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R v Gibbs QCA 191
SUPREME COURT OF QUEENSLAND
R v Gibbs; Ex parte Attorney-General (Qld)  QCA 191
GIBBS, Shane Trevor
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
CA No 172 of 2021
DC No 513 of 2019
Court of Appeal
Sentence Appeal by Attorney-General (Qld)
District Court at Southport – Date of Sentence: 18 June 2021 (Dann DCJ)
Date of Order: 17 August 2021
Date of Publication of Reasons: 7 September 2021
17 August 2021
Sofronoff P, Mullins JA and Crow J
Order delivered: 17 August 2021
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was convicted after trial of one count of suffocation in a domestic setting (domestic violence offence) and one count of choking in a domestic setting (domestic violence offence) – where the respondent was sentenced for each count to imprisonment for a period of three years with an immediate fixed parole release date – where the appellant did not challenge any of the findings made by the sentencing judge – where the sentencing judge balanced the factors relevant for sentencing for violent offences with the mitigating factors that were personal to the respondent – whether the sentences imposed were manifestly inadequate
Criminal Code (Qld), s 315A
R v Green; Ex parte Attorney-General (Qld)  QCA 153, cited
R v HBZ (2020) 4 QR 171;  QCA 73, considered
R v Luxford  QCA 272, considered
R v MCW  2 Qd R 344;  QCA 241, considered
R v Yarwood (2011) 220 A Crim R 97;  QCA 367, cited
P J McCarthy QC, with M J Hynes, for the appellant
M J Copley QC, with D A Funch, for the respondent
Director of Public Prosecutions (Queensland) for the appellant
Howden Saggers Lawyers for the respondent
- THE COURT: The respondent was convicted after trial before a jury in the District Court between 22 and 26 March 2021 of one count of suffocation in a domestic setting (domestic violence offence) and one count of choking in a domestic setting (domestic violence offence). He was acquitted on a third count on the same indictment of assault occasioning bodily harm (domestic violence offence). The complainant for all three counts was the respondent’s wife. The sentencing proceeded on 18 June 2021 in respect of the two counts of which the respondent was found guilty and a summary charge of contravention of domestic violence order committed at the same time as the two counts of which he was found guilty. For each of the two counts he was sentenced to imprisonment for a period of three years and given a fixed parole release date of the date of the sentence. The respondent was also ordered to pay compensation of $5,000 to the Registrar of the District Court within 12 months of the date of the sentence for transmission to the complainant. He was convicted and not further punished in respect of the contravention of domestic violence order, but that sentence is not the subject of this appeal.
- The Attorney-General appeals against the sentence for the two counts on the basis the sentence is manifestly inadequate.
The facts of the offences
- The complainant had checked the respondent’s phone in the middle of the night and accused the respondent of being unfaithful. During the argument that ensued, the complainant asked the respondent to leave the home and then said she was calling the police. The complainant started to dial, but did not know if she got through as the respondent came at the complainant “hard and fast”. The complainant was then on the floor on her stomach and count 1 was committed when the respondent had his hand over her mouth and nose and she could not breathe. The complainant felt her tooth pop or break or it was hurting. The complainant grabbed and squeezed the respondent’s testicles and the respondent let the complainant go. As she tried to get up and said something like “no”, “stop” or “help”, she felt a massive force, as the respondent was on her back and she hit the ground with him on her back. The complainant described feeling “10 out of 10 pressure on her throat” and remembered her tongue coming up in her mouth. This part of the incident constituted count 2. The complainant wet herself and saw their son’s feet and his pyjama pants and her vision then “blurred out”. The complainant could not breathe until she was lifting herself up again off the floor and was unsure, if she blacked out or not. The 000 call made by the complainant from her phone had connected and captured the sounds of a struggle and a shortness of breath with muffled cries. The 000 call also confirmed that the son of the complainant and the respondent was nearby and witnessed the incident. Counts 1 and 2 were committed in quick succession in the complainant’s bedroom. The complainant’s dentures were found in her bed.
- When the complainant was examined in hospital shortly after the incident, she had bilateral periorbital petechiae, swollen eyelids, tenderness of her forehead and temples and swelling on the front of the neck and under the jaw and chin. Expert medical evidence was to the effect that these symptoms were consistent with non-fatal strangulation.
