R v Sculac[2021] QCA 273

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  A jury found the appellant guilty on one count of torture.  He now appeals that conviction on the ground that the learned trial judge failed to direct the jury in a way that would have excluded from their consideration certain pathways to conviction that were not open.
2. [2]
   The complainant, Jonah Betts, was a 21 year old man.  He was acquainted with a 19 year old man named Raven O'Hanlon and his girlfriend, Chloe Johnson, who was aged 16.  The appellant is Johnson’s father.
3. [3]
   Mr Betts was addicted to methylamphetamine and he was homeless.  One day, in early March 2019, O'Hanlon invited Betts to sleep overnight in a tent at an encampment on the banks of the Erne River near Noosaville.  This camp was only accessible by boat.  O'Hanlon lived there with Johnson and the appellant and it was there that Betts met the appellant for the first time.  On the following morning Betts left the camp.  Later that morning police came to the camp and removed items of property believed to have been stolen.  The appellant, O'Hanlon and Johnson were not at the camp when police took the property and, upon finding that the property was gone and that Betts had also disappeared, they concluded that he had stolen their things.
4. [4]
   The appellant sent a text message from his phone offering to sell Betts some methylamphetamine.  He had supplied Betts with drugs before.  The appellant met Betts on the riverbank and took him by boat back to the camp.  Together they smoked some cannabis and then the appellant received a message to the effect that O'Hanlon and Johnson were about to return.  Betts noticed a text message on the appellant’s phone that said, “keep Jonah there”.
5. [5]
   The appellant and Betts crossed the river by boat and collected O'Hanlon, Johnson and their friend, a 16 year old school girl named “Deedee”, and began the journey back to the camp.  According to Betts, “[t]hat’s when they started accusing me of stealing some property … oh, you stole a phone off us, you stole a kayak, you stole some fishing rods…”.
6. [6]
   After they returned to the camp, Betts gave evidence that, “… then he started getting – and then they hit me.  With a – Chloe picked up a shovel and hit me”.  She hit him three or four times.  The appellant ran away and dived into the river.  O'Hanlon chased him and caught him halfway across the river.  He began to punch Betts.  Betts managed to get to the other side of the river and he tried to run away.  The appellant, Johnson and Deedee crossed the river in their boat and gave chase.  The appellant caught Betts.  He began to punch Betts in the head, saying, “you’re not going anywhere, you little fucking cunt.  You’re a dog and you stole off us”.  Johnson had picked up a stick and began hitting Betts with it.  The appellant, O'Hanlon and Johnson forced Betts back to the boat and took him back to the camp.  In the boat the verbal abuse continued: “They were calling me a dog, and they were asking me where their stuff was”.
7. [7]
   Back at the camp “they” tied Betts to a chair so that he could not move.  They hit Betts’s head, hit him with a shovel, a hammer and with sticks.  Under this treatment Betts made up a lie.  He said that he and a friend of his, Andy, had stolen the things and that Andy had them at his place.  Infuriated, the appellant resumed hitting Betts.
8. [8]
   On that night the appellant went in search of the things that the police had in fact confiscated.  Betts remained tied to the chair in the company of Johnson and O'Hanlon.  His hands were tied behind his back and his neck was tied to a nearby tree.  He could not sleep.  The appellant returned early the next morning.  He had not found the missing things and began to hit Betts once more.  Deedee, who was still at the camp, had to go to school.  They all went in the boat across the river.  They had freed Betts from the chair but had attached a dog collar to his neck and led him by rope.  Johnson and O'Hanlon took Deedee to school while the appellant stayed with Betts at the camp.  By then, Betts’s lower clothing had been taken from him so that he was naked from the waist down.  The appellant tied Betts to a tree and hit him with sticks, the shovel and the hammer.  He urinated on Betts’s head and torso.  He was smoking methylamphetamine.  Betts had been kept in captivity for over 24 hours without food or water.
9. [9]
   At some point Betts was untied.  He fell asleep in a hammock.  On the following morning “they” began to threaten to kill Betts.  The appellant tied Betts to a heavy esky.  The appellant then left.  Betts was able to reach a knife which he used to free himself.  He swam across the river and flagged down a passing motorist, who took him to hospital.
10. [10]
    Betts said that the blows hurt him and he felt frightened for his life.
11. [11]
    The Crown particularised the torture as follows:

“Over the course of approximately three days, Michael James Sculac, his daughter Chloe Johnson and Raven O'Hanlon intentionally inflicted severe physical, psychological and emotional pain or suffering, to Jonah Andrew Betts, in a sequence that may include the following acts:

• Threatening Jonah Andrew Betts
• Punching, kicking and hitting Jonah Andrew Betts in his face and body, including while he was on the ground
• Stomping on Jonah Andrew Betts’ feet
• Striking Jonah Andrew Betts in his face and body with weapons including a spade, and/or a stick, and/or a saw
• Tying a dog collar around Jonah Andrew Betts’ neck
• Confining Jonah Andrew Betts in a boat
• Confining Jonah Andrew Betts to the campsite
• Tying Jonah Andrew Betts to a chair
• Stealing Jonah Andrew Betts’ property
• Exposing Jonah Andrew Betts by taking off his pants and underpants
• Tying Jonah Andrew Betts to a tree
• Urinating on Jonah Andrew Betts.

Basis of liability:

Michael James Sculac is liable for the acts described above which he did himself.

Michael James Sculac is also liable in relation to the acts of Chloe Johnson and Raven O'Hanlon by his presence and encouragement including through his own acts of violence committed upon Jonah Andrew Betts around the same time.

Additionally, Michael James Sculac is liable for the acts of Chloe Johnson and Raven O'Hanlon, as their acts were a probable consequence of the common unlawful purpose between him, Chloe Johnson and Raven O'Hanlon to assault, and/or rob, and/or deprive Jonah Andrew Betts of his liberty.”

12. [12]
    The appellant has correctly submitted that, to find the appellant guilty, the jury had to be unanimous as to the particular acts that constituted torture.^[1]  The appellant submits that there was a real possibility that the jury might have been unanimous that the acts of torture consisted only of the following acts which happened at the inception of the violence:

    1. (a)
       Johnson’s blows with the shovel.
    2. (b)
       O'Hanlon’s punches to Betts’s head.
    3. (c)
       The appellant’s punches to the head and torso when he caught Betts after he had initially escaped.
    4. (d)
       Johnson’s blows with the stick.
13. [13]
    It was after those acts that Betts was tied to a chair and further assaulted.  The appellant accepts that the acts that followed were capable of being found by the jury to constitute torture.  However, he submits that the first four assaults, listed above, were incapable of amounting to torture.
14. [14]
    Section 320A(2) defines “torture” to mean “the intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasion”.  The expression “pain or suffering” is defined to include “physical, mental, psychological or emotional pain or suffering, whether temporary or permanent”.  The Crown has to prove that the accused had an actual, subjective intention to bring about such pain or suffering by his or her conduct.  The acts in question must have as their object the infliction of severe pain or suffering.  That must be their intended consequence.  The pain or suffering may be mental or emotional only.^[2]
15. [15]
    In this case, the Crown had to prove that the appellant’s assaults and cruelty, as well as that of his co-offenders, were designed to inflict severe physical or psychological harm upon Betts.  It had to prove that the appellant and his co-offenders consciously decided to inflict harm upon Betts in order to cause him severe mental or emotional distress or suffering.^[3]
16. [16]
    In this case it was open to the jury to conclude that the three co-offenders decided to lure Betts to their camp in order to compel him through violence to disclose the location of the missing objects.  They did this by the appellant’s text to Betts offering to sell him some methylamphetamine.  This induced Betts to travel on the boat to the camp.  It was while Betts and the appellant were together at the camp that the appellant received a message from O'Hanlon or Johnson saying, “keep Jonah there”.  Together, the two of them crossed by boat to pick up O'Hanlon and Johnson.  The beatings began when the four of them met and that was when the three of them deprived Betts of his liberty and took him back to the camp where he was tied up and where the beatings continued.
17. [17]
    It was, therefore, open to the jury to conclude that, by the time that O'Hanlon and Johnson arrived, they and the appellant had reached an understanding that Betts would be detained and subjected to violence, amounting to torture, until he revealed where he had taken the missing things.  On that footing, the first four assaults were the first four acts that constituted torture.
18. [18]
    The appellant submitted on this appeal that those acts could not amount to torture because of the paucity of evidence of severe pain or suffering.  That was not a point taken at trial where the defence was that none of the alleged assaults had been committed and Betts had fantasised the whole episode.  There was evidence that Betts suffered from a mental illness and that he was prone to using methylamphetamine, which might have aggravated an underlying tendency to delusional beliefs.  Now the appellant submits that those acts were incapable of amounting to torture because “the physical injuries were not such as you could say caused severe physical pain and suffering, even throughout the entire incident”.
19. [19]
    If the evidence of Betts was accepted by the jury, without warning he was suddenly accused of doing something he had not done, was suddenly made the subject of verbal abuse and was chased and held when he tried to get away.  He was struck by a shovel and hit with a stick.  He was punched in the head and torso.  He plainly would have been justified in thinking that he was about to be detained against his will so that violence could be inflicted upon him.  It was open to the jury to conclude that, in the circumstances in which they occurred, each of these assaults was intended to, and did, inflict severe emotional or physical pain or suffering.  They were merely the first relevant acts in what came to be a series of similar acts done over several days.  It was open to the jury to conclude that they were just the first salvos in the execution of a plan to torture Betts until he disclosed where he had hidden the things that the appellant thought that Betts had taken.  That was how the case was put and there is nothing to separate the first four assaults from the acts that followed and, perhaps for that reason, no attempt was made at trial to separate them in that way or to seek the direction that is now said to have been necessary.
20. [20]
    Rather, the defence was conducted upon the basis that none of the alleged acts happened.  The explanation offered by the defence for why Betts made false allegations was that he was prone to suffer from auditory and visual hallucinations brought about by his use of drugs like methylamphetamine, but no argument was addressed by anyone that the appellant might have committed some, but not all, of the offences.  Nor was there any cross examination of Betts about the effect of the assaults upon him and no submission was made to the jury about the inability of those assaults to cause the necessary level of pain or suffering.  If this issue had been raised at trial, the Crown would have had an opportunity to address this issue of fact in re‑examination of Betts or otherwise.
21. [21]
    For these reasons there was no miscarriage of justice by reason of the absence of a direction of the kind for which the appellant now contends.  The appeal against conviction should be dismissed.
22. [22]
    The appellant also seeks leave to appeal against his sentence.  The learned judge sentenced him to imprisonment for five years and declared the offence to be a Serious Violent Offence.  The appellant contends on appeal that the making of the declaration rendered the sentence manifestly excessive so as to imply an error in the exercise of discretion.  That submission cannot be accepted.
23. [23]
    As Mr Crane submitted for the respondent, her Honour had regard to the following factors in deciding to make the declaration:

    1. (a)
       The torture was the result of a plan to lure Betts into a situation where he could be held captive to be tortured.
    2. (b)
       He was dragged back to captivity when he tried to escape.
    3. (c)
       He was tied with a rope, with zip ties and with a dog collar around his neck.
    4. (d)
       He was stripped of his lower clothing.
    5. (e)
       The appellant urinated over Betts’s head and torso.
    6. (f)
       He was struck with a shovel, a stick, a hammer and a saw.
    7. (g)
       He was deprived of food, water and sleep.
    8. (h)
       He was tied to a chair overnight.
    9. (i)
       The offending was protracted.
    10. (j)
        The appellant has shown no remorse.
    11. (k)
        The appellant is a mature man.
    12. (l)
        The offending ceased only because Betts was able to escape.
24. [24]
    In these circumstances, notwithstanding the appellant’s not having a serious previous criminal history, the setting of a minimum term of imprisonment at the 80 per cent mark by the making of a declaration for this offence was within the proper exercise of discretion.
25. [25]
    The appeal against conviction should be dismissed and leave to appeal against sentence should be refused.
26. [26]
    DAVIS J:  For the reasons given by Sofronoff P, I join in the making of the orders his Honour proposes.
27. [27]
    WILLIAMS J:  I agree with the reasons for judgment of Sofronoff P and the orders proposed by his Honour.