R v TBD[2024] QCA 182

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  I agree with the orders proposed by Kelly J and with his reasons.
2. [2]
   BROWN JA:  I agree with Kelly J.
3. [3]
   KELLY J:  On 12 April 2024, the applicant was sentenced to an effective sentence of four years and three months imprisonment on his pleas of guilty to an array of domestic violence related offences.  At the time of his sentence, he was already in custody serving periods of imprisonment in relation to drug and weapons related offending.  His sentence was structured so that, by reference to his existing sentences, his total cumulative term of imprisonment was nine years and nine months with parole eligibility after he had served 1,377 days or approximately 3.8 years.  He applied for leave to appeal his sentence on the grounds that the sentence did not take account of his pleas of guilty, offended against the principle of totality^[1] and was manifestly excessive.

Factual Background

4. [4]
   On 25 March 2024, an indictment was presented to the District Court (“the first indictment”) in respect of which the applicant pleaded guilty to two counts of choking in a domestic setting (domestic violence offence) and one count of assault occasioning bodily harm (domestic violence offence).  On 12 April 2024, the date of his sentence, the applicant was arraigned on an ex officio indictment (“the second indictment”) and pleaded guilty to five counts of contravening a domestic violence order (aggravated offence).  On that occasion, he also pleaded guilty to a summary charge of calling an approved telephone number and requesting a conference call to someone else.

The subject offending

5. [5]
   The complainant was the applicant’s former wife.  The applicant and the complainant had a daughter (“the child”), who was five years old at the time of the offending.  Since 6 November 2017, the applicant had been the respondent to a domestic and family violence protection order (“the protection order”) which named the complainant as the aggrieved person and the child as a protected person.
6. [6]
   On 26 February 2021, the applicant, the complainant and the child checked into a hotel room.  The next day, whilst the applicant, the complainant and the child were inside the hotel room, the complainant accused the applicant of having been unfaithful.  An argument ensued and the complainant knocked the applicant’s mobile phone out of his hand.  The applicant put both of his hands around the complainant’s neck and squeezed.  The complainant could not breathe and tried to pry the applicant’s hands away from her neck.  The child watched as the applicant choked the complainant and she screamed “please don’t kill my mummy, I want my mummy”.  The applicant released his grip.  This episode constituted the first count of choking.
7. [7]
   The applicant then pushed the complainant into the bathroom and up against a wall.  The complainant hit her head on the wall and fell to the floor.  As she stood up, the applicant punched her lower abdomen and upper torso.  As the assault occurred, the child was screaming and crying.  The applicant told each of the complainant and the child to “shut the fuck up” and punched the complainant’s jaw.  This episode constituted the count of assault occasioning bodily harm.
8. [8]
   The complainant attempted to escape, but the applicant stopped her and pushed her back into the bathroom, where he put both of his hands around her neck and squeezed against her throat causing her breath to be restricted.  The child ran into the bathroom, at which point the applicant let go of the complainant’s neck.  The child screamed that she wanted to see “mummy’s eyes open”.  This episode constituted the second count of choking.
9. [9]
   As a result of the chokings and the assault, the complainant suffered a contusion to her neck, bruising to her right shoulder, right upper arm and left upper arm, bruising and swelling to her left cheek and tenderness to her spine and abdomen.
10. [10]
    The applicant contacted a friend who was also staying at the hotel.  The applicant told the friend that the complainant was “going crazy”.  The friend came and took the child away.  Whilst they were alone in the hotel room, the applicant laughed at the complainant and said, “[l]ook at you, nothing is wrong with you. Stop pretending you can’t breathe and you’re dying”.  The complainant and the applicant left the room and went to the basement carpark.  Hotel security approached and advised them that the police had been called.  The applicant drove away from the scene.
11. [11]
    The five counts of contravening a domestic violence order as contained in the second indictment, concerned conduct which occurred variously on 23 February 2021, 27 February 2021, dates between 8 April 2021 and 25 June 2021 and dates between 2 August 2021 and 31 August 2021.
12. [12]
    On 23 February 2021, police located the applicant hiding in a bedroom at the complainant’s home (“count one”).  On 27 February 2021, in the circumstances of the chokings and the assault occasioning bodily harm, the applicant breached several conditions of the protection order including a condition requiring good behaviour, a condition that the applicant not commit domestic violence against the complainant, a no contact condition and a condition that the child not be exposed to domestic violence (“count two”).
13. [13]
    On 28 February 2021, police arrested the applicant for breaching the protection order.  He was refused bail and remanded in custody.
14. [14]
    Between 8 April 2021 and 25 June 2021, whilst remanded in custody, the applicant breached the no contact condition of the protection order by asking his brothers to contact the complainant (“count three”).  The applicant made some 14 telephone calls to his brothers in which he urged them to contact the complainant and discourage her from cooperating with police and giving evidence against him.^[2]  During those calls, the applicant instructed his brothers to deal with the complainant to get her “on side”, “piss in her pocket”, “play the game with her” and “do whatever had to be done”.  The correctional centre eventually removed the applicant’s brothers from his approved contacts.
15. [15]
    Between 2 August 2021 and 31 August 2021, whilst still on remand, the applicant breached the no contact condition of the protection order by instructing another prisoner (“Prisoner A”) to facilitate direct communication with the complainant and one of his brothers (“counts four and five”).  Prisoner A would call his partner, one of his approved contacts, and request that she call the complainant and create a conference call.  When a conference call was being connected to the complainant, Prisoner A would hand the phone to the applicant who would then speak with the complainant as soon as she answered the call.  These conference calls occurred between 4 and 9 August 2021.  Prisoner A was released from prison on 10 August 2021.  Following Prisoner A’s release, the applicant engaged another prisoner to contact Prisoner A who would create conference calls with the complainant enabling the applicant to speak with her.  At the applicant’s request, Prisoner A also contacted the complainant by text and spoke with her in person.  In conversations with Prisoner A, the applicant variously described the complainant as “a dog” or “fuckin’ maggot” who needed to be “trained”.  The applicant expressed a desire for the complainant to “go mute”.  He agreed with Prisoner A’s suggestions, made with reference to the complainant, that there was a need to “kick in this cunt” and “play mind games with this bitch”.