The respondent’s antecedents
- The respondent was born in 1971 and was 47 years old when he committed the offences. He had been in a relationship with the complainant for about 13 years and they had been married for about seven years at the time of the offending. There is one son of the marriage who was five years old at the time of the offending.
- At the age of 23 years, the respondent joined the army. He had 20 years in the Special Air Service Regiment (SAS) and for 22 years was a sniper. The respondent did multiple tours of duty in international areas of conflict, including Iraq, Afghanistan and East Timor. He was injured in an explosion in 2007 in Afghanistan and shot in battle in September 2008 which resulted in life threatening injuries. The injuries were described as thoracoabdominal gunshot wound, penetrating liver injury, penetrating diaphragm injury, two colotomies, penetrating splenic injury and open abdomen. He required 10 weeks in hospital and suffered long term damage to multiple organs, including paralysis of his right hemidiaphragm which was permanent and significantly impaired his cardiorespiratory function. The respondent returned to active service in Afghanistan in 2011. The respondent was eventually diagnosed in 2014 as suffering from post-traumatic stress disorder (PTSD), was medically discharged from the army in 2015 and receives a full military disability pension.
- From early 2016, the respondent and the complainant lived in Thailand for 10 months and their relationship was not good. The complainant left the respondent and returned to live in Perth. They saw a counsellor around Christmas 2016. In January 2017 the complainant agreed to the respondent staying with her whilst in Perth for a funeral. There was an incident between them, as a result of which the respondent was issued with a 72 hour restraining order and he returned to Thailand. The respondent returned to live with the complainant and their son in Perth on 21 May 2017. They attended counselling, but their arguments increased. The complainant started recording the respondent’s ranting and abuse and told him she wanted a divorce. The complainant took $40,000 from their joint account which upset the respondent.
- On 31 May 2017 the respondent committed the offence of threat to kill against the complainant. The facts of that offence can be summarised as follows. The complainant and the respondent were arguing about attending a counselling session and their ongoing issues with money. The argument became heated, the complainant told the respondent he was frightening her, and the respondent told her that she had seen nothing yet and that he did not care if he ended up the rest of his life behind bars, if he cut her head off. They continued to argue, when the respondent gestured with his hand to indicate he was holding a gun and said “You will never see it coming. Regardless whether I am in Thailand or not, one day I will just turn up and just go”, and he then made a sound effect similar to a shotgun, before continuing with “and you won’t see it coming ever. I swear to god, you will never see it coming” and “You’d never see it coming in the future, wherever, whenever. When I am pushed too far, you will never see it coming.”. The respondent then said not to call the police, stating “I expect them to turn up tonight. There will be dead people everywhere and you’ll be the first one.”. The entire incident was recorded by the complainant on her telephone and the complainant can be heard pleading for it to stop. Although the one offence was committed, it comprised two verbal threats and a physical gesture to kill the complainant.
- A protection order was made on 2 June 2017 in the Magistrates Court at Perth in favour of the complainant against the respondent. The respondent spent 29 days in custody in Western Australia before he was released on bail for the threat to kill offence. The respondent completed an 11 week PTSD, trauma and recovery program at Hollywood Hospital in Perth.
- The complainant and the respondent were reconciled towards the end of 2017 and were living in Queensland.
- The respondent pleaded guilty to the threat to kill offence and was sentenced in the District Court of Western Australia on 27 April 2018 to a fine of $4,000. He was sentenced on the basis that his offending had been influenced directly by his PTSD which reduced his moral culpability for the offending and that he was genuinely remorseful for his behaviour. The respondent’s rehabilitation was considered by the sentencing judge to be a paramount consideration who noted the respondent had taken significant steps to rehabilitate himself.
- After the respondent was charged with the subject offences, he was released on bail and remained on bail until sentenced.
- In 2020 the respondent commenced the degree course of Bachelor of Psychology (Honours) and his academic record showed that he was passing the subjects with good results.
- During sentencing submissions, the respondent offered to pay compensation in the sum of $5,000 to the complainant as a tangible expression of the remorse that he had expressed to some of those who had provided references for him for the purpose of the sentencing.
