R v BEB[2023] QCA 105

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with the reasons of Bond JA and the order proposed by his Honour.
2. [2]
   McMURDO JA:  I have had the advantage of reading in draft the judgment of Bond JA, which allows me to confine my judgment to the point on which I disagree with his Honour.  In my opinion, the sentencing judge erred in his application of what in this jurisdiction is commonly described as the Nagy approach.^[1]
3. [3]
   In Nagy, Williams JA said that where a judge is to impose sentences for a number of distinct, unrelated offences, one option which is open “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.”^[2]  It is a course which is adopted for reasons of convenience and simplicity, and it may be “adopted only as a more practical alternative to the imposition of cumulative sentences.”^[3]
4. [4]
   In R v Bowditch,^[4] McMurdo P discussed the various approaches which are open to sentencing judges when imposing penalties for a number of offences.  The President said:^[5]

“Judges have a discretion as to whether to impose cumulative or concurrent sentences or part cumulative and part concurrent sentences: Griffiths v The Queen. Generally, judges adopt one of two approaches. They may impose an increased head sentence, usually on the most serious offence, to reflect the totality of all the offending so as to avoid the possible unintended complications and consequences which sometimes flow from the combination of cumulative sentences and complex sentencing and related statutes. On the other hand, judges may impose a cumulative sentence or a series of cumulative sentences, moderated to reflect the totality principle discussed in Mill v The Queen. Either method is apposite provided the judges make clear the method adopted and the reasons for it; that the overall effect of the sentence is not manifestly excessive; and that the sentences do not result in double punishment for the same acts. Judges often tend to adopt the former approach as its effect tends to be more easily comprehended and it is less prone to unintentionally offend the totality principle.”

(Footnotes omitted.)

5. [5]
   At the sentencing hearing, the prosecution submitted as follows:

“Consistent with the approach taken in R v Nagy [2004] 1 Qd R 63, the Court would reflect the defendant’s overall criminality in the sentences imposed for counts nine (attempted murder) and eight (anal rape), and in imposing concurrent sentences for the remaining counts.”

6. [6]
   The prosecution’s submissions emphasised the importance of the consideration of community safety, given the grave nature of the offences committed and the offender’s violent predisposition.  The ultimate argument for the prosecution was for the imposition of sentences of life imprisonment for the offence of attempted murder and the offence of anal rape.
7. [7]
   It is evident from the judge’s reasons that he accepted these submissions.  Towards the end of his reasons, the judge explained that he had chosen not to accumulate sentences for the various offences but to impose concurrent sentences in each case, saying that “I have applied the principles in Nagy … to impose the head sentences for life imprisonment on counts 8 and 9.”
8. [8]
   To the same effect, earlier in his reasons, the judge said:

“The most serious offence or offences committed against the child – namely, attempted murder and anal rape – should operate as the head sentence.  It would be sufficient for the head sentence to be imposed simply on the attempted murder; however, the anal rape and the attempted murder both have maximum penalties of life imprisonment and they are closely associated with each other, and so I intend to impose the same sentence on each of those counts.  Those sentences need to reflect your overall criminality and so it is appropriate to consider all of the offences and in any event I have to sentence you on each count.”

9. [9]
   The judge referred to R v Kilic,^[6] where it was explained that sentencing judges should avoid the use of a description of an offence being within the “worst category” of offences of that kind, the true question being whether the offence is so grave as to warrant the imposition of the maximum prescribed penalty for the offence.  A little further on, the judge concluded that “the relevant offending is so grave as to warrant the imposition of the maximum penalty, namely life.”^[7]  However that statement must be read in the context of the previous paragraph of the reasons, in which his Honour discussed whether a finite sentence of 20 or more years would exceed what was appropriate to reflect the “overall offending”.
10. [10]
    As I read the sentencing reasons, the judge did not go so far as to conclude that the offences for which he imposed life imprisonment were of themselves so grave as to warrant the maximum penalty.  On no view could he have thought so in relation to the rape offence, very serious though it was.  Rather, the judge’s stated intention was to impose the life sentences to reflect the applicant’s “overall criminality”.  Had the judge considered that life sentences should be imposed simply because of the nature of those two offences and the circumstances of the offender, no mention of Nagy could have been relevant.
11. [11]
    Inevitably, life imprisonment was a harsher outcome for the applicant than any which might have resulted from the accumulation of fixed terms.  The applicant will be eligible for parole after 15 years, and no later parole eligibility date could have resulted from the imposition of cumulative fixed terms.  But as a prisoner serving a life sentence, it is possible that he will never be paroled.  If he is paroled, he will be on parole for the rest of his life.
12. [12]
    Consequently, there was in my respectful view an error by the judge and the applicant should be resentenced.
13. [13]
    Again, the judgment of Bond JA well explains the facts and circumstances of the offending, as well as the applicant’s personal circumstances and most importantly for present purposes, the mitigating factors.  I would apply the Nagy approach, by reflecting the totality of all of the offending in the head sentence imposed for count 9.  I would impose a term of 22 years’ imprisonment for that offence.  I would vary the life sentence for count 8 to a term of 10 years’ imprisonment.  On that approach, all of the terms would be served concurrently.
14. [14]
    The orders I propose are:

1. Grant leave to appeal.
2. Allow the appeal by:
   1. varying the sentence for count 8 to a term of 10 years’ imprisonment; and
   2. varying the sentence for count 9 to a term of 22 years’ imprisonment.

