R v MDS[2023] QCA 228

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I have had the advantage of reading the reasons of Dalton JA.  I agree with those reasons and the order her Honour proposes.
2. [2]
   DALTON JA:  This is an application for leave to appeal against sentence.  The proposed appeal would assert that the sentence below was manifestly excessive and that the judge made a specific error in sentencing.  I would dismiss the application because I cannot see merit in either proposed ground.

The Facts of the Offending

3. [3]
   The applicant was 49 years old at the time of the offending.  He and the complainant had been in a long-term de facto relationship.  They had five children together who were aged 16, 14, 12, 9 and 8 at the time of the offending.  They had separated in 2015 but remained in contact, as they both parented their children.  The applicant normally lived in the family home, but he had been away, and during his absence the complainant and her children had moved back to the house temporarily.
4. [4]
   On the day the applicant returned, he and the complainant both became drunk and argued.  At about 11.00 pm they had an argument because the applicant wanted the complainant to move her car.  He got into his car and did burnouts in front of the house.  He threatened to hit the complainant’s car.  After this the complainant did move her car.  The complainant then returned to the house, put on her headphones and read a book.  The applicant picked up a golf club and used it to hook the headphones and remove them from the complainant’s head.  The applicant then smashed them with the golf club (count 1, wilful damage, domestic violence offence).
5. [5]
   In retaliation, the complainant threw the applicant’s mobile telephone into the pool.  He threw her mobile telephone into the pool.  The complainant made a sarcastic comment and the applicant grabbed her left arm with both hands and pulled her backwards (count 2, common assault, domestic violence offence).
6. [6]
   The applicant left the house for a short while but returned and both parties continued to drink and argue.  At about 2.00 am the applicant kicked the complainant’s feet out from underneath her.  He held her down on the floor and put a wicker basket over her head.  He used the basket so as to put pressure on both sides of her neck.  She could still talk, but her breathing was restricted.  She gasped for breath three or four times before the applicant let go (count 3, strangulation in a domestic setting, domestic violence offence).
7. [7]
   The complainant threw the basket at the applicant causing his head to bleed.  He went outside the house and came back with two cane knives.  He used one to hit the kitchen bench, cutting it (count 4, wilful damage, domestic violence offence).
8. [8]
   The applicant again kicked the complainant’s legs out from under her.  She fell to the floor.  He stood over her and used the cane knives to chop next to her on both sides (count 5, common assault, domestic violence offence).  The complainant kept her arms on her chest in order to avoid being cut.  She shut her eyes.  The applicant yelled at her to open them.  During this offending the complainant thought she was going to die.
9. [9]
   After this, the applicant went outside and chopped the complainant’s bag with the cane knife (count 6, wilful damage, domestic violence offence).
10. [10]
    The applicant hit a window in the house with the cane knife and smashed it.  He continued to hit the glass window.  The complainant was covered in glass (count 7, wilful damage, domestic violence offence).
11. [11]
    Shortly after this the applicant pushed the complainant backwards so that she fell over onto concrete.  Her legs were grazed (count 8, assault occasioning bodily harm, domestic violence offence).
12. [12]
    The couple’s 16 year old son called the police.  Unfortunately he was a witness to much of the offending.
13. [13]
    The prosecutor below described the applicant’s overall course of conduct as erratic and violent.  I think that might be accepted.

The Sentence

14. [14]
    The sentencing judge obviously regarded strangulation as the most serious of these offences, although it must be noted that the common assault with the cane knives was also a very serious offence.  She imposed three years imprisonment on count 3 (strangulation).  The sentencing judge expressly stated that sentence was increased to take account of the offending on all the counts.  She imposed a sentence of two years on the count of assault occasioning bodily harm; 18 months imprisonment on each of the common assault counts, and 12 months imprisonment on each of the wilful damage counts.  All sentences were ordered to be served concurrently.  There was a parole release date fixed after the applicant had served one-quarter of the highest head sentence. The sentencing judge said, “I intend to reflect the mitigating factors in your favour by releasing you on parole after less than the customary one-third which would ordinarily reflect an early plea of guilty”.  The applicant was ordered to pay the complainant $2,000 compensation; he had offered to do so at the hearing.

