R v SEB[2023] QCA 69

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  The applicant seeks leave to appeal against a sentence of seven years with a serious violent offender declaration imposed on a single count of malicious act with intent to cause grievous bodily harm (domestic violence offence).  The only ground is that the sentence was manifestly excessive.  There were difficult factors to balance in sentencing the applicant, but in my opinion the applicant has not demonstrated that sentence imposed was manifestly excessive, and therefore the application for leave to appeal against sentence should be refused.  I give my reasons.
2. [2]
   The applicant is a refugee from Afghanistan.  There is no doubt that he had a very difficult upbringing and adult life against a background of armed conflict and religious intolerance in that country.  He was subject to violence himself on many occasions, and he is the only surviving member of his nuclear family.  He arrived in Australia in 2012 as an “irregular maritime arrival” and spent time in an immigration detention camp, and then a refugee camp, before being granted a temporary protection visa in 2016.
3. [3]
   Against that background it is remarkable that he made a decent life for himself in Australia.  He set up at a house painting business which was quite successful, and he married a woman (the complainant in this matter) who was herself a refugee and who had two children (9 and 10 at the time of the offending) who were also refugees.  Together they had another child, who was about three at the time of the offending.  The applicant was 36 at the time of the offending and 40 when he was sentenced.  The complainant was 26 at the time of the offending.
4. [4]
   The applicant offended because he was in a jealous rage, perceiving that the complainant had been unfaithful to him.  The complainant had gone to the gym.  Within a very short space of time the applicant rang her six times, accusing her of infidelity and telling her to come home fast.  The complainant did return home.  When she entered the front door she found that the applicant was holding a kitchen knife in his hand.  It was 23.5 centimetres in length.  He grabbed her by the hair, pulled her hair back and put the knife to her neck.  When the complainant tried to push him away he stabbed her in the neck.  He told her that he would not let her live and that he would kill her.  The complainant’s two eldest children tried to push the applicant away from the complainant, begging him not to kill their mother.  He held the knife over his head and then stabbed the complainant hard in the face.  He raised the knife to stab her again, but the children pushed him away.  The complainant fell bleeding to the floor.  Her children were distressed.
5. [5]
   The applicant walked out the front door and called his business partner.  He told him he had killed the complainant due to her infidelity.  The complainant pressed clothing to her neck to try to stop the bleeding.  She ran to the front door and locked it and ensured that the laundry door was also locked.  She called triple 0 and requested an ambulance.  She had difficulty speaking due to the wound on her neck, so one of her children had to speak to the triple 0 operator.
6. [6]
   The applicant returned to the house and began banging on the laundry door.  One of the children tried to hold it shut but the applicant forced it open, causing bruising to the child’s finger.  The complainant ran out the front door of the house and onto the street to seek help.  She ran to a group of men and they called the police.  The applicant also called police and told them that he had killed his wife.  At the time police arrived the complainant was breathing faintly and moving in and out of consciousness.  She had a laceration to her face, a laceration to her neck and a penetrating injury to her chest wall from the attack.  Her wounds were able to be cleaned and sutured under local anaesthetic.  Fortunately she did not suffer any permanent physical injury but she has suffered psychological injury and so have her children.
7. [7]
   On arrest, the applicant confessed to the police that “I did it” and told police that the complainant “had deserved it”.
8. [8]
   The applicant was originally charged with attempted murder.  That charge was withdrawn after the applicant pleaded guilty to malicious act with intention to cause grievous bodily harm.
9. [9]
   It was accepted that the applicant should be considered as having made an early plea to malicious act with intent to cause grievous bodily harm.  He had no prior criminal convictions.  The applicant wrote a letter of apology to the court which expressed responsibility and remorse for his actions, and acknowledged that they were shameful and unforgiveable.
10. [10]
    But for matters concerning the applicant’s immigration status, the applicant’s counsel accepted that on comparable cases^[1] the sentence imposed by the primary judge was not manifestly excessive.  In R v Norris^[2] this Court discussed the uses which can be made of information concerning an accused’s immigration status, and the likely effect of a criminal sentence upon that status, when fixing a sentence.  The case established that there must be some proper information upon which the sentencing court can act in relation to these matters; a sentencing judge cannot speculate.  If there is proper information before the court, a sentencing judge may have regard to the fact that the prospect of deportation makes a period of incarceration more burdensome, and also that after the sentence is spent, deportation will likely result in the offender being deprived of permanent residence in Australia.  Thirdly, a sentencing judge may take into account “the relevance of likely deportation on the efficacy of court ordered parole and the potential consequences of that for the offender”.^[3]  “A sentencing judge should not adjust a sentence or impose a lesser sentence for the purpose of defeating, avoiding or circumventing the operation of the provisions in the Migration Act”.  However, “That principle is not infringed by the adjustment of a sentence to take into account the risk of interruption to an offender’s rehabilitation that immigration detention beyond a fixed release date would entail”.^[4]
11. [11]
    Here, the applicant’s protection visa had been revoked because of his offending.  He had appealed to the AAT against that revocation, and his appeal had been dismissed.  Thus there was every likelihood that the applicant would be deported at the conclusion of his sentence.  It was common ground on this appeal that there was a fair factual basis for the sentencing judge to assume a likelihood that the applicant would not be granted parole and would serve the entirety of any sentence imposed in prison before being taken to an immigration detention centre where he would be held while a search for a suitable destination was made.  Because of his refugee status he could not be returned to Afghanistan.  There will likely be a lengthy delay before a suitable location is found to which to deport the applicant.
12. [12]
    I think this information was relevant because it must make the applicant’s sentence more burdensome, and it is virtually certain that he will not ever reside permanently in Australia.  It was also relevant because, due to the practical unavailability of parole in the Australian community, the only way to mitigate the head sentence to reflect the applicant’s plea and an understanding of how his early life contributed to his behaviour, was through moderation of the head sentence.  The applicant’s counsel submitted that bearing this latter fact particularly in mind, the sentence imposed was manifestly excessive and should have been one of six years to reflect the matters in mitigation.
13. [13]
    Both parties to the application were in agreement that the three cases referred to above were the relevant comparable cases.  In R v Lyon (above), the offender was convicted after a trial of breaking into the dwelling of his ex-wife with intent to commit an indictable offence, and being armed with an offensive weapon.  He was also convicted of unlawfully wounding with intent to do grievous bodily harm.  The jury acquitted him on a charge of attempt to murder.  Lyon had not coped rationally with the dissolution of his marriage.  He had breached restraining orders and been convicted of offences in relation to that.  On the day of the offending he became very drunk and argued with his new partner such that she called the police.  After the police left he sharpened a machete, drove to his ex-wife’s house and attacked her with it.  She suffered similar sorts of injuries to the complainant here and, most unfortunately, her 12 year old son was involved in saving her from the attack.  The trial judge sentenced Lyon to nine years imprisonment.  The Court of Appeal resentenced Lyon to seven years; Fryberg J dissented; he thought the sentence should be eight years.  A declaration that the offence was a serious violent offence was made.
14. [14]
    The second case is R v Oakes (above).  Again Mr Oakes ran to trial, where he was acquitted of attempted murder, but convicted of unlawfully causing grievous bodily harm with intent.  Mr Oakes was unable to cope with the dissolution of his de facto relationship.  He fell into a depression and had to be admitted to hospital after attempts at suicide.  He moved back in with his ex-de facto partner after release from hospital and three days later, on Mother’s Day, he became drunk, attempted to reconcile with his ex-de facto partner and then, when such attempts were unsuccessful, took two steak knives from the kitchen to the bedroom where she was attempting to sleep.  He struck several savage blows to her torso.  He then took her by the throat and attempted to use the knives on her head.  He lacerated her face.  She fought very hard against him.  Once again her child intervened to offer her assistance.  A sentence of seven years was imposed, with a serious violent offender declaration, and that was not disturbed on appeal.
15. [15]
    R v Gatti (above) was a plea.  Gatti was charged with stalking in contravention of a domestic violence order, burglary with violence whilst armed and malicious act (grievous bodily harm) with intent to cause grievous bodily harm.  On the last of those counts he was sentenced to seven-and-a-half years imprisonment with parole after two-and-a-half years.  Concurrent sentences were imposed on the other counts.  The Court of Appeal refused his application to appeal against that sentence.
16. [16]
    The Penalties and Sentences Act 1992 (Qld) provides at s 9(10A), “In determining the appropriate sentence for an offender convicted of a domestic violence offence, the court must treat the fact that it is a domestic violence offence as an aggravating factor, unless the court considers it is not reasonable because of the exceptional circumstances of the case”.  Gatti was the only one of these three cases decided at a time when s 9(10A) applied.  The Court of Appeal had no occasion to examine that legislative change, as it refused the application for leave to appeal against sentence.  The Court of Appeal did however note that on the hearing before the sentencing judge in Gatti, the prosecutor did not “seek to distinguish the present case from earlier cases on the basis of the operation of s 9(10A) of the PSA” – [33].
17. [17]
    In R v O'Sullivan; Ex parte Attorney-General (Qld); R v Lee; Ex parte Attorney‑General (Qld)^[5] this Court said:

“The significance of the nature of an offence as a domestic violence offence is to bring into existence a factor in aggravation of penalty in the common law sense. It is a factor that a sentencing judge may take into account in imposing a more severe sentence than might be imposed in the absence of that factor.”

18. [18]
    The sentencing judge here was very much aware of the matters which bore on the applicant’s immigration status.  She discussed them with counsel during the sentencing hearing, and referred to them in her sentencing remarks.  She did not fail to take them into account in fixing a sentence.  I accept the submission made by the applicant’s counsel on appeal that to moderate the head sentence was the only effective way of making allowance for mitigating factors in the applicant’s favour, see above.  However, I do not accept that a comparison of the sentence imposed in this case with the three cases just discussed shows that insufficient reduction to the head sentence was made.
19. [19]
    The cases of O'Sullivan and Lee are authority for the proposition that account must be taken of s 9(10A) as a true aggravating factor.  In this case I think it was a powerful aggravating factor.  The complainant who was 10 years younger than the applicant was attacked in her own home, where she had the right to feel safe.  Like the applicant she was a refugee, and that must have made the idea of home as a place of safety very important to her, and to her two refugee children.  Unfortunately her two children were caught up in the violence.  They were also refugees, and the violence took place in their home.  All three have suffered psychological effects.  Not only did the violence originally occur in the house, but after the applicant left the house he forced his way back into the house, injuring one of the complainant’s children who tried to keep the laundry door shut against him.  I reject the assumption which underlies the applicant’s submissions, namely that (absent matters relating to migration status), when the s 9(10A) aggravating circumstances are considered, the sentence ought to have been about seven years.
20. [20]
    BODDICE JA:  I agree with Dalton JA.
21. [21]
    CROW J:  I agree with Dalton JA.