R v FBC[2023] QCA 74

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P: I agree with Boddice JA.
2. [2]
   FLANAGAN JA: I agree with Boddice JA.
3. [3]
   BODDICE JA: On 15 November 2021, the applicant pleaded guilty to three counts of common assault, two counts of wilful damage, one count of strangulation in a domestic setting, one count of assault occasioning bodily harm, one count of rape, and three counts of dangerous conduct using a weapon.  All were domestic violence offences.  The applicant also pleaded guilty to one count of assault occasioning bodily harm, on a separate indictment.
4. [4]
   On 16 June 2022, the applicant was sentenced to nine years imprisonment for the count of rape and lesser concurrent periods of imprisonment for the remaining counts.  It was declared that 641 days spent in pre-sentence custody be deemed time served under those sentences.  Allowing for that time served, a parole eligibility date was set at 12 September 2026, that is, after having served six years of the period of imprisonment.  A domestic and family violence protection order was made, to apply for eight years from 16 June 2022.
5. [5]
   The applicant seeks leave to appeal his sentences.  Should leave be given, the applicant relies on one ground, that the sentences were manifestly excessive.

Background

6. [6]
   The applicant was born in 1988.  He was aged between 29 and 32 at the time of the offending and 33 at sentence.  He had a limited criminal history and had not previously been sentenced to a period of imprisonment.
7. [7]
   The complainant in all the offences was the applicant’s former partner.  They had been in a relationship since January 2017.
8. [8]
   All of the offences were committed between 31 January 2018 and 13 September 2020.

Sentence hearing

9. [9]
   The sentence hearing proceeded on the basis of agreed statements of facts, in respect of each indictment.  Relevantly, in relation to the domestic violence offending, those facts were:

   1. (a)
      The applicant became aggressive and controlling three months into the relationship;
   2. (b)
      In late October 2017, when the complainant was pregnant with the couple’s first child, an incident occurred which resulted in the making of a temporary protection order;
   3. (c)
      On 28 February 2018, after the birth of their first child in the previous month, a domestic violence order was made, naming the applicant as respondent and the complainant as aggrieved.  It contained the mandatory condition that the applicant be of good behaviour towards the complainant and not commit domestic violence against her, and was to remain in force until 27 February 2023;
   4. (d)
      The applicant and the complainant married in August 2018, but separated in November 2019.  Their second child was born in March 2020;
   5. (e)
      In February or March 2018, after the applicant had been drinking, a dispute arose between the applicant and the complainant, during which the applicant placed the complainant in a headlock, lifting her off the ground, saying, “pass out bitch”, before throwing her to the ground (count 1 – common assault).  As the applicant left, he kicked the complainant’s car, causing damage (count 2 – wilful damage);
   6. (f)
      In approximately March or April 2018, after the applicant returned home drunk, the applicant grabbed the complainant by her hair, pulling her to the floor and slapping her in the face.  He then put his hands around her neck and applied pressure, causing her to lose consciousness (count 3 – choking in a domestic setting).  When the complainant regained consciousness, the applicant was on top of her and spat in her face (count 4 – common assault);
   7. (g)
      On 12 April 2019, the applicant unclipped the complainant’s seatbelt whilst he was driving and she was seated in the passenger seat.  He tried to open her door and told her he was going to push her out of the car.  The applicant then hit the complainant in the face approximately six times, before punching her in the face, causing her to hit the window.  The applicant punched her again (count 5 – assault occasioning bodily harm).  When the applicant saw swelling to the complainant’s eye, he told her, “You’re going to have a black eye.  Why did you make me do that?”;
   8. (h)
      In November 2019, the complainant discovered the applicant had been unfaithful and she left the family home with their first child;
   9. (i)
      On 5 July 2020, the applicant entered the complainant’s home, drunk, despite having been told not to come to the home.  The applicant hopped into the complainant’s bed and asked her, “aren’t you going to give me a cuddle?”.  When the complainant ignored him, the applicant pushed her out of bed, before telling her he was sorry and that he loved her.  The applicant then grabbed her by the wrist and pulled her onto the bed.  He slapped her on the side of the head at least six times.  The complainant begged for him to stop.  The applicant replied, the more she begged the more he would hurt her.  The applicant then headbutted the complainant, before sitting on her stomach, pinning her arms under his knees.  The applicant told the complainant, “See these lips.  I paid for these lips.  They are mine”, before biting her lip, causing it to swell, and continuing to slap her.  The applicant then pulled her underwear off, pushed her legs to the side, looked her in the eyes and said, “I’m going to fuck you in the arse”.  Despite pleas not to do so, the applicant penetrated the complainant’s anus with his penis a couple of times, before withdrawing, moving the complainant’s knees up to her chest and penetrating her anus again.  The complainant screamed for him to stop and apologised to him.  The applicant told her she was pathetic.  The complainant stopped fighting and the applicant rolled her on to her stomach and continued to penetrate her anus for approximately two minutes (count 8 – rape).  As he did so, he hit her in the back of the head.  When the applicant stopped, he went to the bathroom.  He told the complainant to shower.  As she tried to get into the shower, the applicant slapped her on the side of the face (count 9 – common assault).  The complainant stood in the shower as the defendant showered.  When he went to bed, he told the complainant to hurry up, as he was going to “do it again”.  The complainant delayed returning to the bedroom, until the applicant had passed out;
   10. (j)
       The anal penetration caused injuries to the complainant, rupturing an internal haemorrhoid.  She was bleeding and uncomfortable as a result.  After becoming aware of that injury, the applicant told her she was not allowed to go to the doctor as they would know what had happened;
   11. (k)
       On 12 September 2020, the complainant contacted police requesting they perform a welfare check on the applicant.  The applicant was found by police in his motor vehicle with a blood alcohol reading of 0.126 per cent.  The applicant then called the complainant telling her, “You fucked my life, now I’m going to fuck yours”.  When the applicant returned to the complainant’s home, he grabbed the complainant’s face and tried to kiss her.  Thereafter, there was an exchange in the lounge room where when the complainant jumped over the couch after applicant stepped towards her, the applicant said, “don’t you dare run away from me, do you want to see how fast this rifle can shoot?”;
   12. (l)
       Later, after the complainant had telephoned police telling them the applicant had a gun, the complainant saw the applicant load bullets into a rifle in the hallway.  He cocked the gun, before pointing the gun at their two-year-old child.  The child asked, “Daddy, what are you doing?” to which the applicant replied, “This is mummy’s fault.  You’re going to go to sleep now”.  He pointed the gun at their child and put his eye to the scope (count 10 – dangerous conduct with a weapon).  The child put a blanket over her head;
   13. (m)
       Following cocking the gun, the applicant told the complainant he was going to shoot all three of them and then himself.  He walked to the bedroom of their six-month-old baby, before opening the door and pointing the gun directly at the baby as he looked through the scope (count 11 – dangerous conduct with a weapon).  When the complainant continued to plead with him to leave the children out of it, the applicant told her, “If I just kill you, I don’t get the kids, so I must kill all of us”.  He told her not to run because he would kill both of the children if she did, telling her he had six bullets.  He pointed the gun at each of them as he counted a bullet each time.  He then tilted the gun to his chin and counted, “four, five, six” (count 12 – dangerous conduct with a weapon);
   14. (n)
       Throughout this incident, police tried to call the complainant.  When she answered, the applicant whispered to the complainant, instructing her to tell them everything was fine, before taking the telephone and speaking to police.  When the applicant was advised to go outside as police were on the way, the applicant returned the phone to the complainant, hid the gun and ammunition, and left the house.  Whilst outside, the applicant yelled and kicked the front door and the garage door, denting the garage door (count 13 – wilful damage);
   15. (o)
       Shortly after police arrived, they located the gun under the couch and a rifle magazine loaded with .22 ammunition behind the children’s kitchen play set.  Further ammunition was found in the spare bedroom.
10. [10]
    The separate count of assault occasioning bodily harm was committed in November 2019, during the course of a fight between a group of locals and a group of the applicant’s colleagues.  The applicant punched a male complainant, causing him to lose consciousness.  That complainant suffered a sore neck, jaw and throat, as well as headaches for several days after the offence.

