R v Lee[2021] QCA 233

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  I agree with the reasons of Williams J and with the orders proposed by her Honour.
2. [2]
   DAVIS J:  I agree with Williams J.
3. [3]
   WILLIAMS J:  This is an application for leave to appeal against the sentence imposed on the applicant in respect of 59 counts on one indictment, one count on a further indictment and eight summary charges.
4. [4]
   Indictment 1402 of 2020 contained:

   1. (a)
      27 counts of supplying a dangerous drug (domestic violence offence);
   2. (b)
      four counts of threats (domestic violence offence);
   3. (c)
      two counts of choking in a domestic setting (domestic violence offence);
   4. (d)
      one count of deprivation of liberty (domestic violence offence);^[1]
   5. (e)
      three counts of common assault (domestic violence offence);
   6. (f)
      two counts of threatening violence at night (domestic violence offence);
   7. (g)
      three counts of rape (domestic violence offence);^[2]
   8. (h)
      two counts of recording in breach of privacy (domestic violence offence);
   9. (i)
      three counts of sexual assault, with a circumstance of aggravation (domestic violence offence);^[3]
   10. (j)
       one count of stupefy to commit an indictable offence (domestic violence offence);
   11. (k)
       one count of assault occasioning bodily harm (domestic violence offence);
   12. (l)
       one count of sexual assault (domestic violence offence);
   13. (m)
       one count of distributing prohibited visual recordings (domestic violence offence); and
   14. (n)
       one count of possessing a dangerous drug.
5. [5]
   Indictment 1404 of 2020 contained one count of threats (domestic violence offence).
6. [6]
   The eight summary charges were:

   1. (a)
      contravention of a domestic violence order;
   2. (b)
      possessing tainted property;
   3. (c)
      two breaches of bail condition;
   4. (d)
      possessing utensils or pipes etc that had been used;
   5. (e)
      possessing dangerous drugs;
   6. (f)
      possessing utensils or pipes etc that had been used; and
   7. (g)
      possessing dangerous drugs Schedule 1 drug quantity of or exceeding Schedule 3 but less than Schedule 4.
7. [7]
   There were three separate complainants: Ms KTS, Ms KTV, and Ms OQN.  The sentencing judge structured the sentence by imposing a global sentence in respect of the three counts of rape, and lesser concurrent sentences in respect of the other offending against Ms OQN.  Further, a global sentence was imposed in respect of count 20 being the most serious of the offending against Ms KTS and Ms KTV, which was to be served cumulatively with the sentences imposed in respect of Ms OQN, with lesser concurrent sentences imposed in respect of the other offending against Ms KTS and Ms KTV.
8. [8]
   The following table sets out the relevant sentences imposed by the sentencing judge:

   1. (a)
      Offending against Ms OQN (*offences in the schedule of serious violent offences):

2. (b)
   Offending against Ms KTS and/or Ms KTV:

3. (c)
   Summary charges:

9. [9]
   The sentencing judge declared that each of the offences on the indictments were domestic violence offences.^[4]
10. [10]
    The sentencing judge set a parole eligibility date after serving eight years of the sentence.
11. [11]
    At the time this sentence was imposed, the applicant had served 721 days in pre-sentence custody from 2 February 2018 until 4 July 2018 and from 23 May 2019 to 10 December 2020.  All of that time was declared as time served in respect of the sentence.
12. [12]
    The grounds for the application for leave to appeal the sentence are as follows:

    1. (a)
       The learned sentencing judge failed to give sufficient weight to the personal circumstances of the applicant; and
    2. (b)
       The sentence imposed by the learned sentencing judge, in all the circumstances, was manifestly excessive.

Background and sentencing remarks

13. [13]
    The applicant was aged 29 at the time of the offending and was 32 years of age at the time of sentence.
14. [14]
    He had a relevant criminal history, with particularly relevant offending in Korea.  The applicant was convicted of aggravated blackmail and aggravated assault in June 2017 which involved the applicant meeting a woman at a bar who he had met via a chatroom.  The applicant threatened her with a steak knife and threatened to kill her.  Three days later, the applicant strangled her and threatened her again with a knife.
15. [15]
    This offending occurred 10 months prior to the offending in Queensland.
16. [16]
    The applicant was also sentenced on 21 November 2017 in the Magistrates Court in relation to offences of fraud and dealing with identification information and was sentenced to 18 months’ probation and 100 hours of community service.
17. [17]
    The sentencing judge noted that the offending against the three complainants commenced the day following the applicant’s appearance in the Magistrates Court.
18. [18]
    Further, the offending the subject of the current sentence was in breach of probation and community service.
19. [19]
    The applicant pleaded guilty to the offences.  However, the sentencing judge did not accept it as an early plea.  The sentencing judge noted that the pleas occurred in the following circumstances:

    1. (a)
       The applicant applied to sever the counts relating to each of the three complainants and the plea occurred after legal argument was unsuccessful on that issue.
    2. (b)
       Further, the applicant opposed the complainants giving evidence by closed circuit television and it was on the morning of the pre-recording of the evidence of one of the complainants that the applicant indicated a willingness to plead to some of the offences, and after further negotiations, the guilty pleas were entered.
20. [20]
    The sentencing judge expressly notes that the pleas of guilty avoided the need for any of the three complainants to give evidence and to relive the trauma, particularly Ms OQN.
21. [21]
    The sentencing judge also considered a psychiatric report which was tendered on behalf of the applicant.  Her Honour noted that the applicant had a history of major depressive disorder, anxiety disorder and post-traumatic stress disorder.  Further, her Honour noted the psychiatric report identified that the applicant had a complex and mixed personality disorder with borderline antisocial and narcissistic features.
22. [22]
    The sentencing judge concluded that, in her view, the applicant’s personality disorder did not reduce the moral culpability of the applicant’s offending.  Further, it did not moderate or eliminate the need for a sentence with general and specific deterrence: that is, which deters the applicant and others from this sort of offending.
23. [23]
    The sentencing judge noted that the applicant was in protection in prison and this added extra hardship in addition to what a person not serving a sentence in protection would experience.
24. [24]
    The relevant facts were set out in a detailed statement of facts tendered at the sentencing hearing.  The sentencing judge summarised the facts in her sentencing remarks.
25. [25]
    For the purposes of these reasons, I will not repeat all the facts but will summarise the main features of the offending.  The offending involved three complainants and occurred between 27 November 2017 and 1 February 2018, a period of a little over two months.
26. [26]
    Ms KTS, the first complainant, was 22 years old at the time.  The applicant commenced a relationship with Ms KTS and Ms KTS moved into the applicant’s granny flat.  The relationship lasted approximately one month.  During that period, on 12 occasions, the applicant supplied Ms KTS with alprazolam (Xanax), telling her that they were vitamins.  She either took the tablets voluntarily, or, on some occasions, she was forced to take the tablets.  The tablets had a sedative effect on the complainant.
27. [27]
    In respect of the relationship between the applicant and Ms KTS, the sentencing judge summarised the relationship as follows:

“… Your relationship with her involved you behaving in an emotionally unstable and controlling way towards her, making her sleep at the same time that you did and accusing her of cheating on you. About two weeks into your relationship with her she attempted to break up with you while with you in Melbourne. She sought the assistance of police to escape you. She returned to Brisbane and you followed a few days later. One of the supplies of alprazolam to her occurred on your return to Brisbane where you convinced her to stay the night at your granny flat and supplied her with the drug.

The following morning when she was packing her bags you accused her of trying to escape. You got a knife from the kitchen and pointed it at her and threatened her, saying, ‘You know what will happen if you run away.’ She begged you not to and you calmed down and put the knife away. She escaped the relationship later that evening when you were distracted at the gym. She went to the police and made a complaint. A domestic violence order was made. A hair sample taken from her revealed the presence of alprazolam.”

28. [28]
    Almost immediately following, the applicant commenced a new relationship with Ms KTV.  Ms KTV was 34 years of age and the applicant had met her earlier in November 2017.  The applicant invited Ms KTV to join him in Melbourne, which she did from 10 December 2017 (the day that Ms KTS left).  Upon the applicant’s return to Brisbane, the applicant entered a relationship with Ms KTV lasting approximately three weeks.  The sentencing judge described the relationship between the applicant and Ms KTV as being “controlling and obsessive towards her”.
29. [29]
    The controlling relationship included checking the complainant’s mobile phone.  On one instance, after the applicant had checked the complainant’s mobile phone, the applicant punched Ms KTV in the face.  The applicant immediately apologised as Ms KTV started packing her bags.  The applicant begged her to stay and she did.  The next day, Ms KTV was locked inside the granny flat and she was unable to leave.  On another occasion, when Ms KTV argued with the applicant, the applicant pushed her into the bathroom wall and squeezed her neck until she could not breathe.
30. [30]
    The offending also includes five occasions when the applicant supplied Ms KTV with alprazolam.  The complainant took the tablets, not always voluntarily, and the applicant told her the pills would help her sleep.
31. [31]
    Towards the end of the three week relationship, the applicant and the complainant went to Melbourne where the relationship ended.  Ms KTV flew to Sydney from Melbourne.  The applicant sent text messages from Brisbane threatening to tell the complainant’s friends that she was a prostitute if she did not return to Brisbane.
32. [32]
    The complainant returned to Brisbane to collect her things.  The applicant collected Ms KTV from the airport and Ms KTS was also in the car.  In the course of subsequent interactions between the applicant and Ms KTV, the applicant forced Ms KTV to the floor and put a knife to her throat.  Ms KTV managed to message a friend and police attended after midnight.  The applicant accused Ms KTV of being drunk and stealing money.  A couple of weeks later, the applicant sent text messages threatening to reveal to her friends and family that she was an escort and that the applicant would send naked pictures of her to her family and friends if she did not contact the applicant.  Alprazolam was also found in a hair sample taken from Ms KTV.
33. [33]
    The third complainant, Ms OQN, was 24 years of age at the time of the offending.  Ms OQN had arrived in Australia on 16 January 2018 and spoke minimal English.  A day after the applicant had sent threatening messages to Ms KTV, the applicant met Ms OQN at a restaurant and quickly commenced a relationship.  The relationship lasted two weeks.  During that time, the applicant raped Ms OQN on three occasions and supplied her alprazolam.
34. [34]
    The first count of rape occurred following a visit to Movie World.  Ms OQN had been supplied with alprazolam and collapsed in the car park.  The applicant took her home and when she woke up, the applicant told her that she had wasted his time because she had slept when he had taken her to Movie World.  The applicant indicated he was going to have sex with her and she said “no”.  The applicant pushed her onto the bed, removed her clothing, held her wrists above her head with one hand and put his other hand over her hand telling her not to scream.  The complainant kicked and screamed as the applicant forcibly raped her.  The applicant also took a photo of her naked from the waist down and gave her more alprazolam, telling her it would calm her down.
35. [35]
    A few days later, Ms OQN was again at the applicant’s flat and the applicant told her to shower.  Following this, the applicant removed her clothing and restrained her hands.  Ms OQN said “No, I hate this”.  The applicant replied “Don’t lie, you like this”.  The applicant then forcibly raped the complainant for approximately 10 minutes as she was continually saying “no” and crying.  The applicant also penetrated the complainant whilst she was on her hands and knees, and filmed it without the knowledge of the complainant.
36. [36]
    The next day, the applicant showed Ms OQN the video and gave her more alprazolam.
37. [37]
    The following night, the applicant threatened to post on the internet an indecent photo of the complainant, the video of the applicant raping her and a photo of her passport.  The applicant also threatened to send these to the complainant’s friends and family if she tried to leave.
38. [38]
    The complainant stayed with the applicant out of fear and on two further occasions, the applicant forced the complainant to masturbate the applicant and also licked the complainant’s body, face and vagina without her consent.  On a further four occasions, the applicant gave the complainant alprazolam.
39. [39]
    On another occasion towards the end of the relationship, the applicant supplied Ms OQN with alprazolam to stupefy her, intending to sexually assault her.  Whilst the complainant was intoxicated by the drug, the applicant sexually assaulted the complainant.
40. [40]
    The day following this incident, after the complainant took a phone call, the applicant accused the complainant of talking to another man.  The applicant retrieved two knives from the kitchen and pointed them at her and said “Do you want to die?  I can kill you any time.  Do I look like an idiot, you slut?”  The complainant started crying and the applicant further threatened the complainant.  The applicant threatened to kill the complainant and grabbed the complainant around the throat and squeezed sufficiently hard so that the complainant could not breathe.
41. [41]
    The applicant dragged the complainant to the bedroom and threw her onto the bed where he punched her in the chest causing bruising.  Again, the applicant threatened to kill the complainant.  The applicant gave the complainant more alprazolam, causing her to fall asleep.  The next day, the applicant shaved the complainant’s vulva with electric clippers, despite knowing that she did not want him to do so.  Later that evening, the applicant demanded sex and the complainant begged him not to.  The applicant held her wrists and raped her until ejaculation.  The applicant then supplied the complainant with more alprazolam.
42. [42]
    The complainant ended the relationship by telling the applicant that she did not want to live with him and got out of the car and called 000.  The applicant had the complainant’s passport and threatened to take it if she left.  The applicant also threatened to punch the complainant calling her “bitch”, “rubbish” and “garbage”.  Ms OQN went back to the granny flat and the applicant gave her more alprazolam.  The following day, Ms OQN went to the police and made a complaint.
43. [43]
    Later that same day, the applicant sent photographs and one video of the complainant to an associate.  These included photos of the complainant sleeping, with her breasts or buttocks exposed and also, the video of the applicant raping the complainant.  The applicant asked his associate to post the images on the internet in an act of revenge.
44. [44]
    Urine samples of the third complainant, Ms OQN, found the presence of alprazolam.  She also had bruising to her chest.  The video of the applicant raping Ms OQN was found on the applicant’s associate’s phone.
45. [45]
    On 31 January 2018, the applicant was interviewed and provided a self-serving account of the events, including painting himself as the victim.
46. [46]
    The applicant was charged and remanded in custody from 2 February 2018 and released on bail on 4 July 2018.  Bail was revoked on 23 April 2019 and he was remanded in custody after committing a number of further summary offences.

