R v Luxford[2020] QCA 272

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT: Mr Luxford pleaded guilty in the District Court on 3 February 2020 to numerous domestic violence offences. The sentencing submissions were made on 29September 2020 and Mr Luxford was taken into custody at the conclusion of those submissions. The sentences were imposed on 7 October 2020. The most serious offences on the indictment were counts 12 and 13 (choking, suffocation or strangulation in a domestic setting) and Mr Luxford was sentenced to imprisonment of three years and six months for each of those counts. In respect of each of the eight counts of assault occasioning bodily harm (domestic violence offence) which were counts 2-4, 6-8, 10 and 11 and the threat (domestic violence offence) which was count14, Mr Luxford was sentenced to two years’ imprisonment. For each of counts1 and 5 which were common assault (domestic violence offence) and count9 which was wilful damage (domestic violence offence), he was sentenced to six months’ imprisonment. All terms of imprisonment were concurrent. The date for eligibility for parole was fixed at 29 September 2021 and a declaration was made in respect of the eight days spent in pre-sentence custody. The expiry date of the protection order that was in place pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) was extended to 7 October 2025.
2. [2]
   Mr Luxford applies for leave to appeal against the sentences on the ground the decision of the learned sentencing judge to require him to serve actual custody rendered the sentence manifestly excessive.

Mr Luxford’s antecedents

3. [3]
   Mr Luxford was 37 years old, when sentenced. Mr Luxford and the complainant commenced a relationship in April 2015. It was an on-off romantic relationship throughout the period of the offending until March 2017. The offending was committed between September 2015 and March 2017.
4. [4]
   Mr Luxford completed Year 10 at school. He was unhappy living with his mother and stepfather and left home at the age of 15 years and then joined the army when he was 17 years old. He remained in the army for 15 years and had several overseas deployments including Papua New Guinea, Afghanistan and Timor. He also spent time in the Special Forces. He left the army in 2015 on medical grounds. He had ashoulder injury, chronic pain from a sciatic nerve disorder, tinnitus and post-traumatic stress disorder (PTSD). In Mr Luxford’s application to the Military Rehabilitation & Compensation Commission for compensation for his injuries, he attributed the direct cause of his PTSD to “deployment on Operation Slipper during, exposed to 82 direct rocket attacks, direct combat multiple occasions and was in close proximity to four VBIED explosions” that was supported by his service medical records and reports from psychiatrist Dr Wheatley. VBIED is a reference to vehicle borne improvised explosive devices. On 22 February 2016, the Commission accepted his claim for liability for all injuries, except the back injury.
5. [5]
   He has two children from an earlier relationship with a former partner with whom he shared custody.
6. [6]
   He had no criminal history prior to being charged with the subject offences. The one entry on his criminal history in May 2017 was for an offence of failure to secure storage of weapons committed on 12 February 2017.
7. [7]
   Mr Luxford participated in an individual Men’s Behavioural Change program to assist him in not engaging in domestic violence. This program was provided by psychotherapist Mr Christopher Buckman who provided a report dated 26 January 2019 that confirmed that Mr Luxford was motivated to work upon and resolve the issues that had resulted in the charges and had developed positive insight and empathy. Mr Luxford was in the habit of contacting Mr Buckman for after hours care by way of telephone sessions, when he was experiencing “bad days”. In May 2020 MrLuxford was accepted into the program being conducted by Phoenix Australia with support from the Australian Defence Force and the Department of Veterans’ Affairs that is a research trial to evaluate the effectiveness of psychological treatment for PTSD. The program is called RESTORE – Rapid Exposure Supporting Trauma Recovery.

