R v RBM[2024] QCA 163

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  I agree with Wilson J.
2. [2]
   FLANAGAN JA:  I agree with Wilson J.
3. [3]
   WILSON J:  On 17 September 2022, RBM, the applicant, assaulted his ex-partner to the point of unconsciousness, took off her shirt and put her in the boot of her car (along with a shovel and duct tape) and drove at a high speed to a remote area.  For this conduct he was charged with assault occasioning bodily harm, deprivation of liberty, and unlawful use of a motor vehicle.

4. [4]
   On 19 February 2024, in the District Court at Bundaberg, the applicant pleaded guilty to these offences and was sentenced to:

   1. six years imprisonment for the assault occasioning bodily harm;
   2. three years imprisonment for the deprivation of liberty; and
   3. six years imprisonment for the unlawful use of a motor vehicle.
5. [5]
   All terms of imprisonment were concurrent, and 384 days of pre-sentence custody were declared time already served under the sentence.  A parole eligibility date was set after two years.  Pursuant to section 42 of the Domestic and Family Violence Protection Act 2012 (Qld), the sentencing judge varied the domestic violence order protecting the complainant by extending its operation for another five years.
6. [6]
   The applicant seeks leave to appeal against the sentence on two bases:

   1. the sentencing judge impermissibly made findings of fact which infringed the principles in Strbak v The Queen (‘Strbak’);^[1] and
   2. the sentences imposed, in all the circumstances, were manifestly excessive.

The nature and circumstances of the offending

7. [7]
   The details of the applicant’s offending were set out in a statement of facts, which was tendered at the sentence hearing, and not contested by the applicant.
8. [8]
   Prior to the offending, the applicant and the complainant had been in a relationship for approximately seven months.  At approximately 6.00 pm on 17 September 2022, the complainant drove to see the applicant to end their relationship.  An argument ensued.
9. [9]
   The complainant got back in her car and agreed to take the applicant to his friend’s house.  She reiterated that their relationship was over.
10. [10]
    The complainant and the applicant continued to argue.  The complainant sat in the driver’s seat of her car, and the applicant stood at the front passenger side of the car with the door open.  The complainant brought up a conversation she had with the applicant two weeks earlier where he referred to the complainant’s infant daughter in this way:

“Why the fuck should she live and my son suffer? I'm gonna gut her and give my son her kidneys because he deserves to live more than her.”

11. [11]
    To put this into context, the applicant’s son has medical issues with his kidneys.
12. [12]
    The applicant went quiet for a minute.  Then, without saying anything, he put his knees on the passenger seat and punched the complainant’s face multiple times.  The complainant tried to block his punches and cover her face.  He then grabbed the complainant’s hair, pulled her toward the front passenger seat and struck her face with his knee.  The complainant lost consciousness.
13. [13]
    When the complainant regained consciousness, her shirt had been removed and she was in the boot of her hatchback car (along with a shovel and duct tape).  The applicant was driving the car at a speed of 170 kilometres per hour along the highway.  The applicant stated, “You’ve been asleep for a long time sleeping beauty.  We’re gonna go out and dig a little hole.”  The complainant feared for her life.
14. [14]
    The complainant faded in and out of consciousness.  At some point, she got into the passenger seat of the car.  The applicant stopped the car in a forest.  He got out and started digging, stating that he was looking for a gun.  The applicant returned to the car and tried to drive away but the car became stuck in sand.  He yelled at the complainant to assist him to move the car, however, she was in too much pain from her injuries.  The applicant spent an hour and a half digging sand out from around the tyres.
15. [15]
    The applicant drove the car back to the address where all of this started.  He got out of the car and the complainant said, “you’ll never see me again” and she drove away to her mother’s house.
16. [16]
    The complainant had a shower and went to sleep.  At 3.00 am the next morning, the complainant’s mother woke her and told her that the applicant and a friend of his were at the house.  The applicant entered the bedroom and took the complainant’s doona from her.  The complainant asked him what he was doing there.  He said he was checking to see if the complainant was okay.  The complainant told the applicant to leave, and he did.
17. [17]
    Two days later, the complainant texted the applicant.  She received a text from him which said: “Are you fucking serious you deserve every fucking thing you got.”
18. [18]
    On Saturday 24 September 2022, seven days after the assault, the complainant reported the matter to police.
19. [19]
    Police executed a search warrant on 27 September 2022 at an address associated with the applicant and seized a shovel and duct tape.  As police were leaving, the applicant arrived in a car and deliberately rammed the police car and drove away.
20. [20]
    The applicant was arrested on 1 October 2022 and participated in an interview the following day where he lied.  The applicant stated that he was with another person on 17 September 2022 and he had heard that night, through the grapevine, that “someone got her” (referring to the complainant) and so he, with this person, went to check on the complainant at her mother’s residence and then left.
21. [21]
    The complainant did not seek medical attention in relation to her injuries.  However, she photographed her injuries on the night of the incident and again two days later.  Her injuries were photographed again by police on 24 September 2022.
22. [22]
    The complainant sustained the following injuries from the applicant’s assault upon her:

    1. abrasions to her back which the complainant’s mother washed dirt and grass out of and dressed with a bandage for a number of days;
    2. bruising to both eyes, her nose, and above her lips;
    3. a cut to her lip;
    4. blood oozing from her nose;
    5. an abrasion to her ear which bled; and
    6. bruising to her left arm and neck.
23. [23]
    A protection order was made on 7 December 2022 naming the applicant as the respondent and the complainant as the aggrieved.  The protection order provided that the applicant must be of good behaviour to the complainant and her daughter and that he was prohibited from having any contact with the complainant or approaching her at any place.  The sentencing judge extended the end date of this order until 27 September 2032.  The applicant makes no complaint in relation to this extension.

