R v GBI[2022] QCA 28

[2022] QCA 28

COURT OF APPEAL

SOFRONOFF P

MORRISON JA

DAVIS J

CA No 60 of 2021

DC No 2 of 2021

THE QUEEN

v

GBIApplicant

BRISBANE

MONDAY, 7 MARCH 2022

JUDGMENT

MORRISON JA:  On the first day of his trial, the applicant pleaded guilty to two charges: count 1, assault occasioning bodily harm, a domestic violence offence, on 1 April 2020; and count 2, torture, a domestic violence offence, between 11 and 12 April 2020.  He was sentenced to 18 months imprisonment on count 1 and six and a half years imprisonment on count 2.  The applicant seeks leave to appeal against his sentence.

The basis of the offending conduct was the subject of an agreed schedule of facts.  The complainant, Q, was the applicant’s partner at the time of the offending.  She was 39 and he was 35.  Though in an intimate relationship, they lived separately.

Count 1

In the early hours of 1 April 2020, the day the applicant turned 36, Q and the applicant were drinking in the living room of Q’s house.  The applicant was jealous, and an argument ensued.  Q went to walk between two couches.  The applicant punched Q in the face without warning.  She fell to the ground in front of the TV.  Blood immediately ran across her face and she vomited.  Q asked the applicant to call an ambulance.  He responded, “If you tell them what happened, I’ll get in trouble.”

Q was transported by ambulance to hospital.  Q sustained a laceration across the bridge of the nose, a swollen lip, a tender frontal bone to her forehead, and a swollen jaw, with associated bruising and swelling to her face.  The laceration was irrigated with saline and closed with two sutures.  Q refused to disclose the cause of her injuries to the medical staff.  She told them she could not remember what happened.  The applicant was present throughout but did not verbally respond to the medical staff.  Q was discharged that day and advised to return in five days to have the sutures out.

Count 2

On 11 April 2020, Q and the applicant were at her house.  The applicant was drinking.  During the evening, Q went downstairs to get the washing.  When she returned upstairs, the applicant followed her into her bedroom.  He yelled at her about “fucking people downstairs” and being unfaithful.  Q denied that.  The applicant pushed her backwards onto the bed.  He punched her in the head at least three times.  Q screamed and went to the kitchen.  The applicant followed her and kept yelling, “You dirty slut, you’ve been downstairs fucking two guys.”  Q sat on a stool in the kitchen.  The applicant walked over and punched her in the head.  She nearly fell off the stool.  The applicant poked Q in the shoulder with a pair of scissors.  The applicant dragged Q into the loungeroom.

He continued his assaults overnight.  The cycle was constant.  He did not stop for more than five minutes at a time throughout the evening and into the morning.  Neither Q nor the applicant slept the whole night.  During the assaults, the applicant laughed and told Q stories about things that he “had done to people”.  He told her he had previously killed a lady and that he was going to do the same to Q.  Q thought she was going to die.  The applicant continued to hit, punch and kick Q.  He grabbed her by the hair and dragged her around the loungeroom and back onto the couch.  The applicant would hit Q, then put his hands around her neck.  Q would gasp for breath and he would release her.  The applicant kneed Q in the midsection.  He held Q’s arms up above her head whilst doing this in order to prevent resistance.  This caused bruises to her arms.

The applicant strangled Q multiple times.  The first time, he used two hands to squeeze Q’s neck for an unknown time.  Q felt pressure that she felt was hard enough to kill her.  This stopped her breath.  She did not lose consciousness.  The applicant released his hands and she gasped for breath.  The applicant screamed at Q about her being unfaithful and he punched Q again.  Later, the applicant pushed on Q’s throat, again with both hands.  Q tried to wriggle out of his grip.  The applicant kept pressure on her throat for 5 to 10 seconds.  Q saw stars.  He stopped and pulled away.  He yelled at her for a couple of seconds, then started hitting her again.  Q sat in the foetal position to protect herself.  The applicant stood over her and stomped on her legs, head and chest, and kicked her in the back.  The applicant sat on a recliner near the door so that Q could not run away.