- Mr Hynes of counsel who was the prosecutor for the respondent’s trial and sentencing conceded appropriately during the sentencing submissions (consistent with the material before the court) that the respondent’s physical condition may make his time in custody harder than for other prisoners which was a matter that should be taken into account and his PTSD and the treatment regime to address his PTSD would be affected by any sentence of actual imprisonment. Mr Hynes also appropriately conceded that paragraph (a) of s 9(3) of the Penalties and Sentences Act 1992 (Qld) (PSA) that required the court to have regard to the risk of physical harm to any members of the community, if a custodial sentence were not imposed, was not enlivened for the purpose of sentencing the respondent (other than in respect of the complainant).
The sentencing remarks
- After referring to the facts of the offences and the respondent’s antecedents, (including reciting the facts of the threat to kill offence) the sentencing judge summarised the reports that were tendered for the purpose of the sentence.
- Neuropsychiatrist Dr Adams who had been treating the respondent since 30 October 2018 provided a report dated 15 June 2021 that included the following. Since the first consultation, the respondent had reliably attended appointments and had actively engaged in treatments and therapies. Dr Adams confirmed the diagnosis of severe PTSD. He noted that there was “an exceedingly high probability” of deterioration in the PTSD in the absence of the current treatment and management plan. The most important and core component of the respondent’s treatment and therapy was regular psychological work that was being done at the date of the report on a weekly basis with psychologist Mr Lind. Dr Adams confirmed that “this formal psychotherapy has had a demonstrably positive effect on [the respondent’s] mental state over time, and the benefits are progressive and ongoing”. Dr Adams expressed his opinion that the respondent was suffering from PTSD at the time of the offences and “that the condition would have had an impact on the way events played out”, but could not quantify the impact. Dr Adams described the respondent as being “personally assertive in seeking out treatment, reliable in continuing with treatment”. Dr Adams confirmed the respondent was on medication for his condition that was a tranquiliser, antipsychotic and mood stabiliser. Dr Adams was of the opinion that it would only be in the absence of treatment and deterioration in the respondent’s mental state that he would become a risk to himself or others.
- Mr Lind whose report was dated 16 June 2021 had been the respondent’s primary treating psychologist since February 2018 as part of a comprehensive multidisciplinary treatment and rehabilitation service provided to the respondent through the Better Life Program of the Veteran Health Association (VHA). After Mr Lind set out in his report the account of events given to him by the respondent that was consistent with the respondent’s evidence at trial, he expressed the view that the respondent’s PTSD was a direct cause of his offending behaviour, but the sentencing judge did not place any weight on Mr Lind’s view of that aspect of the matter.
- The sentencing judge did place weight on Mr Lind’s observations of the respondent in connection with the treatment being provided by Mr Lind. According to Mr Lind, the respondent was responding well to his current treatment program, his alcohol consumption was well managed, the respondent’s general mood and quality of life had improved significantly, but he still experienced clinically significant symptoms of anxiety, PTSD and stress with the ongoing risk of clinical depression. Mr Lind noted that, if the respondent were to be placed in custody, his current physical and mental health conditions would require him to receive specialised mental health and medical support, and he would be at significant risk of major complications in the event of a viral or bacterial infection, because of the ongoing issues arising from his combat-related injuries. Mr Lind also noted that the respondent “presents with complex trauma symptomatology and interpersonal challenges that would make him very vulnerable to external trauma triggers and decompensation which would likely lead to a rapid deterioration of his health with increased risk of self-harm and suicidal ideation”.
- Mr Lind’s recommendation in relation to the sentencing was that any limitations on the respondent’s capacity to seek social and community support was minimised and that he continued his current treatment regime with VHA. Mr Lind stated that, from the perspective of the treatment team, any significant disruption to, or interference with, the respondent’s current professional, social and community support network would pose a major risk to his positive trajectory, treatment outcomes and family circumstances.
- The sentencing judge also referred to the report dated 24 July 2014 from psychiatrist Dr Fellows-Smith that was directed to the Department of Veterans Affairs. Dr Fellows-Smith saw the respondent on three occasions in mid-2014 and concluded that the respondent presented with PTSD and possible blast injury directly related to his military service in Afghanistan serving in the SAS and particularly the incident in which he was shot in 2008.