15. [15]
    BOND JA:  The applicant, aged 43 at the time of offending, was convicted on his own plea of guilty of committing a range of serious offences against four victims between 10 and 12 December 2016.
16. [16]
    The two most serious offences were the offences of attempted murder and rape.  The applicant committed those offences against a child, TJ, aged 9, who regarded the applicant as her uncle.  On each offence, the sentencing judge sentenced the applicant to life imprisonment.  Lesser sentences were imposed for other counts which involved less serious offending.  All sentences were to be served concurrently.
17. [17]
    The effect of the imposition of those sentences was, as the sentencing judge specifically acknowledged,^[8] that the applicant will not become eligible for parole until he has served 15 years’ imprisonment and, in the event parole is granted, he will be subject to parole for life.  The sentencing judge determined that the two most serious offences were so grave as to warrant the imposition of the maximum penalty.
18. [18]
    The applicant seeks leave to appeal against those sentences.  He identifies three proposed grounds of appeal.  First, that the sentencing judge erred in his application of Nagy such that he imposed a penalty on the two most serious accounts exceeding that which would have been imposed if all counts had been sentenced separately.  Second, that the sentencing judge erred in adopting a stepped approach to the determination of an appropriate head sentence.  Third, that the sentence imposed is manifestly excessive in all the circumstances.
19. [19]
    There is no merit in any of those grounds.  For the following reasons, I would refuse the application for leave to appeal.

The offending and the sentences imposed

20. [20]
    The applicant pleaded guilty to eight counts on one indictment, four counts on an ex officio indictment and one summary charge.  The table below identifies the offences for which the applicant pleaded guilty; the relevant maximum penalty prescribed by statute; and, the sentences which were imposed by the sentencing judge.  Each of the sentences marked with an asterisk was accompanied by a declaration by the sentencing judge that the conviction was a conviction for a serious violent offence.

The circumstances of the offending identified in the sentencing remarks

21. [21]
    The circumstances of the offending were detailed in an agreed statement of facts.  The sentencing judge was informed of the impact of the applicant’s offending by the reception of victim impact statements.
22. [22]
    The victims of the offending were –

    1. (a)
       The applicant’s ex-partner, AC.
    2. (b)
       The child, TJ.
    3. (c)
       A taxi-driver.
    4. (d)
       The applicant’s cousin, RC.
23. [23]
    The child TJ lived with her grandparents at Acacia Ridge.  At the time of the offending, the applicant was also staying at their home.  TJ referred to the applicant as her uncle.

The applicant’s offending against his ex-partner

24. [24]
    On 10 December 2016, the applicant visited AC at her house in Strathpine and took TJ with him.  He and AC got into an argument about the care of their child.  The applicant walked up behind AC and put her in a headlock and started to choke her.  He squeezed her throat so tightly that she could not speak and struggled to breathe.  She tried to scream but he put his hand over her mouth to stop her.  She was able to bite his finger and he let her go and he and TJ left shortly after.
25. [25]
    This offending was count 1 of the indictment.
26. [26]
    The sentencing judge found there were three very serious aspects to this offence.  First, it was not the first time that the applicant had been violent towards AC.  Second, the danger to the victim of strangulation or other choking action has been recognized by the legislative creation of the separate offence.  Third, the offence was committed against a vulnerable woman in a domestic setting.
27. [27]
    The sentencing judge flagged his intention to take into account the applicant’s criminal history, to which he would return later in his remarks, but also the need for general deterrence and denunciation in relation to offenders who use violence as a way to resolve domestic disputes over the care of children.
28. [28]
    The sentencing judge found that the offending had a devastating effect upon AC.  Her victim impact statement revealed she remained in fear of the applicant, she became very anxious, suffering nightmares, and that she has had trouble forming new relationships because they bring back memories.  She lives with the fear of allowing another person into her life that could hurt her like the applicant did.  Given the applicant’s history of violence, including contraventions of domestic violence orders, the sentencing judge thought an appropriate sentence on count 1 was at least three years.