In the early hours of 12 April, Q grabbed a cigarette and the applicant punched her in the back of the head.  Q told the applicant she was not going anywhere and just wanted a smoke.  Q sat down at the front door.  The applicant kicked her from behind, pushing Q down the front stairs.  She rolled down approximately 20 stairs.  At the bottom of the stairs, she got up and ran.  The applicant grabbed her by the hair.  She yelled at him to “get the fuck off” her.  He dragged her by the hair up the stairs, back into the house.

At around 10.20 am on 12 April 2020, the applicant complained that he had no drinks left.  He stood over Q and demanded her bank card to pay for drinks because it was his birthday.  Q told him she would go and get drinks for him.  He agreed.  Q left the house and walked away.  The applicant followed.  Q and the applicant walked to a bottle shop together.  The applicant purchased a four-pack of Jack Daniels and coke, and Q purchased a pack of cigarettes.  They left the shop together.

On the way home, Q saw her neighbour, Z, outside gardening.  Q started a conversation with Z.  The applicant walked away towards Q’s house.  He yelled back at Q that she was “probably fucking Z too”.  The applicant went inside.  Q asked Z if she could come inside his house and Z agreed.  They went into Z’s house.  Z observed the bruising to Q’s upper arms, forearms and face, and a cut above her nose.  Q asked Z to call the police.  The applicant approached the gate as Z was on the phone to the police.  He walked back into Q’s house.  Z saw the applicant come back out of the house with a backpack on and walk away.  Police arrived shortly after.  Z told them the applicant had walked away.  Police conducted patrols and located the applicant walking on a nearby bridge.  He was arrested and taken to the police station.  He declined the opportunity to participate in an interview.  He was charged and remanded in custody.

Police arranged for an ambulance for Q, and she was taken to hospital.  Q had sustained the following injuries:

• palpable bruise to the skull and tender left back and side of the skull;
• bruising to the bones around the left eye;
• bruising to the left and right of her jaw and general tenderness to the jaw;
• bruising to the right cheekbone;
• general tenderness to the neck;
• minimal tenderness to the midline of back of her neck;
• bruising to the anterior of the chest wall;
• tenderness on both the lower and upper parts of the abdomen;
• extensive bruising to the arms;
• bruising on both legs from the knees to the shins, and
• the laceration on her nose was reopened.

Q was given paracetamol and ibuprofen for the pain, which she refused to take.  The laceration was closed with four sutures.  She was kept in hospital overnight for observations.  While in hospital, Q disclosed the assault on 1 April 2020 and that she had been admitted to hospital then.  She was discharged on 14 April 2020 and returned three days later to have the sutures removed.  A domestic violence protection order was made on 14 July 2020.  The applicant was present when it was made.  That order was in place as at the sentencing.

The learned sentencing judge commenced her remarks by noting that the offences were “very serious”.  The maximum penalty on the torture count was 14 years and the plea was late, being entered on the first day of the trial.  Her Honour noted that while a guilty plea reflected the strength of the prosecution case, it nonetheless was of significant benefit to Q, who was spared the ordeal of the trial.  Her Honour said that she had taken the plea into account in reducing the sentence she would otherwise have imposed.

Her Honour then noted the following matters: the applicant’s age and criminal history, which included convictions for “minor street-level offending”, as well as some dated convictions for offences of violence.  They included four convictions for wilful damage, some of which were very dated, and one for public nuisance; convictions in 2009 for assault occasioning bodily harm and assault or obstruct police, for which he was sentenced to 18 months’ probation; and in 2012, a conviction for an indecent act in public, which involved demanding a woman perform oral sex on him.  The applicant had not been sentenced to a period of imprisonment before.  Her Honour described the record as “limited and seems to bear little relevance to the terrible acts you perpetrated on the woman in this case”.

Next, a summary of the agreed facts that made up the two counts, much in the form of the agreed statement that had been tendered and has been set out above; that the sentence needed to have regard to the risk to the community if a custodial sentence was not imposed; the circumstances of the victim; the nature of the offending conduct, including any violence; the applicant’s age, antecedence and character, and any remorse; that the domestic violence character of the conduct was an aggravating factor.