- The respondent’s general medical practitioner, Dr Cameron, who had been treating the respondent for the previous three years provided the court with a letter dated 14 May 2021. He confirmed the respondent’s physical injuries and noted the respondent suffered from severe gastroesophageal reflux which resulted in recurrent vomiting and pain and significant dietary restrictions. Dr Cameron expressed the opinion that the respondent would be sufficiently at risk of acquired infection in a community setting such as prison and also recorded that automatic fight or flight response involving high level activation of the sympathetic nervous system was commonly associated with PTSD sufferers who are triggered by events. Dr Cameron expressed the opinion that it was highly likely that the altercation with the complainant who was distressed and threatening to call the police on the night of the offences triggered a PTSD response in the respondent. Dr Cameron noted that the respondent’s current multidisciplinary treatment team included thrice weekly engagement with an exercise physiologist and psychologist, regular weekly physiotherapy, monthly reviews with Dr Cameron and sessions every six weeks with the treating psychiatrist.
- The treating physiotherapist, Mr Hulls, provided the court with a letter dated 16 June 2021 that noted Mr Hulls had been providing ongoing care for the respondent to assist multiple chronic musculoskeletal injuries over the previous eight months and that the respondent attended the practice on average once or twice each week for physiotherapy and exercise physiology services. Mr Hulls noted that without regular care it was likely that the respondent’s chronic pain levels would increase, directly affecting his ability to complete his sessions, leading to deconditioning and further increase in his musculoskeletal symptoms and impacting on his already reduced respiratory capacity. Mr Hulls also observed that a reduction in the respondent’s capacity to complete his sessions would likely impact upon his PTSD related symptoms.
- The sentencing judge then referred to the references provided to the court in support of the respondent and summarised the content of some of them, referring to the references in general terms speaking of the respondent’s honesty as a person, his competence as a soldier, his distinguished service to the country, his struggles with the physical and mental illnesses from which he has suffered as a consequence of his service, his steps towards rehabilitation and his determination to make a meaningful life for himself.
- On the issue of remorse, the sentencing judge noted (in a way that indicated acceptance) that the references from the respondent’s current partner and his SAS patrol commander in Afghanistan in 2008, Mr Simmonds, referred to the respondent’s remorse for his offending and the offer of financial compensation to the complainant.
- His current partner had known the respondent for 13 years as they met during their military service and their relationship commenced in December 2018. His current partner referred to the respondent’s powerful support to other veterans who were suffering after the trauma of war and that she considered that the respondent now understood how significantly his mental illness affected his family and he was deeply remorseful for the impact that had on both the complainant and their son. Mr Simmonds is the president of the Australian Special Air Service Association (Western Australian Branch) Incorporated and fought with the respondent in the battle in 2008 which resulted in the respondent’s being critically wounded and only surviving through the efforts of a combat medic. Mr Simmonds noted that the respondent initially struggled with the symptoms of PTSD and considered that in recent times he has worked hard with a specialist team to overcome the symptoms. Mr Simmonds expressed the view that the respondent was deeply remorseful for his behaviour in the past and the impact it had on the complainant and their son and that he was genuinely turning his life around and was motivated to help others in a productive way based on his experiences.
- After noting the purposes of sentencing, the sentencing judge noted primary regard was required to be given to the factors in s 9(3) of the PSA which were then listed and also noted that, by reason of s 9(10A) of the PSA, the fact that the offences were domestic violence offences was an aggravating factor for the court to take into account. The primary sentencing judge also referred to the principles in sentencing a person with psychiatric illnesses that are set out in R v Yarwood (2011) 220 A Crim R 97 at -. The sentencing judge then analysed the authorities to which the prosecution referred: R v Luxford  QCA 272, R v MCW  2 Qd R 344, R v HBZ (2020) 4 QR 171 and R v BDK  QCA 48.
- In relation to Luxford, the sentencing judge observed that the error in the sentencing discretion at first instance in that case was the imposition of a sentence which required actual custody, when the principles relevant to a sentence for an offender with reduced moral culpability by reason of PTSD and the fact that PTSD may make prison a harsher experience were applicable to the applicant in that case. The sentencing judge also noted that the prosecution accepted, as was the case, that the offending in Luxford was objectively more serious than the respondent’s offending.
