R v WBX[2023] QCA 151

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  I agree with the order proposed by Boddice JA and with his reasons.
2. [2]
   FLANAGAN JA:  I agree with Boddice JA.
3. [3]
   BODDICE JA:  On 2 June 2023, the applicant pleaded guilty to one count of assault occasioning bodily harm, being a domestic violence offence, and seven charges of contravention of a domestic violence order.
4. [4]
   On the same date, the applicant was convicted and sentenced to six months imprisonment, on the count of assault occasioning bodily harm, and convicted and not further punished in respect of each of the summary charges.  A parole release date was fixed at 2 June 2023.
5. [5]
   It was ordered that convictions be recorded for the count of assault occasioning bodily harm and each of the summary charges.
6. [6]
   The sentencing judge further ordered that the applicant pay compensation, in the sum of $10,000, to the complainant for the count of assault occasioning bodily harm.
7. [7]
   The applicant seeks leave to appeal his sentence.  Should leave be granted, the applicant relies on two grounds of appeal.  First, that the learned sentencing judge made specific errors.  Second, that the sentence was manifestly excessive in all the circumstances.

Background

8. [8]
   The applicant was aged 32 at the time of the commission of the offences and 34 at sentence.  He had no prior criminal history.  The applicant operated his own business as a massage therapist.
9. [9]
   The female complainant was aged 23 years at the time of the commission of the offence.  She and the applicant had been in a domestic relationship for two years.  That relationship was described as toxic.
10. [10]
    The relationship deteriorated to the point that on 10 May 2021, in the Magistrates Court at Caloundra, a temporary protection order was made naming the complainant as the aggrieved and the applicant as the respondent.  A second temporary protection order was made at the same time, naming the applicant as aggrieved and the complainant as respondent.
11. [11]
    Relevantly, the order naming the complainant as the aggrieved, contained a condition that the respondent may only contact the aggrieved if it was agreed in writing.

Offences

12. [12]
    On the evening of 25 June 2021, the applicant and the complainant were together at the applicant’s residence.  They had been drinking for several hours.  An argument turned into a physical altercation.  That incident was the basis for the assault occasioning bodily harm and the first of the seven contraventions of a domestic violence order.
13. [13]
    The physical altercation commenced when the applicant prevented the complainant from leaving the bedroom.  In doing so, he grabbed her from behind, putting his arm around her neck.  At that point, the complainant bit his arm.  The applicant let go, but then grabbed the complainant around the throat for around 10 to 20 seconds before letting go.  When the complainant looked for her telephone, the applicant grabbed her around the throat again, slamming her sideways into the bed before throwing her to the ground and screaming into her face.  The applicant then got on top of her and pushed her down for about 10 seconds before letting her go.  When the complainant attempted to leave again, the applicant grabbed her and they fell to the floor.  The applicant then grabbed the complainant’s head, dragging her backwards and sliding his hands down her throat.  When the applicant let the complainant go, she escaped down the stairs.  The applicant followed and pushed her out the front door saying, “get the fuck out, stay out of my life”.  Those events represented the count of assault occasioning bodily harm.
14. [14]
    The complainant left the house crying hysterically.  She was helped by a neighbour who called police.  They observed the complainant had a swollen jaw.  When the complainant was subsequently transported to hospital by ambulance, she was found to have sustained a tender head, a superficial laceration to the lip and eyebrow, bruising/tenderness to the cheekbone, linear bruising to the front of the neck and bruising to both knees and her right arm.
15. [15]
    The applicant was spoken to by police that night.  He told police the complainant was in “a psycho episode” and was going “absolutely ballistic”.  He claimed he was trying to hold her to calm her down when she bit him.  He denied grabbing her by the chin or assaulting her.  The applicant agreed they were subject to domestic violence orders.  He said they had agreed verbally to be in contact with each other.  He accepted he had not obtained that consent in writing.  That circumstance constituted the first charge of contravention of a domestic violence order.
16. [16]
    Police charged the applicant with contravening the domestic violence order and issued him with a notice to appear.  Thereafter, the applicant contacted the complainant.  That contact was made directly from him to her mobile phone, via text message.  One message was sent on each of the six consecutive days from 28 June 2021, constituting the six further charges of contravention of a domestic violence order.  The messages were described as manipulative and blame-shifting in nature.  They included statements such as “Please stop ruining my life” and “Please don’t do this to someone who has only ever loved you and tried to make you happy”.

