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- Unreported Judgment
 QCA 107
COURT OF APPEAL
CA No 73 of 2021
DC No 154 of 2020
ATTORNEY-GENERAL FOR THE
STATE OF QUEENSLAND Appellant
SAMUELS (a pseudonym) Respondent
MONDAY, 17 MAY 2021
DAVIS J: The Attorney General appeals against sentences imposed upon the respondent in the District Court sitting at Toowoomba on 9 March 2021 upon his pleas of guilty.
The offending was serious. It all arose in a domestic setting. It involved violence. He was sentenced to two years imprisonment with immediate parole. He had only spent two days in pre-sentence custody.
The respondent was born 13 January 1999 and was aged 20 years old at the time of the offending. He was in a relationship with the complainant who at that stage was 18 years old.
The first offence is one against s 315A(1)(a)(b)(i) of the Criminal Code, strangulation. During an argument on 7 October 2019 the respondent grabbed the complainant around her throat with his right hand. His left arm went to her waist almost lifting her off the ground. He pushed her back against the bathroom door and held her by the throat for about 30 seconds. She was very fearful and said she thought she was going to die.
The second offence was one of common assault against s 335 of the Code. It arose during the same occasion as the strangulation. After the respondent had released his grip on the complainant’s throat he walked out of the unit. The complainant followed him and found him near a park and tried to persuade him to come back inside the unit. The respondent verbally abused the complainant and she returned to the unit. After packing the respondent’s belongings, the complainant messaged him to come and get them. The respondent returned and then kicked the complainant in the lower abdomen. That was the common assault which constituted count 2.
The respondent then apologised to the complainant, said he loved her and that he did not want to hurt her. Shortly thereafter the complainant’s father arrived and telephoned the police. When they arrived the complainant told them it was all a misunderstanding and that she and the defendant were just arguing. The respondent was arrested for breaching bail on an unrelated matter.
The following day the complainant telephoned the watchhouse to enquire about the respondent. He was released and went back to her unit.
On 9 October 2019 the respondent and the complainant were again both in the complainant’s unit. Another argument ensued. The respondent kicked the complainant in the leg causing a bruise to her left mid-thigh. That constituted the last charge which was assault occasioning bodily harm against s 339(1) of the Code. After that incident they, again, reconciled and had consensual intercourse.
On 10 October 2019 the complainant told the respondent that she wanted him out of her house. He refused to leave and she called the police. The respondent was then arrested and charged.
Each of the offences of strangulation and assault occasioning bodily harm carry a maximum of seven years imprisonment. The offence of common assault carries a maximum of three years imprisonment.
Sentencing principles are prescribed in Queensland by s 9 of the Penalties and Sentences Act. Of some import to the present case, s 9 firstly, recognises deterrence as a sentencing consideration then recognises rehabilitation of the offender as a further sentencing consideration. Also, provided that while a sentence of imprisonment should only be imposed as a last resort, that principle is expressed not to apply where the offence, like here, is one of violence.
Section 9(10A) provides as follows:
“9 Sentencing guidelines
(10A) In determining the appropriate sentence for an offender convicted of a domestic violence offence, the court must treat the fact that it is a domestic violence offence as an aggravating factor, unless the court considers it is not reasonable because of the exceptional circumstances of the case.”
For the purposes of s 9(10A) the current offending was a domestic violence offence. In R v O'Sullivan and Lee; Ex parte Attorney-General (Qld), Sofronoff P examined the history of provisions leading to the enactment of s 9(10A) and held that the subsection reflects an intention of the legislature that the taking into account of the domestic setting of offending is mandated as an aggravating feature.
The respondent has a criminal history for offences both before and after the offences the subject of this appeal. In January 2018 he was convicted of offences of stealing and burglary and was fined. After being arrested and released on bail for the present offences, he committed breaches of bail and was in possession of drugs and also in possession of a knife in a public place. He was placed on probation. In May 2020 he committed an offence of violence being assault occasioning bodily harm in company while armed when he punched another man and struck him with a metal pole. In August 2020 he drove a car while there was methylamphetamine and cannabis present in his system. That breached both his bail and his probation.
At the time of the offending, the respondent and the complainant were both users of methylamphetamine. That, it was accepted, contributed to the incidents of domestic violence.
There were mitigating circumstances in favour of the respondent: he left school after completing grade 10 and commenced an apprenticeship as a cabinet maker. He did not initially complete that apprenticeship but returned to his training and qualified as a cabinet maker. In November 2020 the respondent took up a traineeship as a carpenter. Before the learned sentencing judge, there was a reference from the respondent’s employer in these terms:
“I found Samuels to be a reliable and trustworthy individual. Samuels has been a good worker with some valuable skills to share with other. Samuels often teaches others around him, and he is a good support to myself and others on our current project. Sameuls’ [sic] desire to gain a certificate 1 qualification to ensure future employment is commendable.”