Antecedents and personal circumstances

16. [16]
    At the time of his sentencing, the applicant was 39 years old.  He had been 36 years old at the time of the subject offending.  The applicant had three children, the child and two teenage children who lived with his mother in Perth.
17. [17]
    The applicant had been raised in a home environment that was affected by domestic violence.  His stepfather was a drug user with convictions for violence.  The stepfather was described as having been “extremely violent” and “violent towards the children”.^[3]  The applicant left home at the age of 15 years old to escape the violence being inflicted by his stepfather.^[4]  He completed schooling to year 12.  When he was 18 years old, he began using recreational drugs.  In his late 20’s and early 30’s, he was convicted of minor drug offences, in respect of which no convictions were recorded.
18. [18]
    When he was 32 years old, his criminal behaviour escalated.  On 8 July 2019, he pleaded guilty to having, in July and August 2016, supplied schedule 1 dangerous drugs and weapons (“the 2016 offending”).  He was sentenced to imprisonment for four years, suspended for a period of four years after serving six months.  At the time of that sentence, he had spent 71 days in pre-sentence custody.  On 6 September 2023, after a trial, the applicant was found guilty of having, on 30 November 2020, possessed schedule 1 dangerous drugs in a quantity exceeding Schedule 3 but less than Schedule 4 (“the 2020 offending”).  By reason of the 2020 offending, the applicant was found to have breached the suspended sentences imposed on 8 July 2019.  He was sentenced to imprisonment for two years cumulative upon the wholly activated suspended sentence for the 2016 offending.  At that time, the applicant had spent 921 days in pre-sentence custody between 28 February 2021, the date of his arrest for the subject offending, and 6 September 2023.  The period of 921 days was declared as time served under the sentence.  He received a parole eligibility date of 6 September 2023.
19. [19]
    In terms of domestic violence related offending, the applicant had two previous convictions for contraventions of the protection order in respect of which no convictions had been recorded.  Those convictions occurred on 21 September 2018 and 28 January 2019.

The guilty pleas

20. [20]
    On 25 March 2024, the applicant faced his trial on the first indictment.  By this time, the child’s evidence had been pre-recorded.  On the morning of the trial, the first indictment contained the two counts of choking, three counts of assault occasioning bodily harm (domestic violence offence), including one count involving an alleged assault against the child, and two counts of attempting to pervert justice (domestic violence offence).  On that morning, the applicant made an offer which was accepted by the Crown.^[5]  In accepting that offer, the Crown agreed not to proceed with two of the counts of assault occasioning bodily harm, including the count involving the child, and the two counts of attempting to pervert justice.  The applicant then pleaded guilty to the remaining counts on the first indictment.  On 12 April 2024, the applicant pleaded guilty to the counts on the second indictment and the summary charge.

The Sentencing Hearing

The complainant’s victim impact statement

21. [21]
    During the sentencing hearing, the complainant read a victim impact statement.  The complainant thanked the child for saving her life and expressed her belief that, but for the interventions of the child, the applicant would have choked the complainant to death.
22. [22]
    The complainant described having nightmares about losing her breath and not being able to breathe.  She relevantly stated:^[6]

“What I can’t let go of is the fact that he knew he was cutting off my breath and the piercing look in his eyes … I was looking at him and he was looking at me and I was thinking he’s really going to kill me today. The look in his eyes will haunt me forever. He looked at me like that was precisely what he wanted to do. It was not just once, but he came at me a second time. The second time scared me the most … The look in his eyes was evil.”