The circumstances of the applicant

24. [24]
    The applicant was 29 years old at the time of the offending.
25. [25]
    He had what his counsel described as a privileged upbringing; he had a supportive family, a good education and finished grade 12, after which he completed an apprenticeship with Volkswagen and then worked in a variety of jobs.
26. [26]
    He became addicted to methylamphetamine, and his addiction got worse when a previous ex-partner became pregnant with his son who has significant health issues.
27. [27]
    The applicant’s counsel informed the court of the following matters about the applicant:

    1. he was diagnosed as a child with Asperger’s Syndrome and Autism;
    2. his mental health declined at times where he committed self-harm, with the most recent attempt at his own life being prior to his incarceration for this offending;
    3. around the time of the offending, he was using drugs heavily;
    4. he was a daily smoker of methylamphetamine and described never having an “ice pipe” out of arm’s reach, using two and a half grams within three days;
    5. he was heavily on drugs at around the time of these offences and “he was clearly not thinking rationally”;
    6. he was remorseful for his offending and entered an early plea of guilty;
    7. he spent his time in custody constructively as he tried to undertake appropriate courses, was employed and drug-free; and
    8. upon release, he had the intention to remain drug-free, be a better father to his son and obtain employment.
28. [28]
    There was no material tendered at the sentence on the applicant’s behalf.

The applicant’s criminal history

29. [29]
    The applicant has a relevant criminal history.
30. [30]
    On 19 September 2017, he was sentenced in the Bundaberg District Court for domestic violence offences and was sentenced to:

    1. three years imprisonment for choking / strangulation in a domestic relationship (domestic violence offence);
    2. two years imprisonment for choking / strangulation in a domestic relationship (domestic violence offence); and
    3. 18 months imprisonment for assault occasioning bodily harm (domestic violence offence).
31. [31]
    All terms of imprisonment were concurrent with a parole release date set after six months.
32. [32]
    This offending involved a vicious attack upon a previous ex-partner.  The applicant and the complainant had separated, and the complainant went to his house to collect the remainder of her belongings.  The applicant forced her inside, punched her in the face, ripped her shirt, pushed her down and told her she was worthless.  He told her that he would rather kill her than let her leave him.  He then started to “throttle” her.  When she screamed, he put one hand over her mouth.  As she struggled to breathe, he released her neck and she spat up blood and tried to leave again.  The applicant and the complainant struggled, and they ended up on the floor where the applicant put his hands around the complainant’s throat and continued to choke her until she lost consciousness or came close to it.  Afterwards, he made it difficult for her to get away.  He chased after her car and, when he could not open the car door, followed her to the police station in his own car and parked behind her when she got there.
33. [33]
    Then, on 31 January 2023, he was sentenced in the Toowoomba Magistrates Court for a significant number of offences committed between June 2021 and September 2022.  On this occasion, he was sentenced to 15 months imprisonment for an enter premises and commit an indictable offence charge and lesser concurrent sentences for a multitude of other offences.^[2]  At this time, he also pleaded guilty to ramming the police vehicle and possessing drugs and weapons; charges that arose when the police executed the search warrant on 27 September 2022 in relation to the offences subject of this application.
34. [34]
    When the applicant was sentenced on 31 January 2023, he had been in custody for 122 days.  This time was declared as having been served under the sentences and a parole release date was set at 1 March 2023; the full discharge date of this sentence being 31 December 2023.  However, the applicant was not released due to being held in custody on the offences subject of this application.
35. [35]
    Accordingly, when he was sentenced for the offences subject of this application on 19 February 2024, the applicant had been in custody for an unbroken period of 506 days.
36. [36]
    However, 122 days of that period (around four months) had been declared as time served under the sentence imposed on 31 January 2023.  Accordingly, there were 384 days that had not been declared between 1 February 2023 and 18 February 2024.

Submissions at sentence

37. [37]
    At the sentence, the prosecution noted that these offences were committed before, and after, some of the offences dealt with by the Toowoomba Magistrates Court on 31 January 2023.  The prosecution submitted that, in arriving at an appropriate sentence, consideration should be given to what sentence the applicant may have received if these offences were all dealt with on that occasion.
38. [38]
    The prosecution submitted that it was likely the applicant would have received a sentence of three and a half years to four years imprisonment if all the offences were dealt with on 31 January 2023.
39. [39]
    Accordingly, the prosecution submitted that the court would impose a global sentence in the order of three years imprisonment to reflect the applicant’s criminality.  To take into account totality issues, and the fact that the applicant had spent a lengthy unbroken period in custody, the prosecution submitted the sentence could be ameliorated by setting the parole release date as at the date of sentence with 384 days of pre-sentence custody declared as time served under the sentence.
40. [40]
    The sentencing judge characterised this submission as very generous.
41. [41]
    The applicant’s counsel submitted for an alternative sentence structure which would have allowed the applicant to be immediately released on parole.  This involved the sentencing judge taking into account, but not declaring, the pre-sentence custody period.
42. [42]
    Accordingly, the applicant’s counsel submitted for a sentence of two and a half years imprisonment, with no pre-sentence custody declaration, and a parole release at the date of the sentence:

“…The submission that I would advance to your Honour is that your Honour consider structuring the sentence in a way that does see him released on a substantial period of parole. One option for that would be to take into account but not declare any of the pre-sentence custody period. Your Honour could then impose a sentence of two and a half years’ imprisonment. He has done that sixteen and a half months that wouldn’t be declared, but could be taken into account, so that’s getting to the equivalent of about a four year head sentence. That would mean that there’s not that unbroken period of imprisonment of more than three years and would allow him to be released on strict supervision for parole for the next two and a half years after having spent some sixteen and a half months in custody.”