- At the conclusion of the sentencing remarks, the sentencing judge summarised the factors that had to be balanced in deciding the appropriate sentence for the offending and the respondent’s circumstances. The sentencing judge noted:
“The offences involved significant violence with the complainant’s suffering demonstrated physical injuries. They are objectively very serious offences. They were committed against the complainant, who was your wife, who you had previously threatened to kill. They were committed in breach of a domestic violence order.
At least some part of the offending was witnessed by your young son and the effect on [the complainant] of your offending was, and continues to be profound.”
- The sentencing judge then referred to the respondent’s ongoing physical deficits from injuries suffered during his service in Afghanistan, his ongoing PTSD as a consequence of that service, and that his PTSD will continue and require ongoing treatment into the future. The sentencing judge noted the proper concession made by the prosecution that the respondent did not pose a risk to the wider community and Dr Adams’ opinion that it would only be the absence of treatment and the deterioration in the respondent’s mental state that would result in his being a risk to himself or others. The fact that the respondent had been on bail for (almost) three years and committed no breaches was noted. The sentencing judge made a specific finding that “the evidence does support that [the respondent’s] PTSD was current at the time of the offending and played a part in that offending”.
- On the basis of that finding, the sentencing judge accepted that the general and specific deterrence considerations had to be moderated. The sentencing judge also found the evidence supported that the respondent’s PTSD and his physical injuries would mean that a sentence that involved actual imprisonment would weigh more heavily on the respondent then on a normal offender and referred to the psychiatrist’s evidence in that regard as to the appropriateness of the respondent’s current treatment plan in avoiding the deterioration of the respondent’s condition. The sentencing judge therefore concluded that, on balancing all of those considerations, the sentence of three years’ imprisonment for each of counts 1 and 2 was appropriate and that it be moderated to reflect the matters of mitigation in relation to general and specific deterrence and the impact of the sentence on the respondent.
The appellant’s submissions
- The appellant does not challenge any of the sentencing judge’s findings or assert any specific error was made by the sentencing judge. The appellant’s submissions include the following. Section 315A of the Criminal Code (Qld) reflects the Legislature’s intention to create specific offences for the physical conduct of the nature caught within the provision that is committed in a domestic setting and was enacted as a result of the acknowledged connection between that type of conduct and its capacity as a predictive indicator of escalation in domestic violence. The offences committed by the respondent therefore required an emphasis on denunciation, punishment and the protection of the community by the imposition of a strong deterrent penalty. Support for this approach is found in HBZ at .
- The sentencing judge placed too much weight on the outcome of the appeal in Luxford without properly acknowledging the significant distinguishing features between the offending and the circumstances of the offender in Luxford and the respondent’s offending and circumstances. Although the offending in Luxford was objectively more serious than the respondent’s offending, Mr Luxford suffered from PTSD which was held to be an underlying causative factor of his offending, pleaded guilty (which was a significant mitigating factor) and had no prior criminal history and his offending was not committed in contravention of a domestic violence order.
- The appellant emphasises that the subject offences were committed only four months after the respondent had been sentenced for the threat to kill offence also committed against the complainant where the sentencing had proceeded on the basis that the respondent had been genuinely remorseful for his behaviour and had taken positive steps to rehabilitate himself since offending in May 2017, including attending counselling and treatment since February 2018. The subject offences were also committed despite the existence of a protection order that was for the purpose of ensuring the safety of a vulnerable domestic partner and to provide a strong disincentive to the respondent for inflicting violence upon his partner. The effect of the jury’s verdicts on counts 1 and 2 was that they rejected the respondent’s account that during the incident he only restrained the complainant and did not apply pressure to her neck.
The respondent’s submissions
- The respondent’s submissions include the following. As required by s 9(3) of the PSA, the sentencing judge did have regard primarily to the factors set out in that provision, when sentencing the respondent. Despite the emphasis in that provision on aspects arising from the violence with which the offences were committed including the impact on the victim, the rehabilitation attempts, any remorse and the antecedents of the respondent together with any medical, psychiatric or other relevant reports in relation to the respondent were also relevant factors for the purpose of the sentencing.
