R v SDM[2021] QCA 135

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment of Mullins JA and the orders proposed by her Honour.
2. [2]
   MULLINS JA:  The applicant pleaded guilty and was sentenced on 27 October 2020 for three counts of rape (domestic violence offence).  The applicant was sentenced to six years’ imprisonment for count 1, six and one-half years’ imprisonment for count 2 and seven years’ imprisonment for count 3.  A declaration that the applicant was convicted of a serious violent offence (SVO) was made in respect of count 3.  A pre-sentence declaration was made for the one day spent in pre-sentence custody between 16 and 17 April 2018.
3. [3]
   The applicant applies for leave to appeal against the sentence imposed for count 3 on the ground the sentence is manifestly excessive.  Two aspects of the sentencing are relied on to pursue the ground.  The first is that the learned sentencing judge did not reduce the sentence sufficiently for the applicant’s plea of guilty and other mitigating factors, as intended by the judge.  The second is that the making an SVO declaration rendered the sentence excessive.

Facts

4. [4]
   There was an agreed schedule of facts.  The complainant was aged 41 years at the date of the offending on 19 January 2017.  The complainant and the applicant met in November 2015, commenced an intimate relationship in January 2016 and began living together in March 2016.  The complainant ended the relationship on 17 January 2017.  The complainant agreed to allow the applicant to stay in a spare bedroom of the house until the end of the week while he looked for new accommodation.
5. [5]
   The applicant entered the complainant’s bedroom at about 9.30 pm on 19 January 2017 and told her they were going to have sex.  The complainant replied that she did not think that was a good idea and the applicant repeated “we are going to”.  When the applicant pulled the covers off the complainant, she told him “No”.  There was a further exchange between them when the complainant said “No.  It’s not going to happen” and the applicant responded “We both know that it’s going to happen”.  The applicant grabbed the complainant’s forearm and held it down on her right side, lay on top of her and removed her underwear and night gown.  Penile penetration of the complainant’s vagina took place (count 1).
6. [6]
   The applicant turned the complainant on her side and inserted his penis into her anus.  The complainant said “no, please don’t”, but the applicant continued to penetrate her anus, was rough, called her names and ejaculated while penetrating the complainant’s anus (count 2).
7. [7]
   The applicant then forced his whole fist into the complainant’s vagina causing her excruciating pain and repeatedly fisted her for a period of time (count 3).  The applicant then told the complainant “I just punched the f**k out of you” and got off the complainant and left the room.
8. [8]
   The three rapes therefore occurred on the one occasion.  The complainant was left in so much pain she was unable to sit up.  Her vagina became swollen and she found it difficult to walk and sit down for a week and a half.  She did not seek medical treatment for the physical injuries.  She did not disclose the offending to the police until 29 July 2017.
9. [9]
   The applicant was arrested in Tasmania on 16 April 2018 and was granted bail to appear in Queensland on 2 May 2018.  The applicant failed to appear in the Magistrates Court on 27 June 2018 and a warrant issued.  He failed to appear again on 24 October 2018 and another warrant issued.  There was a third occasion when a warrant issued.  There was a registry committal on 9 December 2019.  The indictment was presented on 2 March 2020.  On 16 July 2020 the indictment was listed for sentence for the date on which the sentencing proceeded.