The applicant’s offending against the child TJ

29. [29]
    On 11 December 2016 the applicant had consumed cask wine, cocaine and ice.  At around 7 pm, TJ asked the applicant to walk her to a friend’s house for a sleepover.
30. [30]
    Sometime during the walk, the applicant told TJ that he needed to go to the toilet but was scared and asked her to come with him into the bushes.  She told him to go by himself but he said “come here.  I want to show you something” and dragged her into the bushes by her shirt.
31. [31]
    He took the spare clothes from her backpack and used them to tie her arms behind her back and her legs together.  That was count 2, deprivation of liberty.  He told her to suck his penis and overcame her resistance by forcing her to do so.  That was the first count of rape, count 3.  He pulled down her tights and underwear and licked her vaginal area.  That was count 5, indecent treatment of a child under 12.  At some stage, and although she tried to resist, he put a finger or fingers into her vagina, which proved extremely painful to her.  That was count 7, the second count of rape.  He then penetrated her anus with his penis.  That was count 8, the third count of rape.  She felt his penis, to use her words, “in [her] bum really far”.  She later recounted that she could not remember how many times the applicant had raped her or how long it went on for but thought the applicant “did it heaps of times”.  She thought that the applicant raped her from about 7 pm until 1 am.
32. [32]
    However long it took, the applicant then told TJ that he was two million years old, had watched Jesus die on the cross, that she was a virgin and he was going to sacrifice her.  He proceeded to tie a sock around her neck twice and choked her until she fell unconscious.  That was count 9, attempted murder.
33. [33]
    The sentencing judge found that the applicant left TJ for dead.  I interpolate that in this Court the applicant, by his counsel, criticised this finding, suggesting there was an inadequate evidentiary basis to draw any such inference.  I reject that criticism.  As will appear, the applicant made statements to his cousin only shortly after his offending against TJ and during the course of his efforts to escape the scene in which he said he had murdered someone.  Obviously, the applicant thought he had used the sock to choke TJ until she was dead.  There was no evidence at all that he had desisted from his attempt to murder her.  The sentencing judge’s remark was entirely justified.
34. [34]
    Sometime after having been choked into unconsciousness, TJ regained consciousness.  The sock was still tied tightly around her neck.  Her face was sore and bruised from the fact that the applicant had hit her a number of times during the attack to overcome her resistance.  That assault was count 10, assault occasioning bodily harm.
35. [35]
    TJ walked to her friend’s house and, at about 1 am, knocked on her friend’s door and said what had happened to her.  The sock was still tied tightly around her throat, restricting her breathing.  Her friend and the friend’s family could see that her physical appearance reflected the ordeal she recounted to them.  Police and ambulance were called and she explained what had happened to her.
36. [36]
    TJ’s physical injuries were detailed in the agreed statement of facts.  She suffered injuries to her vagina, her anus, her face, her body and her limbs.  The injuries to her anus and genitals included haemorrhages that were a result of penetrating blunt trauma.  She was administered preventive medication for sexually transmitted infections.
37. [37]
    Victim impact statements from TJ’s grandfather and grandmother were before the sentencing judge.  The sentencing judge found that the psychological injuries to TJ and their aftermath were very serious.  Before these offences, she had good school reports and a good temperament.  After these offences, her behaviour completely changed.  She hated school.  She began abusing substances, drinking and fighting.  She had anxiety attacks and nightmares, fearing being attacked again.
38. [38]
    The impact of the offending was not limited to TJ, but adversely affected both her grandparents.  Her grandfather needed counselling to control the anger he felt over what the applicant had done to TJ.  Both felt their hearts were broken by the harm done to her.  Both felt particularly betrayed by the applicant, who they had cared for as a child and looked to as a nephew.

The applicant’s offending against a taxi driver

39. [39]
    Having left TJ for dead, the applicant called a cab at 2 am on 12 December 2016.  During the ride, the applicant pointed a large knife at the driver and, more than once, told the taxi driver he was going to cut his throat.  That offending constituted count 1 on the ex officio indictment.  The driver got out of the taxi and ran away.  The applicant then unlawfully used the taxi by driving it to his cousin’s home.  That was count 2 on the ex officio indictment.  The trial judge found that the threats of violence with a knife must have terrorised the taxi driver, who was just doing his job.

The applicant’s offending against his cousin

40. [40]
    The applicant found that his cousin was at home with her partner.  The applicant said “I have to get out of here quick”.  He gave them a story about having murdered someone who had done a “dog trick” on him.  He said he needed to go and bury the body.  He made up some story about having killed a member of a bikie gang and that he had robbed a cab driver.
41. [41]
    The applicant’s cousin did not want him in her house, and offered to drive him to her brother’s place.  The applicant’s cousin, her partner, and the applicant got in her car and started driving.  When they passed a police vehicle, the applicant pointed a large knife at his cousin, told her to go and said he did not want to go back to jail.  He told her to, “fucking keep going don’t stop”.  That threat of violence was count 3, on the ex officio indictment.
42. [42]
    The applicant’s cousin pulled her car over, jumped out, ran to the police and told them what had happened.  Her partner remained in the car.  The applicant got into the driver’s seat and drove the car away.  That was count 4 on the ex officio indictment.  The applicant drove to an address in Caboolture, said goodbye to his cousin’s partner and left.

Apprehension and events subsequent to being charged

43. [43]
    The applicant was apprehended by police in Caboolture on 13 December 2016.  He had a knife in his backpack and that was the summary offence.
44. [44]
    The applicant went to a watch-house and participated in an interview.  He told police that he had been drinking wine heavily on 12 December 2016 and had also consumed cocaine and ice.  He could recall what had occurred with the taxi driver and his cousin but said he could not recall the offending against TJ.
45. [45]
    When confronted with details of his offending against TJ, he told police that he did not remember any of it.  He criticised TJ saying, “wouldn’t I have blood on me or something on my clothes? and “how did she know I was punching her in the face if she was passed out?”  He further commented that what she said did not sound right and said, “how ding, banged up in the face is she?”
46. [46]
    The sentencing judge stated that he did not find the applicant’s response to police to be remorseful.  He thought it tended to minimise the applicant’s offending.