43. [43]
    In the course of submissions, the sentencing judge put the applicant’s counsel on notice that, when all the facts were taken into account, this matter fell towards the higher end of assaults occasioning bodily harm:   

“HER HONOUR: Well, the charges come with a maximum of 10 years on the unlawful use, which was incredibly dangerous with speeds at that – on the highway at that – at that rate while someone was in the boot of the car with an implement like a spade. There are – the overtones with this conduct – the facts suggest the – irresistibly that there was some premeditation with this, some calculation into what happened over that extended period of time that he had her in the car. You know, he managed to get the spade from somewhere, the duct tape from somewhere, and he had her for a long – what is a protracted period of time in the car. He took her to the bush, to an isolated area in the night – or at 6 o’clock at – in the evening. The overtones for all of that are terrifying.

It’s – in my mind – I am just telling you this so that you can address me and make a submission in response. The shockingness of that, the horror of that, the traumatic impact of that seems to take it to a level beyond those acts of awful domestic violence where it’s an impulsive act, something that happens in the moment of anger – or even in several moments, multiple punches. But this is – this is – it seems so much worse than that. It would suggest to me that this must approach towards the highest end of assaults occasioning bodily harm when all of the facts are taken into account, all of the circumstances, all of the offending for this incident. What do you say about that?”

44. [44]
    The applicant’s counsel then asked for, and received, time to consider what the sentencing judge had raised; he stated that he wanted to ensure he was addressing the sentencing judge in a way that was helpful and informed.
45. [45]
    When he returned, the applicant’s counsel stated that the applicant must not be sentenced for offences for which he was not charged, and he had not been charged with torture or any offence with an element of intention.
46. [46]
    However, the applicant’s counsel agreed with the sentencing judge’s observation that whilst none of the offences for which he was being sentenced had an element of intention, a specific intention could still be an aggravating circumstance as long as it did not constitute a more serious offence.
47. [47]
    Counsel for the applicant then referred to the offence of torture^[3] which involves the intentional infliction of severe pain or suffering, to which the sentencing judge raised the following proposition:

“HER HONOUR: So and the intentional infliction of suffering that is less than severe is still something that can be taken into account in a sentence for an offence that has a maximum of less than 14 years.”

48. [48]
    In response, the applicant’s counsel said he “couldn’t argue against that proposition”.
49. [49]
    After making such a concession, the applicant’s counsel, with reference to R v West (‘West’),^[4] went on to emphasise aspects of the applicant’s offending which meant that, in his submission, it did not fall within the worst category of offending, namely:

    1. it was a single occasion, where the applicant desisted of the conduct of his own accord and returned the complainant to the residence; and
    2. the complainant’s abrasions, whilst serious, were not in that category of injuries that approached grievous bodily harm or that required surgical intervention.
50. [50]
    After being put on notice by the sentencing judge, and making a relevant concession, the applicant’s counsel did not further address the issue of the applicant’s intention when committing the offence.
51. [51]
    The prosecutor made no express submissions as to the applicant’s purpose or intent and made no contrary submissions in reply.

Sentencing remarks

52. [52]
    In her Honour’s remarks, the sentencing judge set out that the applicant’s conduct was terrifying and that he was responsible for shocking violence with the “irresistible conclusion” being that he meant for the complainant to fear him.
53. [53]
    The sentencing judge emphasised that the applicant could not be punished for intending to cause severe psychological harm.  However, the sentencing judge approached the sentence on the basis that the applicant’s conduct was purposeful and that he intended to psychologically harm the complainant in a serious way.  The sentencing judge noted the applicant’s cruelty and violence upon the complainant was carried out with an intention just short of that which would constitute torture.
54. [54]
    The sentencing judge found that the applicant engaged in a protracted period of calculated conduct; it was not a momentary loss of control as there was some forethought in packing the car and driving the complainant a distance to the bushland.  Days later, the applicant let the complainant know that she deserved it.
55. [55]
    During their submissions, the parties referred to West, R v Rowlands,^[5] R v Thompson^[6] and R v Kowearpta^[7] as authorities to support their submissions on the appropriate penalty.  However, the sentencing judge stated that, in doing so, the parties were trying to fit the applicant’s case alongside the more usual examples of assault occasioning bodily harm in a domestic violence context.
56. [56]
    In this case, the sentencing judge stated there were some exceptional features of the applicant’s violence.  Accordingly, the Court was required to assess the degree of his criminality, whilst also considering first principles, the purposes of sentencing and the maximum penalties, to formulate a proportionate sentence.
57. [57]
    The sentencing judge then set out a number of aggravating features of the applicant’s conduct:

“The physical harm that you caused [the complainant]^[8] was serious. Not just the visible, external marks, but you caused a brain injury sufficient to render her unconsciousness. There are, of course, cases where the bodily harm was worse. But there are other circumstances here that point towards the top end of the range for this kind of offending. There was the extreme danger you created for [the complainant]. There was the calculated menace, the protracted commission of the offence, and the foreseeable trauma. It must have been terrifying. In your favour, you desisted. Obviously, if you had continued, you would have committed an even more serious offence.”