23. [23]
    The complainant described her struggle to find a voice to speak up against the applicant.  She had been repeatedly told by the applicant that no one would believe her, and that people would laugh at her.  She relevantly stated:^[7]

“I was crushed. I lost faith in myself. He made me believe there was nothing, that I was nothing. Since he has been locked up, I have discovered that I am everything [that] he said I wasn’t.”

The applicant’s letter of apology

24. [24]
    A handwritten letter of apology was tendered on behalf of the applicant which expressed his remorse and stated that he accepted responsibility.  The letter described the applicant as having made “poor choices” and apologised to the complainant “for any trauma she had endured throughout this incident” (emphasis added).  Whilst the letter accepted responsibility for the subject offending, it also stated that the applicant had “misjudged control of an old habit … and didn’t realise [his] tolerance”.  The relevance of these unexplained references to drug use and “poor choices” was unclear.  The agreed statement of facts made no reference to any drug use.  The applicant’s counsel conceded before the judge that drugs were not a feature of the subject offending.^[8]  By referencing “this incident”, the letter appeared to be addressed to the choking and assault counts but made no acknowledgement of the applicant’s protracted course of conduct, the subject of counts three to five on the second indictment.  That the applicant lacked any real insight into, or was genuinely remorseful about, that offending, was borne out by the following submission made on his behalf to the judge:^[9]

“The breaches or the contraventions of the order relate to contact only. I accept that they’re ongoing. But my instructions are that they’re related just to contact to the complainant in terms of sorting out legal advice and legal representation and wasn’t to dissuade her from continuing in any complaint.”

The submissions made to the judge

25. [25]
    The applicant’s counsel submitted that the pleas of guilty were “timely” but had occurred “very late”.^[10]  That apparently counterintuitive submission was explained in terms that the pleas were timely because “witnesses didn’t have to give evidence”.  The Crown submitted that the pleas were late.^[11]  As to the formulation and structure of the sentence, the Crown’s submissions were broadly as follows.  An appropriate sentence involved a term of imprisonment of three years on the counts of choking, two years on the count of assault occasioning bodily harm and 18 months to two years on the contraventions of the protection order.  It was appropriate to “place a head sentence on one of the counts of choking of three and a-half years”,^[12] it being implicit that the terms of imprisonment for the subject offending were to be served concurrently.^[13]  The period of 218 days which the applicant had spent in pre-sentence custody since his sentence on 6 September 2023 was to be declared as time served under the sentence for the subject offending.  The pleas of guilty were appropriately recognised by setting a parole eligibility date as 3 November 2024.  The applicant’s submissions were broadly as follows.  The head sentence for the choking counts might be in the range of two and a half to three years with lesser concurrent sentences for the assault and the breaches of the protection order.  The applicant’s parole release date was to be fixed as 12 April 2024, to reflect the further time he had spent in custody and to give effect to the totality principle.^[14]  The period of 218 days was to be declared as time served under the sentence for the subject offending.  No express submission was made by the Crown or the applicant’s counsel as to whether the sentence to be imposed in respect of the subject offending was to be served cumulatively upon or concurrently with the existing sentence.  Having regard to s 155 of the Penalties and Sentences Act 1992 (Qld) (“the Act”), it may be inferred that the submissions were made on the basis that any sentences to be imposed were to be concurrent with the existing sentence.

Sentencing Remarks

26. [26]
    The judge found that the choking was not only dangerous but had induced in the complainant a belief that she was going to be murdered.  As to the breaches of the protection order, the judge found that the offending revealed “a determined defiance of the law and the suite of measures taken to protect [the complainant]”.^[15]  That conduct was found to have revealed “a shameless attitude towards [the complainant], a complete lack of empathy and the determination to manipulate her into harming her own interests to benefit you and your interests, all the while conscious of the order which prohibited you from any contact at all”.^[16]  The judge made reference to the applicant’s apparent “urge to punish and control [the complainant]”.^[17]  The judge described the applicant as a dangerous man who posed a serious risk, not just to the complainant, but to women in general.
27. [27]
    Against the background of those findings, the material passages of the sentencing remarks may be set out as follows:^[18]

“You have pleaded guilty. It is a late plea, after the cross-examination of the child but before the examination of [the complainant]. You pleaded guilty on the first day of the trial. …

Public safety must be the focus of this sentence. Your crimes must be denounced in the clearest way. The sentence needs to be one that not only serves as a warning to others but is some deterrent to you.

You have been in remand custody for these offences for a long time, 1139 days from your arrest on the 28^th of February 2021. That time in custody has included COVID lockdowns. But for the entire time you have been in custody, you have been serving the balance of the five and a-half year period of imprisonment for the drug convictions. And I note that the original suspended term of imprisonment was activated not in respect of today’s offending but for further drug offending. You became eligible to apply for parole in respect of the pre-existing sentence on the 6^th of September 2023. The full time expiry date is the 27^th of August 2026.

