R v RBO[2024] QCA 214

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Henry J.

2. [2]
   BROWN JA:  I agree with the reasons of Henry J and the orders proposed by his Honour.
3. [3]
   HENRY J:  The appellant stood trial for seven alleged offences of domestic violence upon his wife.  The charges and verdicts were:

4. [4]
   The rape, of which the appellant was acquitted, allegedly occurred on a date unknown in July 2018.  All six of the assault offences, two of which the appellant was acquitted of, were said to have been committed in a brief rolling episode of violence on 1 August 2019.
5. [5]
   The appellant was sentenced to concurrent terms of imprisonment, the highest of which was 16 months imprisonment, suspended after eight months.
6. [6]
   He appeals his convictions on the sole ground that the verdicts were unreasonable and cannot be supported having regard to the evidence.  There is no substance to that ground.  He seeks leave to appeal his sentence, on the sole ground that it was manifestly excessive.  It was.  Leave should be granted and the sentence should be reduced to 12 months imprisonment, suspended after six months.

The conviction appeal

7. [7]
   The sole ground of appeal against conviction requires this Court to make an independent assessment of the sufficiency and quality of the evidence and decide, upon the whole of the evidence, whether, as a question of fact, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty.^[1]  The complaint that the verdicts were unreasonable and cannot be supported having regard to the evidence, is not directed at the sufficiency of the evidence.  It is directed at its quality.  In effect it is contended there were a multiplicity of issues which so undermined the reliability of the evidence of the alleged offences that it was not reasonably open to the jury to convict on any of them.
8. [8]
   The reliability issues raised in the appeal were raised before the jury below.  The jury were properly instructed they had to consider each count separately and that their verdicts could be different.  They were also instructed that, in the event they had a reasonable doubt about any count, their reasons for such doubt ought to be considered in weighing whether they had a reasonable doubt about the other counts.^[2]
9. [9]
   In the result, the jury did acquit on some counts and convict on others.  It is not suggested the mix of verdicts was inconsistent.  It is a reasonable inference that the jury was sufficiently concerned by some reliability issues as to have acquitted on some counts but not so concerned as to be left in a state of reasonable doubt in respect of the balance.  As will be seen that mixed outcome was an unremarkable reflection of the variable force and significance of the reliability issues emphasised by the appellant.
10. [10]
    Those reliability issues were not only advanced as individually significant but also so collectively significant that it was not reasonably open to convict on any count.  Their significance, both individually and collectively, is best appreciated by considering them progressively, in context.  The assessment task will therefore integrate consideration of them, within a generally chronological assessment of the evidence of the alleged offending and its background.

There was a domestically violent background to the alleged offending

11. [11]
    The appellant and complainant married in May 2011 and separated in about September 2019.  They are now divorced.  They had a daughter, who was seven years old at the time of the alleged assault offences, and two much younger sons.
12. [12]
    Evidence was adduced at trial of instances of domestically abusive and controlling behaviour by the appellant during the marital relationship.  The complainant testified the behaviour came in waves between happy periods in the relationship.
13. [13]
    When angry at her, the appellant would sometimes push, slap or punch her or spit in her face.  He would call her a beast, the most disgusting thing he had ever seen, vile, disgusting, dirty and an ‘ugly, fat cunt’.
14. [14]
    He was controlling of her expenditure, removing her access to ATM cards from 2018 to the occurrence of the assaults on 1 August 2019.  He would, on occasion, allude to a life insurance policy, telling the complainant she was worth $3 million dead to him.
15. [15]
    There was an occasion as early as 2011 when police attended their home after the appellant had become enraged, wielded a knife and variously threatened to kill himself or the complainant if she tried to leave.  There was an occasion in 2015 when the appellant became angry because he could not find an item he was looking for and yelled abuse at the complainant in front of their daughter, saying he would quite happily put the children in the car and drive to the Sherwood boat ramp and kill them.  This threat to drown the children was repeated on other occasions during the history of the relationship.
16. [16]
    In their sexual relationship the complainant became submissive.  By the beginning of 2018 the appellant had become more sexually aggressive, for example, throwing a bottle of lubricant at her, telling her to put it on as he did not want to have to hurt his penis ‘by having to fuck’ her ‘dry vagina’.  She testified to occasions when she would wake up in the morning without underwear on and smelling of semen, the inference being the appellant had sex with her whilst she was asleep.
17. [17]
    The admissibility of the above history of the appellant’s conduct in the domestic relationship was not in issue in the appeal.