Submissions on sentence before the sentencing judge

47. [47]
    Counsel for the prosecution invited the sentencing judge to take the approach referred to in R v Nagy and to reflect the applicant’s overall criminality in the sentences imposed for count 9 (attempted murder) and count 8 (anal rape), and to impose concurrent sentences for the remaining counts.  He accepted that a consequence of so doing would be that the life sentences would inevitably attract serious violent offender declarations and that would necessitate adjustment of any concurrent sentence which did not attract such declarations.
48. [48]
    The prosecution submitted that the matters on which the applicant might rely in mitigation should be regarded as overwhelmed by the grave nature of the present offences which suggested that community safety was a paramount consideration.
49. [49]
    The aggravating features of the complainant’s offending included:

    1. (a)
       Acts of violence against four victims.
    2. (b)
       The applicant had previously offended against AC.
    3. (c)
       The offending against TJ involved protracted terror, sexual degradation and associated physical suffering and injury, resulting in the applicant leaving her for dead in the isolated bushland in which the offending had occurred.
    4. (d)
       The offending against TJ was against a child who was at the time in his sole care and breached the relationship of trust between them.
    5. (e)
       The offending had irreparable impact on AC, TJ and TJ’s grandparents.
    6. (f)
       There was no genuine remorse.
50. [50]
    Counsel for the prosecution invited the sentencing judge to conclude that the offending was so grave as to warrant the maximum prescribed penalty of life imprisonment.  He drew to the attention of the sentencing judge that if that sentence was imposed, the irreducible minimum period of imprisonment which the applicant would be required to serve before becoming eligible for parole was 15 years.
51. [51]
    Counsel briefly addressed the possibility of a sentence which did not take the Nagy approach and if the sentencing judge rejected the submission as to the appropriateness of a life sentence.  He submitted that on that basis the finite sentence would be not less than 20 years, which could be reached by way of a number of possible combinations.
52. [52]
    For his part, counsel for the applicant advanced the following submissions to the sentencing judge –

    1. (a)
       Orally, that the principal issue before the Court was whether a sentence of life imprisonment should be imposed or the various relevant factors that need to be reflected in sentence could be reflected in a finite sentence.
    2. (b)
       In written submissions, that it was accepted that a sentence of life imprisonment was open if a court concluded that the offence was so grave as to warrant the imposition of the maximum penalty: R v Kilic (2016) 259 CLR 256.
    3. (c)
       In written submissions, that the circumstances of the case were not so grave as to warrant the imposition of a term of life imprisonment.  Reliance was placed upon the following factors:

       1. Whilst the applicant had a history of committing violent offences, he had not committed sexual offences in the past.
       2. The circumstances were less serious than the case of R v Mahony & Shenfield [2012] QCA 366.  That case involved a 13-year-old complainant being subjected to deliberate repeated violence; rape and sexual degradation over a 15-hour period by a male offender and a female offender; the female offender attempting to murder the complainant by strangling her with a rope; and the male offender interfering with that offending so as to prevent the murder.  On appeal, the Court of Appeal refused to interfere with the sentences of life imprisonment which had been imposed on Mahony, the female offender, for the attempted murder and the rapes.  The male offender had also been sentenced to life imprisonment for the rapes, but that sentence was reduced to 18 years imprisonment.
       3. The plea of guilty had some real utilitarian value and there was some indication of remorse.
    4. (d)
       In written submissions, that considerations of denunciation, deterrence and protection of the community could be achieved by the imposition of a sentence in the order of 18 years in relation to the most serious offence.

The sentencing judge’s reasons for the sentences

The plea of guilty

53. [53]
    The sentencing judge found that the DNA evidence was overwhelming.  The applicant’s DNA was found on TJ’s vulva and perianal area and located in her underwear.  Items were found at the crime scene, including the girl’s hair.  The sentencing judge found that the forensic evidence and TJ’s injuries supported her account and would have practically compelled a finding of guilt if the applicant had faced a trial.
54. [54]
    However, the sentencing judge noted that the applicant had cooperated in the administration of justice by participating in the interview with police and by pleading guilty.  He acknowledged that the plea of guilt had some utility and avoided the need for his victims and others to give evidence.  He said that he took that into account in reaching the appropriate sentence.

The applicant’s personal circumstances

55. [55]
    The applicant’s personal circumstances had been detailed in the various reports from mental health professionals which were before the sentencing judge and had been summarised by his counsel during oral submissions.  He was an indigenous man who had been exposed to domestic violence, alcohol abuse and two periods of sexual abuse during his childhood.  He had been beaten since he was about 6.  He had a caring aunt, but she died when he was 10.  He had behavioural problems at school.  He ended up leaving school early, began drinking alcohol at 13, sniffed petrol between 14 and 15, and tried cannabis as a teenager.  He had periods in which he used drugs like cocaine and methylamphetamine.  He mixed with an antisocial peer group and started to offend.

