R v CCU[2022] QCA 92

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  For the reasons given by Morrison JA, I joined in the order made on 24 February 2022.
2. [2]
   MORRISON JA:  The applicant was sentenced after pleading guilty to 20 counts of violence over a period of eight years, directed towards his then partner (K), and (on one occasion) her son.
3. [3]
   Count 1 on the indictment related to the assault on K’s son.  Counts 2 to 22 related to the applicant’s assaults on K on eight separate occasions between 2010 and 2018.  Count 23 arose because when K complained to police in 2018, the applicant attempted to pervert the course of justice.
4. [4]
   The counts charged on the indictment were (as amended):

   1. (a)
      Counts 1, 2, 3, 5 and 6: assault occasioning bodily harm;
   2. (b)
      Count 4: common assault;
   3. (c)
      Count 7: assault occasioning bodily harm, while armed;
   4. (d)
      Counts 8, 10, 13, 14, 15, 19 and 22: common assault (a domestic violence offence);
   5. (e)
      Count 9, 11, 12 and 16: assault occasioning bodily harm (a domestic violence offence);
   6. (f)
      Count 17: torture (a domestic violence offence);
   7. (g)
      Counts 18 and 20: strangulation in a domestic setting;
   8. (h)
      Count 21: suffocation in a domestic setting; and
   9. (i)
      Count 23: attempting to pervert justice (a domestic violence offence).
5. [5]
   The sentencing hearing proceeded after pleas of guilty were entered on day two of the applicant’s trial, and after K had given a substantial part of her evidence in chief.  A plea bargain resulted in Counts 17, 18 and 20 being withdrawn.
6. [6]
   The sentences imposed consisted of the following terms of imprisonment:

   1. (a)
      Counts 1, 2, 3, 5 and 6 - one year;
   2. (b)
      Count 4 - six months;
   3. (c)
      Count 7 - one year (cumulative);
   4. (d)
      Count 8 - six months;
   5. (e)
      Counts 9 and 10 - one year;
   6. (f)
      Counts 11, 12, 16 - one year;
   7. (g)
      Counts 13, 14 and 15 - six months;
   8. (h)
      Count 19 - six months;
   9. (i)
      Count 21 - two years;
   10. (j)
       Count 22 - six months; and
   11. (k)
       Count 23 - twelve months.
7. [7]
   The sentences were structured so that:

   1. (a)
      Counts 1-6 were to be served concurrently with one another;
   2. (b)
      Count 7 was made cumulative on counts 1 to 6;
   3. (c)
      Counts 8-10 were ordered to be concurrent with one another but cumulative on the previous terms;
   4. (d)
      Counts 11-16 were to be served concurrently with one another but cumulative on the previous terms; and
   5. (e)
      Counts 19 and 21-23 were ordered to be served concurrently with each other but cumulative on the previous terms.
8. [8]
   The effect of the sentences was that there was a head sentence of six years imprisonment.  A total of 53 days was declared as pre-sentence custody.  A parole eligibility date was set at two years and four months from the date of sentence.
9. [9]
   The applicant seeks leave to appeal against the sentences imposed, contending that:

   1. (a)
      they are manifestly excessive; and
   2. (b)
      the learned sentencing judge erred by impermissibly taking into account uncharged acts.
10. [10]
    The basis of the second ground of challenge was that the Crown’s statement of facts impermissibly referred to uncharged acts that should not have been taken into account.

The circumstances of offending

11. [11]
    The separate occasions can be grouped as set out below.

Incident 1 (Counts 1 and 2) - 7 April 2010

12. [12]
    The applicant argued with K’s 13 year-old son about the son not having done chores around the house.  He punched the son several times in the back of the ribs before K intervened and enabled the son to run away.  The applicant pursued the son.  During her efforts to assist her son K was placed in a headlock by the applicant, punched in the face and dragged by her hair to the house.  The son ran to a neighbour for help.  K was seen by that neighbour to be on the ground with the applicant on top of her, punching and kicking her body, causing cuts and bruises.  K sustained cuts and bruises to her lip, thighs and bottom.