I am to sentence you for different and serious offending. I am mindful that it is the totality of the sentence orders that must be just and proportionate to your criminality. If it is not clear already, this was a bad example of choking. Your victim was unable to breathe; you choked her twice. That was in breach of a protection order and during an operational period of a suspended sentence. It was while a young child was nearby, and that child was traumatised. What you did has done profound psychological harm to [the complainant].

The episode of physical violence is exacerbated by those bad examples of contraventions in counts 3 to 5. They were protracted courses of conduct involving devious scheming and organisation with the recruitment of agents. They were callous. One can only imagine the impact on an already traumatised victim to realise that your capacity and determination to reach her extended even from jail.

For the counts of choking, you are sentenced to three years’ imprisonment. For the assault occasioning bodily harm, you are sentenced to two years’ imprisonment. For the contraventions in counts 1 and 2, you are sentenced to 12 months’ imprisonment. Those terms of imprisonment are to be served concurrently with each other, but they are to commence at the expiration of the pre-existing sentence, that is, the sentence that expires in 2026.

For the contraventions committed in remand custody, you are sentenced to 15 months’ imprisonment, that is, in counts 3, 4, and 5, the sentence is 15 months’ imprisonment. Those sentences are to be served concurrently with each other, but cumulatively on the three-year sentence for choking. The 15-month period is to commence at the expiration of the three-year sentence for choking.

In respect of the summary offence, you are convicted and not further punished. In terms of the remand custody, I do not declare it because it was for the reasons already given[.] It is for those reasons, I have made today’s sentence cumulative on the entirety of that sentence. I do not declare the 1139 days, but I have taken into account the continuous period of imprisonment that precedes todays sentence, and applied it in the determination of the eligibility date for parole. I fix the date upon which you will be eligible to apply for parole as the 6^th of December 2024, which is a delay of 15 months on the current date. Anything else?”

28. [28]
    At the conclusion of the sentencing hearing, the judge added this observation:^[19]

“I will say this about the purpose of today’s sentence. The public safety has been the focus of it. These are crimes that must be denounced in the clearest way, and the sentence needs to be one that deters not only like-minded people, but is a specific deterrent to [the applicant].”

Consideration of the grounds of appeal

29. [29]
    The following situation existed at the time of the sentencing hearing.  Since 28 February 2021, the applicant had been in custody serving terms of imprisonment related to the 2016 and 2020 offending.^[20]  He was serving an effective sentence of five and a half years imprisonment which reflected the activation of the whole of the suspended sentence in respect of his convictions for the 2016 offending and the cumulative sentence of two years imposed in respect of the conviction for his 2020 offending.  He had spent 1,134 days in custody, an additional 218 days to the 921 days declared as time served for the purpose of his sentence imposed on 6 September 2023.  He had been eligible for parole since 6 September 2023.  The full time expiry date of his existing sentences was 27 August 2026.
30. [30]
    The sentence imposed in respect of the subject offending was structured as follows:

    1. In respect of the two choking counts, three years imprisonment.
    2. In respect of the count of assault occasioning bodily harm, two years imprisonment.
    3. In respect of counts one and two of the second indictment, 12 months’ imprisonment.
    4. Each of the terms of imprisonment referred to in (a) to (c), were to be served concurrently with each other, but to commence at the expiration of the sentence imposed in respect of the 2020 offending, being 27 August 2026.
    5. In respect of counts three to five of the second indictment (“the offending in custody”), the applicant was sentenced to 15 months imprisonment, to be served concurrently with each other but cumulatively upon, and to commence upon the expiry of, the three years sentence for the choking.
    6. In respect of the summary offence, the applicant was convicted and not further punished.
    7. None of the period spent in pre-sentence custody was declared, but that time was taken into account in determining a parole eligibility date, which was fixed as 6 December 2024.
31. [31]
    Before considering the separate grounds of appeal, it is convenient to consider the sentencing yardsticks for the subject offending, viewed in isolation from the 2016 and 2020 offending.  The subject offending had been committed by a mature aged man, with a significant criminal history which included terms of imprisonment for drug offending, but no violent offending.  On this appeal, the applicant did not seek to disturb the findings which her Honour made about the nature of the subject offending.  Those findings were entirely appropriate.  The judge, who was highly experienced in sentencing offenders for domestic violence offending,^[21] described the subject offending as “bad examples” of choking and breaches of a protection order.
32. [32]
    As to the chokings, three authorities of this Court were referenced in argument.  R v MDB^[22] concerned a 38 year old defendant with a “serious and concerning criminal history”,^[23] which included multiple convictions for offences involving violence and two convictions for possessing a knife in a public place.  The defendant had bitten and scratched his girlfriend and then pulled a knife which he held against her throat.  He then choked her twice.  A sentence of four years imprisonment was imposed on the choking with lesser concurrent sentences on counts of assault occasioning bodily harm, threatening violence, common assault and wilful damage.  Parole eligibility was set after 12 months.  R v HBZ,^[24] concerned a 34 year old defendant who had pushed the complainant onto a bed and grabbed her by the neck and shoulders so that she could not speak or breathe for a period of about 70 seconds.  He had then grabbed the complainant by the shoulders and shook her.  He had no criminal history and was sentenced to two years imprisonment with a parole release date fixed at one year.  R v MDS,^[25] concerned a 49 year old defendant who held the complainant down on the floor and put a wicker basket over her head, using the basket to put pressure on both sides of her neck.  The complainant was still able to talk but her breathing was restricted.  The offender went outside the house and came back with two cane knives.  He kicked the complainant’s legs out from under her, stood over her and used the cane knives to chop next to her on both sides.  The complainant kept her arms on her chest to avoid being cut.  The defendant damaged other items of property using the cane knives and later pushed the complainant backwards so that she fell onto concrete.  Much of this offending was witnessed by the couple’s 16 year old son.  A sentence of three years imprisonment was imposed on the strangulation count, which the judge stated was increased to take account of the other offending.
33. [33]
    The aggravating features of the choking in the present case were that it involved two episodes which occurred in the presence of the child, in breach of the protection order and during the operational period of a suspended sentence.  During the first episode, the complainant could not breathe.  During the second episode, her breath was restricted.  The choking instilled in the complainant a belief that she was going to be murdered.  The present offending was not as serious as in MDB, which involved the use of a knife by a defendant with a history of violence and knife possession.  MDS had also involved offending involving with knives, which significantly added to the criminality of the overall conduct.  The present offending was more comparable to the choking offending in HBZ, which involved one, protracted incident, but that offending had been committed by a defendant with no criminal history and did not occur in the presence of a child.  Having regard to these yardsticks, in the present case, three years imprisonment was an appropriate sentence for the choking involved in the subject offending.
34. [34]
    No authority of this Court was cited as a yardstick for an appropriate sentence for the offending in custody.  The maximum penalty for that offending, which involved contravening a domestic violence order, was five years because it was committed within five years of the applicant’s earlier convictions for the same offence.  The breaches of the protection order the subject of the offending in custody reflected calculated, protracted conduct which may have been expected to cause significant emotional harm to the complainant upon her realisation that, despite the protections intended to be afforded by the protection order, the applicant remained able to orchestrate contact with her from custody.  The offending was persistent and devious and fundamentally undermined the intended operation of the protection order.  To the extent that the offending was evidenced by the applicant’s spoken words, his language betrayed an abhorrent, inhumane contempt for the complainant and her wellbeing.  As this Court has recently observed, by reference to High Court authority,^[26] the maximum penalty is reserved for “the worst category of cases”, or “the worst possible case”.^[27]  The offending in custody was not the worst category of case but was rightly described by the judge as a bad example of the offence.  The offending did not involve violence or the infliction of physical injury to the complainant.  By reference to the letter of apology and the applicant’s submissions before the judge, it was offending in respect of which little remorse had been shown or insight demonstrated.  Having regard to all of these matters, viewed in isolation, sentences of 15 months imprisonment for the offending in custody, were not inappropriate, albeit that they were lenient.

The guilty pleas were taken into account

35. [35]
    There were in effect two submissions made by the applicant in relation to this ground.  First, the judge erred by failing to recognise that the pleas remained timely for the purpose of reducing the sentence on account of the pleas.  Second, the judge erred by failing to state that the pleas had been taken into account in determining the sentence.  Before considering these submissions, it is convenient to refer to s 13 of the Act and the relevant common law principle which underpins the reduction of a sentence by reference to a guilty plea.
36. [36]
    By s 13(1) of the Act, when imposing a sentence on an offender who has pleaded guilty to an offence, the sentencing court “must take the guilty plea into account” and “may reduce the sentence that it would have imposed had the offender not pleaded guilty”.  By s 13(3), the court must state in open court that it took account of the guilty plea in determining the sentence imposed.^[28]  Although that requirement is an important obligation, a failure to comply with it, does not of itself justify interference with a sentence if it is evident from the sentence that the pleas were in fact taken into account.^[29]  A failure to comply with the obligation will cause the appeal court to examine the sentence for the purpose of ascertaining whether it appears that the sentencing court, in fact, took the plea into account.^[30]  There is no requirement for the court to state the extent of the reduction for the plea of guilty.^[31]
37. [37]
    Whilst s 13(2) recognises that a reduction may be made having regard to the timing of the plea, s 13 does not prescribe the factors which are relevant to a decision to reduce a sentence on the ground of a guilty plea.  The considerations which are relevant to the reduction of a sentence on the ground a guilty plea come from the common law.^[32]  In Siganto v The Queen,^[33] 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 that the community is spared the expense of a contested trial.  The extent of the mitigation may vary depending on the circumstances of the case.  It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence.”