The applicant’s criminal history

56. [56]
    The sentencing judge noted the applicant’s criminal history was in evidence and had been detailed in submissions received from the prosecution.  That evidence revealed that the applicant had an extensive history of criminal convictions, dating back to 1989, when he was only 16 years old.  Since then, he had appeared before Queensland courts on 39 occasions in relation to about 80 offences.  He had been sentenced to imprisonment four times in 1991, three times in 1992, three times in 1993, 2000, 2009, twice in 2011, 2013, twice in 2014, 2015, and 2019.
57. [57]
    The sentencing judge summarised the applicant’s criminal history in this way:

“Those convictions include convictions for violence, including aggravated robbery in 1983 and other offences to which you were sentenced to an effective term of 10 years imprisonment with a recommendation for parole eligibility after three years.

There have been numerous other offences that include offences of contravening a domestic violence order. On different occasions, you have precipitated sieges where you have been in possession of weapons and threatened violence. Disgracefully, in March 2019, and notwithstanding whatever stresses and problems you had, you committed a serious assault on a doctor employed at the Park Centre for Mental Health for which you received a sentence of six months imprisonment that was suspended.”

58. [58]
    Before this court, the respondent described the applicant as a recidivist violent offender.  That description was plainly correct.  The remarks of the sentencing judge revealed that his Honour appreciated that and that it strongly influenced his perception of the importance of protection of the community in relation to sentencing the applicant.

The applicant’s mental health

59. [59]
    The sentencing judge had received a number of reports from mental health professionals which addressed the applicant’s mental health, including the most recent report of the psychiatrist, Dr Calder-Potts.  That report in particular had opined that –

    1. (a)
       at the time of the offences the applicant was not suffering from a mental illness or mental disease as understood in s 27 of the Criminal Code;
    2. (b)
       the applicant had numerous personality vulnerabilities and had in the past experienced psychotic symptoms secondary to his alcohol dependence;
    3. (c)
       the applicant was also aware that a mental health defence was a possibility and had attempted to fabricate the symptoms of a psychotic illness; and
    4. (d)
       after intensive observation the general conclusion was that the applicant did not suffer from a significant mental illness.
60. [60]
    Having discussed the reports at length, the sentencing judge made the following finding:

“I accept that you have a complex post-traumatic stress disorder. The evidence, in different ways, is consistent in terms of your antisocial personality disorder and that you have alcohol use disorder and stimulant use disorder in remission when you are in custody. I recognise that conditions like a personality disorder, that do not qualify as a mental health defence, are still relevant or may be relevant in mitigation of sentence in accordance with the principles that had been stated in authoritative decisions like R v Verdins [2007] VSCA 102. I take account of what has been said by the doctors who have treated you and, most recently, the report of Dr Calder-Potts.

However, I do not consider that those matters warrant the kind of substantial mitigation that might arise in respect of a mental illness that is a direct cause of offending or a mental health condition that was of a kind that significantly reduced your moral culpability or the need for general deterrence.”

The impact of the applicant’s personal circumstances, criminal history and mental health

61. [61]
    In assessing the significance of the applicant’s deprived background, his criminal history and his mental health, the sentencing judge made the following finding:

“The offending against this child was the result of your voluntary intoxication, predatory behaviour and a sense of entitlement that you could do to this child what you pleased. To the extent that your unstable personality, substance abuse and other psychological conditions played their part in these offences, they warrant some mitigation in the sense of a lesser sentence than someone who did not suffer from those psychological disorders might have received by way of sentence; such a person simply being a predator. The fact that you were intoxicated when you committed these offences is not a matter in mitigation.”

62. [62]
    The sentencing judge applied the principles discussed by the High Court in Bugmy v The Queen (2013) 249 CLR 571 at 594 to 595 per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ:

“The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

63. [63]
    The sentencing judge found that the applicant’s unstable personality, impulsiveness and propensity for violence pointed to the need for a sentence which protected the community from such offending.

Adjustment of concurrent sentences where only some attract SVO declarations

64. [64]
    The sentencing judge acknowledged that one complexity in the application of Nagy concerned arriving at a head sentence which attracted a serious violent offender declaration when some of the lesser concurrent sentences were for offences which would not attract that declaration.  He stated, correctly, that he would make appropriate adjustments to the lesser offences so that relevant periods in relation to those offences were not distorted.

