculated physical and mental torture. Even when the victim was discovered by police, the applicant attempted to obstruct the police in their rescue of her. In my opinion, there is not even an arguable error in the exercise of discretion and the application should be refused.
BODDICE J: I agree.
FLANAGAN J: I agree.
SOFRONOFF P: The order of the court is leave to appeal against sentence is refused.