R v DBW[2021] QCA 234

[2021] QCA 234

COURT OF APPEAL

SOFRONOFF P

DAVIS J

WILLIAMS J

CA No 281 of 2020

DC No 648 of 2020

THE QUEEN

v

DBW Applicant

BRISBANE

Date of Orders: Tuesday, 12 October 2021

Date of Publication of Reasons: Thursday, 28 October 2021

JUDGMENT

DAVIS J: The applicant sought leave to appeal against sentences passed upon him in the District Court.  On 12 October 2021 leave to appeal was refused.  These are my reasons for joining in that order.

The applicant pleaded guilty to eight counts on an indictment and one summary charge.  All offences were alleged to have occurred on 1 April 2020.

Count 1 alleged burglary^[1] with circumstances of aggravation that the entry was by means of a break, that the applicant threatened to use actual violence, and that he was armed with an offensive instrument.

Count 2 on the indictment alleged stealing of a mobile telephone.^[2]  Count 3 alleged suffocation.^[3]  Count 4 alleged an unlawful assault.^[4]  Count 5 alleged assault occasioning bodily harm.^[5]  Count 6 alleged strangulation^[6] and count 7 alleged deprivation of liberty.^[7]  All but count 7 were alleged to be domestic violence offences.^[8]

The summary charge alleged a contravention of a domestic violence order.^[9]

The complainant in all of the offences was a young woman with whom the applicant had previously had some relationship.

The applicant was sentenced on 20 November 2020.  The learned sentencing judge imposed a period of imprisonment of five years on each of counts 3 and 6 being suffocation and strangulation respectively and lesser sentences on the other counts.  All sentences were ordered to be served concurrently so the sentences imposed on counts 3 and 6 amounted to an effective head sentence of five years.  His Honour set parole eligibility at 3 April 2022, being the second anniversary of the date the applicant was arrested and taken into custody on the offences.  His Honour declared 231 days presentence custody.

The applicant was self-represented and he sought to appeal on the ground that the sentence was manifestly excessive.

The offending

The applicant was born on 14 November 1989.  He was 30 years of age at the time of the offending and had just turned 32 at the time of sentence.  The complainant was 32 years of age at the time of the offending.

The applicant and the complainant had been in a sexual relationship from about December 2018 to November 2019.  From July 2019 they lived together for a short period.

After an incident between them, which led to some property damage, the complainant sought and obtained a protection order against the applicant.  Shortly thereafter she ended the relationship.  However, a few months later in March 2020 the applicant and the complainant resumed contact.

On 1 April 2020 the complainant told the applicant that she had been speaking to another man.  There was an argument on the telephone.  The complainant went to bed in the unit she occupied at about 10.46 pm.  About half an hour later the applicant broke into the complainant’s unit.  He was wearing a wide brimmed hat and gloves and had possession of a pouch of tobacco, an opened glass beer bottle, and a length of cord.

The complainant awoke to the applicant standing over her bed.  He told the complainant that “You’ll be hanging from this”, referring to the cord and “There’s no turning back.  It’s either going to jail or die, and I’m not going to jail”.  The break and enter while armed with the length of cord and the threat to kill the complainant constituted count 1 with the various circumstances of aggravation charged.  The applicant took the complainant’s mobile phone which is count 2.

When the complainant started screaming, the applicant placed his hand over her mouth and nose and said “If you’re not quiet I’m going to kill you right here and now”.  The complainant had difficulty breathing given the position of the applicant’s hand and that constituted suffocation, which is count 3.

The applicant demanded that the complainant go with him.  He made various threats to her and led her out of the bedroom.  He said to her “I’ve tried to fix this relationship” and she responded with “I wasn’t speaking to anybody”.  The applicant then punched the complainant to the right side of her face twice and said “If you make any more noise I will kill you here.  We’re going to walk out to my car and we’re going to go for a drive”.  The punching constituted the assault which was count 4.

The applicant ushered the complainant out of the unit and down the stairs.  She screamed for assistance and the applicant tackled her to the ground in the course of which she sustained cuts to her elbows and knees and a deep laceration to her tongue.  That constituted count 5, assault occasioning bodily harm.

The complainant by this stage was very distressed and she screamed.  The applicant choked her with his hands until she lost consciousness.  When the complainant regained consciousness, the applicant said “I wasn’t going to kill you, I just want you to come with me”.  That choking constituted count 6, strangulation.