Sentence hearing

17. [17]
    The sentence hearing proceeded on the basis of an agreed statement of facts.  A victim impact statement was also tendered, detailing the lasting impacts on the complainant.
18. [18]
    The Crown accepted there was an early plea; that the applicant had no prior convictions; and that the complainant did not suffer serious injuries.  However, the Crown submitted the applicant’s conduct contained aggravating features such as the attack being protracted, violent and in contravention of the domestic violence order, as well as repeated contraventions in the days thereafter. Whilst those contraventions did not involve further acts of violence and the messages were not threatening or violent in nature, they were manipulative and contained the concerning feature of persistent contact, undeterred by the order and the laying of a charge.
19. [19]
    The Crown submitted the applicant’s conduct was of such a nature that it called for a penalty that deterred the applicant and others, as well as indicating denunciation and protection of the community.  It was submitted that a period of imprisonment was appropriate, although it was conceded it was open to impose a probation order.
20. [20]
    Defence counsel tendered a psychological report; a letter from the applicant expressing remorse; 10 references, all of which spoke highly of the applicant; three further unsigned references; a report in respect of the successful completion of a 10-week rehabilitation program for male perpetrators of domestic violence; and a document evidencing the need to provide a police history check for membership of the Association of Massage Therapists.  Defence counsel also indicated that the applicant had made an offer of compensation to the complainant and had a cheque for $10,000 in support of that offer.
21. [21]
    Defence counsel submitted that whilst the offending had significantly impacted upon the complainant, the applicant was genuine in his regret and remorse, had undiagnosed psychological conditions at the time of offending, and had made genuine efforts at rehabilitation.  Those factors, together with an early indication of a willingness to plead guilty in the Magistrates Court, a lack of prior history and the fact that the applicant was now in a new and functioning domestic relationship, warranted a sentence that did not involve imprisonment.  It was submitted probation would afford the applicant the benefit of community supervision and allow for the non-recording of convictions.

Sentencing remarks

22. [22]
    The sentencing judge accepted that the applicant’s relationship with the complainant was dysfunctional and that the assault occasioning bodily harm was committed after some hours of drinking.  However, the sentencing judge recorded that the physical altercation had occurred in circumstances where the applicant pursued the complainant and had involved lacerations to her lip and eyebrow, bruising and tenderness over the cheekbone and bruising to her neck, knees and right arm.  Further, when police attended, the applicant lied to them denying he had assaulted the complainant and attempting to blame the complainant.
23. [23]
    The sentencing judge recorded that the remaining summary charges in contravention of the domestic violence order occurred after the applicant had been charged by police.  Further, the text messages were quite manipulative and were sent to a much younger woman.
24. [24]
    The sentencing judge accepted that the applicant had entered early pleas of guilty, having indicated a willingness to plead guilty in the Magistrates Court at a very early time; that the applicant had no prior criminal history; that he was now the owner of his own remedial massage therapy business; and that he had intentions to become an osteopath in the future.
25. [25]
    The sentencing judge acknowledged that the applicant had increased his alcohol consumption during the relationship with the complainant and that the psychologist described the applicant as presenting with symptoms reflecting a pervasive development disorder, such as autism spectrum disorder, and that his history of alcohol abuse consumption during the relationship was reflective of an alcohol abuse disorder.  The sentencing judge noted, however, that whilst the applicant was intoxicated on the night, his intoxication was voluntary and therefore not a mitigating factor.  Similarly, his mental health difficulties were not causative of his offending.
26. [26]
    The sentencing judge found that the circumstances did not warrant a moderation of the need for general and specific deterrence.  The applicant’s conduct had been in continual breach of a domestic violence order, even after being charged.  These aggravating features necessitated that specific deterrence loom large.  The sentencing judge also considered general deterrence and community denunciation relevant, having regard to the prevalence of domestic violence in the community and the need for it to be condemned on behalf of the community.
27. [27]
    The sentencing judge acknowledged other mitigating factors in the applicant’s favour, including engagement in a 10-week program for male perpetrators of domestic violence; an acceptance of the psychologist’s recommendation that he receives treatment for domestic violence offending, abuse of alcohol and his mental health difficulties; and that the applicant had expressed a willingness to pay compensation in the sum of $10,000 to the complainant.  The sentencing judge also accepted that the applicant had significant extended family support, with many members of his family committed to assisting him in obtaining the relevant help.
28. [28]
    After noting that the legislation required the sentencing judge to have primary regard to the impact of the offending on the complainant, and the need to protect the community, the sentencing judge concluded:

“The sentence I impose must punish you for what I consider to be a prolonged assault against a background of alcohol abuse and alcohol abuse on this night, in circumstances where you offended in breach of a domestic violence order and continued to breach that domestic violence order after having been charged with this offence.  Punishment, deterrence, both personal and general, and denunciation, in my view, warrant a sentence of imprisonment to reflect those features.  In your favour, though, is your early indications of a willingness to enter a plea of guilty, your offer of significant compensation, which I accept is demonstrative of your remorse and your personal vulnerabilities, and those features mean that I will not impose a sentence that requires you to serve actual imprisonment today.”^[1]

Consideration

29. [29]
    The applicant submits that the sentencing judge erred in:

“i. failing to give any or any proper weight to the applicant’s previously undiagnosed medical and psychological condition and its effect upon the offending;

ii. sentencing on the basis that the only appropriate sentence was one involving a sentence of imprisonment;

iii. failing to properly consider imposing a sentence that would allow for the future rehabilitation of the Applicant;

iv. recording convictions for the summary offences”.

However, a consideration of the sentencing remarks evidences no such errors.

30. [30]
    First, the sentencing judge specifically acknowledged the provisional diagnoses of the psychologist, but correctly recorded that those undiagnosed conditions were not causative of the applicant’s offending.
31. [31]
    Second, whilst the sentencing judge observed, in the course of submissions, that imprisonment would have been imposed if the applicant had been sentenced in the Magistrates Court, there is no basis to conclude that the sentencing judge inappropriately bound herself to a sentence of imprisonment.  The sentencing judge specifically invited submissions in respect of the structure of any sentence.  The sentencing judge also rightly observed that a protracted instance of the infliction of actual violence against a much younger female complainant, in breach of a domestic violence order, and repeated contraventions of that domestic violence order thereafter, notwithstanding having been charged, involved criminality warranting a sentence of imprisonment.
32. [32]
    Third, the sentencing judge did consider the imposition of a sentence which allowed for future rehabilitation.  The sentencing judge ordered the applicant’s immediate release on parole, thereby ensuring he did not have to serve actual imprisonment and would be supported by supervision for the period of that parole order.
33. [33]
    Fourth, the imposition of a sentence of imprisonment meant that the recording of a conviction for the offence of assault occasioning bodily harm was mandatory.  In circumstances where that offence was committed in contravention of a domestic violence order and the applicant, thereafter, contravened the domestic violence order on six further occasions, there is no basis to conclude that the recording of convictions for the summary charges fell outside of what was a sound exercise of the discretion whether to record convictions.
34. [34]
    There is also no merit in the applicant’s submission that the sentences imposed were manifestly excessive.
35. [35]
    The protracted nature of the applicant’s criminal conduct, including the repeated contraventions of the domestic violence order in the following days, was of a nature where the imposition of a sentence of imprisonment fell well within a sound exercise of the sentencing discretion, notwithstanding the early pleas of guilty, lack of criminal history, psychological conditions, prospects of rehabilitation and the payment of compensation.
36. [36]
    Such a conclusion is supported by a consideration of the relevant authorities.^[2]  Whilst the applicant contended that R v Hollis^[3] was supportive of the imposition of a sentence other than imprisonment, there were many distinguishing features in Hollis which rendered it not a comparable yardstick.
37. [37]
    First, the offence to which Hollis pleaded guilty was not a domestic violence offence.  Second, the offence was not committed whilst Hollis, a 71-year-old man, was subject to a domestic violence order.  Third, the offending was not accompanied by repeated contraventions of a domestic violence order in the days following the commission of the act of violence.

Conclusion

38. [38]
    The sentences imposed and recording of convictions were not affected by specific error and were not manifestly excessive in all the circumstances.

Order

39. [39]
    I would order:

1. Leave to appeal be refused.