Incident 2 (Count 3) - 24 January 2011

13. [13]
    About nine and a-half months later the applicant was unhappy because K had forgotten to bring a camera to take photographs at their daughter’s first day of “prep”.  While driving home he punched K to the nose causing bruises and her nose to bleed.  Another mother at the school witnessed the applicant “backhand” K across the face, and later saw the bruises.

Incident 3 (Counts 4 to 6) - about 20 April 2012

14. [14]
    About 15 months later the applicant entered a shed where K was cleaning.  He used both hands to grab her by the throat, pushing her head towards a sink he had filled with water.  He tried to put her head in the water but K resisted him.  The applicant then threw K to the ground resulting in a fracture to her right big toe.  While on the ground the applicant grabbed K by the throat again and punched and kicked her with his steel-cap boots.  The applicant also stood on K’s neck.  K sustained bruising to her neck, face, upper right arm, right lower rib, left lower back, both hips, left buttock, and both thighs.  K stayed in the shed until night because she did not want her children to see her injuries.

Incident 4 (Count 7) - about 5 May 2013

15. [15]
    About 11 and a-half months later the applicant, who was angry at K for not cleaning his shed, threw a ceramic plate at her, hitting her in the foot causing a displaced fracture of her left heel.  She also had swelling and bruises to her foot, restricted motion in her ankle and tenderness to the outside of her foot.  K drove herself to hospital where she was given crutches to assist her to walk.  K lied to her children about the cause of the fractured foot.

Incident 5 (Counts 8 –10) - between 22 and 29 March 2016

16. [16]
    Just under three years following incident 4, the applicant held a pair of scissors to K’s face and threatened to cut her face with them, so that she would see the injury and know it was because she behaved in a way he did not like.  He held her on the ground, punching and kicking her to her upper torso and chest resulting in bruising to her chest and scalp, and grazes on her forearm.  After the physical assault the applicant used the scissors to hack out parts of K’s hair.

Incident 6 (Count 11) – between 7 and 10 July 2017

17. [17]
    About 16 months later the applicant was intoxicated and complained that K did not show him care and affection and did not appreciate what he did for her.  He knocked K off the bed and repeatedly punched her in the jaw and back.  K regained her feet and the applicant pulled her to the bed where he continued his attack, punching K to her back and thigh.  He called her a “cunt”, “worthless” and “ungrateful”, and when K apologised he punched her three times to the head.  K “saw stars” each time she was punched.
18. [18]
    The applicant then told K to “get the fuck out” of her own bedroom, and threatened to retrieve a knife, saying “I’ll stab you cunt”.  He said he would kill K, his ex-partner and himself.  One of the children was upset and K told her to go back to her room.  The applicant retrieved a knife from the kitchen and told K to “run”, “try to outrun me”, “I’m gonna run you down” and “see how far you get before I stab you.”
19. [19]
    K sustained bruising and haematomas to her left flank and back; the one on her back was 15 cm in diameter.

Incident 7 (Counts 12 –16) – 24 November 2017

20. [20]
    About six months later the applicant woke K to ask where her older daughter was.  He called her a “cunt” and a bad mother.  K sat on the bed and apologised.  The applicant punched her in the spine and K dropped to the floor.  The applicant then punched K about 10 times with his fist in a pillow before pulling her up by the hair and telling her to get the daughter home.
21. [21]
    K left the room and was followed by the applicant despite her telling him to stop.  The applicant punched K in the head before spitting in her face.  At that point the applicant dragged K to the bedroom, threw her onto the bed and squeezed his hands around her throat before spitting in her face for a second time.
22. [22]
    The daughter arrived home and the applicant went to speak to her.  He returned shortly thereafter and punched K on the cheek and kicked her in the back several times.  K sustained bruises over her lower back, right thigh and right eye.