58. [58]
    The sentencing judge referred to the applicant’s plea of guilty which spared the complainant the further ordeal of cross-examination.  Further, the applicant had the support of his family, an ice addiction which became worse after the birth of his very ill son, and from time to time he had engaged in self-harm.  Whilst in custody, the applicant had been busy, sober, and acknowledged the need for treatment and counselling (which unfortunately had not been an option whilst on remand).
59. [59]
    The complainant was not the applicant’s first victim and the sentencing judge noted that, five years earlier, he was sentenced to three years imprisonment for choking another woman.  Accordingly, this was the applicant’s second instance of domestic violence offending.
60. [60]
    The sentencing judge noted that the applicant was sentenced to 15 months imprisonment for ramming the police car and the other string of offences and, by the time of the sentencing hearing, had been in custody for 16 months since his arrest.  The first four months of the applicant’s 16 months in custody were declared to be part of his previous sentence and the sentencing judge took this into account in this way:

“What I am going to do is make today’s sentence partially cumulative on that sentence of 15 months, meaning today’s sentence will commence four months into that pre-existing sentence. The critical matter for the sentence, however constructed, is to ensure that the combined punishment does not exceed the criminality for both sets of offences. It is also of paramount importance to address the needs of public safety and the protection of women in particular. There is need not just for general deterrence, but specific deterrence within the restraint of a proportionate sentence for the totality of offending.”

61. [61]
    Whilst the sentencing judge referred to the sentence being “partially cumulative”, this reflects the sentencing judge not declaring all of the 506 days of pre-sentence custody as time served under the sentence.  The sentencing judge declared 384 days of pre-sentence custody as time served under the sentence.  This was because 122 days had already been declared in the sentences imposed by the Toowoomba Magistrates Court on 31 January 2023.

Ground one: The sentencing judge impermissibly made findings of fact which infringed the principles in Strbak v The Queen

62. [62]
    The High Court in Strbak set out that a sentence proceeding retains the accusatorial nature of the criminal justice system.  If the prosecution seeks to rely on a fact, the prosecution must prove such a fact:^[9]

“[32] A plea of guilty is the formal admission of each of the legal ingredients of the offence. For this reason, as the joint reasons in R v Olbrich explain, references to the onus of proof in the context of sentencing may be misleading if they are taken to suggest that some general issue is joined between prosecution and defence. Nonetheless, where the prosecution seeks to have the court sentence on a factual basis that goes beyond the facts admitted by the plea, and which is disputed, it is incumbent on the prosecution to adduce evidence to establish that basis. Absent contrary statutory provision, the prosecution is required to prove matters on which it relies that are adverse to the interests of the offender to the criminal standard. The adoption of the lesser, civil standard for proof of facts in sentencing under s 132C of the Act says nothing as to onus of proving a fact that is not admitted or is disputed.”

63. [63]
    Section 132C of the Evidence Act 1977 (Qld) (‘the Evidence Act’) states:

“132C Fact finding on sentencing

1. This section applies to any sentencing procedure in a criminal proceeding.

2. The sentencing judge or magistrate may act on an allegation of fact that is admitted or not challenged.

3. If an allegation of fact is not admitted or is challenged, the sentencing judge or magistrate may act on the allegation if the judge or magistrate is satisfied on the balance of probabilities that the allegation is true.

4. For subsection (3), the degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true.

5. In this section—

allegation of fact includes the following—

1. information under the Penalties and Sentences Act 1992, section 15 or evidence given at a hearing in relation to an order under part 3A of that Act;

2. information under the Youth Justice Act 1992, section 150(4A) or in a pre-sentence report under section 151 of that Act;

3. information given to the court under the Penalties and Sentences Act 1992, section 179K;

4. other information or evidence.”

64. [64]
    The applicant emphasises that whilst the offending was serious, he was charged with assault occasioning bodily harm (simpliciter),^[10] deprivation of liberty,^[11] and unlawful use of a motor vehicle.^[12]  Each offence was a domestic violence offence, but the offending did not occur in breach of a protection order.  The applicant was not charged with torture, nor any offence that had an element of intention to cause any harm, nor an offence which required proof of a particular result.
65. [65]
    R v De Simoni^[13] set out that no one should be punished for an offence of which the person has not been convicted (‘the De Simoni principle’).^[14]  In R v D,^[15] the Court of Appeal explained what a sentencing judge should, or can, take into account within the bounds of the De Simoni principle:^[16]

“Sentencing judges ought experience little difficulty in practice if there is unqualified adherence to the fundamental principles which emerge from the decisions of the High Court in De Simoni and subsequent cases. We will try to summarise those principles in a manner which should be adequate for most purposes.

1. Subject to the qualifications which follow:

1. a sentencing judge should take account of all the circumstances of the offence of which the person to be sentenced has been convicted, either on a plea of guilty or after a trial, whether those circumstances increase or decrease the culpability of the offender;

2. common sense and fairness determine what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing purposes; and

3. an act, omission, matter or circumstance within (b) which might itself technically constitute a separate offence is not, for that reason, necessarily excluded from consideration.