The facts of the offending

8. [8]
   Count 1 was an assault where Mr Luxford pushed the complainant onto the bed and when she tried to get up, he grabbed her by the hair and around the neck and slammed her head into the door.
9. [9]
   Mr Luxford and the complainant separated in December 2015, but they still had contact. The complainant went to Mr Luxford’s home before Christmas and they consumed alcohol. During the evening, the complainant received a text message which caused Mr Luxford to become abusive. He head-butted the complainant in her forehead and she fell unconscious. That was the subject of count 2.
10. [10]
    The complainant and Mr Luxford moved in together in April 2016. They had an argument on 2 May 2016 and then Mr Luxford grabbed the complainant by the throat with his right hand and straightened her up against the hallway wall and lifted her up off the ground while she was pinned to the wall, applying pressure to her throat and neck as he did so. Mr Luxford’s hand then slid up towards the complainant’s jawline which caused her tonsils to press up against her jaw and she suffered immediate and significant pain. This was the subject of count 3. The complainant called out for MrLuxford’s children and that caused Mr Luxford to loosen his grip, so that the complainant’s feet were back on the floor. Mr Luxford kept his hand around the complainant’s neck, but used his left hand and pushed the complainant’s face into the wall. That was the subject of count 4.
11. [11]
    In the early hours of 21 May 2016, the police attended after Mr Luxford and the complainant had been arguing. Neither of them made a formal complaint to the police. After the police left, they had a further argument in the bedroom during which MrLuxford threw the complainant into a set of drawers and attacked the complainant’s face with his hands, spitting in her face and then pushed her onto the bed and started to stretch the skin around her eyes with his thumbs. The complainant managed to get away from Mr Luxford. This incident was the subject of count 5.
12. [12]
    Mr Luxford and the complainant had another argument in the early hours of 1 June 2016. The complainant was in bed, when Mr Luxford grabbed the complainant’s phone and wanted her to give him her PIN. Mr Luxford grabbed the complainant’s left hand and held her fingers in a way that put her wrist and arm in a lock and forced the complainant’s body to contort with pain. Mr Luxford then flipped the complainant onto her back and grabbed her biceps with both hands and squeezed asking “why won’t you give me the code?”. Mr Luxford then threw the complainant into the timber bedhead which caused pain to her neck. In response to Mr Luxford’s threats, the complainant gave the code to her phone to Mr Luxford. After reading the messages, Mr Luxford then grabbed the complainant around her neck and head and sat on top of her legs. He squeezed, poked and applied pressure to her skull. She managed to get out of his grip and when she tried to get her phone, Mr Luxford pinned her down on the bed again and threatened her. This incident was the subject of count6.
13. [13]
    Count 7 occurred on 2 June 2016 when Mr Luxford kicked the complainant in the shin with his work shoe, as he left for work in the morning. After he had left, the complainant packed her things and left Mr Luxford.
14. [14]
    In October 2016 the complainant and Mr Luxford rekindled their relationship. Counts8 and 9 were committed on 6 December 2016 when the complainant went to MrLuxford’s home to visit him. They were chatting, when Mr Luxford saw that the complainant had received a message on her phone from a male person. He grabbed the complainant by the arms and pushed her down on the floor where she landed on her back and hit her head on the tiles. He then dragged her by her hair to the couch in the living room and placed both of his hands under her head and moved her head, so it was underneath the couch. He slammed the complainant’s head back into the tiles three times. The complainant felt immediate and significant pain across the bridge of her nose and the back of her skull. That resulted in count 8. As the complainant got up to leave, Mr Luxford grabbed her phone and threw it 20metres down the street. It smashed on impact and that resulted in count 9.