38. [38]
    In Cameron v The Queen,^[34] the rationale for the common law rule was further explained as follows:

“Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.”

39. [39]
    In terms of the specific circumstances of this case, it is notable that the judge did not find that the applicant was genuinely remorseful.  The pleas, when considered alongside the letter of apology and the submissions made on behalf of the applicant in relation to the offending involved in counts three to five of the second indictment, did not evidence remorse or an acceptance of responsibility.  In the circumstances of this case, given the lack of apparent remorse, the fundamental issue was the extent to which it could be inferred from the pleas, that the applicant had evinced a willingness to facilitate the course of justice.  The applicant pleaded guilty in circumstances where he had made an offer on the first morning of the trial, the Crown did not proceed with some of the counts on the first indictment and fresh counts on the second indictment were later brought forward.  The timing of the pleas was relevant to the extent of any reduction to be received on sentence.^[35]  The timing of the pleas involved considering whether the pleas were entered at the first reasonable opportunity.^[36]  That consideration required attention to the relevant circumstances leading to the pleas and not mere regard to the form of the charges.^[37]  Relevant forensic prejudice was not to be assumed.^[38]  It fell to the applicant to demonstrate why the course he had adopted of making the offer which he made on the first day of the trial, after the evidence of the child, was not a course reasonably open to him at an earlier time.^[39]
40. [40]
    The applicant’s submission, made before the judge and maintained before this court, that the pleas were timely, should be rejected because it involved an unjustified premise that the applicant had in fact pleaded guilty at the first reasonable opportunity.  In sentencing proceedings, it is not uncommon for evidence of circumstances relevant to the timing of a plea to include evidence of the progress of negotiations in relation to charges that were withdrawn, the particular forensic prejudice or disadvantage in pleading guilty to some charges whilst another charge or other charges remained on an indictment or a late development in the case, such as the emergence of new evidence.^[40]  There was no such evidence in the present case.  There was also no evidence as to why it had been necessary to put the child through the ordeal of giving evidence.
41. [41]
    The pleas were properly found to be late pleas, occurring as they did on the first day of trial, after the child had been required to give evidence and with no explanation as to why the offer made by the applicant on the first day of trial was not reasonably able to be made at an earlier time.  The late pleas evidenced some willingness to facilitate the course of justice in that some witnesses, and in particular the complainant, were spared the burden of having to give evidence and some of the costs and expense of a trial were saved.  That willingness provided a basis on which to reduce the sentence imposed upon the applicant.  However, the reduction called for, in the present case, was one reflective of a late plea unaccompanied by demonstrative remorse.
42. [42]
    There is no requirement that a judge must “rehearse the precise terms of s 13(3)”.^[41]  All that is required is that the court “state in open court” that it took account of the guilty plea.^[42]  The words by which such a statement can be made may take a variety of forms and the focus is upon what the judge said in any particular case.^[43]  In this case, the judge expressly stated that the applicant had pleaded guilty but also stated that the pleas had been made late and had occurred before the cross examination of the complainant.  These statements recognised not just the fact of the pleas but their relevance to a reduction of the sentence.  The statements appeared in a part of the sentencing remarks addressing matters of mitigation.  A fair reading of the sentencing remarks is that, by these statements, the judge was recognising the pleas as a circumstance of mitigation.  Having regard to the text and context of these statements, the rational inference to be drawn is that the sentencing remarks contained a statement in open court that the judge had taken account of the pleas.
43. [43]
    In any event, it is evident that the sentence imposed in respect of the subject offending in fact took account of the guilty pleas.  Setting a parole eligibility date at an earlier date than that on which an offender would otherwise become eligible is well recognised as a reduction of the offender’s sentence for the purposes of s 13 of the Act.^[44]  In R v CCR,^[45] this Court observed:

“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 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.”

44. [44]
    The judge stated that the 1,139 days spent in pre-sentence custody had been taken into account in determination of the eligibility date for parole.  That statement of itself did not suggest, or necessarily imply, that the guilty pleas had not been considered in determining the parole eligibility date.  The practical effect of the sentence in relation to parole eligibility was to extend the applicant’s parole eligibility date by a period of some 15 months in circumstances where the head sentence that was being imposed cumulatively was four years and three months.  The extent of the reduction of the non-parole period warrants the conclusion that the judge took the late pleas into account.
45. [45]
    The first ground of appeal fails.