The applicant then continued to take the complainant from the unit.  He pushed the complainant against the back door of the car and then forced her through the driver’s door into the front passenger seat.  He entered the car and began to reverse it.  The passenger door was locked but the complainant managed to unlock the door and throw herself out of the moving car.  The applicant drove off, throwing the complainant’s phone from the car.  Forcing the complainant into the car deprived her of her liberty and that constituted count 7.

The offending the subject of the indictment constituted a breach of the protection order.  That breach constituted the summary charge.

In the early hours of 2 April 2020 the applicant telephoned the Broadbeach Police Station and identified himself, stated that he was sorry, and then terminated the call.  When police called the applicant back, he refused to reveal his location.

Later in the morning of 2 April 2020, the applicant sent apologetic messages to the complainant on Facebook Messenger.  In the afternoon of 2 April 2020, the applicant was located at his sister’s house near Kingaroy and arrested.  He remained in custody.

The applicant represented himself on the appeal.  The only ground was that the sentences were manifestly excessive.  The applicant supported his application with written submissions where he analysed in detail the sentencing remarks, dealt with a number of comparative sentences and then made a final submission in these terms:

“Sentence which should have been imposed.

Arguably, less than four years with parole eligible after serving one third.”

The submissions concentrated largely on mitigating circumstances such as:

1. the applicant’s compromised upbringing;
2. an explanation of his criminal history;
3. his mental health history and its impact upon the offending;
4. the attempts which the applicant took to obtain assistance for his mental health issues.

The sentencing remarks

There are significant difficulties with the sentencing remarks.

After listing the various offences, his Honour observed this:

“While the burglary has the highest maximum penalty of life imprisonment, the true maximum penalty, it seems to me in all the circumstances, is that of seven years which attaches to the two offences of choking^[10] and the offence of assault occasioning bodily harm. The stealing has a maximum of five years and the common assault and deprivation of liberty three years, while the contravention of the domestic violence order has a maximum of 120 penalty units or three years’ imprisonment.” (emphasis added)

That was an incorrect approach.  It is well-recognised that a sentencing judge may attach a head sentence to the most serious offence so as to reflect the totality of the offending.^[11]  It does not follow that “the true maximum penalty” becomes that which is fixed by the legislature on the offence which the judge might consider is factually the most serious.  The objective is to properly reflect the total offending and, where necessary, that might require the imposition of cumulative sentences.^[12]

Here, viewed in isolation, the offence of choking and the offence of strangulation might be considered to be the most serious.  However, those offences were committed in the context of a domestic situation^[13] and in circumstances where the applicant had broken into the complainant’s unit in the night time, while armed, assaulted her and deprived her of her liberty by making her enter his car and attempting to abduct her.  This was a particularly serious episode which, in my view, could easily have attracted more than seven years imprisonment and it was open to the sentencing judge to fashion the appropriate sentence by reference to all the offences to which the applicant had pleaded guilty.  This might involve attaching sentences to other offences and making them cumulative.  There was no warrant to approach the sentence on the basis that “the true maximum penalty” was seven years imprisonment.  Approaching the sentence on that basis was contrary to law.

Later, his Honour observed:

“Choking, particularly choking of a woman by a man who has been in a relationship with her, is a very serious offence. To my mind, a maximum of seven years’ imprisonment is nowhere near enough in many cases. It could easily lead to the person being choked dying or suffering from serious brain injury, and it does happen in some cases. You and the complainant are very lucky in this case that it did not result in death or serious injury to her.”

If the person being choked dies then the offender would be guilty of an unlawful killing which would be either murder or manslaughter depending upon the circumstances.^[14]  If the person choked suffered “serious brain injury” then the offender would be guilty of doing grievous bodily harm.^[15]

His Honour was correct that in some cases of choking a maximum of seven years imprisonment may seem to be insufficient.  That though is the statutory maximum.  What made the present case very serious was the commission of other offences, such as the burglary and the deprivation of liberty, which meant that his Honour was not constrained to a seven year maximum as his Honour thought.