Sentencing remarks

11. [11]
    The sentencing judge observed that the applicant had pleaded guilty to 11 domestic violence offences, each committed in breach of the protection order issued in 2018, together with a separate count of assault occasioning bodily harm, which was a further offence of violence, falling within the timeframe of his offending, although not a domestic violence offence.
12. [12]
    The sentencing judge recorded that the pleas of guilty were late, coming on the eve of his trial and after the complainant had been psychologically preparing herself to give evidence.  However, the sentencing judge accepted there was “a notable and real utilitarian value in the pleas”, in that they saved the complainant the ignominy of having to give that evidence.  The sentencing judge doubted that the pleas of guilty were motivated by true remorse.
13. [13]
    After summarising the offending, the sentencing judge observed that the applicant’s conduct had a grave effect on the complainant, and was expected to be long‑lasting.  The sentencing judge also observed that the applicant had had three significant relationships in his life, and that the first one was also peppered with breaches of a domestic violence order.
14. [14]
    The sentencing judge noted the applicant’s prior criminal history predominantly contained offences of breaching a domestic violence order, and that those convictions represented an early stage of his determined obsessiveness to have his way in dealing with his partners, regardless of the intervention of a domestic violence order.
15. [15]
    The sentencing judge noted that a psychologist’s report recorded the applicant as laying the blame for his offending, both current and previous, in an abuse of steroids and alcohol.  The sentencing judge noted that the timeline for the commencement of that abuse aligned with the applicant’s criminal history; that the applicant was now taking steps to address his abuse of alcohol and steroids; and that the applicant had taken a leadership role within the prison environment.  The sentencing judge noted that the psychologist opined that the applicant’s risk of reoffending was likely to be moderate to high, should he not address certain matters, and that the applicant would need to undergo support or treatment recommendations, including referral to an alcohol rehabilitation service and supervision for the short to medium term upon release from prison.
16. [16]
    The sentencing judge recorded that he was prepared to accept that the applicant had realised the cause of his offending; had expressed a desire to take action to limit his risk of reoffending; and that he had family prepared to assist him, so that there was some support for his prospects of rehabilitation.  However, the sentencing judge found that he was unable to accept there was no risk of violent reoffending in the future, and that the sentencing objects of general and personal deterrence, as well as a reflection of the community’s denunciation for the offending, loomed large.
17. [17]
    The sentencing judge found that the applicant had, on four occasions, over roughly two-and-a-half years, seriously and violently offended against the complainant, with their children being present on occasions and observing that conduct.  On the last of the occasions, the applicant had directly offended against his children.  The sentencing judge considered this an aggravating feature of his overall offending, noting that the community and the courts will not tolerate the exposure of children to domestic violence, because there is a risk they would see it as a normal part of adult life.
18. [18]
    The sentencing judge further observed:

“You behaved in a disgusting and a violent manner.  I find that your relationship was one characterised by domination and oppression on your part.  Only one example of that was the fact that you spat in the complainant’s face after choking her to the point of unconsciousness.  On two occasions, you did things to help conceal your domination of her.  On the occasion of the rape, you inflicted violence on her both before and after the anal rape, which in itself was a protracted incident.  And then threatened to ‘do it again’.

If any further evidence of your domination of this woman is needed, it is immediately to be found in the fact that while you were anally raping her, she felt the need to apologise to you.  On the other hand, I must and do recognise the offending did not involve the use of a weapon, although, of course, one was not required given the relevant capitulation by the complainant at the time.  And also, that it is charged as a single offence of rape, albeit a protracted one, as I have said.

The last occasion of offending by you is breathtakingly serious.  You obviously did not appreciate her altruistic actions in bringing police attention to you.  But to blame her and then make overt and terrifying threats of violence shows, in my view, a lack of any skerrick of insight on your behalf at that time, and it demonstrated your then potentially lethal danger to others when you were upset.  I cannot find the words to properly describe the revulsion and disgust that right-minded members of the community have for that conduct, which includes, but is not limited to telling your young child she was going to go to sleep, while pointing the gun at her.  By putting the blanket on her own head, she thereby sounded a resounding claxon of that.  Even at her young age, she knew what you meant.  This is a most unsatisfactory prospect that she will remember that, at least for some considerable time.”