Applicant’s submissions

47. [47]
    The applicant is representing himself in relation to this application for leave to appeal against sentence but was represented by Counsel and a solicitor at the sentence.
48. [48]
    The applicant has provided written submissions which raise a number of matters which he relies upon in respect of his application for leave to appeal and grounds of appeal.  These can be summarised as follows:

    1. (a)
       The sentencing judge failed to give sufficient weight to his early plea of guilty and did not allow a discount for the early plea of guilty.  This includes that the sentencing judge failed to take into account “[t]he notion of the language and cultural misunderstanding” that result in the applicant pleading guilty of rapes that “couldn’t be proved”.
    2. (b)
       The sentencing judge failed to give sufficient weight to his mental illness and his abusive and traumatic childhood.  Further, the sentencing judge failed to consider the long term aggravated physical and sexual abuse the applicant had suffered whilst in the prison system.
    3. (c)
       The 13 year sentence was manifestly excessive.  This includes:

       1. Incorrect analysis of the indictment.
       2. It was improper to impose the three year sentence for count 20 cumulatively on the 10 year sentence, rather than concurrently.
       3. There is inconsistency between the sentence on count 50 (concurrent with the 10 year sentence) and count 20 (cumulative on the 10 year sentence).
       4. No reasons are given why the three year sentence on count 20 was imposed cumulatively and not concurrently with the 10 year sentence.
49. [49]
    Dealing with each of these in turn.

Guilty plea

50. [50]
    The submissions on behalf of the applicant raise various issues alleging that he entered into the plea agreement under duress.  There is no appeal against conviction or an application to withdraw the guilty pleas, nor is there any evidence in respect of these matters.
51. [51]
    It is apparent from the material in the appeal record book that the applicant was arraigned and pleaded guilty on Wednesday 1 July 2020 before Judge Williamson QC.  On Monday 7 December 2020 the sentencing hearing proceeded before Judge Loury QC with submissions on the appropriate sentence being made and at the end of that hearing the applicant was arraigned on the summary charges.  The hearing resumed on Friday 11 December 2020 before Judge Loury QC, with further brief submissions before the Judge proceeded to impose the sentence.  On each occasion the applicant was represented by Counsel and a solicitor.
52. [52]
    The applicant now raises that he was placed under great pressure to plead guilty, only had a brief time to make a decision, did not have access to his support person and was not in “a good mental capacity to mak[e] such a life-changing decision”.  Further, the applicant now submits that he was misled by the lawyers on both sides in relation to receiving a discounted sentence if he pleaded guilty, even if he was “manifestly innocent”.  The applicant also raises potential cultural and language differences that led to a misunderstanding.  The applicant now regrets how the matter proceeded.
53. [53]
    Between when the guilty pleas were entered on 1 July 2020 and the sentence was imposed on 11 December 2020 at no time did the applicant raise any issue of duress or a misunderstanding as to the offences and the way they were to be dealt with on sentence.  There was a considerable time in which the applicant could have obtained further or independent legal advice.  There is no evidence that this was done or that any steps were taken to address any concerns the applicant had.  No error is made out in respect of these issues raised in the submissions.
54. [54]
    The applicant’s complaint appears to be that he believes he has been disadvantaged by his guilty plea and received a sentence “as excessive as if he had taken the matter to trial and lost”.
55. [55]
    The applicant also raises an error in that the sentencing judge did not take into account the guilty plea and did not articulate any specific reduction in sentencing.
56. [56]
    The applicant refers to the Queensland Sentencing Guide found on the Sentencing Council website and notes that the Court must take into account a person’s guilty plea and may reduce the sentence it would have given, had the person not pleaded guilty.  The applicant acknowledges that there is no mathematical formula for determining this amount, but there is a general practice of recognising a guilty plea by setting the parole release or eligibility date after serving one third of the term of imprisonment.  The applicant acknowledges in the written submissions that this is not a “hard and fast rule” and sometimes a Court will recognise a guilty plea by reducing the head sentence.
57. [57]
    The applicant ultimately requests a discount for the early plea of guilty pursuant to section 13 of the Penalties and Sentences Act 1992 (Qld).
58. [58]
    The sentencing judge formed the view that the plea was late but acknowledged the utilitarian value of the plea as it avoided the need for any of the three complainants to give evidence and relive the trauma.^[5]
59. [59]
    In arriving at the sentence in respect of the offending concerning Ms OQN, the sentencing judge remarked:

“I consider that the appropriate sentence which takes into account all of your offending against Ms OQN and your plea of guilty to be one of 10 years imprisonment”.^[6]

60. [60]
    Further, in considering the appropriate parole period, her Honour went on to state:

“To further take into account your plea of guilty I will not extend your parole eligibility date beyond the eight-year mark that you will be required to serve in relation to the three offences of rape.”^[7]

61. [61]
    It is clear that the sentencing judge was aware of the guilty plea of the applicant and took it into account in arriving at the sentence.  It is also evident that the plea of guilty was a factor which was taken into account in respect of the parole eligibility date, with a tangible reduction in the parole eligibility calculation as a result of the sentencing judge’s consideration of the guilty plea.
62. [62]
    There was no error in the judge’s finding that the guilty plea was not early, nor is there any error made out in respect of the sentencing judge failing to specifically identify the reduction made as a result of the guilty plea.  This ground is not made out.