The applicant’s antecedents

10. [10]
    The applicant was 44 years old at the date of the offending.  He had no prior sexual offending in his criminal history.  He was dealt with in the Magistrates Court on 4 August 2015 for enter dwelling with intent uses/threatens violence and assault occasioning bodily harm which offending arose out of the applicant assaulting another man by twisting his genitals at the request of a friend who believed his partner was cheating on him with the other man.  No convictions were recorded and the applicant was sentenced to probation for 12 months, but was subsequently fined for breaching the probation order.
11. [11]
    Consultant psychiatrist Dr Bala based at the Cairns Clinic was engaged by the applicant’s lawyers to provide a pre-sentence report and for that purpose was provided with the schedule of facts for the offences, other medical reports concerning the applicant and clinical notes from the Cairns Clinic and a local medical centre.  Dr Bala assessed the applicant for 90 minutes on 26 August 2020.
12. [12]
    The applicant reported to Dr Bala as follows.  He had been in the army and suffered from depression and anxiety and panic attacks around 2000 when he was deployed in East Timor.  His first admission to a psychiatric hospital was in Perth in 2009 or 2010 for a month or so.  He had two subsequent admissions to a private hospital in Perth.  He was admitted to the Cairns Clinic for six weeks in 2017 immediately after committing the offending and was discharged to Tasmania to where he had relocated from Cairns.  He had another admission to hospital when he was charged with the offending.  He did not see any psychiatrist or psychologist in between hospital admissions.  At the time of the assessment by Dr  Bala, the applicant stated that he was “not too bad”.
13. [13]
    Dr Bala summarised the applicant’s psychiatric history from the medical reports he was provided.  The report of psychiatrist Dr Blumberg noted that the applicant had not worked since April 2009 due to experiencing anxiety and post-traumatic stress symptomatology for several years.  At that stage, he reported consuming one bottle of spirits per week.  Dr Blumberg diagnosed the applicant with post-traumatic stress disorder (PTSD) of mild severity.  Psychiatrist Dr Ng assessed the applicant on 18 June 2013 when a history of binging on alcohol weekly was noted.  On the basis of the applicant’s history, Dr Ng considered it was most likely that at one point in time the applicant would have met the criteria for PTSD, but that at the date of assessment he did not completely fulfil the criteria.  Dr Ng stated the applicant could work full time and the overall effect of his PTSD on his functioning was minimal.  Another psychiatrist, Dr Martin, reviewed the applicant in July and August 2016.  On the first occasion he reported anger and irritability and was concerned that he was escalating in terms of hyperarousal and avoidance.  He was prescribed diazepam, valproate was increased and he was prescribed prazosin at night for nightmares.  He was still experiencing anger in August 2016 and Dr Martin added an antidepressant medication, agomelatine, and organised a further review in six weeks which the applicant did not attend.
14. [14]
    When the applicant was admitted to the Cairns Clinic between 20 January and 14 March 2017, he was managed by Dr Abeysundera.  At that stage the applicant was consuming four bourbons and a bottle of wine per day.  He exhibited irritability, at times confusion, suicidality and anger.  On 23 January 2017 the applicant was described as being “ashamed” of recent behaviour.  There was significant short term memory impairment which was considered to be due to alcohol abuse.  He was commenced on prazosin, sertraline, topiramate and continued with valproate.  The applicant was described as “significantly improved” by late February 2017.  The report from Dr Abeysundera to the Department of Veterans Affairs dated 28 February 2017 noted “he had ceased most of his medications three weeks prior to the admission except for Sertraline and had been self-medicating with alcohol”.  Although the applicant “denied prescription medication abuse”, Dr Abeysundera noted that on admission he was taking diazepam up to 80mg per day.
15. [15]
    The report from psychiatrist Dr Schramm dated 16 September 2019 noted the applicant minimised the offending behaviour.  Dr Schramm noted the applicant’s relationship had broken down after the complainant obtained information from the military that showed the applicant had been lying to her and exaggerating his achievements.  Dr Schramm could not endorse a diagnosis of PTSD and diagnosed the applicant with an unspecified anxiety disorder.  Dr Schramm also noted there were elements in the applicant’s account that pointed to significant personality disturbance with instability of relationships, occupation and recurrent suicidality.
16. [16]
    Dr Bala noted that the applicant stated he may have been using four or five tablets of diazepam 5mg daily leading up to the offending, but did not tell Dr Bala that he was still prescribed diazepam which had been revealed to Dr Bala by the medication summary from the medical centre attended by the applicant.
17. [17]
    Using the DSM-5, Dr Bala provided a principal diagnosis of narcissistic personality traits and a secondary diagnosis of PTSD – in partial remission and previous history of substance abuse disorder.  The psychosocial and contextual factors noted were being unemployed long-term and the upcoming court case in respect of the offending.  Dr Bala shared Dr Schramm’s caution about unequivocally believing the applicant’s version of events, as there appeared to be contradictory collateral information.  Given the PTSD was an established diagnosis by various psychiatrists, Dr Bala accepted that as a valid diagnosis, but considered he did not appear to suffer from the PTSD to a significant extent at the date of the report.  Dr Bala was of the opinion that the applicant’s offending behaviour was not directly related to the PTSD, but was more likely due to “his sense of narcissistic injury at his deception being exposed by the victim, to whom he was engaged”.  The applicant had a difficult time coping with the aftermath of the break-up by the complainant with him and abused alcohol and benzodiazepines.  The benzodiazepine misuse led to disinhibition and amnesia.  The combination of those factors with self-cessation of medication and his dysfunctional personality style contributed to the offending.  Dr Bala did not believe that the applicant was mentally impaired from PTSD at the time of the offence, although he may have been mentally impaired, temporarily, from a combination of benzodiazepine abuse and alcohol withdrawal.  Based on actuarial risk assessment, the applicant’s likelihood of reoffending was below average.
18. [18]
    Dr Bala recommended that the applicant engage in long-term psychological therapy to understand better his motivations and impulsive behaviour and noted that his aggressive tendencies, narcissistic needs and poor coping were all reflected in the offending.  Dr Bala also recommended that he needed to maintain control of alcohol use and take benzodiazepines only as prescribed and would therefore benefit from psychiatric input to monitor his mental state.  Dr Bala considered that, given the history of mental health problems, the applicant was at an increased risk of deterioration in custody, but noted that could be managed appropriately by prison mental health services.

