R v WBV[2023] QCA 79

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  I agree with the order proposed by Crow J and with his reasons.

2. [2]
   BODDICE JA:  I agree with Crow J that the three matters relied upon by the applicant, individually or cumulatively, do not demonstrate that the sentence was manifestly excessive.
3. [3]
   The sentencing judge properly fixed a sentence for the most serious offences (counts 1 and 3 on indictment 323 of 2022), which was higher than that which would have been fixed had they stood alone, to take into account the applicant’s overall criminality.  Having regard to the number and nature of the offences involved in that overall criminality, and the extended time period over which the applicant had engaged in such serious criminality, the imposition of a head sentence of three-and-a-half years on the choking counts fell within a sound exercise of the sentencing discretion.
4. [4]
   A parole eligibility date, set at 40 per cent of the overall head sentence, also fell within a sound exercise of the sentencing discretion.  Whilst the applicant had entered early pleas of guilty, evidencing cooperation with the administration of justice, a non‑parole period set at one-third was not warranted, having regard to the applicant’s specific circumstances.
5. [5]
   The applicant had pleaded guilty to persistent and extensive criminality, in circumstances where he had an extensive past criminal history for violence, for which he had been sentenced to lengthy periods of actual imprisonment.  Against that background, his overall criminality for this offending warranted a lengthy period of actual custody, prior to consideration of eligibility for parole.
6. [6]
   As Crow J properly observes, a one-third reduction for a plea of guilty is not a rule.  Nothing in R v DAC^[1] suggests otherwise.  Gotterson AJA (with whom Bond JA and myself agreed) specifically recognised that reduction is but a starting point, to be adjusted up or down, depending on the particular circumstances of each case.
7. [7]
   Finally, there was good reason why the applicant was an inappropriate candidate for a sentence which gave him certainty of a date of release.  The applicant had shown recent poor performance in custody.  Previous sentences of imprisonment had been unsuccessful in effecting rehabilitation.  They were powerful reasons why the applicant ought not to be the beneficiary of a sentence structured to give certainty of release.
8. [8]
   I agree with the order proposed by Crow J.

9. [9]
   CROW J:  On 21 September 2022 the applicant was sentenced to five years’ imprisonment with a parole eligibility date set after he had served two years in custody.  The applicant had entered early pleas to four indictments containing the following counts and with the following sentences imposed:

10. [10]
    The sole ground of the application is that the sentence imposed upon was manifestly excessive.  The applicant accepts that he cannot establish that the sentence is manifestly excessive unless he demonstrates the sentence is markedly different from sentences in other cases such that there must have been a misapplication of principle or the sentence is unreasonable or plainly unjust^[2].
11. [11]
    The applicant submits that there are three matters which, by themselves or in conjunction with each other, lead to the conclusion that the sentence was manifestly excessive.  The three matters are:

    1. (a)
       The primary judge, in considering the most serious offending (the two choking counts) started “too high” in calculating the appropriate global sentence.
    2. (b)
       The primary judge departed from the rule of thumb of one-third in imposing a parole eligibility date at the 40% mark of the head sentence.
    3. (c)
       The primary judge erred in not acceding to the submission by counsel below in respect of certainty of release.

Starting Point Too High

12. [12]
    The applicant’s submission that the learned primary judge started too high in calculating the appropriate global sentence in respect of the two choking counts suffers from the difficulty that sentences are not to be calculated, in the true sense of the word.  In Markarian v The Queen^[3], their Honours said:

“[39] Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of “instinctive synthesis”, as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression “instinctive synthesis” may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.”

13. [13]
    In R v Nagy [2003] QCA 175, Williams JA with whom Jerrard JA and Muir J agreed said at [39]:

“… 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. …”

14. [14]
    In the present application, there are a number of distinct, unrelated offences which occurred over a period of time between 6 August 2020 and 19 May 2022.  As demonstrated in Nagy, an option open to a sentencing judge when faced with the task of imposing sentences for a number of distinct unrelated offences is to fix a sentence for the most serious offence which is higher than that which would have been fixed had it stood alone, with the intention being that the higher sentence would take into account the overall criminality.  In my view, it is plain that was the approach undertaken by the primary judge for all of the offending other than the offending on 4 December 2021.  After the primary judge had pronounced sentences as set out above in respect of each of the offences, the primary judge said:

“I order that the sentence in respect of the assault occasioning bodily harm on the 4^th of December be served cumulatively on the other sentences that I have imposed. So, that leads to a head sentence of five years. In my view, whilst other offending could be accumulated as well, to keep your situation as simple as possible, I accumulate that sentence and the other sentences to be served concurrently. […] It is five years to do two years in actual custody. And I have modified that head sentence to bear in mind the difficulties your client may experience in the future and I did not accumulate the drug sentence from what I understand the Prosecutor, there is an obligation to, so to that extent I have moderated the head sentence in that way.”

15. [15]
    The argument of the applicant that the starting point is too high in calculating an appropriate global sentence suffers from the difficulty that the primary judge specifically accumulated the criminality of all the offending (other than the assault of 4 December 2021), in fixing the head sentence on the choking counts at three and a half years.
16. [16]
    The applicant relies upon the decisions of R v MCW [2018] QCA 241 (three and a half years), R v MDB [2018] QCA 283 (four years), and more particularly, R v HBZ [2020] QCA 73 (two years) to support the submission that the head sentence is calculated at too high a figure.
17. [17]
    The comparators of MCW and MDB do not at all assist the applicant.  MCW, as helpfully summarised by Mullins J (as her Honour then was) in HBZ at [68] involved only one count of choking, where that offender placed the complainant in a choke hold and used his right arm to squeeze hard enough such that the complainant eventually lost consciousness.  When she regained consciousness, the offender stomped upon her head with his left foot and started punching her in the face again, comprising the second assault.
18. [18]
    The offender in MCW had a long criminal history including contravention of the domestic violence orders, lack of remorse, and lack of insight of his conduct.  The applicant in the present case also has a lengthy criminal history including a contravention of domestic violence order and other domestic violence offences.
19. [19]
    On the agreed facts the choking offences committed by the applicant are objectively more serious than MCW.  The first choking occurred on 19 November 2021.  The applicant, a 125kg male aged 31 years, acknowledged to be a lot stronger than his 32-year-old female partner, attacked his partner holding her up against the wall in the living room of a house by the neck with both hands, causing the complainant to black out on numerous occasions.  After having blacked out numerous times due to being choked, the applicant allowed his partner, the complainant, to regain consciousness and commence breathing.  After being allowed to breathe, the complainant then attempted to get her fingers underneath the applicant’s hands to attempt to stop him choking her again, but she was unsuccessful and so the applicant choked her again until she fell unconscious again and in this process, he also he headbutted her on the nose.
20. [20]
    After the first choking offence, the complainant regained her consciousness and “cried and pleaded with the defendant to stop attacking her” however the applicant then hit the complainant in her eye, both cheeks, her chin and her ear, hitting her so hard on one occasion that the complainant was knocked off her feet, with her face hitting a tile floor and her teeth cutting open the inside of her mouth.  The applicant then began taunting the complainant saying “I’ll give you a five second head start.  Ready, set, go.”  However, the complainant did not run and so the applicant hit her again.  Those facts constituted count two on indictment 323/22.
21. [21]
    The applicant then began verbally abusing the complainant.  The complainant sat on a recliner chair in the lounge room and the applicant approached her and choked her again, causing her difficulty breathing.  This latter choking is the subject of count three on indictment 323/22.
22. [22]
    The applicant then took a claw hammer and walked down the hallway of the house, hitting the walls and causing two large holes the subject of count four.
23. [23]
    As a result of the prolonged attacked of 19 November 2021, the complainant was left with two black eyes, a bump on her nose, swollen cheeks, a split on the inside of her mouth.  As a result of the event, the complainant continues to have difficulty swallowing food and is also medicated for anxiety.  In my view, the agreed facts of the prolonged attack of 19 November 2021, together with the applicant’s antecedents, lead to the conclusion that the head sentence for the choking offences of three and a half years is not manifestly excessive.
24. [24]
    The facts of the offences in MDB are well-summarised in paragraph [69] of HBZ and also in my view support a conclusion that the head sentence of three and a half years for choking is not manifestly excessive.
25. [25]
    The applicant relies upon the sentence of two years in HBZ.  The violence perpetrated by the offender in HBZ on his partner the complainant was serious violence, however, of a lesser severity than the violence inflicted by the applicant upon the complainant in the present case.
26. [26]