Incident 8 (Counts 19–22) – 16 September 2018

23. [23]
    About 10 months later the applicant and K discussed how they might move out and live separately, and who the children might live with.  They argued about K’s use of the car to get food and the applicant said K and her children were “leeching grubs.”  During the day the applicant demanded that she leave the residence, saying “get your shit and get out” and “I want everyone to go.”  The applicant picked up the cat and threw it on the ground.  He told K she was on his “hit list.”  He put a shovel in the car, and picked up a pole, saying “look at the pole [K], I’m going to smash your head into the pole so get in the fucking car.”  The applicant was holding a knife blade in front of him and said, “don’t run, you know I can catch you, do you want the kids to see it.”
24. [24]
    The applicant continued to threaten to kill K saying, “do you want me to do it out here where everyone can see?” He attempted to persuade her to go into the shed in which he lived.  K refused to enter the shed but agreed to speak with the applicant in view of a CCTV camera on which she knew her elder daughter could see the events.  While the pair spoke the applicant suddenly grabbed K and dragged her into the shed.  K screamed and banged on a cupboard to alert others, and she believed she was going to die.
25. [25]
    K struck her head on the cupboard and lost consciousness.  She woke on the floor of the applicant’s bedroom.  She felt pain in her back and neck and was unable to control her body as she was having a seizure.
26. [26]
    The applicant stood over K holding a sledgehammer.  K closed her eyes and the applicant used the sledgehammer to strike the cement floor to the right of her head, denting the concrete floor.  When K asked why he was doing that to her the applicant responded that he was teaching K a lesson.
27. [27]
    The applicant then filled a 15-litre bottle with water.  K screamed as she believed she may be “water boarded” as the applicant had done to her in the past.  She screamed that the applicant did not have to do it to her.
28. [28]
    The applicant grabbed K by the hair and she lost consciousness and woke on the ground near the kitchen.  The applicant placed his hands over her mouth and nose such that she could not breathe.  She believed she was going to die.  The applicant retrieved a knife from the kitchen and held it across her throat, saying “it only takes 15 seconds for you to bleed out”.  He pointed the knife at her face and told her to be quiet.
29. [29]
    The applicant told K “get up, get up, get up, fucking move, wash your face.”  K could taste blood from being smothered.  She crawled to the bathroom basin and heard an air compressor turn on, which she believed was done to drown out her screams.  K washed her face.  The applicant turned the light on and was “in her face” telling her to “fucking do it properly” and “fucking clean yourself up.”  He said, “we are going to the car, stay calm, we are going to the car.”  K walked to the car behind the applicant while he held the knife.
30. [30]
    The applicant entered the tool room and returned with a set of jumper leads.  He told her, “hold that, we are going to the car … smile, you are going to smile.”  K walked outside with the jumper leads and the applicant said, “keep walking, don’t go slow … get in the car.”
31. [31]
    The events were witnessed on the CCTV by two of K’s daughters who contacted police.  On hearing the approaching sirens, the applicant put the knife in the back of his pants.  He told K not to say anything.  K ran past the police and down an alley.
32. [32]
    K suffered tenderness and soft tissue injuries around her eye, right jaw and neck muscles, and had difficulty swallowing.  The seizure like activity was explained by the compression on her neck.

Count 23 – between 15 and 18 September 2018

33. [33]
    After the applicant was charged he: (i)  contacted police witnesses and sought their assistance in having K withdraw the charges or getting her to change her statement; (ii) gave one witness (D) $2,000 to arrange for K, and her elder daughter and that daughter’s partner (who had seen the events on CCTV) to be harmed; he asked D to arrange a “hit to be put out on” K; he suggested to D that they put a knife to the daughter’s neck to get her statement changed; he told D he wanted him to break the legs of the daughter’s partner; and (iii) asked D to stay at the hospital and ensure K did not speak to police.

Approach of the sentencing judge

34. [34]
    The learned sentencing judge referred to a number of features which he took into account in framing the sentences:

    1. (a)
       the pleas of guilty, which his Honour found were late, but which had saved K having to give evidence of the events of 16 September 2018 and being cross-examined;
    2. (b)
       the absence of remorse;
    3. (c)
       the lack of any relevant criminal history;
    4. (d)
       that the applicant was between 30 and 39 years old at the time of offending, and 42 at sentence;
    5. (e)
       the nature of the offending conduct;^[1] his Honour characterised that conduct as violent, demeaning and an appalling attempt to exercise power over K;
    6. (f)
       the conduct had a significant effect on K, her son and daughter;
    7. (g)
       the applicant’s background which included: experiencing violence as a child and the separation of his parents; the absence of any meaningful relationship with his father; but a long and good employment history with numerous qualifications in various areas;
    8. (h)
       that the offences were domestic violence offences, which was an aggravating factor;
    9. (i)
       the character references given which showed the applicant was seen as loyal, generous and hard-working; however it:

“is really of little comfort that you can present yourself so well to some, and yet have committed such violence to the one that you were in a long relationship with, and a son you are supposed to care for, in circumstances where regularly there were others in the house, including children, who had to witness it”;

10. (j)
    that such domestic violence crimes demean society and were to be condemned and denounced;
11. (k)
    the need for deterrence, both personal and general; and
12. (l)
    that while there was a need to punish, the sentence also had to provide conditions that might assist rehabilitation.