The principal issue: a head sentence of life or of a finite term

65. [65]
    The sentencing judge acknowledged that the principal issue as distilled by counsel was whether the head sentence should attract a life sentence or a finite term.
66. [66]
    His Honour summarised the submissions which had been advanced on behalf of the present applicant.  He considered and rejected the submission which had been advanced that denunciation, deterrence and protection of the community could be achieved by the imposition of a sentence in the order of 18 years in relation to the most serious offence offences.  In the course of so doing the sentencing judge made the following points.
67. [67]
    First, a finite sentence would attract an automatic serious violent offence declaration requiring appropriate adjustment to other concurrent sentences.
68. [68]
    Second, the identification of an appropriate finite head sentence would need to reflect the applicant’s overall criminality.
69. [69]
    Third, serious cases of rape frequently warrant sentences in excess of 10 years and on occasion, life sentences.  If the applicant was simply facing three counts of rape, then the head sentence imposed on count 8 would be well in excess of 10 years to reflect:

    1. (a)
       each rape, the associated acts of indecency and the assault occasioning bodily harm charge;
    2. (b)
       TJ’s age and vulnerability;
    3. (c)
       the significant violence used and physical and enduring psychological injuries which she suffered;
    4. (d)
       the betrayal of trust and the fact that each offence was a domestic violence offence;
    5. (e)
       the applicant’s apparent lack of remorse following arrest.
70. [70]
    Fourth, in relation to the offence of attempted murder:

    1. (a)
       General principles governing such sentences were stated by Burns J in R v Ali [2018] QCA 212.  In that decision, Burns J (with whom Fraser and Gotterson JJA agreed) observed at [27] (emphasis added and footnotes in original):

“This Court has observed on a number of previous occasions that the appropriate range for the crime of attempted murder is generally between 10 and 17 years^[10] but, when assessing the objective seriousness of any such offence, much will depend on a range of factors such as the nature of the attack, its duration, the degree of any planning, whether the assailant voluntarily desisted,^[11] whether a weapon was used and the severity of the physical and/or psychological injuries caused to the victim. That is why sentences for this crime of intention vary greatly depending on the extent to which the intention to kill was put into effect by the offender’s acts.^[12] It follows that sentences above and below that general range may be called for in appropriate cases.”

2. (b)
   Although the sentencing judge did not quote the passage from Ali, he specifically stated that the factors which might affect the objective seriousness of an offence of attempted murder included the considerations identified in bold.  He had earlier stated that in the circumstances before him it was difficult if not impossible to treat the attempted murder in isolation from the rapes and other offences which preceded it.
3. (c)
   He referred to R v Williams [2015] QCA 276 in which a sentence of 15 years imprisonment for attempted murder was upheld following trial in which the only issue was intent.  He acknowledged that the offender in that case did not have the applicant’s criminal history but that the offence was more premeditated than the present.
4. (d)
   He acknowledged that no weapon was used but remarked that the applicant did not need one to overpower a nine-year old girl.  In any event he had used her clothing as a kind of weapon.  He repeated that the applicant had left TJ for dead and, quite apart from the injuries caused by the rapes, the brutality of telling her she would be sacrificed and leaving her for dead caused injury in other ways.
5. (e)
   He specifically referred to Mahony & Shenfield.  Although he acknowledged that that case involved perversion and degradation of a different kind and over a longer period, it was an example of broadly similar circumstances to the applicant’s offending in which the conduct was so grave as to warrant a life sentence for attempted murder and a life sentence for rape.
6. (f)
   Focussing on the attempted murder in the context of the acts of rape and other indecency leading up to it, the sentencing judge concluded that the offence of attempted rape in the applicant’s case was so grave in the circumstances that it may warrant the imposition of the maximum penalty.

71. [71]
    Fifth, the appropriateness of the imposition of that maximum penalty had to be carefully considered having regard to matters of mitigation arising from the applicant’s personal circumstances; his plea; and other possible appropriate penalties including the 18-year finite term suggested by the applicant’s counsel.  As to this:

    1. (a)
       The sentencing judge tested the appropriateness of the suggested finite term by considering the imposition of possible cumulative sentences, adjusted for totality considerations.
    2. (b)
       He said that in carrying out that assessment:

“… one does not start with the proposition that rape offences on their own would justify concurrent sentences of at least 10 years, the attempted murder offence on its own would justify a sentence of between 10 and 15 years, absent the rape offences, and then to add those figures together to arrive in a figure of at least 20 and possibly 25 years.”

3. (c)
   He thought that if he structured a sentence in such a way it would be open to him to impose a sentence of more than 20 years imprisonment.  He rejected the suggestion that a finite sentence of 18 years imprisonment would be adequate.
4. (d)
   He found that the applicant’s offending was so grave as to warrant the maximum penalty.
5. (e)
   He acknowledged that that would subject the applicant to supervision for life in the event he was granted parole.  He regarded that outcome as providing additional community protection as compared to that which would be obtained if a finite term sentence in excess of 18 years was imposed, in which case the applicant would only be subject to supervision for the balance of the term imposed.
6. (f)
   On the question of the appropriate reflection of relevant mitigating circumstances, the sentencing judge outlined the principles stated in R v D [2003] QCA 547 and Mahony & Shenfield, and although he took the circumstances into account, declined to reduce the sentence of life imprisonment which he thought was warranted.  It may be observed that his Honour’s reference to those principles was obviously that encapsulated by these observations made in Mahony & Shenfield (footnotes omitted):^[13]

“In R v D, this Court observed that s 13(1) “…clearly recognises that there may be occasions when it is appropriate to offer no reduction to an otherwise appropriate sentence by reason of the fact that the offender has pleaded guilty.” The decision in R v Marshall was cited as authority for the proposition that there remains a discretion to impose the maximum penalty in cases in which the offender has pleaded guilty. No challenge was made to these propositions by the applicants here.