Mental illness

63. [63]
    The second issue raised by the applicant is described as “[a]ppeal on the grounds of mental illness”.  It appears that this complaint concerns the sentencing judge’s conclusion that the applicant had a personality disorder, but it did not amount to a mental illness.  The submissions of the applicant proceed on the basis that the report of Dr Kovacevic, which was tendered at the sentencing hearing, was “lacking in detail and quality”.  He seeks to adduce a further psychiatric report into evidence in respect of this issue.
64. [64]
    The applicant also submits that the sentencing judge put too much weight on the conclusion that “[y]our personality disorder is not a mental disease … Your personality disorder, which you cannot change, means you are a danger …”.
65. [65]
    In support of this issue, the applicant seeks to rely on a medical report from Associate Professor Robertson.  The basis for introducing this new evidence is “inadequate diligence applied by my former legal team, which had an impact on the quality of the Psychiatric Report prepared for the court and sentencing hearing”.  It is submitted that Dr Kovacevic’s report was lacking “in detail and quantity and obtained in haste to meet the sentencing hearing date”.  The applicant also submits that it is in the interests of justice to admit fresh evidence in the form of this psychiatric report.
66. [66]
    The applicant also refers to a further psychiatric report from Dr Niall McClaren, his family doctor.  Dr McClaren is alleged to have a further report but the applicant says it could not be provided and invites the Court to make a request for access to this report.  This report is not before the Court and there is no information as to its contents or relevance.
67. [67]
    No application has been filed by the applicant seeking leave to adduce further evidence by way of the report from Associate Professor Michael Robertson (and/or a report from Dr Niall McClaren).
68. [68]
    A copy of the report of Associate Professor Robertson has been provided to the Court as part of the materials sought to be relied upon by the applicant for this application.  The report of Dr Robertson was prepared for the purpose of an assessment of psychological injuries arising out of sexual abuse against the applicant whilst he was detained at a juvenile justice centre.
69. [69]
    The respondent submits that any application to adduce the report of Associate Professor Robertson as further evidence, if that is what is intended, should be refused.  The respondent points to the following factors in support of that position:

    1. (a)
       The report is dated 2 December 2020 and was in existence at the time of the sentence hearing and no attempt was made at that time to rely on it.
    2. (b)
       The report is not inconsistent with the report of Dr Kovacevic, Consultant Psychiatrist, which was tendered on behalf of the applicant at the sentence.
    3. (c)
       In his report, Associate Professor Robertson opines that the applicant has complex PTSD, comorbid with a substance use disorder occurring against the background of moderately severe personality disorder with cluster B traits (borderline, antisocial, narcissistic).
    4. (d)
       The report does not identify any causal connection between any psychiatric disorder and the offending committed, nor does it conclude that incarceration will be a greater burden upon the applicant than any other inmate.
    5. (e)
       The principle of finality in proceedings should not be displaced as the report contains nothing materially different from the report relied upon at sentence.
70. [70]
    Even allowing some latitude to the applicant for not filing an application to seek to adduce further evidence, there is no basis to allow the applicant to adduce this further evidence.  The report of Associate Professor Robertson was in existence at the time of the sentencing hearing and was not provided to the sentencing judge for the purpose of the sentence.  This report was prepared for a different purpose and is of little additional assistance to the Court.  The report of Associate Professor Robertson is not inconsistent with the evidence contained in the report of Dr Kovacevic which was extensively considered by the sentencing judge for the purpose of the sentence.
71. [71]
    In these circumstances, leave to adduce further evidence by way of the report of Associate Professor Robertson should be refused.  In respect of the report of Dr McClaren leave should also be refused (assuming the applicant is making an application to adduce that as further evidence) as the contents and relevance of the report cannot be ascertained.
72. [72]
    In respect of the applicant’s submission that the report of Dr Kovacevic was prepared “in haste” to meet the sentencing date I note that the report is dated 19 November 2020 and was prepared following an examination of the applicant on 19 November 2020 for approximately two hours.  The applicant’s guilty pleas were entered on 1 July 2020 and the sentencing hearing did not commence until 7 December 2020.  These facts do not support a conclusion that there was insufficient time for the report of Dr Kovacevic to be properly prepared.
73. [73]
    The applicant also seeks to rely on a letter written by the applicant’s mother to the Arthur Gorrie Correctional Centre in relation to assaults that the applicant has suffered and self-harm attempts.  These issues were raised at the time of the sentencing hearing and the sentencing judge acknowledged that the applicant was “in protection” in isolation in custody and acknowledged that the particular circumstances were a greater hardship for the applicant than others not serving a sentence in protection might experience.  These issues were considered in sentencing the applicant and no error has been established in respect of them.  If the applicant is making an application for leave to adduce further evidence, leave should also be refused.
74. [74]
    The sentencing judge took into account the various factors in respect of the applicant, including:

    1. (a)
       The applicant’s parents divorced when he was young and the applicant and his sister stayed with his father.  The applicant was geographically distanced from his mother who moved to Queensland.
    2. (b)
       The applicant witnessed his father being abusive towards the applicant’s mother and grandfather.  The applicant was subjected to constant beatings and emotional abuse, including being isolated from his friends.
    3. (c)
       Subsequently, the applicant lived with various family members until he moved to Queensland to be with his mother, sister and step-father.
    4. (d)
       The applicant was bullied in school and subjected to racial slurs.
    5. (e)
       The applicant spent time in a juvenile facility following mixing “with the wrong crowd”.
    6. (f)
       The applicant commenced cannabis and drinking at 16 and soon moved to ecstasy and methylamphetamines.  The applicant also used cocaine and alcohol on a regular basis.  Upon release on bail in 2018, the applicant resumed daily methylamphetamine use.  He also misused prescription medication, including alprazolam and tramadol.  The applicant became addicted to alprazolam and needed large quantities to sleep.
    7. (g)
       The applicant engaged in self-harming behaviour, including taking alprazolam and other medications together with alcohol.  The applicant also deliberately cut his forearms.
    8. (h)
       The applicant was in protection in prison.
    9. (i)
       The applicant has said he wants to change and learn to respect women and at the time of sentencing was on a wait list for a domestic violence course and substance abuse course.  The applicant was also keen to attend the sex offender treatment program.
75. [75]
    The sentencing judge noted that the psychiatric report of Dr Kovacevic included the following views:

    1. (a)
       The applicant’s insight and judgment seemed fair.
    2. (b)
       The applicant did not present with signs of any major psychotic or mood disorder.
    3. (c)
       The applicant has a history of major depressive disorder, anxiety disorder and post-traumatic stress disorder related to his early abuse by his father.
    4. (d)
       The applicant has a complex and mixed personality disorder with borderline antisocial and narcissistic features, particularly emotional vulnerability to abandonment, suspiciousness, a sense of entitlement and a tendency to exploit others.
    5. (e)
       The applicant’s personality difficulties manifest in problems with relationships, low stress tolerance and polysubstance addiction.
    6. (f)
       The applicant exhibits controlling, domineering, exploitative and manipulative attitudes in his relationship with women (the applicant seems to be aware of this).
    7. (g)
       The applicant exhibits impulses to control others, a fear of abandonment, a lack of empathy and other maladaptive narcissistic defences resulting from his attitudes and insecurities.
    8. (h)
       The applicant’s personality traits likely originate from his early abuse and humiliation, insensitive and overcontrolling parenting, attachment difficulties, lack of validation and meaningful connection with others.
    9. (i)
       The applicant’s prognosis is guarded and he requires prescription medication and long-term psychotherapy.
76. [76]
    The sentencing judge further summarised the view of Dr Kovacevic as to the causal connection between the applicant’s personality disorder and the offending as follows:

“There is a direct link between your prejudicial background leading to the development of a maladaptive personality structure and your involvement in dysfunctional relationships marred by domestic violence.”^[8]

77. [77]
    Her Honour went on:

“Your personality disorder is not a mental disease.  There is nothing in the report before me to suggest that your personality disorder caused any abnormality of mind, that it impaired your mental functioning or judgment.  I was referred by your counsel to the decision of R v Yarwood [2011] QCA 367 which relates to the proper approach to be taken to a mental disorder or abnormality.

As I say, you do not have a mental illness causally linked to the offending, but rather a personality disorder.  Many persons who find themselves incarcerated have a personality disorder.  Your personality disorder does not, in my view, reduce your moral culpability for your offending.  And it does not moderate or eliminate the need for a sentence which deters you and others from this sort of offending.  There is nothing to suggest that the impact of imprisonment will have a significant adverse effect upon your mental health such that it would mitigate punishment.

Your personality disorder, which you cannot change, means that you are a danger to women in our community.  The psychiatrist is guarded about your prospects of rehabilitation … [w]hat I take from the report is that you have had a prejudicial upbringing which has no doubt resulted in your personality disorder.  You do demonstrate some insight into how that personality disorder manifests itself in you.”^[9]

78. [78]
    The sentencing judge correctly identified the test and considered relevant factors in forming her view that the applicant’s moral culpability was not reduced.  No error has been established.
79. [79]
    In respect of the argument that insufficient weight was given to the applicant’s mental condition, his abusive and traumatic childhood and the physical and sexual abuse he had suffered, these factors were considered by the sentencing judge and were taken into account as mitigating factors in arriving at an appropriate sentence.  No error is established.

Manifestly excessive

80. [80]
    The ground of the sentence being manifestly excessive incorporates a number of complaints by the applicant.
81. [81]
    The applicant also raises a number of submissions in relation to the alleged factual errors by the sentencing judge and also the sentencing judge “erred by preferring the evidence of the three complainants and there was no opportunity to cross-examine their statements and other evidence”.
82. [82]
    The sentencing judge was clearly entitled to rely on the statement of facts which was tendered as the agreed factual position, providing the factual basis upon which the sentence was to proceed.  To the extent that the applicant now seeks to say that the sentencing judge erred in relying on those facts, that argument cannot be maintained.
83. [83]
    Further, contrary to the suggestion by the applicant in the submissions, the sentencing judge acknowledged that the applicant was in a relationship with each of the complainants.  Also, the sentencing judge noted that the three complainants took the drugs voluntarily at times, which is consistent with what is contained in the statement of facts.  Reference is importantly made to the misleading statements made by the applicant as to the nature of the drugs and also that, at times, the complainants were forced to take the drugs.
84. [84]
    A further complaint is that the sentence is manifestly excessive as a result of the three year sentence being cumulative with the 10 year head sentence.  The applicant submits that the three year sentence in respect of count 20 should not have been cumulative.  The applicant also complains that the sentencing judge did not give reasons why the sentence was to be cumulative.
85. [85]
    At the sentencing hearing on 7 December 2020, in the course of the prosecution’s submissions there was a discussion about the serious violent offences in Schedule 1 of the Penalties and Sentences Act 1992 (Qld) as being counts 29, 33 and 54 (rapes); 38 (threatening violence at night); 42, 44 and 46 (sexual assaults with circumstances of aggravation); 53 (sexual assault); 48 (stupefying to commit an indictable offence) and 51 (assault occasioning bodily harm).^[10]
86. [86]
    The following exchange then occurred between the sentencing judge and the prosecutor:

“HER HONOUR:  So with respect to the first complainant there are – and indeed the second complainant I think, would I be correct in saying there are no offences which attract serious violent offence - - -

MS GEARY:  That’s so, your Honour.

HER HONOUR:  - - - potential declarations.  All right.

MS GEARY:  That’s so.

HER HONOUR:  So I should probably cumulate then.

MS GEARY:  Yes.

HER HONOUR:  Because it would not be appropriate, though it might be easier to cumulate.

MS GEARY:  Yes.  Because – so even if your Honour makes those sentences cumulative on, say, the rape, they’re not going to increase the serious violent offence period.

HER HONOUR:  No.  And you say the serious violent offence declaration should attach to the rapes more and most significant I suppose.