2. An act, omission, matter or circumstance which it would be permissible otherwise to take into account may not be taken into account if the circumstances would then establish:

1. a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted;

2. a more serious offence than the offence of which the person to be sentenced has been convicted; or

3. a “circumstance of aggravation” (Code, s. 1) of which the person to be sentenced has not been convicted; i.e., a circumstance which increases the maximum penalty to which that person is exposed…”

66. [66]
    In this case, the applicant accepted that the sentencing judge did not breach the De Simoni principle as no finding went beyond the elements of assault occasioning bodily harm into the elements prescribed by torture.
67. [67]
    However, the applicant highlights that “common sense and fairness determine what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing purposes”,^[17] and submits that the sentencing judge infringed the principles established in Strbak by approaching the sentence on the following basis, as set out in the sentencing remarks:

“Now, as has been discussed with counsel, you are not to be sentenced for torture, or attempted murder. Which means that today, you cannot be sentenced for either attempting to kill [the complainant] or intending to cause her severe psychological harm. Even so, you were responsible for shocking violence. That much is acknowledged by your plea of guilty and the facts which you accept. Your conduct was terrifying. You had battered this woman’s face. She suffered two black eyes, a bloodied nose and bruising on her neck. The irresistible conclusion from the agreed facts is that you meant to make this woman fear you. You cannot be punished for intending to cause severe psychological harm, but your conduct was purposeful and you obviously did intend to harm her psychologically in a serious way. I approach the sentence on that basis. Meaning that the cruelty and the violence was carried out with an intention just short of that which would constitute torture.”

68. [68]
    The applicant emphasises that the prosecution did not seek a finding that the applicant had an actual, subjective intention falling “just short of that which would constitute torture”.  Rather, the prosecution submitted:

“Although the complainant has not provided a victim impact statement, the offending undoubtedly had a significant impact on her, and as agreed in the facts she feared for her life at the time of the offending.”

69. [69]
    The applicant submits that the agreed statement of facts only dealt with the complainant’s state of mind and not the applicant’s state of mind; it was the sentencing judge who leapt from the complainant’s perception of her own fear to conclude that the applicant intended to cause something just short of torture.
70. [70]
    The applicant emphasises that the prosecution did not seek any such finding adverse to the applicant.  Rather, it was the sentencing judge who put the applicant’s state of mind in issue and that Strbak is clear: when an inference, or fact, is adverse to the accused, it is for the prosecution to prove.
71. [71]
    In the circumstances of this case, the applicant submits that the following process should have occurred:

    1. the sentencing judge should have asked the prosecution whether they were contending for such a finding;
    2. if the prosecution was seeking such a finding, then the sentence should have proceeded under section 132C of the Evidence Act where the prosecution bore the onus of proof;
    3. the prosecution should have adduced evidence as to the applicant’s intent; and
    4. the applicant should have been given an opportunity to address the issue of the applicant’s actual intent in the context of him being a daily drug user of methylamphetamine.
72. [72]
    The applicant states that none of this was done.  The sentencing judge made no reference to s 132C of the Evidence Act and had no regard to the standard of proof required to establish such a finding.
73. [73]
    In this case, the applicant submits that there was no consideration of the applicant’s state of mind by the parties, other than the inference that the sentencing judge drew.
74. [74]
    The applicant did not go into the sentence with any contest about his state of mind (in terms of whether his offending might approach a torture sentence).  The applicant states that if this was the prosecution’s position at sentence, then the prosecution would have been put to proof, and the applicant would have had an opportunity to respond.
75. [75]
    The applicant raises this example: whilst the applicant may have had an intention, as the sentencing judge found, to make the complainant fear for her life, that is different from “an intention just short of that which would constitute torture.”
76. [76]
    Further, the applicant submits that a hotly contested issue under section 132C of the Evidence Act was the applicant’s use of intoxicating substances.  His drug use, the applicant submits, would go some way towards negating the issue of intention as found by the sentencing judge.  However, that analysis was not done.
77. [77]
    The applicant acknowledges that the sentencing judge was permitted to “take into account… all of the circumstances” of the offence and did raise the requisite intention as a matter that required resolution.  However, the applicant submits that this was done to address the De Simoni issue and whether the offending fell in the worst category of offending or not.  It was not in relation to the applicant’s actual intention when he committed the offence.
78. [78]
    Whilst the applicant’s counsel at the sentence accepted that “the intentional infliction of suffering that is less than severe is still something that can be taken into account in a sentence for an offence that has a maximum of less than 14 years”, the applicant submits that his counsel was only agreeing to the proposition that something like that could be taken into account on a conceptual basis.  The applicant states that his counsel was not necessarily submitting that this must be the factual finding that the sentencing judge makes.
79. [79]
    The applicant submits that the principles established in Strbak were infringed because the sentencing process became unfair because of the findings made by the sentencing judge.