35. [35]
    His Honour took into account the comparable case urged at the hearing, including R v Luxford,^[2] R v MDB^[3] and R v Getawan.^[4]  His Honour rejected the submission that the appropriate sentencing range was between three and four years:^[5]

“You have heard the submission that an appropriate sentencing range for your offences would be between three and four years. I do not accept that. Fixing the appropriate sentence is not a simple exercise when there are so many offences committed in episodes over so long a period. Taking all of the matters into account: your plea of guilty, the seriousness of the offences, the matters presented that I properly take into account, the victim impact statements, and the things said in your favour, I have reached a certain set of sentences.

One thing that is concerning is that you present without any undertaking or acknowledgment about what might have caused you to behave like this and what you might do in future to change your behaviour. It is simply presented as something that happened in that relationship, as though it is never going to happen again.

I am satisfied that you should be placed on parole when you are released from prison. Because I am making some sentences cumulative on others, I have reduced the sentences that might otherwise have been applied to many of the counts.”

Ground 1 – uncharged acts

36. [36]
    Mr Hunter, appearing for the applicant, contended that the learned sentencing judge impermissibly took into account uncharged acts when sentencing.  Relying on R v D,^[6] it was submitted that:^[7]

    1. (a)
       uncharged acts relied on to establish that the offending was not an isolated incident or that extend the seriousness of an offence cannot be taken into account because they are irrelevant to the sentencing process, and it is unnecessary for an appellate court to decide that the erroneous taking into account of irrelevant matters actually resulted in a higher sentence. It is enough that it may have done so;^[8]
    2. (b)
       the Crown’s statement of facts included uncharged acts that were serious in nature and ought not to have been included because they added to the gravity of the offences charged;
    3. (c)
       those facts were: prior to count 19, the applicant made threats to K, grabbed her, and, in some way, caused her to hit her head and lose consciousness;^[9]
    4. (d)
       the sentencing judge, who was aware that a count of torture had been discontinued, referred to these acts as background to the events of the day; his Honour’s description appreciated that the applicant’s acts did not form part of the charged acts or the attendant circumstances of them; in other words, they could not reasonably be regarded as having formed part of any of the offences of which the applicant was convicted; however, referring to them, regardless of the description given, acknowledged that they were serious enough to warrant mention and suggests they impacted on the gravity of the event as a whole;
    5. (e)
       it was impermissible to take into account any of the facts above; each of them established a separate offence which consisted of conduct that the applicant had not been convicted of; when combined, they may have resulted in a higher sentence.
37. [37]
    In my respectful view, the contention should be rejected for a number of reasons.
38. [38]
    First, the statement of facts tendered on the sentencing hearing was an agreed statement, not just the Crown’s statement.  Given that the pleas of guilty were only entered to 20 of the original 23 counts, that the count charging torture was dropped, and the pleas were entered on day two of the trial after a plea bargain was reached, the inevitable inference is that Counsel for the applicant agreed that the facts in the statement could be referred to the judge for the purposes of sentencing.
39. [39]
    Secondly, reference to the transcript and the sentencing remarks reveals that his Honour was careful to sentence only for the offences charged, and not wider.
40. [40]
    Thus, during submissions the Crown submitted that the applicant was “only to be dealt with for the discrete counts on the indictment”:^[10]

“It’s clear, in my submission, from the evidence of the complainant that she was a compelling witness able to recall seven discrete occasions of domestic violence offending over such a lengthy period of time, where the evidence of the complainant was that there was a degree of similarity in the conduct that he would engage in during that period. Of course, the defendant is only to be dealt with for the discrete counts on the indictment.”