Submissions before the sentencing judge

19. [19]
    The prosecutor who appeared before the sentencing judge ultimately submitted for a head sentence of seven years’ imprisonment for count 3 with an SVO declaration.  Counsel who appeared for the applicant before the sentencing judge (who was not the same counsel who appears for the applicant on this application) submitted for a sentence of imprisonment of eight years with no SVO declaration and a parole eligibility date fixed after one-third of the sentence was served in custody.

Sentencing remarks

20. [20]
    Apart from the applicant’s antecedents, a summary of the facts of the offending from the agreed schedule, and a summary of Dr Bala’s report, the sentencing remarks included the following.  Some of the delays in the matter proceeding to sentence were due to the applicant, but not all of them.  The guilty plea was timely and allowed the complainant to avoid the ordeal of giving evidence.  It also demonstrated that the applicant was taking responsibility for his actions and the pleas saved the court and the community the cost of a trial.  The guilty pleas had been taken into account and reduced the sentence that otherwise would have been imposed.
21. [21]
    There were aggravating features about the offending.  For count 1 where the complainant had said “no” repeatedly to the applicant, the applicant used additional force over and above the violence inherent in that rape.  There was physical aggression with the rape that constituted count 2.  It was rough and accompanied by the use of denigrating names and completed by ejaculation.  The rape by fisting (count 3) was aggravated by the applicant forcing his entire fist into the complainant’s vagina and there was the additional gratuitous humiliation by what the applicant said before he left the room.  The rape of fisting was not less serious than a penile rape.  It was also distinguishable from cases where the offending occurred in the context of earlier consensual activity that preceded an incident of fisting.  The complainant had made it clear to the applicant from the outset that she did not consent to sexual activity of any kind, which constituted an “appalling assault” on the complainant and count 3 involved extra brutality.  After this incident, the complainant was admitted to a psychiatric hospital.  In the weeks after the offending, the complainant suffered insomnia, nightmares and anxiety attacks.  She has continued to feel paranoia, fear, anger and shock.
22. [22]
    The sentencing judge noted that account had been taken of the matters the court must have regard to in sentencing for an offence involving the use of violence against another person.  There were no exceptional circumstances, so it was an aggravating factor that the three offences were domestic violence offences.  The sentencing judge noted Dr Bala’s opinion that the applicant’s risk or likelihood of reoffending is below average.
23. [23]
    The sentencing judge accepted the opinion expressed by Dr Bala that a combination of benzodiazepine misuse, alcohol use and a narcissistic personality disorder led to the applicant’s offending.  It was significant that Dr Bala did not believe that any previous diagnosis that the applicant had received of a PTSD was a major factor in the offending, but relationship difficulties and personality factors were the main drivers of offending.
24. [24]
    It was of concern that when the applicant spoke to Dr Bala, he initially gave an account inconsistent with the agreed schedule of facts and made statements suggestive of a lack of remorse and insight and tended to blame alcohol consumption and other matters occurring in the relationship for the offending.  It was also of concern that the applicant initially claimed that the relationship had not ended before he raped the complainant and that, as far as he could recall, the complainant was enjoying it and did not say to stop.
25. [25]
    The sentencing judge also noted the applicant accepted, when questioned by Dr Bala that the breakdown of his relationship with the complainant had been triggered by his lying to her about his military service and the circumstances surrounding his discharge from the military.  When confronted by Dr Bala about the offending behaviour, the applicant did acknowledge that “it was terrible and disgusting”.