The learned sentencing judge declined to reduce the life sentences on account of the pleas. He stated that had the matter been tried, there would have been overwhelming evidence against the applicants and said that the “best thing” going for them was what the complainant and her family had been spared.

He concluded on the topic as follows:

“But it is a factor which, in my view, is completely outweighed by the gravity of the offences you committed against her. What you did to this girl was so bad that neither of you deserves to have your sentences reduced on account of having pleaded guilty.”

This applicant levelled a criticism at his Honour’s approach by submitting that the strength of the prosecution case is irrelevant to the question whether there ought to be a reduction in penalty to take into account of the utilitarian value of a plea of guilty. In my view, that criticism is not a valid one. The extent of the utilitarian value of a plea of guilty in a given case can be gauged by having regard to the extent of the savings of Court and judicial time, of costs of preparation of the prosecution case and of provision of legal aid that has occurred on account of the plea. For a case such as this one where there was not only the complainant’s timely complaint but also medical evidence of her injuries and photographic and film evidence of their infliction by the applicants, the savings can expected to have been less than what they might reasonably be expected to be in a different case, for example, a complicated circumstantial one.

I therefore do not regard the strength of the prosecution case as wholly irrelevant to the utilitarian value of an early plea. There are circumstances where, as here, it can have some relevance. In any event, it is obvious from his Honour’s concluding remarks that the strength of the prosecution case was not determinative of, or a highly influential consideration in, his decision to make no reduction on that account. I am unpersuaded that his Honour erred in refusing to reduce the life sentence on account of the guilty pleas.”

7. (g)
   His Honour expressed his conclusion that he had applied the principles in Nagy and would impose the head sentences of life imprisonment on counts 8 and 9 and lesser concurrent sentences on the other counts.

Consideration of the proposed grounds of appeal

72. [72]
    The first two grounds of appeal assert error by the sentencing judge in relation to the application of Nagy.  Accordingly, it is appropriate first to identify the approach authorised in that case and the purposes for which it is authorised.
73. [73]
    In Nagy, Williams J observed that:^[14]

“…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.”

74. [74]
    In R v Armstrong [2016] QCA 243 at [34] to [35], McMurdo JA (with whom Fraser JA and North J) recapitulated the purposes of the approach and its limitations, by reference to earlier observations by McMurdo P in R v Bowditch [2014] QCA 157 at [2]:

“It is important to recognise that the approach which was employed is to be adopted only as a more practical alternative to the imposition of cumulative sentences. It may be adopted for reasons of convenience and simplicity, as McMurdo P described in R v Bowditch:

“Judges have a discretion whether to impose cumulative or concurrent sentences or part-cumulative and part-concurrent sentences … Generally, judges adopt one of two approaches. They may impose an increased head sentence, usually on the most serious offence, to reflect the totality of all the offending so as to avoid the possible unintended complications and consequences which sometimes flow from the combination of cumulative sentences and complex sentencing and related statutes. On the other hand, judges may impose a cumulative sentence or a series of cumulative sentences, moderated to reflect the totality principle discussed in Mill v The Queen. Either method is apposite provided the judges make clear the method adopted and the reasons for it; that the overall effect of the sentence is not manifestly excessive; and that the sentences do not result in double punishment for the same acts. Judges often tend to adopt the former approach as its effect tends to be more easily comprehended and it is less prone to unintentionally offend the totality principle.”

(Footnotes omitted)

Because this approach is adopted as a more practical alternative to the accumulation of sentences, it ought not to result in a longer period of imprisonment or a longer non-parole period than that which would result from the imposition of cumulative sentences…”

75. [75]
    And, further, in R v Kruezi [2020] QCA 222 at [25], McMurdo and Mullins JJA observed:

“As pointed out by McMurdo JA in Armstrong at [34], the above passage explains that the Nagy approach “may be adopted for reasons of convenience and simplicity” and it is an approach which may “be adopted only as a more practical alternative to the imposition of cumulative sentences”. The Nagy approach therefore gives a choice to the sentencing judge on alternative approaches for sentencing for multiple offences as a means for achieving appropriate sentences for the offences and ensuring that both the effective head sentence and the actual period required to be served in custody are appropriate for all the circumstances relevant to the offending and the offender.”

76. [76]
    Against that background, I turn first to proposed appeal ground 1.