MS GEARY:  Yes.  And the other offences [indistinct] including the stupefying etcetera”.^[11]

87. [87]
    The approach identified in this exchange is consistent with the principles discussed in a number of authorities where statutory parole consequences for some offending and not all offending arises.  See for example R v Nagy [2004] 1 Qd R 63; R v CBO [2016] QCA 24; R v Derks [2011] QCA 295.
88. [88]
    There was no error in the sentencing judge making the three year sentence on count 20 cumulative with the 10 year head sentence.  For reasons discussed further below, this was an appropriate approach.
89. [89]
    The applicant also points to an apparent inconsistency between the sentence on count 20 and that on count 50 – both being offences of choking in a domestic setting (domestic violence offence).  The former resulted in a sentence of 3 years cumulative on the head sentence and the latter was 2.5 years concurrently with the 10 year head sentence.  This complaint, when considered together with the principles identified in cases identified above, highlights an issue of concern with the approach taken by the sentencing judge.
90. [90]
    The sentencing judge categorised the offences into those committed against Ms OQN and those that were committed against Ms KTS and Ms KTV (which were identified as not being potential serious violent offences).  The sentencing judge concluded in respect of the offending against Ms OQN:

“I consider that the appropriate sentence which takes into account all of your offending against Ms OQN and your plea of guilty to be one of 10 years imprisonment.  In coming to that conclusion, I acknowledge that such a sentence will require you to serve eight years in prison”.^[12]

91. [91]
    The sentence imposed was 10 years in respect of each of counts 29, 33 and 54, being the rape offending and then lesser concurrent sentences on each of the other offences against Ms OQN.^[13]  The 10 year sentence was a global sentence reflecting all the criminality in the offences against Ms OQN.
92. [92]
    The difficulty is that not all offences committed against Ms OQN were capable of being serious violent offences: counts 30, 34 (breach of privacy); 58 (distributing prohibited visual recordings); 50 (choking); 56 (common assault); 28, 31, 35, 41, 43, 45, 47, 52, 55, 57 (supplying dangerous drugs) and 59 (possessing alprazolam) were not.
93. [93]
    The rationale for making the non-serious violent offences against Ms KTS and Ms KTV cumulative would apply equally to the non-serious violent offences against Ms OQN being cumulative rather than concurrent with the 10 year sentence.  Alternatively, the global sentence could possibly be reduced to take into account the offending that was not subject to a serious violent offence declaration with an entitlement to parole at less than 80 per cent.  Neither of these approaches was adopted by the sentencing judge.
94. [94]
    In these circumstances, the Court asked the respondent to prepare supplementary submissions on whether the global approach to the sentence for the offending against Ms OQN resulted in an error by the sentencing judge.
95. [95]
    The issue was described in R v Nagy^[14] by Williams JA (with Jerrard JA and Muir J agreeing) as follows:

“ … Where a judge is faced with the task of imposing sentences for a number of distinct, unrelated offences there are a number of options open.  One of those options is to fix a sentence for the most serious (or the last in point of time) offence which is higher than that which would have been fixed had it stood alone, the higher sentence taking into account the overall criminality.  But that approach should not be adopted where it would effectively mean that the offender was being doubly punished for the one act, or where there would be collateral consequences such as being required to serve a longer period in custody before being eligible for parole, or where the imposition of such a sentence would give rise to an artificial claim of disparity between co-offenders.  That list is not necessarily exhaustive.  Such considerations may mean that the other option of utilising cumulative sentences should be adopted.”

96. [96]
    Margaret McMurdo P (with White JA and Fryberg J agreeing) further discussed the principle in R v Derks^[15] as follows:

“… When a judge is sentencing an offender who has committed a series of offences, particularly where the offending constitutes a single episode as here, it is often appropriate to impose a global sentence on the gravest offence to reflect the seriousness of all the offending.  The advantage of this approach is that it avoids the possibility of inadvertent error which all too often flows from the unintended consequences on parole eligibility and release dates when sentences are made cumulative.  Alternatively, a judge may impose a cumulative, or a series of cumulative sentences.  Either approach is acceptable provided that the ultimate sentence imposed for the offending is just.  The point now raised by the applicant was not raised with the primary judge.  On the contrary, both counsel encouraged his Honour to give a global sentence on count 8, not appreciating the unfairness to the applicant which would flow from it.”

97. [97]
    In R v Derks the applicant was subjected to the requirement to serve 80 per cent of the sentence before becoming eligible for parole and this included part that was not in respect of offending declared to be a serious violent offence under Part 9A of the Penalties and Sentences Act 1992 (Qld).  The unfairness was recognised as follows:

“… In imposing the 13 year global sentence on count 8 the judge did not state he had reduced it to reflect that his offending not subject to a declaration entitled him to a parole eligibility date at about 30 per cent rather than 80 per cent”.^[16]

98. [98]
    This approach resulted in an error which required the Court of Appeal to re-sentence the applicant.
99. [99]
    In supplementary submissions filed on behalf of the respondent, the respondent accepts that an error has occurred in the sentence as follows:

“6. In the present matter, while the sentencing Judge acknowledged that in sentencing the applicant to 10 years imprisonment, in relation to the offending committed against Ms OQN, that such a sentence would require the applicant to serve eight years in prison, the sentencing Judge did not state that she reduced the sentence to take into account the matters referred to directly in R v Derks.

7. This is an error of the type contemplated in House v The King^[17] which would result in leave to appeal being granted and the applicant re-sentenced afresh, ‘unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.’^[18]”