Factors Relevant on the Sentence

15. [15]
    The applicant had a criminal record.  It was submitted on behalf of the applicant that it was “relatively minor, dated and irrelevant” – written submissions.  There are six offences recorded between 1991 and 2004.  They were all dealt with in the Magistrates Court.  They were all punished by fines and, in relation to one, no conviction was recorded.  I do not accept that the history is entirely irrelevant, and nor did the sentencing judge – t 1-15 of the hearing below.  One previous offence involved wilful damage, and two involved excessive alcohol use.
16. [16]
    The sentencing judge described the applicant’s work history as excellent.  He put two impressive work references before the trial judge.  Both referees had known him for over 30 years and described him as hard‑working, honest and genuine.  Neither referee had ever seen any violence or other bad behaviour from him.
17. [17]
    The complainant made a victim impact statement in which she said she feared for her life during the course of the offending.  She continued to have fears, so that she had installed a security system in her house.  She worried about the effect of the offending on her children.  She had nightmares about the events of the offending.
18. [18]
    The applicant entered a plea.  It was not an early plea.  The matter was listed for trial.  The child who had called the police was due to give pre-recorded evidence on Monday, 3 April 2023, and the plea was entered on the preceding Friday, 31 March 2023.  The sentencing judge recognised that the entry of the plea at this time did spare the child having to give evidence, but that it did not spare him from having to be prepared for doing so.  The sentencing judge noted that the plea saved cost to the community, and also saved the complainant from having to give evidence, which she accepted was a “significant benefit”.  She did not say that she thought the plea reflected remorse, but she noted that she had reduced the sentence because of it.
19. [19]
    At the sentencing hearing, the prosecutor emphasised the use of the cane knives as being particularly serious.  He also drew to the sentencing judge’s attention that the strangulation offence was serious because of “the inherent danger of it” – t 1-4 of the hearing below – and a “predictive indicator of escalation in domestic violence offending, including – and I use this sparingly, but including homicide. … It is domestic violence offending which, as your Honour knows, the legislature has recognised as a discretely aggravating feature” – tt 1-4-5.
20. [20]
    At the sentencing hearing, defence counsel referred to the fact that a domestic violence protection order was made after the offending, and that during 16 months on bail, his client had complied with it.  On two occasions the applicant had asked police to accompany him to the house so that he could retrieve his possessions.  The sentencing judge expressly took this into account as a good indicator in terms of rehabilitation.  However, she noted that there was no information before her that showed he had addressed his relationship with alcohol.
21. [21]
    During submissions by defence counsel the sentencing judge accepted that the strangulation with the wicker basket was relatively brief.  This was after defence counsel submitted that it lasted 10 or 15 seconds, and that the basket itself was relatively small; he suggested six inches by eight inches.  This was not contradicted during the sentencing hearing.
22. [22]
    Defence counsel relied upon the fact that during the course of the offending there was bad behaviour on the part of the complainant, although he accepted that it was his client who, in his words, “escalated it in a significant way” – t 1-18.  I note that while the complainant apparently destroyed the applicant’s phone, and threw the wicker basket at him after he had choked her with it, none of her behaviour was comparable in terms of violence to the behaviour of the applicant.
23. [23]
    At the sentencing hearing the prosecutor submitted that an appropriate sentence was between two-and-a-half to three years.  He referred the primary judge to R v HBZ [2020] QCA 73 and R v MCW [2018] QCA 241.  Defence counsel referred the primary judge to Attorney‑General for State of Qld v Samuels [2021] QCA 107 and R v MDB [2018] QCA 283.
24. [24]
    The sentencing judge had regard to the fact that all the offences were domestic violence offences.  That was an aggravating factor.  She had regard to the fact that there were multiple domestic violence offences occurring over a period of about four hours.  Her Honour recognised that it was an aggravating factor that the 16 year old child witnessed some of the offending and that there was an eight year old child in the house at the time.
25. [25]
    As to the choking, the primary judge said, “The fact that you used a basket rather than your bare hands to strangle her or restrict her breathing is not necessarily something in your favour, although it makes it different from a case where someone puts their hands around a person’s neck” – tt 1-4-5.  She also said:

“… I accept the choking did not have some of the attributes that makes an offence of that kind more serious.  That is, the complainant mercifully did not lose consciousness or control of her bladder, which sometimes occurs.  And the choking, I accept, was relatively brief.  I also accept that the complainant’s physical injuries were less serious than sometimes occurs in cases of this nature.  Nonetheless, it was extremely serious offending.

As you have heard by reference to the cases, this offence of strangulation was introduced relatively recently because research demonstrates that when you restrict a person’s breathing, it is conduct commonly associated with escalating domestic assaults and can be a feature that leads to domestic homicides.  Someone in the victim’s position could have been dead within a short space of time.

Domestic violence offending is, of course, prevalent.  General deterrence is therefore particularly significant.  That means sending a message to other people that if they commit these sorts of offences, they can expect to be sentenced to a significant term of imprisonment.  Personal deterrence is also relevant.  Denunciation is important.  That means condemning the conduct.  And protection of this complainant and the children from being exposed to domestic violence is relevant.  Your rehabilitation remains a relevant factor.  The sentence must punish you in a way that is just in all the circumstances and be proportionate to your offending.” – t 1-5 of sentencing remarks (my underlining).

Specific Error

26. [26]
    The applicant submitted in this Court that the sentencing judge’s statement, “Someone in the victim’s position could have been dead within a short space of time” (underlined above) was factually inapposite in circumstances where the complainant was still able to talk, and legally inapposite because it showed “reliance on potential future harm as an aggravating factor”.  It was submitted that “… A person stands to be sentenced on what they have done (or omitted to do), not on what they might do in the future” – applicant’s written submissions.
27. [27]
    In my view these submissions misunderstand the import of the sentencing judge’s remarks and take them out of context.  It was very clear that the sentencing judge was aware that she was sentencing only for the offences which were charged; at one point in her remarks she specifically says that.  In sentencing for crimes of personal violence, one of the major factors, if not the major factor, which determines the sentence is the level of criminality of the offending.  In the criminal law that is judged in large part by the consequences for the complainant, or the potential consequences for the complainant.  The remark which the applicant seeks to impugn was simply the sentencing judge emphasising the seriousness of the criminality of strangulation by reference to the fact that it is obviously potentially associated with lethality.
28. [28]
    That the primary judge took a balanced view of the strangulation is plain from the remarks which I have extracted above.  In particular her Honour recognised that the period of strangulation was short; that bare hands were not used, and that the force used was not such as to cause loss of consciousness or control of the bladder.  Her Honour expressly recognised that this choking was not of the most serious kind.  Further, her Honour expressly recognised that in 16 months on bail the applicant had not re-offended and saw that as a positive factor in terms of rehabilitation.  The contention that she was sentencing not for the choking which had occurred but something which might potentially have occurred, or which might occur in the future, is simply unarguable.