26. [26]
    The sentencing judge referred to the applicant’s history that he was drinking extremely heavily and taking a number of prescription medications at the time of the offending, but noted that voluntary intoxication was not a mitigating factor of any kind.  The sentencing judge accepted the treatment recommendations of Dr Bala that the applicant needs to engage in long-term therapy with a psychologist to understand his motivations and behaviour and observed that Dr Bala was “guarded about your rehabilitation unless you are prepared to engage in long-term therapy with the same therapist, with psychiatric monitoring”.
27. [27]
    Because the offending involved a single course of conduct, the head sentence imposed on count 3 was increased to reflect the total criminality of all three offences. 
28. [28]
    The sentencing judge explained the reasons for sentence imposed on count 3 as follows:

“Those aggravating features of the offending warrant greater condign punishment and lead me to conclude that there is good reason to postpone the date of eligibility for parole, because they suggest that the protection of the public and adequate punishment require a longer period in actual custody before eligibility for parole then would otherwise be required by the Act.

Having regard to the term of imprisonment imposed, the decision to make a serious violent offender declaration has the consequence that such discounting of your sentence as is appropriate to reflect your pleas of guilty and any other mitigating factors can only be implemented by reducing, or moderating down, the head sentence. I accept that it is a significant benefit to the victim to be spared the ordeal of giving evidence at trial. In my view, but for the making of a serious violent offender declaration, the sentence imposed would have been higher, and at least eight years.”

The applicant’s submissions

29. [29]
    The ultimate submission made on behalf of the applicant is that, either individually or in combination, the failure to reduce the sentence sufficiently for the pleas of guilty and other mitigation and the SVO declaration rendered the sentence manifestly excessive and the sentence that should have been imposed was the sentence for which the applicant’s counsel had contended before the sentencing judge.  Notwithstanding that the applicant points to two aspects of the sentencing which resulted in the sentence being manifestly excessive, the applicant does not seek to establish error on the part of the sentencing judge, but seeks to show that, in the circumstances, the sentence imposed for count 3 was manifestly excessive.
30. [30]
    Mr Greggery of Queen’s Counsel for the applicant focuses on the sentencing judge’s statement in the sentencing remarks that is the last sentence of the passage quoted above for the explanation for the sentence imposed on count 3.
31. [31]
    The sentencing judge had confirmed in the sentencing remarks that the sentence would be reduced to take account of the applicant’s plea of guilty and acknowledged that factors in mitigation could be reflected only by reducing the head sentence where an SVO declaration was made, but the applicant submits the above statement in the sentencing remarks blended the separate concepts of a reduction of the sentence for the pleas of guilty and other matters in mitigation and the practice of sentencing towards the lower end of the otherwise available range where an SVO declaration is made, as explained in R v McDougall and Collas [2007] 2 Qd R 87 at [19].
32. [32]
    The applicant submits the matters in mitigation were substantial, including the timely guilty plea, the applicant’s ultimate insight into his conduct, no prior history of sexual offending, that imprisonment would weigh more heavily upon the applicant than a person of normal mental health (given his underlying psychiatric vulnerabilities), his risk of reoffending is below average, and the complainant was not required to give evidence.  The applicant submits that a notional starting point of the sentencing judge must have been in the order of nine or ten years with the SVO declaration in order to justify the imposition of a sentence of seven years’ imprisonment with the SVO declaration.