19. [19]
    After considering the requirements of section 9(10A) of the Penalties and Sentences Act 1992 (Qld), the sentencing judge found there were no exceptional circumstances and that the fact that the offences are domestic violence offences was an aggravating circumstance for the purposes of sentencing, although the matters in the applicant’s favour must be balanced against all of the circumstances of that offending.  The sentencing judge also recorded that the applicant would be given credit for those mitigating factors, including, especially, the real value of the pleas of guilty and the fact there were some prospects of rehabilitation, albeit that they were presently unable to be quantified.
20. [20]
    The sentencing judge recorded that the prosecution contended for a global sentence, for the domestic violence offending, in the order of eight to 10 years imprisonment, and the separate assault occasioning bodily harm offence to a term of 18 months, or moderated to 12 months if ordered to be served cumulatively to reflect issues in moderation.  If a sentence of less than 10 years was imposed, the prosecution contended it should not be less than nine years with a serious violent offence declaration or, alternatively, should such a declaration not be made, that parole eligibility should be fixed at somewhere between 50 and 80 per cent of the head sentence.  Defence counsel contended for a head sentence of eight years or less, with parole eligibility at the one-third mark.
21. [21]
    The sentencing judge summarised the comparable yardsticks.^[1]  Having done so, the sentencing judge found that, given the serious nature of the rape offence and the aggravating context in which it occurred, but without having regard to the other domestic violence offences, a sentence of 10 years imprisonment thereby attracting an automatic serious violent offence declaration, would have been required, absent consideration of the mitigating circumstances.  Allowing for those mitigating factors, the sentencing judge considered it appropriate and necessary to reduce that sentence to less than 10 years, but found it would be an error to automatically jump from the position of an automatic serious violent offence declaration to an early release on parole.
22. [22]
    The sentencing judge found that taking into account the appropriate weight to be afforded to matters in mitigation, and allowing for a reduction to the otherwise appropriate head sentence, the appropriate point of parole eligibility was more than the halfway point of the effective head sentence.  The sentencing judge then imposed an overall head sentence of nine years imprisonment, fixing parole eligibility after having served six years of that period of imprisonment.

Consideration

23. [23]
    The applicant submits that whilst the multiplicity of domestic violence offending was serious, occurred over an extended period of time, and was aggravated by exposing his young children to that violence, a starting point for the rape offending of 10 years was not in accordance with the appropriate yardsticks.  That being so, the applicant submits that no real reduction was given for the mitigating factors, as moderating the sentence down to an effective head sentence of nine years was still too high.  Further, the clear and accepted utility of the guilty pleas should have resulted in a parole eligibility date after serving no more than one half of the head sentence.
24. [24]
    There is no substance in these contentions.
25. [25]
    The applicant pleaded guilty to multiple domestic violence offences committed over a two-and-a-half-year period.  Those offences included multiple occasions of violence, including a protracted episode of anal rape.  The final occasion of domestic violence involved threats whilst aiming a loaded weapon, including aiming it at his very young children, with threats that he would kill them all.
26. [26]
    A consideration of the relevant yardsticks amply supports a conclusion that the sentencing judge’s observation that the protracted rape itself would, in the circumstances, attract a head sentence in the order of 10 years, was not erroneous.
27. [27]
    The sentencing judge correctly observed that R v TAQ^[2] was the most helpful yardstick, but that there were distinguishing features, including that s 9(10A) did not apply to TAQ’s offences; that the head sentence of eight years with parole eligibility after five years was imposed, having regard to 752 days of non-declarable pre‑sentence custody; and that the rape offending in TAQ did not involve further violence other than that required to commit the offence.
28. [28]
    When regard is had to those matters, the sentence in TAQ was itself an effective sentence of slightly in excess of 10 years for offending without the circumstances of aggravation of being a domestic violence offence.
29. [29]
    Further, having correctly noted those distinctions, the sentencing judge carefully and appropriately gave due recognition to the mitigating factors and, in particular, the real utility of the pleas of guilty and the steps towards rehabilitation by reducing the overall head sentence to nine years imprisonment, whilst declining in the exercise of his discretion to make a serious violent offence declaration.
30. [30]
    Once that conclusion is reached, it cannot be said that a determination that the applicant be required to serve six years of that nine year sentence, prior to parole eligibility, fell outside a sound exercise of the sentencing discretion.  Such a period of actual custody reflects the overall criminality of the applicant, particularly having regard to the need for denunciation and deterrence in relation to the last occasion when a loaded weapon was aimed at his very young children.
31. [31]
    An effective head sentence of nine years imprisonment, with parole eligibility after serving six years, was neither plainly unreasonable nor unjust, having regard to the depravity and persistence associated with the applicant’s offending in a domestic relationship over an extended period of time.

Conclusion

32. [32]
    The sentence imposed was not manifestly excessive.  It fell within a sound exercise of the sentencing discretion.

Order

33. [33]
    I would order that:

1. Leave to appeal be refused.