The totality principle was infringed

46. [46]
    In Mill v The Queen, the High Court said:^[46]

“The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57 as follows (omitting references):

‘The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is “just and appropriate”. The principle has been stated many times in various forms: “when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong(”); “when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”

47. [47]
    Whilst the application of the principle involves a discretionary judgment,^[47] the proper application of the principle requires an evaluation of the overall criminality involved in all the offences with which the defendant has been charged.^[48]  As was observed by McHugh J in Postiglione v The Queen (references omitted):^[49]

“The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

48. [48]
    In Mill, the applicant had committed three armed robberies within a period of six weeks in two different states.  In one state, he was sentenced in respect of two of the offences to 10 years imprisonment with a non-parole period of eight years.  When released he was arrested and convicted in the other state and sentenced to eight years imprisonment with a recommendation of parole after three years.  With reference to the approach taken on that second sentencing hearing, the High Court relevantly observed:^[50]

“We should add that his Honour was encouraged to take that course by the Crown Prosecutor who submitted that a heavy head sentence should be imposed, ‘signifying the way that the courts and community treat these types of offences’. It was, in the prosecutor's submission, the length of the non-parole period - and, presumably, that alone - that was to reflect the fact that the applicant had been in custody for eight years and had pleaded guilty and co-operated in bringing the matter to a conclusion.

In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time. It is most unlikely that the applicant would have been sentenced to eight years on the first count, eight years with six years of it concurrent on the second count, and eight years cumulative on the third count, making an aggregate head sentence of eighteen years. Yet that, it seems to us, is the practical effect of the sentence imposed by his Honour. On the other hand, the notional exercise which we have just described tends towards a conclusion that a sentencing court dealing with all three offences at the same time would have dealt with the third offence in a similar manner to that adopted when dealing with the second, namely, by imposing a sentence of eight years with five or six years of it concurrent with the earlier sentences.”

49. [49]
    The application of the totality principle is meant to ensure that an offender is not subjected to a crushing sentence not in keeping with his record and prospects.^[51]  In R v Baker,^[52] this Court referred with approval to the judgment of the Court of Appeal of the Supreme Court of Western Australia in Stubley v Western Australia,^[53] which described the totality principle as comprising two aspects as follows (footnotes omitted):

“First, the total effective sentence imposed on the offender must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate). Secondly, the total effective sentence imposed on an offender should not constitute a ‘crushing’ sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody.”

50. [50]
    For the purposes of the totality principle, the total effective sentence imposed upon the applicant was a sentence of nine years and nine months.  He was to be eligible for parole after serving some 1,377 days of that sentence, a period of approximately 3.8 years.  The judge was required to consider whether that total effective sentence bore a proper relationship to the overall criminality involved in all the offending, viewed in its entirety, having regard to all relevant circumstances, and whether that sentence was a crushing sentence, not in keeping with the applicant’s record and prospects.  Having regard to the sentencing remarks, they contained no evaluation of the overall criminality involved in the 2016 offending, the 2020 offending and the subject offending.  There was no explanation as to why the sentence imposed, achieved appropriate relativity between the totality of the criminality and the totality of the sentences.  There was no consideration of what would likely have been the effective head sentence imposed, if the applicant had been sentenced for the three groups of offending at the one time.  There was no consideration as to whether the sentence imposed was a crushing sentence, not in keeping with the applicant’s record and prospects.
51. [51]
    On this appeal, the Crown conceded that the judge did not specifically identify how the sentence addressed totality considerations.^[54]  That was an appropriate concession.  The Crown submitted that it might be inferred that totality had been addressed because, in respect of the offending in custody, the applicant was given a lenient sentence.  The sentence was said to be lenient by reference to the term of 15 months and the fact that cumulative sentences were not imposed for offending that had occurred in different periods.^[55]  The Crown’s submissions in this regard should be rejected.  As a matter of principle, the mere fact that offending is different and occurs at separate times, does not constitute a bar to concurrent sentences being imposed for all or part of the offending in the proper exercise of the sentencing discretion.^[56]  The 15 months sentence was lenient but not inappropriate for the offending in custody, viewed in isolation.  Having regard to the sentencing remarks and the structure of the sentence imposed, it is tolerably clear that the judge erred by not addressing the substantive aspects of the totality principle.
52. [52]
    The 2016 and 2020 offending was certainly different offending to the subject offending.  The 2016 offending had been committed by the applicant when he was 32 years old, had a minor criminal history and was yet to spend any time in custody.  The 2020 offending had involved serious drug possession offending committed during the operational period of the suspended sentence imposed for the 2016 offending.  The subject offending was unrelated to the earlier offending and involved domestic violence offending against the same complainant.  The subject offending was the first time the applicant had been convicted of offences involving violence.  The violence had not involved weapons but had occurred in breach of the suspended sentence and the protection order.  A proper consideration of the totality of the criminality involved in all the offending would suggest that, had the offending come before a sentencing court on the one occasion to be dealt with at the one time, it is highly unlikely that sentences would have been imposed cumulative upon one another in the manner, and to the extent, they were in fact imposed.  Rather, a just and appropriate sentence required a significant period of the sentences to be imposed for the subject offending to be served concurrently with the existing sentences.  A sentence structure which imposed sentences for part of the subject offending to be served concurrently with the existing sentences, would have properly recognised and punished the subject offending as required by the proper application of the totality principle.  The total effective sentence of nine years and nine months was disproportionate to the totality of the criminality involved.
53. [53]
    The sentencing task also required the judge to consider whether the sentence was a “crushing” burden upon the applicant.^[57]  The applicant had been exposed to significant domestic violence at a young age, there was some evidence of steps taken towards rehabilitation whilst in custody involving undertaking programs relevant to drug and alcohol use, anger management and conflict resolution.  The applicant enjoyed family support and had an offer of employment.  He hoped to maintain and develop a relationship with his other two children.  The sentence imposed placed the applicant in a position where he was serving terms of imprisonment totalling just shy of a decade with no prospect of applying for parole for a period of approximately 3.8 years.  At his sentence, he had been eligible for parole for 218 days, but his prospects of obtaining parole during that time were diminished as he was being held on remand for charges under the first indictment.  The 218 days, in a real and practical sense, represented time spent by the applicant on remand in relation to proceedings for the subject offending.  In the present case, to avoid a crushing sentence, the proper application of the totality principle required not just a sentence structure involving a shorter total effective sentence but an earlier parole eligibility date and a declaration under s 159A(3)(c) of the Act in relation to the 218 days spent in pre-sentence custody.
54. [54]
    The second ground of appeal has been established.