The sentencing judge did not offend the principles stated in Strbak

80. [80]
    The impugned portion of the sentencing remarks needs to be put into context.
81. [81]
    At the sentence, submissions were made by both counsel as to the appropriate sentence by reference to the facts of this case and other sentences imposed upon other offenders for committing assault occasioning bodily harm in a domestic violence context.  The parties’ submissions on sentence were not far apart, although the applicant’s counsel submitted for a sentence structure which would have seen the applicant released on parole at the date of sentence.
82. [82]
    It was clear that the sentencing judge regarded the prosecution’s submissions on sentence as generous.
83. [83]
    The sentencing judge noted that the facts “irresistibly” suggested that there was some premeditation and calculation by the applicant as to what occurred over an extended time to the complainant.  The applicant’s counsel was put on notice that the applicant’s offending “must approach towards the highest end of assaults occasioning bodily harm when all of the facts are taken into account”.  There is no challenge by the applicant to this part of the sentencing judge’s approach.
84. [84]
    The applicant’s counsel, after an adjournment, responded to the sentencing judge’s concerns by stating that the applicant had not been charged with torture and that the offences he had pleaded guilty to did not have an element of intention.  However, the applicant’s counsel readily accepted that:

    1. whilst there was no element of intention in the offences that the applicant had pleaded guilty to, a specific intention could still be an aggravating circumstance, as long as it did not otherwise constitute a more serious offence; and
    2. the intentional infliction of suffering, that is less than severe, is still a matter that can be taken into account in a sentence for an offence that carries a maximum imprisonment of less than 14 years.
85. [85]
    It is clear from the context of the applicant’s counsel’s submissions that, in doing so, he was not acknowledging a general sentencing principle at a conceptual level, but rather the approach that was open to be taken in this case.
86. [86]
    A sentencing judge may act on an allegation of fact that is admitted or not challenged.  In this case, there was no disputed factual basis that went beyond the facts admitted by the plea.
87. [87]
    The applicant now submits that the prosecution was required to prove that the applicant’s intention was just short of torture, and if this process had been embarked upon, then the applicant’s drug use may have been a relevant factor.
88. [88]
    At the sentence, only general submissions were made about the applicant’s drug use.  Counsel for the applicant stated that the applicant was addicted to drugs, was a daily smoker of methylamphetamine, and that he never had an ice pipe out of arms reach, using two and half grams within three days.  The applicant’s counsel then stated:

“Your Honour would not be surprised that he was heavily on drugs at around the time of these offences and he was clearly not thinking rationally.”

89. [89]
    The sentencing judge put the applicant on notice that she could find that his intention was to inflict suffering upon the complaint that was less than severe; a proposition that the applicant’s counsel stated that he “couldn’t argue against”.
90. [90]
    However, the applicant’s counsel did not address the applicant’s drug use or, indeed, any aspect of his intention.  Rather, the applicant’s counsel, with reference to West, focused on the injuries the applicant caused the complainant, and the fact that he ultimately desisted, to establish that the circumstances of this offending did not fall within the worst category of assault occasioning bodily harm cases.
91. [91]
    This is not a case, like R v RBE (‘RBE’),^[18] where the sentencing judge settled on a view of motive which was most adverse to the applicant (that the arson was a vindictive act).  This was done despite the prosecutor’s concession that less serious views of motive were open and in circumstances where the applicant’s counsel submitted for one such view as the sentencing basis (that it was a suicide attempt).
92. [92]
    In that case, Burns J (Morrison and McMurdo JJA agreeing) set out a summary of the principles that apply in a sentence hearing in terms of the information provided or allegations made:^[19]

“[22] Section 15 Penalties and Sentences Act 1992 provides that, in imposing a sentence, a court may receive any information, or a sentencing submission made by a party to the proceeding, that the Court considers appropriate to enable it to impose a proper sentence. As such, a sentencing court is not constrained by the rules of evidence. It is a matter for the judge to decide what information or submissions it receives and, if accepted as reliable, the weight to be attached. This provision enshrines the long-standing practice of the courts to permit considerable flexibility in the presentation of evidence and other information to a sentencing court. However, the essential character of sentence hearings is accusatorial. Accordingly, where some aspect of the “information” (or what is submitted by way of allegation) is disputed by the offender, it is for the prosecution to prove all matters of fact on which it relies that are adverse to the interests of the offender. At common law, proof of such facts is required to the criminal standard but, in Queensland, the common law is modified by s 132C Evidence Act 1977…

…

[23] It is to be observed that s 132C is concerned with allegations of fact, the onus of proof of which necessarily rests with the prosecution. The sentencing judge may act on an allegation of fact that is admitted or not challenged, but he or she is not obliged to do so. Where an allegation of fact is not admitted or is challenged, the judge may act on the allegation if satisfied on the balance of probabilities that it is true and the degree of satisfaction required in that regard varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true. Indeed, the required degree of satisfaction may be high where proof of the disputed fact carries with it significant consequences for the offender’s sentence. Furthermore, s 132C is not merely concerned with the presentation by the prosecution of the primary facts; it also governs the making of an allegation based on any inferences that are alleged to arise from those facts (such as motive). Importantly, information advanced to a sentencing court (through the medium of an agreed statement of facts or otherwise) does not suddenly become a factual repository for the Court to make of it what it will. It is for the prosecution to allege what is to be inferred and, where that allegation is not admitted or challenged by the offender, it is for the sentencing judge to decide whether such an inference should be accepted.

[24] In the case of submissions made on behalf of an offender, a sentencing judge is likewise not obliged to accept defence assertions from the bar table, even if no evidence is led by the prosecution to the contrary and even if the prosecution makes no submission about the matter. Of course, if the judge is inclined to reject such an assertion, that inclination must be made known to the offender who must be given a reasonable opportunity to make good that which has been asserted. That said, in cases where differing versions of relevant events have like probability then the version most favourable to the offender should be accepted.”