    In HBZ the nature of the choking was that the offender had used his right hand so that it was almost a “V” around the complainant’s throat, and instead of squeezing, he was on top of the complainant using his body weight to prevent the complainant from speaking.  The result was that the complainant was unable to speak, felt pains in her chest and had black spots in her vision.  After the incident the complainant asked the offender to call an ambulance because she could not breathe.  The offender then grabbed the complainant’s shoulders and commenced shaking her, it seems, in a futile attempt to assist the complainant with her breath, stating to the complainant “You’re okay, you’re okay.”
27. [27]
    Apart from the facts of the offending being significantly differently, the antecedents of HBZ and the applicant are extremely different.  As pointed out by Mullins J at [70], the offender in HBZ was 34 years of age at the time of the offending with no prior criminal history, a good work history, and who had made a complete separation from the complainant after the offending.  The applicant in the present case does not have favourable antecedents.
28. [28]
    In terms of the primary judge’s accumulation of the offending at three years and six months’ imprisonment in respect of all offences other than the assault of 4 December 2021, reference ought to be had to the facts concerning the other offences.
29. [29]
    The first in time offending occurred on 6 August 2020, consisting of one count of assault occasioning bodily harm whilst armed and one count of wilful damage.
30. [30]
    In the early hours of 6 August 2020, the applicant became verbally aggressive and threatening towards his partner, Ms BN.  Ms BN walked away, and Ms BN’s friend, the complainant, Ms SC, a 49-year-old woman, tried to calm the applicant down.  That did not succeed and the applicant then went looking for Ms BN, referring to her as a “fucking dog cunt”.  As the applicant could not find Ms BN, he went to the kitchen of Ms SC’s residence and retrieved a large carving knife.  The applicant then grabbed the complainant’s right shoulder with his left hand, lifted her upwards and pushed the large carving knife towards her face in a threatening manner.  Ms BN then came out of her hiding place, shouting at the applicant that she was here, and so the applicant threw Ms SC across the deck onto a table, approached Ms BN and began to assault her and threatened to kill her.  The complainant then tried to assist Ms BN, however the applicant grabbed her by the arms and threw her back onto the table and continued his attack upon Ms BN.  The complainant then again attempted to intervene by running towards the applicant and Ms BN, attempting to tackle him to stop him assaulting Ms BN.  In response the applicant, grabbed the complainant and threw her at the table again.  A tenant at the property attempted to intervene but was unsuccessful.
31. [31]
    As to the wilful damage count, after the preceding events, the complainant ran into her house and was yelling at the applicant to stop hitting Ms BN.  The applicant responded by punching a large hole in the door of a linen cupboard before leaving.  The assault therefore of 6 August 2020 was a most serious and violent assault.
32. [32]
    After the serious assault of 6 August 2020, an arrest warrant was issued for the applicant, however, he could not be located.  The choking and associated offences of 19 November 2021 then occurred.
33. [33]
    A couple of weeks later on 4 December 2021, the further offending the subject of indictment 324/22 occurred.  The complainant was a 23-year-old male who worked with the applicant for two and a half months.  After the conclusion of work on Saturday 4 December 2021 around 1.00 pm, the applicant and the complainant attended several hotels in the Brisbane CBD, consuming alcohol until about 10.00 pm.  They were then driven to the complainant’s house in Toowoomba.  An Uber was then arranged to collect the applicant to drive him to his home in Ipswich.  Whilst waiting for the Uber vehicle, the applicant and the complainant remained on friendly terms, sharing another beer.  After the Uber arrived, the two men walked down the driveway when the complainant extended his hand forward to shake the applicant’s hand before stepping back briefly.  At that point, the applicant swung his arm at the complainant and hit him in the face, causing the complainant to fall backwards onto the ground next to a car parked in the driveway.
34. [34]
    The complainant attempted to get to his feet but was only able to place himself in a sitting position beside the driveway.  The applicant walked forward and kicked the complainant in the head, causing his head to snap back and hit the car, rendering him immediately unconscious.  The complainant remaining unconscious for at least two minutes after the assault.  The complainant’s phone fell to the ground as he was kicked and so the applicant stole it.
35. [35]
    The applicant attended the Booval Police Station on 20 December 2021 in relation to other matters.  He was arrested and transported to a watchhouse.  He was charged and declined to be interviewed, the applicant was remanded in custody.  The last of the offences occurred whilst the applicant was in custody on when on 19 May 2022, he arranged for the supply of 48 Suboxone strips to himself through his partner, Ms Lake.  The value of the strips was between $9,600 and $14,400.
36. [36]
    I would conclude that the applicant’s antecedents, the serious nature of the offending of 19 November 2021, and the accumulation of the criminality of the offending of 6 August 2020 and 19 May 2022, lead to the conclusion that the head sentence was not “too high”.