The sentence was manifestly excessive

55. [55]
    To succeed on the ground that the sentence was manifestly excessive, the applicant was required to show that the sentence was unreasonable or plainly unjust such that it might be inferred that in some way there has been a failure to properly exercise the discretion which the law reposed in the sentencing court.^[58]
56. [56]
    In Dinsdale v The Queen,^[59] Gleeson CJ and Hayne J observed:

“Manifest inadequacy of sentence, like manifest excess, is a conclusion.  A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent.  It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.  It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short.  But to identify the type of error amounts to no more than a statement of the conclusion that has been reached.  It is not a statement of reasons for arriving at the conclusion.  A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain.  The degree of elaboration that is appropriate or possible will vary from case to case.”

57. [57]
    The applicant’s counsel properly conceded that, except for the totality concerns, the sentences imposed by the judge were appropriate^[60] and “unexceptional if imposed alone for the subject offending”.^[61]  That concession having been made, the applicant’s counsel described the basis for this third ground of appeal as being “the failure to accommodate totality considerations”.^[62]  For the reasons already provided, the judge erred in failing to properly apply the totality principle.  In the result, having regard to its structure, the sentence imposed was plainly unjust.
58. [58]
    The third ground of appeal has been established.

The re-exercise of the sentencing discretion

59. [59]
    The grounds of appeal in relation to totality and manifest excess having been established, it falls to this court to re-exercise the sentencing discretion.
60. [60]
    Having regard to the reasons already expressed in relation to the proper application of the totality principle, in the circumstances of this case, the sentences imposed for the choking and assault occasioning bodily harm, the counts on the first indictment, and on counts one and two of the second indictment, should have been concurrent with the existing sentence.  The sentence imposed for the offending in custody should have been cumulative, to commence on the expiry of the sentences imposed for the choking and assault occasioning bodily harm.  A total effective sentence of approximately six years and nine months was proportionate to the totality of the criminality involved across all the offending.  To avoid a crushing burden upon the applicant, an earlier parole eligibility date ought to have been ordered as at on or around the date of the sentence and a declaration ought to have been made that the 218 days spent in pre-sentence custody was time spent under the sentences imposed for the chokings, assault occasioning bodily harm and on counts one and two of the second indictment.

Orders

61. [61]
    The orders I would propose are as follows:

3. 1.
   Leave to appeal granted.

3. 2.
   The appeal is allowed.

3. 3.
   The applicant is re-sentenced as follows:

3. (a)
   On indictment 62 of 2023:

3. i.
   In respect of counts 1 and 5, three years imprisonment.

3. ii.
   In respect of count 3, two years imprisonment.

3. (b)
   On indictment 767 of 2024:

3. i.
   in respect of counts 1 and 2, 12 months’ imprisonment.

3. (c)
   The sentences imposed in paragraphs (a) and (b), are to be served concurrently with each other and with the sentences imposed on 6 September 2023;

3. (d)
   The period of pre-sentence custody between 6 September 2023 and 30 September 2024, being a period of 391 days, be taken as time served under the sentences of imprisonment referred to in paragraphs (a) and (b).

3. (e)
   On indictment 767 of 2024, in respect of counts 3 to 5, 15 months’ imprisonment.

3. (f)
   The sentence imposed in paragraph (e) is to be served cumulatively upon the sentences imposed in paragraphs (a) and (b) and is to commence on the expiry of the sentences imposed in paragraphs (a) and (b), being 6 September 2026.

3. (g)
   In respect of the summary offence, convicted and not further punished.

3. 4.
   The applicant’s parole eligibility date is fixed as at the date of judgment of this Court, being 1 October 2024.