100. [100]
     Ultimately the respondent submits that this Court in the separate and independent exercise of the discretion would conclude that no different sentence should be passed and leave to appeal should be refused.
101. [101]
     This submission is based on the contention that a sentence as high as 10 years for the three rape offences against Ms OQN alone would be appropriate.  It is difficult to see how that conclusion could be sustained if the 10 year sentence imposed at first instance was truly a global sentence reflecting the criminality in all of the offending concerning Ms OQN.
102. [102]
     The respondent refers to R v Utley [2017] QCA 94 in support of a 10 year sentence for each count of rape.  On appeal the 10 year sentence was maintained for offending involving burglary, rape and assault offences.  The respondent submits that the current case is more serious given the protracted and persistent conduct of the applicant, the variety of offences and the measures of control used by the applicant in respect of the complainant.  R v Utley in comparison involved two different complainants but was a single course of events.
103. [103]
     The respondent also points to the case of R v RBD [2020] QCA 136.  The case involved ten offences against one complainant over three sperate occasions.  The applicant and the complainant had been in a relationship and the offending involved one count of rape and a choking offence.  The offending involved violence and offences of a sexual nature.
104. [104]
     The Court of Appeal upheld a sentence which was structured on three groups of offences (10 counts), with sentences imposed on each group which were then ordered to be cumulative.  The effective sentence was 12 years, being the cumulation of terms of imprisonment of 2, 8 and 2 years.  Within each group of offences there was offending which could attract a serious violent offence declaration, but in two groups of offending there was also non-serous violent offence offending.  Jackson J, with whom the Chief Justice and Mullins JA agreed (with the Chief Justice writing brief additional reasons on the point), found that the vice identified in R v Derks did not arise as the sentencing judge was aware of the potential unfairness of the parole eligibility requirement and had considered that as part of fashioning the particular sentence.^[19]
105. [105]
     In R v RBD the one count of rape attracted a sentence of eight years.  This sentence, as well as the other lesser concurrent and cumulative sentences, was less than what would have been imposed if they had been dealt with separately.  Given the effect of the operation of the serious violent offence declarations that would be made on the parole eligibility date, the sentencing judge addressed this by concluding that:

“... the proper approach on sentence being that all discounting of sentences, including discounting for pleas of guilty, ought to involve a reduction of the head sentence or sentences.”

106. [106]
     Given the number and nature of offences involved and the nature of the error identified, I consider it more appropriate in the current circumstances to grant leave to appeal against sentence, allow the appeal and exercise the discretion to re-sentence the applicant.
107. [107]
     Further, given the number and complex combination of offences involved in respect of this applicant, it is necessary to start with a consideration of the fundamental principles involved in structuring an appropriate sentence.
108. [108]
     The High Court authority of Nguyen v The Queen^[20] provides a useful starting point.  Bell and Keane JJ stated at [37]:

“Just as a sentencing judge is accorded as much flexibility as is consonant with the statutory sentencing regime in determining the appropriate sentence,^[21] so, too, the judge is to be accorded the same flexibility in determining the structure of two or more sentences.^[22]  The Sentencing Act does not confine the approach to be taken to the structure of two or more sentences.  It assumes concurrency in the absence of a direction to the contrary.^[23]  The sentencing judge was required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence was just and appropriate to the totality of the appellant’s offending behaviour.^[24]”

109. [109]
     The practical constraints as recognised in the quotation from R v Nagy set out above are also relevant to the current exercise, particularly to avoid an error by reflecting in the increased parole eligibility date offences not declared as serious violent offences.  Following the statement set out above, Williams JA then went on to consider the appropriate sentence.  The option of structuring the sentence by cumulating sentences was adopted and consequently it was recognised that:

“[61] The court must also now have regard to the totality of the cumulative sentence, and be prepared to moderate it if necessary”.

110. [110]
     The principles of sentencing requires the sentencing judge to fix not only a term of imprisonment but also the minimum period the offender should be in prison, being either a parole release date or a parole eligibility date.  The High Court in Power v The Queen^[25] express this requirement as follows:

“… The judge, in fixing a non-parole period must, we believe, have regard not to the time within which the paroling authority must consider the prisoner’s case but to the time for which the prisoner must remain in confinement … the trial judge should determine that minimum period for which in his judgment, according to accepted principles of sentencing, the prisoner should be imprisoned.”^[26]

111. [111]
     Applying these general principles of sentencing to the current offending, a structure of two or more cumulative sentences is appropriate.  Separate consideration will also need to be given to the appropriate parole eligibility date depending on the final structure.  The division by the sentencing judge into two groups of offending, firstly offences against Ms OQN and secondly offences against the other complainants led to the error identified above.  It is therefore necessary to consider a division of the offending to avoid this error arising.
112. [112]
     The three rape offences (counts 29, 33 and 54) are the most serious and it would be appropriate to deal with them together.  Given the nature and seriousness of these three offences, consideration will also need to be given as to whether a serious violent offence declaration should be made in relation to them.
113. [113]
     Of the other offences, the most serious offending is count 48 stupefying to commit an indictable offence.  An appropriate approach would be to impose a global sentence on count 48 reflecting the criminality of all of the remaining offending cumulative with the sentence imposed in respect of the sentence for the rape offending.^[27]  This global sentence would need to be moderated considering the principles of totality and to ensure that the total effective sentence is not crushing.
114. [114]
     The sentencing judge’s overall sentence of 13 years imprisonment with a parole eligibility date set at eight years was appropriate to reflect the total criminality involved in all of the offending, and also factored in the applicant’s guilty plea and other mitigating factors identified in the sentencing remarks.  The error was in the structure employed to arrive at that total.
115. [115]
     Whilst the rape offences could attract a higher sentence if they were being dealt with alone, in the overall circumstances of the applicant’s offending a sentence of eight years imprisonment in respect of each of counts 29, 33 and 54 is appropriate, to be served concurrently with each other.  This takes into account a reduction to reflect the applicant’s guilty plea and also the other mitigating factors including his mental health issues.
116. [116]
     The sentence for the balance of the offending should be served cumulatively with that eight year sentence.  Count 48 is itself very serious offending and a global sentence should be imposed on that count with lesser concurrent sentences on the balance of the offences.
117. [117]
     If a sentence was imposed on count 48 on a stand-alone basis a significant term of imprisonment would be required.  Further, if a global sentence was imposed on count 48 reflecting the overall criminality of all offending (other than the rape offending) a significant term of imprisonment would similarly be required.  However, moderation to the sentence is required having regard to the totality of the cumulative sentence.^[28]
118. [118]
     Considering the need for a reduction in the sentence for count 48 to provide for a total sentence which is in accordance with the relevant principles and is not crushing, a period of imprisonment of five years for count 48 cumulative with the eight year sentence is appropriate.  Lesser terms of imprisonment for the balance of the offences, concurrent with the five year term of imprisonment are also appropriate.
119. [119]
     In reaching this conclusion I have also considered whether serious violent offence declarations should be made in respect of counts 29, 33 and 54 (rape) and count 48 (stupefying to commit an indictable offence).  Each of these offences are capable of being serious violent offences as they are listed in Schedule 1 of the Penalties and Sentences Act 1992 (Qld).
120. [120]
     Pursuant to s 161B of the Penalties and Sentences Act 1992 (Qld):