The torture had a number of aggravating features, which included, it followed an earlier assault.  It was a savage beating involving multiple attacks in different forms: punching, hitting, dragging by the hair, kneeing, kicking, choking and strangling.  The attack was unprovoked, protracted and unrelenting.  The sheer volume and frequency of the assaults was a particular feature.  It was accompanied by controlling, denigrating and intimidating behaviour intending to punish Q, including threats to kill her.  The applicant derived pleasure from the attack.  The torture was perpetrated in a significant breach of trust.  The victim suffered significant physical injuries and ongoing emotional impacts, and the applicant only desisted when a neighbour intervened.  The offending was a “disturbing escalation” in the applicant’s history.  There was no evidence of cooperation with authorities.  The offences had had a significant and long-lasting adverse impact on the victim’s emotional and psychological wellbeing, and the applicant’s personal circumstances, including expressions of remorse made through his barrister.  The sentencing judge said she was taking into account:

“the mitigating factors in your favour identified by your barrister, including your plea of guilty, your expression of remorse and the matters I have referred to.”

However, her Honour said that they must be balanced against a background of matters such as the egregiousness of the offending, and the need for deterrence both personal and general, protection of the community and denunciation.  Her Honour observed:

“Rehabilitation of a mature man your age is possible but may be more difficult to achieve.”

Noting that she had had regard to the comparable cases put forward by both sides, her Honour said the sentence on the torture count would reflect the overall criminality of all the offending.  Her Honour also noted the sentences suggested by the prosecutor: six to seven years towards the mid to upper range, without a serious violent offence declaration, but with no parole eligibility date set.  And the defence counsel: six to six and a-half years with no serious violent offence declaration and parole eligibility after one-third.  The sentencing judge then explained that she was not persuaded to impose a serious violent offence declaration.  Her Honour then observed:

1. (a)
   the objective of adequate punishment can be achieved by the imposition of a substantial head sentence;
2. (b)
   her Honour was “guarded about your prospects of rehabilitation”;
3. (c)
   there was no information to suggest the applicant had sought treatment or participated in any programs, which might address the cause of his offending; and
4. (d)
   the applicant required counselling and participation in rehabilitation programs before release on parole.

On that basis, her Honour imposed six and a half years imprisonment on count 2, with no serious violent offence declaration and no parole eligibility date.  On count 1, the sentence was 18 months imprisonment to be served concurrently with the sentence on count 2.  Her Honour declared 332 days of pre-sentence custody as time served.  Her Honour explained the decision not to set an earlier date for parole eligibility:

“A further reduction in the time you have served before becoming eligible for parole is not justified in this case, in my view, given the very serious nature of your offending and the need to send a strong message of denunciation of, and deterrence against, brutal offending of this kind.  In a case of this kind, the mitigating effect of a guilty plea, while still deserving tangible recognition, and which I have taken into account in fixing the head sentence, must yield to other factors such as denunciation and community protection.”

Consideration of the applicant’s contentions.  The sole ground of challenge is that the sentence is manifestly excessive.  As was said by this court in R v Eaton [2019] QCA 147 at [71]:

“In order to establish that the sentence is manifestly excessive, this Court must be satisfied that there ‘must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’.  The mere fact that the sentence imposed is different from other sentences and even markedly different from other sentences, does not establish that it is manifestly excessive.  As was said by this Court in R v MCT:

‘To succeed on an application based on manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters.  It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is “unreasonable or plainly unjust”.  Consistently with accepted understanding that there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.’”

The applicant contended that the risk of reoffending was reduced because: (1) there was only very, very limited use of a weapon involved in the assaults.  The phrase “very, very limited” is a quote; (2) the injuries whilst graphic, did not require significant ongoing medical treatment; (3) the domestic violence order coupled with the fact that he and Q were no longer in a relationship.  This argument should be rejected.  The sentencing judge correctly noted all the facts of the offending, the problematic nature of any rehabilitation, the ongoing effects of the offending and the fact that the relationship between Q and the applicant had ceased.  Her Honour’s assessment of the risk of reoffending did not miscarry.  The applicant then argued that his custodial behaviour had been of acceptable standard, being breach free and incident free and, therefore, he is now an “excellent example of rehabilitation for release”.  This argument should be rejected as a reason to conclude manifest excess in the sentence imposed.