Comparable authorities

33. [33]
    The applicant relies on R v Clarke [2017] QCA 226, R v Kellett [2020] QCA 199 and R v Pickup [2008] QCA 350.  None of these authorities involved offences to which s 9(10A) of the Penalties and Sentences Act 1992 (Qld) (the Act) applied.
34. [34]
    In Clarke, the offender and the complainant who met on a dating website were not in a domestic relationship.  They had engaged in consensual sexual intercourse.  The complainant initiated another visit to the offender’s house during which they engaged in consensual sexual intercourse.  Following that intercourse, the offender started inserting his fingers in the complainant’s vagina.  It started to hurt the complainant and the offender stopped and got some lubricant which he put on his hands.  He started inserting his fingers again, the complainant asked him to stop as it was painful, but he refused and drove his fist into the complainant’s vagina.  The complainant sought medical treatment for multiple abrasions and bruising.  The physical effects of the injuries were not long-term. The offender was charged with rape and found guilty after trial.  The offender who was 28 years old at the time of the rape was sentenced to five years’ imprisonment.  The rape was described by Morrison JA (with whom Philippides JA and Brown J agreed) (at [152]) as “accompanied by extra brutality” and there was no reasonable basis to differentiate it from penile rape.  Morrison JA also described it (at [153]) as premeditated on the basis the offender fetched the lubricant before inserting his whole hand.  The offender was on bail for possession of child exploitation material and two similar offences when he raped the complainant and he was sentenced for these offences at the same time as he was sentenced for the rape.  His application for leave to appeal against the sentence was unsuccessful.
35. [35]
    The offender and complainant in Kellett were not in a domestic relationship, but were participating in consensual sexual acts, when the offender penetrated the complainant’s vagina by “fisting”.  He caused the complainant considerable pain by doing so and, despite the complainant’s screams and protests, he thrust his fist in further.  The complainant was in agonising pain, lost a substantial quantity of blood and underwent surgery.  She sustained two full thickness tears to the vaginal wall, one was 10 centimetres on the back wall of the vagina and the other two centimetres.  The offender was found guilty of rape and grievous bodily harm after trial where the issues were whether the complainant had consented and whether there was one hand movement rather than two hand movements.  The offender was sentenced on the basis there were two hand movements.  He was 26 years old when he offended with an irrelevant criminal history.  He was sentenced to seven years’ imprisonment for the rape and a concurrent term of six years for the grievous bodily harm and each offence was declared an SVO.  Morrison JA (with whom the other members of the court agreed in respect of the sentence leave application) adopted (at [103]) the sentencing judge’s description of the offending conduct as “brutal, degrading, forceful, injurious and contemptuous of the complainant … [and] designed to humiliate and degrade”.  Morrison JA also noted (at [114]) that the fact that the grievous bodily harm occurred in the course of the commission of a violent rape took both offences into the scope of an SVO declaration.  The offender’s application for leave to appeal against the sentence was unsuccessful.
36. [36]
    The offender in Pickup (who was 26 years old when he offended) pleaded guilty to three counts of rape committed against his de facto partner who had ended the relationship a couple of days before the offending and commenced sleeping in the spare bedroom in the unit in which they were living.  When the offender demanded sex, the complainant repeatedly told him that she did not wish to participate.  Despite those protests, he lay on top of her and had vaginal intercourse that was the subject of count 1.  He then pushed the complainant faced down onto a bed, placed a pillow over her head and inserted his penis into her anus which constituted count 2.  The complainant struggled and cried out in pain.  He did not desist until the complainant, in order to avoid the pain, suggested she fellate the offender and that occurred.   Count 3 involved a prolonged incident in which the offender had vaginal intercourse with the complainant whilst she was extremely distressed.  The complainant made an early complaint of the offending and was medically examined four days later where bruising in the area of her anus was observed by the doctor.  The offender was sentenced to five years’ imprisonment for each rape that was cumulative upon 12 months which was activated of a suspended sentence for an offence of violence that was breached by the commission of the rapes.  A parole eligibility date was fixed at the mid-point of the total sentence of six years.  The offending was described (at [30]) as serious, despite the absence of more serious injury, and the complainant had been subjected to a degrading and intimidating experience.  The offender was unsuccessful in his application for leave to appeal against sentence.