     1. (a)
        Subsection (1) provides that where a sentence of 10 or more years imprisonment is imposed the Court must declare the conviction to be a conviction of a serious violent offence.  The consequence being that the offender must serve 80 per cent of the sentence before becoming eligible for parole.
     2. (b)
        Subsection (3) provides that where a sentence of five or more, but less than 10, years imprisonment is imposed the Court has a discretion to declare that the offence is a serious violent offence, with the consequence that if it is declared then the offender must serve 80 per cent of the sentence before becoming eligible for parole.^[29]
121. [121]
     R v McDougall and Collas^[30] provides guidance as to how the discretion in s 161B(3) is to be exercised.  In joint reasons,^[31] the Court stated as follows:

“[17] As the High Court stated in Markarian v R, the sentencing process is an integrated process directed to the determination of a just sentence.  The exercise of the discretion conferred by s. 161B(3) of the Penalties and Sentences Act thus falls to be exercised as part of, and not separately from, the conclusion of the process of arriving at a just sentence.

…

[19] …The following observations may assist sentencing courts:

• the discretionary powers granted by s. 161B(3) and (4) are to be exercised judicially and so with regard to the consequences of making a declaration;
• a critical matter is whether the offence has features warranting a sentence requiring the offender to serve 80 per cent of the head sentence before being able to apply for parole.  By definition, some of the offences in the Schedule to the Act will not necessarily – but may – involve violence as a feature, such as trafficking in dangerous drugs or maintaining a sexual relationship with a child;
• the discrete discretion granted by s. 161B(3)(4) requires the existence of factors which warrant its exercise, but the overall amount of imprisonment to be imposed should be arrived at having regard to the making of any declaration, or not doing so;
• the considerations which may be taken into account in the exercise of the discretion are the same as those which may be taken into account in relation to other aspects of sentencing;
• the law strongly favours transparency and accessible reasoning, and accordingly sentencing courts should give reasons for making a declaration, and only after giving the defendant an opportunity to be heard on the point;
• for the reasons to show that the declaration is fully warranted in the circumstances it will usually be necessary that declarations be reserved for the more serious offences that, by their nature, warrant them;
• without that last feature, it may be difficult for the reasons to show that the declaration was warranted;
• where a discretionary declaration is made, the critical question will be whether the sentence with that declaration is manifestly excessive in the circumstances; accordingly the just sentence which is the result of a balancing exercise may well require that the sentence imposed for that declared serious violent offence be toward the lower end of the otherwise available range of sentences;
• where the circumstances of the offence do not take it out of the “norm” for that type, and where the sentencing judge does not identify matters otherwise justifying the exercise of the discretion, it is likely that the overall result will be a sentence which is manifestly excessive, and in which the sentencing discretion has miscarried; probably because of an incorrect exercise of the declaration discretion.

…

[21] The considerations which may lead a sentencing judge to conclude that there is good reason to postpone the date of eligibility for parole will usually be concerned with circumstances which aggravate the offence in a way which suggests that the protection of the public or adequate-punishment requires a longer period in actual custody before eligibility for parole than would otherwise be required by the Act having regard to the term of imprisonment imposed.  In that way, the exercise of the discretion will usually reflect an appreciation by the sentencing judge that the offence is a more than usually serious, or violent, example of the offence in question and, so, outside "the norm" for that type of offence.”  (footnotes omitted)

122. [122]
     The rape offending against Ms OQN in counts 29, 33 and 54 has elements which take it outside “the norm” for that type of offence.  While on one view the offending did not involve extensive violence, it occurred in a very short intense period involving the administration of drugs to the complainant and while they were in a relationship shaped by the violent and controlling behaviour of the applicant.  The rape offending occurred in the context of protracted and persistent conduct by the applicant (including violence) and significant measures of control exercised by the applicant over the complainant.  This combination of factors operated to, in effect, make the complainant more compliant so that actual serious violence was not required as part of the offending.  This does not, however, reduce the seriousness or violent nature of the offending.  In these circumstances a declaration that each of the rape offences are serious violent offences is appropriate.
123. [123]
     Whilst count 48 could be declared to be a serious violent offence I do not think it is appropriate for it to be declared.  As part of the balancing exercise, to declare count 48 to be a serious violent offence raises the risk of the difficulties faced by the sentencing judge below due to the consequences for the parole eligibility date but also may result in the overall sentence being too high.  By not declaring count 48 to be a serious violent offence, a logical structure to the sentence can be achieved and an overall sentence within the appropriate range can be maintained.
124. [124]
     The declaration of counts 29, 33 and 54 as serious violent offences forms part of the overall sentence.  Further, the flow-on consequence that the applicant is required to serve 80 per cent of the eight year sentence is also a factor that is to be considered in setting the appropriate sentence.^[32]
125. [125]
     It is necessary to consider and set a parole eligibility date as part of the sentence.  Under the Penalties and Sentences Act 1992 (Qld) one parole eligibility date is to be set and must relate to the offender’s period of imprisonment.^[33]  Further, where a period of imprisonment includes a term of imprisonment for a serious violent offence the Court may fix the date the offender is eligible for parole.^[34]
126. [126]
     The parole eligibility date in respect of counts 29, 33 and 54 is to be fixed at 80 per cent of the eight year term of imprisonment, which would be slightly under six and a half years.  In fixing a single parole eligibility date for the 13 year total sentence, adding a further period of one and a half years is appropriate.  This reflects the seriousness of the five year cumulative sentence (and the concurrent offending reflected in that head sentence) but maintains the overall balance sought to be achieved in the sentence.  The parole eligibility date is therefore set at eight years of the total sentence.
127. [127]
     In these circumstances the orders are:

1. 1.Leave to appeal be granted.
2. 2.Appeal allowed.
3. 3.The applicant be sentenced as per Schedule 1 attached to these reasons.
4. 4.Declare counts 29, 33 and 54 serious violent offences.
5. 5.Set the parole eligibility date after serving eight years of the sentence.
6. 6.Declare the time the applicant was held in pre-sentence custody from 2 February 2018 to 4 July 2018 and from 23 May 2019 to 10 December 2020, a period of 721 days as time served under the sentence.
7. 7.Declare that each of the offences on the indictments, except count 59 possessing a dangerous drug, is a domestic violence offence.

SCHEDULE 1