41. [41]
    No contrary submission was made by the defence.
42. [42]
    When the Crown dealt with Count 19 it was confined to the sledghammer assault:^[11]

“In relation to the offending of 16 September 2018, the defendant dragged the complainant into the shed. He has then struck her – the concrete near her head with a sledgehammer. That of course would have been a terrifying experience for her. He has then suffocated her to the point of losing consciousness and then threatened her with a knife. That conduct forms counts 19, 21 and 22 on the indictment.”

43. [43]
    When dealing with Count 11, the learned sentencing judge expressly noted that the applicant was to be sentenced just for the assault that described:^[12]

“As part of the same incident - and I say, plainly, that you are to be sentenced just for the assault that I described - you made further threats, saying that you would kill her and your ex-partner before killing yourself. You obtained a knife from the kitchen. The complainant asked you not to stab her and said she would leave. You told her to run, see whether she could outrun you.”

44. [44]
    The learned sentencing judge omitted paragraph 53 of the statement of facts when dealing with the period following Count 19.  That was the water boarding reference.  Although originally included as an uncharged act wrongly taken into account, Mr Hunter conceded that could not be made out.  However, it shows a careful approach by the sentencing judge to restrict the basis of sentencing to just the facts relating to the particular count.
45. [45]
    Thirdly, when the sentencing remarks are read in context it becomes plain that the learned sentencing judge kept Count 19 restricted to the sledgehammer incident.  His Honour said:^[13]

“On 16 September 2018, you and the complainant discussed her moving out and your moving to Bali, and where the children would go. Later in the day, there was more discussion about that. The children were getting hungry. The complainant asked you if she could get her wallet from one of the cars to go to the shops. The keys to the car were in a different car, which you unlocked, and she grabbed her wallet. You asked if she was going to take the car that you had paid for to go to the shops. She then said she would walk. You became angry and complained about paying for everything. She said that they would go without dinner and went back inside.

This is really all background, but it is background, necessarily, to the events that happened on this day. You told the complainant that she was on your list. This she understood from previous discussions to be a hit list of people you intended to kill. You grabbed a shovel in the backyard and placed it in one of the cars. She was holding onto a pole. You told her that you would smash her head into the pole and told her to get into the car. You were holding a knife at this stage. She walked down the driveway. You told her not to walk out of the driveway. You said:

“Do you want me to do it here where everyone can see?”

Eventually the two of you sat in the carport in front of CCTV camera outside your shed. The complainant said she knew that her daughter could see from the CCTV footage on her phone. There was discussion about your moving when suddenly you grabbed the complainant and dragged her into the shed. She screamed and was banging on cupboards to alert others to contact the police. She struck a cupboard and believed she lost consciousness. She felt pain to her back and neck and was unable to control her body. Thought she was having a seizure. You stood over her holding a sledgehammer. You brought the sledgehammer down to the cement floor, just to the right of the complainant’s head, leaving a dent in the cement. That threatening action was common assault, count 19.”

46. [46]
    In light of the uncontradicted Crown’s submissions set out in paragraphs [40] and his Honour’s recognition of the restricted application of the facts in respect of Count 11 (see paragraph [43] above), it is plain that his Honour restricted the facts for Count 19 to the use of the sledgehammer.^[14]
47. [47]
    Fourthly, his Honour’s reference to “background” was not only to distinguish those facts from the ones that constituted Count 19, but based on authority.  In R v O'Grady; Ex parte Attorney-General (Qld)^[15] this Court noted the importance of background facts being placed before the sentencing court to assist in understanding the circumstances in which the criminality is to be assessed, and that such an approach is within the principles expressed in R v D.^[16]
48. [48]
    In the circumstances his Honour’s refence to the background facts for Count 19 was not contrary to what was said in R v D.  There the Court summarised the sentencing principles:^[17]

“1.Subject to the qualifications which follow:

1. (a)
   a sentencing judge should take account of all the circumstances of the offence of which the person to be sentenced has been convicted, either on a plea of guilty or after a trial, whether those circumstances increase or decrease the culpability of the offender;

2. (b)
   common sense and fairness determine what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing purposes (cp. Merriman at 593, R. v. T. at 455); and

3. (c)
   an act, omission, matter or circumstance within (b) which might itself technically constitute a separate offence is not, for that reason, necessarily excluded from consideration.