93. [93]
    In RBE, it was determined that the sentencing judge “erred (and in a critical way) by determining a fact that was not in issue between the parties”:^[20]

“[26] In the result, no allegation was made by the prosecution to the effect that the applicant set fire to the house as a vindictive act directed at the complainant. Contrary to the submissions of the prosecutor and for the reasons already stated ([25]), it was not for the sentencing judge to decide what inferences arose from the agreed facts and, having done so, her Honour erred (and in a critical way) by determining a fact that was not in issue between the parties. Indeed, the procedure for resolving disputed facts provided in s 132C Evidence Act 1977 was not even engaged, the prosecutor having made no positive allegation about motive. The only submission on that topic was made by the defence and, although the sentencing judge was not obliged to accept that submission, I would have thought that the overall “information” before the Court made the defence contention of attempted suicide at least equally probable to an inference to the effect that the applicant was attention-seeking. If that was so, the applicant should have been given the benefit of the doubt and his counsel’s contention accepted. It is, however, unnecessary, to explore the merits or otherwise of this part of the argument in any detail because the error just identified – finding that the applicant acted in a vindictive way towards his wife – means that the sentence must be set aside and the sentencing discretion exercised afresh. Its only continuing relevance is that, for the purpose of that exercise, the applicant should be given the benefit of that doubt.”

94. [94]
    In this case, unlike RBE, the applicant did not dispute any of the facts or inferences raised by the sentencing judge.  The sentencing judge articulated a fact that was abundantly apparent based on the agreed circumstances of the offending, which was accepted to be a relevant consideration in submissions by the applicant’s counsel.
95. [95]
    The sentencing judge did not offend the principles stated in Strbak.

Ground two: the sentences imposed, in all the circumstances, were manifestly excessive

96. [96]
    The applicant highlights that the relevant circumstances of this case are that:

    1. the assaults did not involve a weapon;
    2. the applicant desisted from the offending;
    3. while the offending was no doubt traumatic for the complainant, she did not require surgery; and
    4. the offending was not in breach of a protection order.
97. [97]
    The applicant submits that the personal factors favouring a lower sentence include the following:

    1. he entered an early plea of guilty, which meant the complainant was not cross-examined at a committal hearing or trial;
    2. the offending occurred when the applicant was using drugs and whilst on remand, he had not used drugs; and
    3. in addition, the applicant had expressed remorse through his counsel which appeared to be consistent with the fact that he was drug-free during his time on remand and was in a better position to express genuine remorse.
98. [98]
    Finally, the applicant submits that the totality considerations also assist in demonstrating the sentence was manifestly excessive.  That is because a downward reduction in the sentence was available given the significant amount of time that the applicant had in fact served.
99. [99]
    The applicant submits that in such circumstances, a sentence of six years with parole eligibility after two years into this sentence was so unreasonable or unjust that this Court must conclude that a substantial wrong has occurred.

The sentence is not manifestly excessive

100. [100]
     The relevant consideration for this Court on a question of manifest excess is well established as was recently observed in R v Abdullah:^[21]

“As is well-established, to succeed on an application on this ground it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is “unreasonable or plainly unjust”.”

101. [101]
     The applicant acknowledges that, in this case, there was a lack of truly comparable cases; an issue that the sentencing judge appreciated and approached correctly.^[22]
102. [102]
     Acknowledging that there is no range for this offending, and the lack of utility for ranges generally, the applicant refers to West, where Mackenzie J stated:^[23]

“[25] It was submitted on the applicant’s behalf that, on the basis of analysis of recent authority, it was rare for an offender convicted of assault occasioning bodily harm without a circumstance of aggravation under s 339(1) Criminal Code 1899 (Qld) (which has a maximum sentence of seven years) to be sentenced to more than 18 months imprisonment. Where sentences of between 18 months and four years imprisonment had been imposed, the offences were typically ones with formal circumstances of aggravation and a level of harm often approaching grievous bodily harm (subject to a 10 year maximum sentence under s 339(3)).

[26] It was acknowledged on the applicant’s behalf that the present offence was a serious one and that the fact that the applicant was on parole with his history of violent offending marked it as one of the rare cases of assault occasioning bodily harm simpliciter where a notional head sentence would exceed 18 months imprisonment. However, it was submitted that, scaling back from Summers [2004] QCA 275, where the offence was an aggravated offence, the notional head sentence should not have exceeded two and a half years. The facts and issues in Summers are succinctly set out in the President’s reasons.

[27] If this submission carries with it the implication that there is some necessary compression of the range of sentencing appropriate to offences of assault occasioning bodily harm simpliciter, to a level below that ordinarily imposed for an aggravated offence, I do not agree. The unfortunate reality is that, because of the applicant’s affliction referred to in the President’s reasons, he has accumulated a history of violence including offences, of which the present one is a frightening example, where there is a domestic or acquaintanceship element.”