15. [15]
    In the early hours of 1 January 2017, Mr Luxford reacted badly to the complainant having found out that he had been seeing another woman. When the complainant said something about that other woman, Mr Luxford snapped and grabbed the complainant by the upper arm area and pulled her towards him. He head-butted her which caused immediate and significant pain. She landed on the ground, her ears were ringing and her head throbbed. That was the subject of count 10.
16. [16]
    On 17 March 2017 Mr Luxford and the complainant had been out together. When they returned home Mr Luxford said he was not feeling well and responded aggressively to a comment made by the complainant. Mr Luxford then came towards the complainant, grabbed her head with both of his hands and head-butted her in the forehead. It made the complainant feel dizzy and unsteady on her feet. That resulted in count 11.
17. [17]
    The incident continued with verbal abuse from Mr Luxford who then grabbed the complainant’s throat with his right hand. The complainant struggled to breathe and pleaded for Mr Luxford to stop. The choking lasted approximately three seconds and that was the subject of count 12.
18. [18]
    The incident continued about 20 minutes later, when the complainant got up and started to walk to the main bedroom, saying “you can’t keep doing this to me”. MrLuxford grabbed the complainant and placed his right hand around her throat and squeezed tightly. The complainant begged him to stop and tried to grab his hands to rip them away, but could not. Mr Luxford threw the complainant onto the rug behind the couch. Mr Luxford sat down on top of her a leg on each side of the complainant and put his hands on either side of her face and squeezed. He used his fingers to apply pressure on the base of the complainant’s skull and pressed down on the complainant’s cheek bones with his thumbs. The complainant tried to yell to him to stop, but Mr Luxford moved his hands to the front of the complainant’s face and covered her mouth. He moved his thumbs towards her mouth and jaw and hooked his right index finger in the complainant’s mouth and pulled at the inside of her lip and cheek. He applied pressure to her jaw by squeezing either side of her face and moved both his hands to the front of her face and crossed both his palms over her mouth and pushed down very hard. Mr Luxford got off the complainant, but then after a verbal exchange, Mr Luxford scooped her up from behind by the throat with his right forearm, so that the complainant was suspended in the air and MrLuxford used his left hand to pull the complainant’s forehead backwards to his chest, so that her throat was in his elbow joint and he applied pressure to her neck with his right bicep and forearm. The complainant could not breathe. She blacked out and woke up on the ground in the recovery position on her right side. Her vision was blurry and she was disoriented and felt a sharp deep pain in the top of her eyes and could not swallow properly. That was the subject of count 13.
19. [19]
    When the complainant was looking at her injuries in the bathroom mirror, MrLuxford stood behind her and she said she wanted to go to the police and report him. MrLuxford picked up a tea towel and knife and said “If you think you are going to the police and report me, I will cut myself now and tell them it was you. I will tell police that I assaulted you out of self-defence”. That resulted in count 14.
20. [20]
    The complainant stayed with Mr Luxford until 22 March 2017. The complainant spoke to police on 30 March 2017 and made a domestic violence order application the next day and a temporary order was made.