Reduction of Non-Parole Eligibility Date

37. [37]
    Section 13 of the Penalties and Sentences Act 1992 (Qld) requires a court to take into account any guilty plea entered and provides that the court may reduce the sentence that it would have imposed had the offender not pleaded guilty.  Section 13(4) of the Penalties and Sentences Act 1992 (Qld) provides that, if a court does not reduce a sentence imposed upon the offender as a result the plea of guilty, it is required to state that fact and its reasons for not reducing the sentence.
38. [38]
    In R v CCR [2021] QCA 119, the Court (Fraser, McMurdo JJA and Henry J) said:

“[16] Section 13 does not prescribe the factors which are relevant to a judge’s decision to reduce a sentence on this ground. The relevant considerations in this respect come from the common law.

[17] In Siganto v The Queen, it was said:

“[A] plea of guilty is ordinarily a matter to be taken into account in mitigation; first because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case”.

The rational for reducing a sentence for a plea of guilty depends not only upon remorse and acceptance of responsibility, but also the willingness to facilitate the course of justice which is evidenced by the plea.

[18] As to the extent of a reduction of a sentence on this basis, it is true that a reduction which is frequently given is by a reduction of the non-parole period by a third. The frequent application of that degree of a discount reflects the value which is ordinarily attributed to the mitigating factors which are the basis for this rule. In each case, however, the extent of the reduction will be affected by a number of factors, such as the specific circumstances of the offender.”