The sentence was imposed based on things as they stood at that time.  The applicant’s records since would only be relevant if this court were resentencing.  Next, the applicant argued he was on the waitlist for a rehabilitation program that included domestic violence counselling.  That course was postponed due to COVID-19 considerations.  The only other course available was to do with substance abuse, but the applicant said substance abuse was not a factor in the offending conduct.  As with the previous point, this is irrelevant unless this was a resentence.

Then the applicant pointed to the following matters as showing manifest excess:

1. (a)
   the limited use of a weapon and a short duration of the period of torture, 10 to 13 hours;

2. (b)
   the injuries do not require ongoing treatment;

3. (c)
   the comparable cases were more serious cases of offending involving the use of weapons and more severe injuries;

4. (d)
   the offending was out of character;

5. (e)
   the sentence on the torture should have been no more than six years with parole eligibility at one-third, to reflect the limited criminal history with no previous term of imprisonment, and two periods of probation successfully completed and the guilty plea;

6. (f)
   he has employment to which he is eager to return, because he has a large outstanding debt to his employer;

7. (g)
   he has achild support debt and SPER debt, which he is unable to pay while incarcerated;

8. (h)
   his father is unwell and he desires to support him;

1. (i)
   he is now remorseful; and

10. (j)
    he has behaved well in custody.

There are considerable difficulties confronting acceptance of these contentions.  First, the applicant now accepts that a total sentence, that is, reflecting the overall criminality on both counts of six and a half years was within the scope of sentencing discretion.  That is what was submitted on his behalf by his own counsel.

True it is that his counsel sought a parole eligibility date at one-third, but the fact that the head sentence was within range of what the applicant contended, there is a strong factor tending against manifest excess.  In R v Walsh [2008] QCA 391 at [23], Keane JA said:

“The imposition of a just sentence is, of course, the responsibility of the sentencing judge; but where the sentence which is imposed accords with the position taken by the offender before the sentencing judge, the contention that leave to appeal should be granted because the sentence is manifestly excessive is difficult to sustain.  If the sentence were indeed manifestly excessive then the applicant would not have agreed, by his Counsel, that it might properly be imposed.  The applicant’s submission is one to which effect could only be given in special circumstances sufficient to warrant the conclusion that the applicant should not now be regarded as bound by the conduct of his case in the court below.”

Further, the sentencing judge invited submissions as to the parole eligibility date.  The fact that her Honour did not accept the submissions for the applicant does not make the sentence manifestly excessive.

The submissions for the applicant only proffered the late guilty plea and expressions of remorse by the applicant’s counsel, as justification for the one-third date.  It cannot be shown that her Honour was wrong to reject that as the right date, for the reasons she expressed at the time and which I have quoted above.  Secondly, the features the applicant has identified in his outline of submissions are broadly consistent with the matters placed on record by the applicant’s counsel at the sentencing hearing.  This included remorse, that the relationship was over, the work that he was doing on the property, good custodial behaviour, his father’s poor health, the loan from the employer, child support, limited use of weapons, injuries not requiring ongoing treatment, reduction in risk because of the DVO and the relationship was over. Her Honour took all of these features into account in arriving at the sentence to be imposed.  It cannot be demonstrated that there was such an error in approach that it bespeaks manifest excess.

Thirdly, it is now said the offending was out of character.  That was a submission made by the applicant’s counsel at the sentencing.  The sentencing judge described the conduct as “irrational and bizarre” and a “disturbing escalation” in offending.  It cannot be said her Honour ignored the submission made.  Fourthly, nothing has been advanced to show that the sentence imposed was so far outside the scope of proper sentencing discretion, as to make it manifestly excessive.  All that has been suggested, as it was below, is that there are other sentences imposed in other cases that are different from this sentence.  That is not enough on an application based on manifest excess.  The application should be refused.

I propose the following order: application for leave to appeal refused.

SOFRONOFF P:  I agree.

DAVIS J:  I agree.

SOFRONOFF P:  The order of the court is that the application for leave to appeal against sentence is refused.