Sentencing remarks

21. [21]
    The sentencing judge recited the facts of the offending and Mr Luxford’s antecedents. The sentencing remarks then included the following.
22. [22]
    The pleas of guilty were timely and indicated remorse and acceptance of responsibility for the offending.
23. [23]
    The complainant’s victim impact statement was profound in telling of the trauma the complainant experienced both physically and psychologically as a consequence of MrLuxford’s offending and it was supported by the report from her treating psychologist. Domestic violence offences are prevalent in the community, but are totally unacceptable.
24. [24]
    The report of forensic psychologist Mr Whittingham dated 2 February 2020 expressed the opinion that there was a likely nexus between the post traumatic profile symptoms and Mr Luxford’s offending reflecting the extent of impairment from MrLuxford’s condition, although it was not sufficient to suggest a deprivation of his capacity to know right from wrong or to control his behaviour. Mr Whittingham identified that if Mr Luxford was placed in custody, he would need specialised support and would be highly vulnerable to environmental trauma triggers and decompensation which would likely lead to a marked deterioration of Mr Luxford’s behaviour, increased suicide risk and an exacerbation of Mr Luxford’s trauma symptom profile with increased anxiety.
25. [25]
    Psychiatrist Dr Beech in his report dated 26 April 2020 expressed the opinion that MrLuxford’s childhood and military experiences had instilled in him a sense of cynicism, injustice and probably grievance that Mr Luxford was “dismissive of females”. His opinion was that it was likely Mr Luxford’s attitude towards women played a role in the offending and also that the PTSD had been a significant factor in the offending but “there is more to it than that”. Dr Beech noted that Mr Luxford had some insight into his difficulties and that a formal PTSD program for veterans was the suggested treatment. Dr Beech also agreed with Mr Whittingham that Mr Luxford would struggle in the custodial environment and find it very difficult to control his affective instability. Dr Beech recorded there was a significant risk that Mr Luxford’s mood would deteriorate in custody and he would require assessment and treatment for that.
26. [26]
    Mr Luxford had attended 11 sessions between 16 June and 9 September 2020 of the Open Arms program which was directed at addressing his mental health.
27. [27]
    Mr Luxford had provided character references and a letter that was written by MrLuxford himself dated 13 May 2020 in which he stated that he had actively sought psychological assistance since 2016 and believed that he was now not the same person as he was during 2015 to 2017. Mr Luxford apologised humbly and without reservation to the court and anyone else who had been harmed as a direct measure of his actions, but did not refer to the complainant specifically in any way.
28. [28]
    The prosecution relied on comparable authorities of R v MCW [2019] 2 Qd R 344 and R v MDB [2018] QCA 283. The prosecution emphasised the extended period over which Mr Luxford’s offending was committed and that it was an aggravating factor that the complainant lost consciousness in the incident that was the subject of count13.
29. [29]
    Reference was made by Mr Luxford’s counsel to R v Rix [2014] QCA 278 for the relevance of PTSD to an offender’s culpability for offending, the need for deterrence and the prospects of rehabilitation, that the condition itself or its symptoms may have.
30. [30]
    The submission for a sentence that allowed for immediate release on parole was rejected on the basis that a custodial component was required. It was accepted that the PTSD suffered by Mr Luxford as a consequence of his experience in the army while overseas that influenced his behaviour was a cause, but not the only cause, of his committing these offences. It was accepted that consistent with Rix, the sentence needed to reflect in a meaningful way the relevance of Mr Luxford’s PTSD to the culpability of his offending, the need for general and specific deterrence and his prospects of rehabilitation.
31. [31]
    A head sentence in the order of four and one-half years would have been appropriate ordinarily to reflect the overall criminality of Mr Luxford’s conduct, but it was appropriate to moderate the head sentence to take into account the role that MrLuxford’s PTSD had in causing the offending. Mr Luxford’s previous good character, his timely plea of guilty, his letter of apology to the court and the steps he had undertaken to attain rehabilitation in the form of treatment for his PTSD are taken into account in the sentences imposed.