39. [39]
    The common practice of a one third reduction is not a rule^[4].  As s 13(4) of the Penalties and Sentences Act (Qld) 1992 recognises in unusual cases there may be no reduction for a plea of guilty.  As this Court said in CCR at [18] “in each case” the factors relevant to sentence must be considered and weighed to determine a just reduction in the non-parole period.
40. [40]
    The factors relevant to setting a non-parole period include the specific circumstances of the offender including his antecedents, character, and any prior criminal history.  The applicant has a relevant criminal history.
41. [41]
    Of the applicants prior serious offending, the first in time offence was the offence on 1 March 2009 where the applicant drove a motor vehicle at 130km/h in a 60km/h zone in Brisbane with a blood alcohol level of 0.097%, overtaking one car and a police vehicle having to stop to avoid a collision occurring.  After the applicant was stopped, he was abusive and aggressive towards police.  The applicant was bailed.
42. [42]
    Almost two months later on 24 April 2009, the applicant and his friends had been drinking at a hotel in Gympie when they were evicted at 9.00 pm.  The group then returned at 11.00 pm and again were escorted outside by security.  A Ms Carter then went outside and told the applicant and his group to leave.  The applicant attacked her by jumping towards her and attempting to punch her.  Ms Carter was able to block the punch.  The applicant then produced a flick knife and used it to attempt to punch Ms Carter.  After Ms Carter observed the applicant holding a knife, she went back inside the hotel and asked the staff to contact police.  Another woman from the hotel approached the group to find out what was going on and another man pushed her to the ground.  As she got up, the applicant commenced abusing her.  The woman yelled back at the applicant and so the applicant stabbed her on the left side of the cheek and the top of her head.  The applicant was arrested and remanded in custody for 26 days before he was released on bail on 20 May 2009.
43. [43]
    The applicant was then on bail when the next event occurred about three months later on 31 August 2009.  The complainant for the event on 31 August 2009 was Ms AJS, the same complainant as the choking offences of 19 November 2021.  Ms AJS had been living in a share house with other males and, as she had not paid her rent, there was tension in the household.  She was asked to leave and she did so.  Ms AJS returned on Sunday 30 August with the intention of retrieving possessions and on the journey to the rental house to retrieve the possessions, the applicant produced a black balaclava and a meat cleaver.  The applicant donned the balaclava and then took the meat cleaver concealed behind his back and attacked the occupant of the house.  The applicant swiped the meat cleaver at the stomach of the occupant of the house.  The occupant jumped backwards to avoid contact.  The applicant was returned to custody for 188 days between 1 September 2009 and 8 March 2010.  The sentencing judge, Judge Andrews SC, on 9 March 2010, said that the applicant had, even at the age of 18, problems managing his anger and was involved in stupid and dangerous activities.
44. [44]
    After being sentenced on 9 March 2010 to two and a half years’ imprisonment but being released on 9 March 2010, the applicant did not perform any criminal act for nine days, before receiving tainted property on 18 March 2010, for which he was fined $750 in the Brisbane District Court on 8 April 2011.  Although not an offence of violence, the quick resort to criminal offending shows the applicant’s lack of ability to control himself when he was a young man.
45. [45]
    Almost two years later, the applicant was then involved in serious criminal activity.  On 24 February 2013, he committed two acts of assault occasioning bodily harm whilst armed and in company and grievous bodily harm.  The offending recorded in the reasons of Long SC DCJ show that the applicant had, together with a group of other men, attended upon the residence of Ms Davis, a 42-year-old female and her sons.  The complainant female was the partner or former partner of one of the applicant’s colleagues.  The applicant punched one of Ms Davis’ sons, however, the applicant was largely a witness to most of the assaults.  The applicant was then sentenced to three years’ imprisonment in respect of the grievous bodily harm offence and two years’ imprisonment in respect to the assaults occasioning bodily harm whilst armed and in company.
46. [46]
    The periods of imprisonment were suspended after the applicant had served nine months’ imprisonment with an operational period of five years expiring 2 February 2018.  The applicant returned to the commission of crimes by early 2017.
47. [47]
    On 20 December 2017, the applicant was sentenced by Chief Judge O'Brien to three years’ imprisonment as a head sentence for multiple drug offences, contravention of a domestic violence order, and three counts of assault occasioning bodily harm in March 2017.  In addition, there was one count of attempting to pervert the course of justice.
48. [48]
    After that offending, about a year later, on 30 December 2018, the applicant possessed dangerous drugs and weapons.  The applicant was sentenced in the Beenleigh Magistrates Court on 15 April 2019 to a period of imprisonment of three months.
49. [49]
    The applicant had an appalling history of violence preceding the subject offences.  In addition, as noted by the primary judge, the applicant had an unenviable record in custody and has suffered punishments in the form of the applicant’s visiting privileges being revoked.  On that basis, it had been submitted on behalf of the applicant for before the primary judge that the applicant would have difficulty securing parole.  The primary judge expressly took that into account, however, it is not a particularly persuasive submission.  If the applicant has difficulty controlling himself in the secure and controlled environment of a prison, it is likely, as demonstrated by his criminal history, that he will have less ability to control himself whilst in the community.
50. [50]
    As the primary judge said, the applicant has to reach a point in his maturity where he realises that he needs to change his ways and if he does not do so, then the outcome will be that he will spend long periods of his life in custody.
51. [51]
    The applicant’s prior criminal history of serious violence, his lack of anger control, his serious difficulty with alcohol and drugs, his poor prison record, his offence of supplying dangerous drugs in a correctional facility are each a circumstance supporting the parole eligibility date being set at two years.

Certainty of Release

52. [52]
    The applicant argues that given his poor criminal record and poor behaviour in a correctional facility that he would struggle in obtaining parole and so a sentence should have been fashioned to give him certainty of release.  In my view, criminal or bad behaviour in a correctional facility by a prisoner ought not to be a reason for providing certainty of a release date.  To the contrary; It is important to motivate a prisoner to rehabilitate, to turn their back upon drugs and to learn to control their behaviour.  These are powerful reasons not to fashion a certainty of release date.

Conclusion

53. [53]
    The three matters relied upon by the applicant, individually or cumulatively do not demonstrate that the sentence if manifestly excessive.  I would dismiss the application.