1. 2.
   An act, omission, matter or circumstance which it would be permissible otherwise to take into account may not be taken into account if the circumstances would then establish:

1. (a)
   a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted;

2. (b)
   a more serious offence than the offence of which the person to be sentenced has been convicted; or

3. (c)
   a “circumstance of aggravation” (Code, s. 1) of which the person to be sentenced has not been convicted; i.e., a circumstance which increases the maximum penalty to which that person is exposed.

1. 3.
   An act, omission, matter or circumstance which may not be taken into account may not be considered for any purpose, either to increase the penalty or deny leniency; and this restriction is not to be circumvented by reference to considerations which are immaterial unless used to increase penalty or deny leniency, e.g., “context” or the “relationship” between the victim and offender, or to establish, for example, the offender’s “past conduct”, “character”, “reputation”, or that the offence was not an “isolated incident”, etc.”

49. [49]
    As I have attempted to show above, extraneous facts were not “taken into account” in the way referred to in paragraphs 2 or 3 of the passage cited, nor was the guilty plea to Count 19 entered to any more than the facts strictly relating to Count 19.  And, that is what the sentence for Count 19 was based upon.  In any event, the court can have regard to such background in accordance with paragraph 1 of the passage from R v D cited above.

Ground 2 – manifest excess

50. [50]
    The applicant’s contention on this ground accepts that showing that the sentence imposed falls outside the limits of established ranges from other more or less comparable decisions does not necessarily expose error.  Rather, what must be demonstrated is that the difference is such that there must have been a misapplication of principle or that the sentence is “unreasonable or plainly unjust”.^[18]
51. [51]
    As was said by this Court in R v Jackson^[19] and in R v Clarke^[20] in relation to the ground of manifest excess:

“To succeed the applicant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed. There is no one “right” penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of fact or law.”

52. [52]
    A sentence is not established to be manifestly excessive merely if the sentence is markedly different from other sentences in other cases.  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”.^[21]
53. [53]
    Mr Hunter put the case principally upon a comparison with R v Luxford.^[22]  There are features which make it difficult to compare it with the present case:

    1. (a)
       there was an early plea in Luxford, indicating remorse and acceptance of responsibility; this plea was late, after two days of the trial, and there was no remorse;
    2. (b)
       there were fewer charges and committed over only 18 months, not the eight years here;
    3. (c)
       there was no cumulation of sentences;
    4. (d)
       the most serious charges were suffocation and strangulation, each of which received three years and six months; but there was no equivalent to Count 23, attempting to pervert the course of justice, of itself a very serious charge;
    5. (e)
       there was only one complainant, whereas here the offending included K’s son;
    6. (f)
       the basis of the challenge in Luxford was only as to any custodial component; indeed, in Luxford the Court was invited to impose a higher head sentence than three years and six months’ imprisonment to reflect the gravity of the offending, while also allowing for Mr Luxford’s immediate release from custody with appropriate supervision to reflect the significant matters of mitigation;
    7. (g)
       the offender in Luxford had medical conditions that included PTSD from his service as a Special Forces soldier; there was evidence that it was a cause of his conduct; moreover, he had participated in an individual Men’s Behavioural Change program to assist him in not engaging in domestic violence; the report on his progress confirmed that he was motivated to work upon and resolve the issues that had resulted in the charges and had developed positive insight and empathy; the present applicant had no such claim; to the contrary, the sentencing judge despaired of the fact that the applicant presented “without any undertaking or acknowledgment about what might have caused you to behave like this and what you might do in future to change your behaviour”;
    8. (h)
       there were no facilities in prison to deal with rehabilitation of veterans with PTSD;
    9. (i)
       in Luxford the sentencing judge referred to the evidence of experts on the likely effect of the custodial environment on Mr Luxford, but it was not addressed in the structure of the sentences; therefore there was a specific error in the imposition of a sentence that required actual custody;
    10. (j)
        in Luxford the most egregious charge was that on Count 13 where that complainant lost consciousness; the only other charge which involved choking was Count 12, but it lasted only three seconds; and
    11. (k)
        the sentence imposed on appeal reflected the totality of the offending by Mr Luxford, but was adjusted in recognition of the effect of his PTSD as a cause of his offending.
54. [54]
    That summary is sufficient to demonstrate that Luxford is not comparable at all to the present case.  It does not compel the view that the sentence in the present case was manifestly excessive.
55. [55]
    MDB was the other case relied on to show manifest excess.  That involved five charges of domestic violence offences all committed on the one day.  The most serious was a choking charge which attracted a four-year sentence.  The offender was a mature man aged 38 at the time of offending.  He had a serious and concerning criminal record involving 31 court appearances and offences including violence.  One offence of assault occasioning bodily harm, of which the applicant was convicted in 2011, arose in circumstances where the applicant had gone to the home of his sister and brother-in-law, and seriously assaulted his brother-in-law in anger, attempting to strangle him on a number of occasions, only releasing his grip as a result of intervention by his sister.
56. [56]
    There are features about MDB which make it inutile as a comparable case in the present application.  These include:

    1. (a)
       the offender in MDB was addicted to heroin which explained his earlier offending;
    2. (b)
       there was evidence that the offender experienced depression and anxiety because of his frequent periods of incarceration; and his history included sexual abuse against him;
    3. (c)
       the offending conduct was in breach of an existing domestic violence order;
    4. (d)
       the victim did not lose consciousness in the choking incident;
    5. (e)
       there was an early guilty plea, some cooperation with police and prospects of rehabilitation; and
    6. (f)
       the offending conduct was not protracted over time; the offences all committed on the one day.
57. [57]
    No doubt the circumstances of the plea bargain in the present case gave rise to the submissions to the learned sentencing judge that the appropriate range was three to four years.  However, that was a romantic view of the true nature of the offending conduct.  In any event it did not bind the sentencing judge.  That the sentence imposed here was greater than that proposed by the parties is of no great moment.  As was said in R v MDB:^[23]

“… As Mullins J said, at [43] of R v MCW, the test of whether the sentence imposed on the applicant was manifestly excessive is not determined by comparing the sentence selected by the sentencing judge with the submissions made by the parties as to the appropriate sentence. Such a submission is merely a statement of opinion. It is a matter for the sentencing judge, in the exercise of their discretion, to impose what they regard as the appropriate sentence, taking into account and balancing all the relevant factors that bear upon the sentence.”

58. [58]
    The offending here was very serious.  It was protracted, violent, demeaning and controlling.  It extended beyond the complainant, who suffered time and again from the applicant’s abuse.  It extended to K’s son, and some of the conduct was in view of K’s children.  It not only involved injury to ease of mind, but physical abuse of a degrading and humiliating kind.  Concerningly, it involved an ultimate degradation, the threat of elimination of life itself.  All of this was done with a lack of empathy or insight, a lack of remorse, and a perverted justification related to the applicant’s apparent view that he was preyed upon by leech-like dependants.
59. [59]
    Moreover, the conduct may have been broken by periods where assaults were not carried out, but that does make things better for the applicant.  It makes the conduct worse in some respects, because the threat was always there.
60. [60]
    It is true that various people saw the applicant as loyal, trustworthy and a competent worker.  Of course they thought he was a good man.  But they were not the subject of his anger.  They had not been kicked, punched, spat on, choked, abused verbally and physically, nor had they been threatened with death, or had a sledgehammer driven into the concrete next to their heads.
61. [61]
    And when all of that came to light, the applicant went yet further, by trying to pervert the course of justice to protect himself from exposure to criminal charges.  Those threats go to the very foundations of civilised society.  There is no way of minimising their impact, and Mr Hunter did not try to do so.  That component in the sentencing process takes this case away from the so-called comparable cases put forward to the learned sentencing judge, and this Court.
62. [62]
    Luxford and MDB are no guide to a sentence for the applicant’s conduct.  It cannot be concluded that there was an error in the sentencing process such that the sentence imposed for all 20 counts was “unreasonable or plainly unjust”.
63. [63]
    For these reasons I joined in the orders made on 24 February 2022 refusing leave to appeal.
64. [64]
    MULLINS JA:  For the reasons given by Morrison JA, I joined in the order made on 24 February 2022.