Did the requirement to serve actual custody make the sentences manifestly excessive?

32. [32]
    In contending that the imposition of an actual custodial period was manifestly excessive, Mr Holt of Queen’s Counsel who appears with Ms Hughes for MrLuxford submits that account must be taken of the time MrLuxford has served to the date of the hearing of this application (60 days) and, given the particular circumstances of this case, Mr Luxford should not be required to serve any additional custody and should be released on the basis of that time. Mr Holt submits that in re-exercising the sentencing discretion, the error of the sentencing judge in failing to balance the competing considerations in sentencing Mr Luxford could be addressed by imposing a higher head sentence than three years and six months’ imprisonment to reflect the gravity of the offending, while also allowing for Mr Luxford’s immediate release from custody with appropriate supervision to reflect the significant matters of mitigation. It is submitted that requiring Mr Luxford serve significant time in prison failed to reflect appropriately his reduced culpability as a result of his PTSD and failed to recognise adequately that the effects of incarceration are likely to be more severe on Mr Luxford than a person of normal health.
33. [33]
    Mr Luxford relies on Mr Whittingham’s report that records that he was formally diagnosed with PTSD in early 2014 and that in 2016 his condition was assessed as severe and profound.
34. [34]
    Mr Luxford draws attention to the passages in the reports of Mr Whittingham and DrBeech that rehabilitation services which specialise in treating veterans suffering from trauma are not available in prisons.
35. [35]
    It is therefore submitted that, although the sentencing judge recognised the principle that was applied in Rix that required Mr Luxford’s sentence to reflect his reduced moral culpability, the fact that the sentence was not structured to avoid actual custody shows that the sentencing judge did not give sufficient weight to the effect of MrLuxford’s PTSD on his culpability and the harsher effect of custody on him than aperson not suffering from the same condition.
36. [36]
    Mr Luxford relies on R v Yarwood (2011) 220 A Crim R 497 and the other authorities referred to at [23]-[26] and [32]-[34] of that decision for the relevant matters that may affect the sentencing of a person suffering from a psychiatric illness. In particular, the Victorian Court of Appeal observed in R v Tsiaras [1996] 1 VR 398, 400 that there are at least five ways in which serious psychiatric illness not amounting to insanity may be relevant to sentencing. Apart from reducing the moral culpability of the offence, “psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health”. Yarwood and Tsiaras were applied in R v Sutton [2018] QCA 318 at [26]-[29].
37. [37]
    Mr Nardone of counsel who appears for the respondent submits that the aggravating aspects of Mr Luxford’s offending had to be balanced with his reduced culpability as a result of his PTSD and the likely effect of incarceration upon him and that it cannot be said that those factors were not reflected in the ultimate sentences in a meaningful way. The respondent points to both the reduction in the effective sentence and the fact that the parole eligibility date was fixed at a point in time that was less than one-third of the head sentence.
38. [38]
    There is no dispute about the relevant principles for sentencing an offender who was suffering PTSD at the time of the offending and for whom imprisonment would be agreater burden than someone not suffering PTSD. Sentencing is a balancing exercise where there are competing factors. Mr Luxford’s offending conduct committed repeatedly against the complainant required appropriate punishment. The offending cannot be separated from Mr Luxford’s PTSD which was an underlying cause of the offending, but causes custody to be a greater burden on him than for those not suffering PTSD. Mr Luxford was also being sentenced on the basis he had no prior criminal history and, by the time of the sentencing, had commenced appropriate counselling and treatment to reduce the risk of his re-offending. The sentencing judge applied Rix where the reduction in moral culpability due to the offender’s PTSD was taken into account. Rix was not a case, however, that needed to consider the additional factor that may also be applicable where the offender’s PTSD makes prison a harsher experience than for an offender without PTSD (see Yarwood at [32] and [72]). The sentencing judge referred to the evidence of Dr Beech and Mr Whittingham on the likely effect of the custodial environment on MrLuxford, but it was not addressed in the structure of the sentences. The imposition of a sentence that required actual custody in the first instance was an error in the exercise of the sentencing discretion, because it did not give sufficient weight to both factors relevant in Mr Luxford’s case due to his PTSD.
39. [39]
    The most egregious offence which Mr Luxford committed was count 13 when MrLuxford’s choking of the complainant caused her to lose consciousness. It is an offence introduced by the Legislature to address a serious problem with domestic violence: see MCW at [39]. In light of the concession made on behalf of MrLuxford that the effective head sentence could be higher to accommodate a sentence structure that provided for Mr Luxford’s release immediately from actual custody, it is therefore appropriate on the re-sentencing for the sentence for count 13 to be four years’ imprisonment. That reflects the totality of the offending by Mr Luxford, but adjusted in recognition of the effect of his PTSD as a cause of his offending. As the choking that was the subject of count 12 lasted for three seconds, a shorter sentence of two years and six months should be imposed for that offence. The effect of MrLuxford’s PTSD can be further accommodated by suspending the sentence for count13 after the 60 days he has already served on account of the sentences and releasing him at the same time on parole for the other offences. It is important that MrLuxford has some supervision in the community and that will be achieved through MrLuxford being on parole for a period of two years and four months. As MrLuxford has been accessing psychological counselling as a veteran, his supervision on parole should ensure that he continues to access the counselling and other treatment available to him for his PTSD.

Orders

40. [40]
    The above reasons are why the Court made the following orders at the conclusion of the hearing of the application:

1. Application for leave to appeal against sentence granted.
2. Appeal against sentence allowed.
3. Sentence varied by setting aside the order fixing the date for eligibility for parole at 29 September 2021.
4. In respect of count 12, the sentence is varied by substituting 2 years 6 months for three years and six months.
5. The sentence for count 13 is varied by substituting four years for three years and six months and adding “that the term of imprisonment be suspended after serving a period of 60 days’ imprisonment and the offender must not commit another offence punishable by imprisonment within a period of four years to avoid being dealt with for the suspended term of imprisonment”.
6. The other sentences and orders of the primary judge imposed on 7 October 2020 are otherwise confirmed.
7. The date on which the offender is to be released on parole is 27 November 2020.
8. The appellant’s lawyers must inform the appellant of the reporting requirements under the Corrective Services Act 2006.
9. Direct that Registrar provide the reports of Mr Whittingham and Dr Beech to the parole authorities.