His Honour, starting from an assumed maximum of seven years, reduced the sentence to five years to reflect “remorse” and “rehabilitation attempts”.  His Honour then said “… but, given the risks I consider you likely to be still in the community upon your release, and the time that I think you need to demonstrate that you will not be a risk, it seems to me that the appropriate date for parole eligibility is 20 November 2022, that is after serving two years”.  The eligibility date was ultimately set at 3 April 2022, which properly reflects the intention that the applicant must serve two years before being eligible for parole.

Section 9(1)(e) of the Penalties and Sentences Act 1992 provides that a purpose of imposing a sentence is “to protect the Queensland community from the offender”.  That must be read and understood in the context of Veen v The Queen [No 2].^[16]  There it was said that considerations of preventative detention cannot result in an otherwise disproportionate sentence.^[17]  It is also doubtful that a sentencing judge in exercise of judicial power should consider when a person may be fit for release on parole given that granting parole is a matter for the executive.^[18]  That, though, need not be considered further.

It is difficult to discern how the applicant’s plea of guilty has been taken into account by the learned sentencing judge.  It was evidently not taken into account in determining a parole eligibility date.  His Honour referred to the applicant’s remorse when setting the head sentence.  However, it is unclear from the sentencing remarks as to how or whether the plea of guilty was factored into that consideration.

Section 13 of the Penalties and Sentences Act 1992 provides:

“13 Guilty plea to be taken into account

3. (1)
   In imposing a sentence on an offender who has pleaded guilty to an offence, a court—

1. (a)
   must take the guilty plea into account; and

2. (b)
   may reduce the sentence that it would have imposed had the offender not pleaded guilty.

3. (2)
   A reduction under subsection (1)(b) may be made having regard to the time at which the offender—

1. (a)
   pleaded guilty; or

2. (b)
   informed the relevant law enforcement agency of his or her intention to plead guilty.

3. (3)
   When imposing the sentence, the court must state in open court that it took account of the guilty plea in determining the sentence imposed.

3. (4)
   A court that does not, under subsection (2), reduce the sentence imposed on an offender who pleaded guilty must state in open court—

1. (a)
   that fact; and

2. (b)
   its reasons for not reducing the sentence.

3. (5)
   A sentence is not invalid merely because of the failure of the court to make the statement mentioned in subsection (4), but its failure to do so may be considered by an appeal court if an appeal against sentence is made.”

There has been a breach of s 13.  A breach of s 13(4) does not invalidate a sentence,^[19] but a breach of s 13(3) does not attract the protection of s 13(5).^[20]  It is important for sentencing judges to state whether a plea of guilty has been taken into account and to explain how it has been taken into account.

Was the sentence manifestly excessive?

There were mitigating circumstances.  These included the plea of guilty, remorse and efforts at rehabilitation.  There was also no doubt that the applicant had a difficult childhood which led to psychological problems and, in turn, alcohol and substance abuse.  He has a significant criminal history in both Queensland and New South Wales but he has no previous convictions for offences of violence other than several offences of “assault and obstruct police” which were all dealt with in the Magistrates Court and resulted in community based orders or fines.  He has several convictions for breaking and entering buildings.

The offending was very serious.  In particular:

1. they were domestic violence offences;^[21]
2. significant violence was involved;
3. the applicant invaded the complainant’s home;
4. the violence was not spontaneous but was as the result of significant planning.  Whatever the applicant’s state of intoxication, he had the awareness to arm himself with a cord for use when he attacked the complainant;
5. the applicant’s statements to the complainant showed that he intended to frighten her;
6. he did frighten and distress her and she has been left with ongoing psychological issues;
7. the applicant abducted the complainant from her home;
8. the offending was only interrupted when she managed to escape.

R v MCW^[22] was a case of choking in a domestic situation as was R v MDB.^[23]  Sentences there were three and a half years and four years respectively.  The physical violence in each of those cases was more serious than the present.  Neither involved the invasion of the complainant’s home which is a significant aggravating factor.^[24]  Neither did those cases involve the abduction of the victim which is also a serious aggravating feature.^[25]

A sentence of five years with eligibility for parole after two years as a global sentence to reflect the totality of the applicant’s offending is well within the range of a sound exercise of the sentencing discretion.

For those reasons, I joined in the orders that were made.

SOFRONOFF P: For the reasons given by Davis J, I joined in making the orders on 12 October 2021.

WILLIAMS J: I agree with the reasons of Davis J for the orders made on 12 October 2021.