Manifest Excess

29. [29]
    To show manifest excess an applicant must demonstrate a mis‑application of principle, or that the sentence imposed is “unreasonable or plainly unjust”.^[1]  The four cases to which her Honour was referred below are the four which are relied upon by the applicant.  In my view, comparison with those cases does not demonstrate that the sentencing judge here must have mis-applied some principle or has imposed a sentence which is unreasonable or plainly unjust.  I turn to a discussion of the cases, but note that in comparing them to this case, it must be recognised that the sentencing judge in this case expressly inflated the sentence on the strangulation count to reflect the criminality of a series of domestic violence offences occurring over a period of four hours, which included some serious violent offending with two formidable weapons, namely two cane knives.
30. [30]
    In R v MCW the defendant was 45 years old at the time of the offending and had a lengthy and relevant criminal history.  He repeatedly punched his de facto wife until she fell to the floor.  Blood was running from her ear and her face.  He then choked her until she lost consciousness.  After that he stomped on her face with his foot and continued to punch her.  The offending contravened a domestic violence order.  The violent behaviour inflicted on the complainant in that case was more serious than the violence inflicted here.  The contravention of a domestic violence order was an aggravating factor not present here.  The lengthy and relevant criminal history of MCW meant that a more condign sentence had to be imposed.  The sentence imposed in that case was higher than the sentence imposed here.  The sentence on the choking count was three-and-one-half years and there were concurrent sentences for two counts of assault occasioning bodily harm.  There was no parole eligibility date fixed.  Both the length of the head sentence, and the fact that there was no parole release date, but eligibility after a period of 21 months imprisonment, mean that the sentence was more severe than the sentence imposed here.  Comparison with R v MCW does not demonstrate that the sentence in this case was manifestly excessive.
31. [31]
    The case of R v MDB concerned a 38 year old offender with a relevant and extensive criminal history.  He pushed his girlfriend onto a table, bit and scratched her and then pulled out a knife which he held against her throat.  A housemate tried to intervene, but the defendant persisted, throwing the complainant onto the table again and then onto the floor twice.  He choked her twice.  The police were called.  The defendant also caused some property damage.  Again, as the sentencing judge remarked (t 1‑20 sentencing hearing below), the offending in MDB was more serious than the offending in this case and again, so was the sentence.  A sentence of four years in prison was imposed on the choking, with lesser concurrent sentences on counts of assault occasioning bodily harm, threatening violence, common assault and wilful damage.  There was parole eligibility after serving 12 months.  Once again, the sentence on the choking count was higher than the head sentence here, and there was no parole release date.  Eligibility was postponed for a longer time than this applicant will serve before being released on parole.  Comparison with this case does not show that the sentence in this case was manifestly excessive.
32. [32]
    The case of HBZ involved a 34 year old defendant who had been in a four year on‑and‑off relationship with the complainant.  They argued and the complainant asked the defendant to leave the house.  He initially did but then returned.  He was aggressive, he moved furniture out of the way to get to the complainant.  She called triple 0 but he terminated the call and threw away the phone.  He pushed her onto a bed and grabbed her by the neck and shoulder so that she could not speak or breathe for a period of about 70 seconds.  He then grabbed the complainant by the shoulders and shook her.  After that he left her house.  The offending was generally comparable to the offending here; while the choking was longer and more severe, the other violence was less, and the whole episode much shorter than the violence perpetrated by the applicant here.  There were no aggravating factors such as the presence of children in HBZ.  HBZ had no criminal history.  His sentence was two years, with a parole release date fixed at one year.  Comparison with this sentence does not demonstrate that the sentence imposed here was manifestly excessive.  In fact, HBZ served more time before parole release date than this applicant will.  His head sentence was lower, but so was the total of his violent behaviour towards the complainant.
33. [33]
    The last case relied upon was R v Samuels; Ex parte Attorney-General (Qld).  The defendant was aged 20, although he did have some relevant criminal history.  During an argument he grabbed the complainant around her throat, lifted her off the ground and pushed her against a wall for about 30 seconds.  He then kicked her in the abdomen, and left the house.  He came back, still arguing, and kicked the complainant in the leg causing bruising.  He was sentenced to two years imprisonment with immediate parole.  I do not think that the facts in Samuels are so closely comparable as to make it of much assistance in the present case.  Comparison with it certainly does not demonstrate that the sentence here was manifestly excessive.
34. [34]
    BODDICE JA:  For the reasons given by Dalton JA, with which I agree, I would order that the application for leave to appeal against sentence be dismissed.