It was accepted that the respondent’s drug use stopped in August 2020 which coincided with an end to his offending. A probation report dated 3 February 2021 expressed concerns about the respondent’s drug use. The probation was breached because of the driving offence. The following was said in the probation report:
“Notwithstanding the agencies decision to procced [sic] via breach action, Samuels has continued to demonstrate compliance with his reporting appointments and is considered to engage well during his appointments.”
And later in the report:
“Samuels is considered to benefit from the support afforded to him through community based supervision, however given his dynamic offending profile as well as demonstrated non-engagement with the requirement of the current Order it is considered that the parameters of Probation are insufficient to manage his risk.”
In my view, the learned sentencing judge’s approach to the sentence was completely conventional. His Honour recognised the seriousness of the offending, and was well aware of the importance of deterrence. In sentencing the respondent his Honour said this:
“The other conduct of kicking her on those other two occasions, of course, is serious in its own right, and it is an example of domestic violence that the community has become more aware of, and which the Courts are asked to do everything to prevent recurring. Ordinarily, sentences of imprisonment for an offence such as strangulation or domestic assault resulting in harm are called for the purpose of sending a message of general deterrence to record the community’s disapproval of the conduct, and hopefully also to deter the individual.”
However, his Honour observed that the respondent was 22 years of age at the time of the sentence and only 20 years of age at the time of the commission of the offences. After noting the respondent’s criminal history, he observed that drug use was a factor in the offending. His Honour then accepted that the pleas of guilty demonstrated true remorse. His Honour noted the rehabilitative efforts that the respondent had taken. His Honour observed:
“It, of course, is in the community’s interest if you can be rehabilitated and not reoffend. You have engaged in the probation order. You have undertaken drug counselling. You have expressed remorse through your counsel and I am prepared to regard your early pleas of guilty and your expressions of remorse, as well as your efforts towards your own rehabilitation as evidence of general remorse on your part. You say that you have not used drugs since August of 2020 when you were placed on probation, and I am prepared to regard that assertion as genuine. As your counsel points out, it is likely that if you can control that aspect of your life then there is no reason you cannot have a successful future, be happy in your own right and not commit offences.”
As earlier observed, such an approach is completely conventional. There was a period between August 2020 and the day of sentence 9 March 2021 where significant steps towards rehabilitation had been taken. The question for his Honour was to balance rehabilitative issues with questions of deterrence having regard to the fact that the offending was committed in a domestic setting. His Honour did exactly that. His Honour said:
“In the end, Samuels, I am satisfied that a lower sentence of imprisonment is necessary to record the community’s disapproval of this level of violence. I have constructed the sentence in a way that sees you released, and hopefully fosters your continued rehabilitation. It seems to me continuing to engage in gaining skills which will see you have meaningful employment in the future is the best method of ensuring that you do not come back here. If you relapse and you commit further offences of violence, then you can expect that you will likely be met with the full force of the law in the future.”
His Honour then imposed a sentence of two years imprisonment with immediate release on parole. By so doing, his Honour has imposed a stronger regime than probation as was recommended in the probation report.
The Crown submission is not that there was an error in his Honour’s approach but rather that the sentence is manifestly inadequate because of the objective seriousness of the offending. The Crown does not submit that the sentence of two years imprisonment was manifestly inadequate. It submits that the order for release on parole immediately rendered the sentence manifestly inadequate. In other words, the submission must ultimately be that, having set the sentence at two years imprisonment, the discretion could only be exercised in favour of requiring the respondent to serve some period of imprisonment.
That submission is not, in my view, supported by legal principle or by the comparatives which have been referred to as a yardstick. Both the sentencing judge and this court were referred to R v HBZ and R v BDK. Both offenders were significantly older than the respondent and did not have the benefit of pleas of guilty. This court was referred to R v MCW. The offender there was required to serve a period of actual imprisonment for a domestic violence offence. However, he was 45 years of age with a lengthy criminal history and no prospects of rehabilitation.
Those decisions do not establish any principle that actual custody is the inevitable consequence of conviction for a domestic violence offence. Generally, of course, that will be the result but here the sentence imposed was, in my view, within the range of a sound exercise of discretion.
I would dismiss the appeal.
SOFRONOFF P: I agree.
BOND JA: I agree.
SOFRONOFF P: The order of the Court is that the appeal is dismissed.
- Published Case Name:
R v Samuels (a pseudonym); Ex parte Attorney-General (Qld)
- Shortened Case Name:
R v Samuels (a pseudonym); Ex parte Attorney-General (Qld)
 QCA 107
SOFRONOFF P, BOND JA, DAVIS J
17 May 2021