37. [37]
    In view of the response of the Parliament to addressing the problem of violence committed within, or after the conclusion of, a domestic relationship that is reflected in s 9(10A) of the Act, the sentence imposed in Pickup would not now reflect an appropriate sentence for that type of offending with the aggravating factor of being a domestic violence offence.
38. [38]
    The respondent also relies on R v Benjamin (2012) 224 A Crim R 40 and R v Heckendorf [2017] QCA 59 to show that a higher starting point than eight years’ imprisonment was open to the sentencing judge.  Mr Walklate of counsel on behalf of the respondent accepts that these authorities involved more serious offending in that Benjamin was a predatory rape of a stranger in a public place and Heckendorf involved immediate and continued violence to perpetrate a short vaginal rape that resulted in the victim contracting hepatitis C, but submits that both authorities are of some relevance in considering an appropriate sentence for a brutal rape with the added aggravation of being committed in the context of the breakdown of a domestic relationship.
39. [39]
    The offender in Benjamin was successful on appeal in reducing the sentence of 11 years’ imprisonment with an SVO declaration to a sentence of nine years’ imprisonment with an SVO declaration.  The offender was 25 years old with a good work history when he attacked a female jogger from behind and raped her.  The complainant had cuts and bruises to her face, neck and elbows, severe swelling to her cheek bones, her nose bled and her lip was badly split and swollen with a chunk missing.  She also had abrasions to her hips and soreness to other parts of her body and a chronic headache.  The offender’s employer noted a COMFIT photograph resembled the offender and the offender therefore came to police attention and provided a DNA sample.  After a review of the comparable cases, Henry J (with whom North J agreed) concluded there must have been inadequate discounting of the head sentence to allow for the timely plea of guilty or the discounting was from a starting point that was too high, resulting in the conclusion that the sentence was manifestly excessive.
40. [40]
    The offender in Heckendorf pleaded guilty to one count of rape and one count of assault with intent to commit rape and was unsuccessful in his application for leave to appeal against the sentences.  His main challenge was to the sentence of 10 years’ imprisonment for the rape which attracted an SVO declaration.  The complainant met the offender and his friend at a hotel where they drank and socialised together before going to the offender’s father’s house to continue their drinking.  After the offender’s friend left, the complainant was about to leave, when the offender who was heavily intoxicated assaulted her.  Before she could leave, he grabbed her again dragged her into a bedroom and got on top of her on the bed and began choking her, threw her onto the floor, smashed her head onto the floor and again choked her with one hand around her neck.  That constituted the assault with intent to rape.  She continued to fight against him on the floor, but he forced his penis into her vagina.  The complainant suffered a fractured rib, injuries to her neck, arms and legs and bruising and contracted hepatitis C.  The offender was 22 years old at the time of the offending with no significant criminal history.  He had a history of substance abuse.  Although a provisional diagnosis was made that he suffered in some form of psychotic illness, a psychiatrist reported that there appeared to be no psychotic symptoms which contributed to the offences.  McMurdo JA (with whom the other members of the court agreed) considered a number of comparable cases, including Benjamin and concluded that the sentence was heavy, but not so heavy that there must have been some misapplication of principle.
41. [41]
    The circumstances of the brutal rapes committed in Benjamin and Heckendorf mean the sentences imposed in those cases for guilty pleas exceed the sentence that could have been imposed on the applicant for the guilty plea for count 3, even allowing for the aggravating factor that count 3 is a domestic violence offence.  Of the other comparable authorities, Kellett has the most relevance as a yardstick, but there are some aspects of the applicant’s case that can be distinguished in his favour from Kellett and some aspects of Kellett which can be distinguished against the applicant’s case.  In favour of the applicant are the factors that the sentence in Kellett was imposed after trial and the injuries inflicted in Kellett which constituted grievous bodily harm were much more severe than inflicted by the applicant.  Those factors that can be distinguished against the applicant are that the sexual activity in Kellett commenced as consensual, the applicant was an older offender and the applicant’s offence was a domestic violence offence.