Proposed appeal ground 1

77. [77]
    The argument was that the sentence imposed in respect of counts 8 and 9 had the impermissible collateral consequence that the sentence exceeded that which would have been imposed if all counts had been sentenced separately.  The proposition was that no imposition of cumulative sentences, moderated to reflect totality considerations, could have resulted in anything other than imprisonment for a total sentence which imposed a finite period of imprisonment, with parole eligibility after 15 years and, if in the event parole was granted, the applicant remaining subject to parole for only the balance of the finite period.  The alleged impermissible collateral consequences operating to the disadvantage of the applicant were, first, the imposition of a life sentence as opposed to a finite term and, second and as a corollary of the first, in the event of parole being ever granted, in the fact that the applicant would remain subject to parole for life as opposed merely for the balance of a finite term.
78. [78]
    If, to use the language of McMurdo JA in Armstrong, it was demonstrable that the sentencing judge applied the approach in Nagy to arrive at an overall longer period of imprisonment or a longer non-parole period than that which would have resulted from the imposition of cumulative sentences moderated for totality, I would accept that error had been demonstrated.  But that proposition cannot be demonstrated.
79. [79]
    First, the argument assumes, incorrectly, that it would be demonstrably outside a proper exercise of discretion to impose a life sentence for count 9 considered separately.  Yet in Mahony & Shenfield, the Court of Appeal refused to interfere with the life sentence imposed on Mahoney for attempted murder when she, after subjecting a young female complainant to a 15-hour period of rape and torture (for which she was separately sentenced to life and ten years imprisonment respectively), attempted to strangle the complainant with a rope.
80. [80]
    Second, the argument assumes, incorrectly, that it is demonstrable that the sentencing judge would not have imposed a life sentence for count 9 considered separately.  The sentencing judge, having considered Mahony & Shenfield and observed the applicant’s offending was broadly similar to that of the female offender in Mahony & Shenfield, concluded that “the offence of attempted murder in this case is so grave in the circumstances that it may warrant the imposition of the maximum penalty”.
81. [81]
    Third, the argument treats as impermissible collateral consequences the outcomes which the sentencing judge specifically considered and specifically concluded were appropriate.  The sentencing judge specifically explained why he thought a finite sentence was not appropriate, addressing both aspects now said to be impermissible collateral consequences.  As to the first aspect, his Honour explained that he thought the overall offending was so grave as to impose the maximum prescribed penalty for count 9.  As to the second aspect, his Honour thought it would not amount to sufficient protection of the community to have the applicant subject to anything other than supervision for life, in the event he was ever granted parole.  In my view, his Honour’s reasoning should only be rejected if the overall effect of the sentence was manifestly excessive.  And, as will shortly appear, I would reject that argument.
82. [82]
    Finally, it may be observed that nothing flows from the fact that the sentencing judge imposed the statutory maximum sentence on both counts 8 and 9, rather than only on count 9.  His Honour did so because he thought that it was difficult, if not impossible, to treat count 9 in isolation from count 8 which preceded it.  The critical consideration here is that because it cannot be demonstrated that the imposition of a life sentence on count 9 was impermissible, it cannot be demonstrated that the sentencing judge imposed an overall longer period of imprisonment or a longer non-parole period than that which would have resulted from the imposition of cumulative sentences moderated for totality.
83. [83]
    Accordingly, proposed appeal ground 1 would fail.

Proposed appeal ground 3

84. [84]
    The approach to be taken to a consideration of this ground is not in doubt.  I repeat the following propositions articulated in relevant High Court authority.
85. [85]
    Consistency in sentencing is an important goal in sentencing, but the consistency which is sought is consistency in the application of the relevant legal principles.  Appellate intervention on the ground of manifest excessiveness is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.^[15]
86. [86]
    Examination of sentences which have been imposed in comparable cases may provide a relevant yardstick by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles, but the requirement to have regard to the sentences imposed in comparable cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather, the range of sentences imposed in the past may inform a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle.^[16]
87. [87]
    Although the sentence imposed in the present case is outside the range identified in R v Ali, as Burns J observed in that case sentences above that general range may be called for in appropriate cases.  Relying on the comparison with the separate sentence for attempted murder imposed in Mahony & Shenfield, the sentencing judge in this case thought that this was an appropriate case.  Having regard to the various considerations applicable in relation to the applicant, I am not driven to conclude that that conclusion was reached by some misapplication of principle.  Accordingly, I am not persuaded that the sentence was manifestly excessive.  Proposed appeal ground 3 would fail.

Proposed appeal ground 2

88. [88]
    The applicant focussed on the discussion which addressed the submissions which had been advanced, and to which reference has been made at [71] above, to submit that the sentencing judge may have engaged in impermissible reasoning in adopting a “stepped” and/or mathematical approach to the sentence, contrary to Markarian v The Queen (2005) 228 CLR 357 at [37], and that the approach adopted risked failing to properly apply totality considerations as to which reference was made to the judgment of Sofronoff P in R v Symss [2020] QCA 17 at [22].
89. [89]
    That complaint must be rejected.  The sentencing judge specifically rejected the approach criticised by the High Court in Markarian: see at [71](b) above.  To the extent he engaged in an exercise of considering some possible outcomes of different ways of structuring a sentence which might have involved the imposition of cumulative sentences modified for totality considerations, he did so only for the purpose of testing and rejecting the appropriateness of the submission which had been advanced on behalf of the applicant.  Impermissible methodology did not form the basis of how he arrived at the sentences which he did impose.

Conclusion

90. [90]
    I would order that the application for leave to appeal against sentence be refused.