103. [103]
     The applicant states that the emphasised passage assists in demonstrating that the sentence was manifestly excessive.
104. [104]
     It must be noted that West involved a recidivist violent offender, with a bad criminal history, who repeatedly attacked his female partners in a serious way.  Upon a plea of guilty, four years imprisonment was initially imposed for one count of assault occasioning bodily harm and six months imprisonment for an unlawful use of a motor vehicle.  The sentences were concurrent with each other, but cumulative upon a previous sentence.  The Court of Appeal allowed the appeal and imposed a sentence of three years imprisonment on the assault occasioning bodily harm offence to reflect the totality issues due to the cumulative nature of the sentence.
105. [105]
     Importantly, West was decided prior to domestic violence being explicitly recognised as an aggravating factor.^[24]  Further, the circumstances of West did not include such a protracted deprivation of liberty as present in the applicant’s case.
106. [106]
     In this case, the applicant’s offending involved significant, unprovoked violence, aggravated by a serious deprivation of liberty which was objectively terrifying.  Further, this was the applicant’s second occasion of violently lashing out when faced with the end of a relationship.  He was previously sentenced to three years imprisonment for viciously attacking an ex-partner.
107. [107]
     It is the applicant’s concerning criminal history, along with his protracted conduct (involving a violent assault and a very serious example of depriving the complainant of her liberty) that distinguishes his sentence from other assault cases upon complainants in a domestic violence setting.
108. [108]
     The applicant did enter an early plea of guilty and expressed remorse through his counsel.  However, it should be noted that his remorse came at a late stage and was tempered by his unrepentant attitude in the days after these offences; he sent a message to the complainant telling her she deserved everything she got and also lied to police when interviewed.
109. [109]
     The applicant did ultimately desist in his offending.  Although, as the sentencing judge remarked, if he had continued, he may have committed an even more serious offence.
110. [110]
     The sentencing judge acknowledged that the applicant had the support of his family and a good work history but became addicted to ice after the birth of his son, and from time to time engaged in self-harm.
111. [111]
     In relation to the assault occasioning bodily harm offence, the complainant’s injuries did not require surgery and the assaults did not involve a weapon.  Considering that assault occasioning bodily harm (simpliciter) carries a maximum penalty of seven years imprisonment, a sentence of six years for an assault occasioning bodily harm may give an impression of being unreasonably high.  However, it is not when all of the circumstances are taken into account.
112. [112]
     In this case, the assault occasioning bodily harm cannot be viewed in isolation.  The applicant then went on to commit a very serious deprivation of liberty and it is the nature of this protracted offending which is relevant when assessing his overall criminality.  In this case, there were a number of aggravating features, which included:

     1. the offences were domestic violence offences prompted by the complainant trying to end the relationship;
     2. the attack on the complainant involved vicious and repeated acts of violence, which rendered her unconscious and caused her multiple injuries;
     3. the premeditation involved in placing a partly undressed unconscious woman in the boot of her own car along with a shovel and duct tape;
     4. the protracted period of time over which the applicant deprived the complainant of her liberty;
     5. the terrifying nature of what he did once she regained consciousness, which included telling her he was going to dig a hole and driving her at high speeds to an isolated area at night, where he commenced digging and told her that he was looking for a gun;
     6. the complainant, in fact, feared for her life; and
     7. the complainant’s injuries, which included bruising to both eyes, a bloodied nose and other abrasions and bruises.
113. [113]
     The sentencing judge acknowledged the need for personal deterrence, as well as general deterrence “within the restraint of a proportionate sentence for the totality of offending”.  The sentencing judge also referred to considerations relevant to community protection, including the need to protect women.
114. [114]
     In all the circumstances of this case, the starting point for the assault occasioning bodily harm offence, where the complainant’s face was punched and kneed to the extent that she was unconscious, had to be in excess of three years imprisonment.  Notably, the applicant had already been sentenced to three years imprisonment for a previous attack on a partner who tried to break up with him.
115. [115]
     Then, the further protracted nature of the subsequent offending had to be considered in coming to an appropriate penalty.  Notably, the applicant moved the complainant’s unconscious body into the boot of her car, stripped off her shirt, laid her next to a shovel and duct tape and drove her to a remote area.  This is a serious and degrading example of a deprivation of liberty offence.
116. [116]
     This sentence could have been structured in two ways:

     1. using the Nagy^[25] methodology by fixing concurrent sentences of six years for the assault occasioning bodily harm and the unlawful use of a motor vehicle offences – these sentences being fixed higher than they would have been, had they stood alone, to take into account the applicant’s overall criminality (rather than adding each sentence together) – and a lesser concurrent sentence then being imposed for the deprivation of liberty; or
     2. by imposing concurrent sentences of less than six years imprisonment for the assault occasioning bodily harm and unlawful use of a motor vehicle offences, and then a cumulative sentence for the deprivation of liberty offence.
117. [117]
     Taking into account all of the circumstances of this case, either way the sentence was structured, a total sentence of six years for all three offences was not unreasonable or plainly unjust.
118. [118]
     A critical matter was to ensure that the combined punishment for the offences for which the applicant was sentenced on 31 January 2023, and the offences subject of this application, did not exceed the combined criminality for both sets of offences.
119. [119]
     In relation to considerations of totality, the applicant was sentenced to 15 months imprisonment on 31 January 2023 for a string of offences (including ramming the police car when police executed a search warrant in relation to his domestic violence offending against the complaint) and remained in custody past his parole release date of 1 March 2023.
120. [120]
     At the time of the sentence, the applicant had been in custody for 506 days.  However, 122 days of this period had already been declared as time served under the 31 January 2023 sentence.  Consequently, the sentencing judge declared the time that the applicant had spent in custody since being sentenced for the multitude of offences on 31 January 2023, which was 384 days.
121. [121]
     Accordingly, taking into account the 31 January 2023 sentence for a significant number of offences, as well as the offences he committed against the complainant in this matter, the applicant faced a total sentence of six years and four months imprisonment, with a parole eligibility date after slightly more than one third.  Such a sentence is proportionate to the total criminality reflected by the sheer number of offences, the serious violent nature of the domestic violence offences and the applicant’s criminal history.
122. [122]
     The applicant’s plea of guilty and other mitigating factors were appropriately recognised with his parole eligibility date.

Order

123. [123]
     The application for leave to appeal against sentence should be dismissed.