Is the sentence for count 3 manifestly excessive?

42. [42]
    The issue of whether the sentence for count 3 is manifestly excessive must be considered in the context that the sentencing process is one of instinctive synthesis where the sentencing judge takes account of all the relevant factors to arrive at a single sentence: Markarian v The Queen (2005) 228 CLR 357 at [27] and [37].  Where consideration is given to making an SVO declaration which forms part of the sentence (if made), that same integrated process of instinctive synthesis applies to the sentencing: see McDougall and Collas at [17] and [19] and R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80 at [46]-[48] and [53].
43. [43]
    Even though the application for leave to appeal against sentence is in respect of count 3 alone, it remains relevant that the sentence for count 3 reflected the applicant’s criminality for committing all three rapes on the one occasion.  As identified by the sentencing judge, the court was bound by s 9(10A) of the Act to treat the fact that count 3 was a domestic violence offence as an aggravating factor.
44. [44]
    There were three warrants issued for the applicant’s arrest for failure to appear, but it is apparent from the fact that only one day was spent in pre-sentence custody, when the applicant was first arrested, that there must have been explanations for those failures to appear that did not result in bail being revoked.  In fact, the applicant’s counsel before the sentencing judge explained that the failures to appear in June and October 2018 were due to the deterioration of the applicant’s mental health and, in respect of the June appearance, the applicant had been admitted to a clinic for treatment.  The sentencing judge gave the applicant credit for a timely guilty plea, but there was also added utility to the guilty pleas due to the complainant’s delay in reporting the offending.  There was therefore no DNA or medical evidence available for the prosecution, if the applicant had not pleaded guilty.
45. [45]
    The applicant’s submissions on this application overstate the mitigating factors.  Apart from the timely guilty plea with its utility in the circumstances and the benefits for the complainant not being required to give evidence, there was the applicant’s lack of any history of sexual offending and the limited insight which the applicant ultimately expressed to Dr Bala.  The sentencing judge had otherwise accepted Dr Bala’s opinion that the applicant’s psychiatric vulnerabilities could be adequately managed in prison which removed his mental health issues as a mitigating factor.
46. [46]
    The sentencing judge embraced the opinions expressed by Dr Bala, but did not consider the significance of the recommendation of Dr Bala for the applicant’s treatment upon his release from custody (in the nature of long-term psychological therapy and psychiatric monitoring) to the proportion of the sentence that should be served in custody.  Supervision of the applicant on parole could encourage those recommended treatments to commence and be monitored by the parole authorities.  In light of the nature of the applicant’s offending and its causes, it is reasonable to infer that the applicant’s risk of reoffending is not to the community at large, but to any future intimate partner.  The protection of the latter may be facilitated by the applicant undergoing the treatment as recommended by Dr Bala that addresses the underlying causes of his offending.
47. [47]
    Count 3 was a serious rape that followed the vaginal and anal rapes of the complainant by the applicant on the same occasion.  A sentence that provided adequate punishment for the applicant’s serious offending, but still recognised the timely guilty plea and the other (limited) mitigating factors was called for.  The applicant’s offending did not have the feature that was present in Kellett that justified the imposition of an SVO declaration where the rape resulted in the commission of grievous bodily harm.  Apart from that feature, the applicant’s offending can otherwise be characterised as more serious than in Kellett, particularly because it was a domestic violence offence. The fact, however, that the sentencing judge added an SVO declaration to the sentence imposed on the applicant for count 3 has made the sentence manifestly excessive in the circumstances.
48. [48]
    It is therefore necessary to consider exercising the sentencing discretion afresh.  Full submissions were made by both the applicant and the respondent on the hearing of the application.  Both parties maintain their respective positions before the sentencing judge as to the appropriate sentence.  During the hearing of the application, it appeared the applicant’s counsel’s instructions from the applicant to accept a longer sentence of eight years’ imprisonment for count 3 may have been limited by the proposal that the eligibility for parole be fixed after serving one-third of the sentence.  I am not persuaded, however, that the applicant’s proposed sentence structure provides adequate punishment for the offending.
49. [49]
    I consider that all the factors relevant to the sentencing would be reflected in a head sentence for count 3 of seven and one-half years’ imprisonment with the eligibility for parole left to that provided for under s 184(2) of the Corrective Services Act 2006 (Qld) which would be after the applicant had served one-half of the sentence.  Such a head sentence for count 3 reflects a discount for the guilty plea and the other mitigating factors, but has regard to the overall criminality of the offending for all three counts and the aggravating factor that count 3 was a domestic violence offence.  The effect of not setting the date for eligibility for parole before one-half of the sentence has been served ensures the sentence as a whole provides for adequate punishment for the offending and has the potential to foster the applicant’s treatment and rehabilitation over a parole period of sufficient length to give some prospect of those aims being achieved.
50. [50]
    The imposition of such a sentence was not expressly canvassed during the submissions on the hearing of the application, but it would result in the following orders being made, if the appeal proceeded and was allowed:

1. 1.Leave to appeal granted.

1. 2.Appeal allowed.

1. 3.Substitute a sentence of imprisonment of seven and one-half years for count 3 in lieu of the sentence of seven years’ imprisonment imposed by the sentencing judge on 27 October 2020.

1. 4.Set aside the declaration that the conviction for count 3 was a conviction for a serious violent offence.

1. 5.Pursuant to s 159A of the Penalties and Sentences Act 1992, it is stated that the applicant was held in pre-sentence custody for one day between 16 April 2018 and 17 April 2018 and it is declared that the one day of pre-sentence custody be imprisonment already served under the sentence.

Orders

51. [51]
    As the head sentence that I now propose is potentially more severe than the sentence that was imposed on count 3 by the sentencing judge, even though it has the potential of giving the applicant the opportunity to obtain parole after having served three years and nine months of the sentence rather than after serving 80 per cent of the sentence, it is necessary, in accordance with Neal v The Queen (1982) 149 CLR 305, 308, to give the applicant the opportunity to consider whether he wishes to abandon the appeal and leave the sentence for count 3 as that imposed by the sentencing judge.  I therefore propose the following orders:

1. 1.Leave to appeal granted.

1. 2.Direct that the applicant give any notice of abandonment of appeal to the Registrar of the Court of Appeal within 14 days of the publication of these reasons.

1. 3.If no such notice is received within the time specified in the preceding order, the appeal is adjourned to be disposed of on the papers in accordance with [50] of the reasons.

52. [52]
    HENRY J:  I agree with Mullins JA.