- The Court of Appeal recently confirmed the principle that an appeal against sentence by an Attorney-General should be a rarity and brought to establish some matter of principle in order to provide guidance to courts when sentencing: R v Green; Ex parte Attorney-General (Qld)  QCA 153 at . The complaints made by the appellant that too much weight was given by the sentencing judge to some considerations and not sufficient weight given to other considerations does not involve any matter of principle.
- It was relevant to the sentencing that the respondent’s PTSD was not a consequence of criminal misadventure (such as drug use) or personal indulgence, but as a result of injuries he suffered in a conflict in which he was serving his country. It was also relevant that since committing the subject offences, the respondent had made significant progress in participating in the multidisciplinary treatment regime for his PTSD and physical injuries.
Was the sentence manifestly inadequate?
- Every factor on which the appellant relies to assert the result of the sentencing was inadequate was a factor which the sentencing judge considered and weighed in the balance with all the factors relevant for the purposes of sentencing for violent offences.
- The seriousness of the offences committed by the respondent is unquestionable. As explained in authorities such as MCW at  and  and HBZ at , s 315A of the Code was enacted to deal with a particular sort of offending that was not uncommon in domestic relationships and was objectively dangerous conduct, as the choking, suffocating or strangling of another could easily result in fatal or lasting consequences. That is why deterrence, both general and specific, is usually prominent in sentencing for this type of offending.
- It is apparent from the respondent’s committing the subject offences within a relatively short time after being sentenced in Western Australia for the threat to kill the complainant that the optimism for the rehabilitation of the respondent as a result of the counselling and treatment he had embarked on by the time of that sentencing was misplaced. His rehabilitation at that stage had not progressed to a sufficient degree to prevent the commission of the subject offences. It was therefore to the respondent’s advantage that his sentencing for the subject offences took place almost two years and 10 months after he committed the offences, when very persuasive evidence of his adherence to his rehabilitation and treatment program and the lack of any further offending was evident.
- As the appellant submits, it was a remarkable outcome that the respondent was sentenced to imprisonment with an immediate parole release date that therefore did not at the outset include an actual custodial component, when only four months prior to the commission of the subject offences he had been sentenced for threatening to kill the complainant, did not admit the conduct that constituted the subject offences and was in breach of a domestic violence order and was found guilty after trial. The remarkable outcome was, however, the result of a sound exercise of the sentencing discretion, as the sentencing judge’s careful analysis of the relevant factors, including the exceptional circumstances of the respondent, showed.
- The respondent’s sentence was not inconsistent with the sentence imposed after appeal in Luxford, as despite the aggravating features of the respondent’s offending and that Mr Luxford had pleaded guilty, Mr Luxford was sentenced for more serious offending committed over a longer period. In the sentencing both for the respondent and the offender in Luxford, the fact that PTSD was a cause of the relevant offending reduced the moral culpability for the offending, consistent with the principles set out in Yarwood at - and therefore reduced the need for emphasis on both general and specific deterrence in the sentence for the offending. The PTSD (and in addition in the respondent’s case his physical injuries) also had to be taken into account in the respondent’s sentence and in Luxford for the greater burden arising from actual imprisonment than for a prisoner not suffering from the same conditions.
- As the respondent submits, this appeal does not raise any matter of principle. It was the circumstances personal to the respondent that remained relevant (despite the earlier conviction for the threat to kill the complainant) and particularly that his PTSD which affected him at the time he committed the offences and played a part in that offending was due to serious injuries sustained during his outstanding service in the SAS and the lengthy rehabilitation and treatment in which the respondent had engaged since the offending to which he was still committed and which would be impeded by actual imprisonment. Even though the need for general and specific deterrence was appropriately moderated in sentencing the respondent, the sentence imposed on the respondent taking into account all the circumstances relevant to his sentencing does not detract from the focus on punishment, denunciation and deterrence that is at the forefront of sentencing for an offence under s 315A of the Code.
- It is for the above reasons that we joined in the order of the court made at the conclusion of the hearing of the appeal that dismissed the appeal.
- Published Case Name:
R v Gibbs; Ex parte Attorney-General (Qld)
- Shortened Case Name:
R v Gibbs
 QCA 191
Sofronoff P, Mullins JA, Crow J
17 Aug 2021