The appellant’s domestic violence did not leave the complainant perpetually timid

18. [18]
    The appellant submitted that history portrayed the complainant ‘as a sober, terrified victim cowered into submission by years of domestic tyranny’, which was contradicted by recordings contained in exhibit 11 at trial.  It was submitted the video clips comprising exhibit 11, taken four weeks after the alleged assaults of 1 August 2019, showed ‘the complainant’s demeanour was belligerent, and betrayed not a hint of concern or fear’.
19. [19]
    Exhibit 11 contains three recordings, apparently taken within short succession, of a conversation between the appellant and complainant on 27 August 2019.  It records a running argument between the appellant and complainant, in which they were arguing from two very different perspectives.  On the one hand the appellant, in self-serving language - fitting the context that he was secretly recording the conversation - asserted he did not want the complainant to have a drink of wine and insisted that if she did not pour it down the sink he would leave.  The complainant, on the other hand, was insistent that she needed a break from looking after the children and that the appellant should look after them for a while that evening.
20. [20]
    That the complainant was assertive in arguing the appellant should assist by taking care of the children was of neutral probative value in supporting or rebutting the occurrence of past violence in the relationship.  That is because, even on the complainant’s own account, the controlling and angry behaviours of the appellant had occurred intermittently, not constantly, throughout the relationship.  It is also because it does not follow that such behaviours by the appellant left the complainant in a state of perpetual timidity towards the appellant.

Whether the complainant drank to excess was only a collateral credit issue

21. [21]
    There was an attempt at trial to undermine the complainant’s reliability by reference to the collateral credit issue of whether she was truthful about her use of alcohol.  The appellant submitted that text message exchanges, which the complainant conceded had occurred as between her and the appellant, supported the inference, denied by her, that she was a problematic drinker, and this materially undermined her reliability.
22. [22]
    As to the content of the texts, the following text exchange occurred on 28 May 2019:

COMPLAINANT:  Sorry.  It will never happen again.

APPELLANT:  When you drink, your behaviour becomes erratic for days following.  You are a different person.  Please stop.

23. [23]
    Then on 30 May 2019 there was this exchange, after the complainant had been dealing with a legal issue that day:

COMPLAINANT:  I have no voice at all, now.  I’m buying wine tonight and will be good.  Do you want wine?  The lawyer thing was stressful and I won’t drink until the kids are in bed.

APPELLANT:  I love you but I’m concerned that you’re drinking around [their daughter] and the children may affect their attitude towards alcohol.  So depreciate [sic] if you need to drink, that you don’t do it after they going to bed so I can’t see you.  Thank you.

24. [24]
    Then there was this exchange on 26 June 2019:

COMPLAINANT:  Sorry.  I’ll give you space.  I love you, and I will show you.  And no more drinking.

25. [25]
    In acknowledging the occurrence of these messages in cross-examination, the complainant asserted the appellant, used to make out as a false narrative that she was an alcoholic, as a tactic to control her.
26. [26]
    The messages certainly confirmed that, whether justifiably or not, the appellant had expressed concern to the complainant about her drinking alcohol and that her responses had been acquiescent.  The extent to which they reflected her drinking of alcohol as objectively problematic or reflected it as a topic of exaggerated, subjectively controlling concern to the appellant is not clear.
27. [27]
    A jury acting reasonably may well have thought it was a bit of both, but not regarded the issue as doing material damage to the complainant’s general credit or reliability as a witness.  Such a view rests comfortably with the fact there was no suggestion the complainant caused herself to be intoxicated on the occasion of the alleged rape or was intoxicated on the occasion of the alleged assaults.

How did the alleged rape (count 1) occur?

28. [28]
    The event which attracted the sole charge of rape on the indictment was alleged to have occurred at home in the evening after the appellant poured himself and the complainant a glass of wine each and they sat on a couch in the lounge.  She lapsed into unconsciousness.
29. [29]
    Her next recollection was feeling pain, particularly on her inner left thigh, as she awoke.  Her husband’s penis was penetrating her vagina.  Her arms were being held above her head.  He was on top of her on the couch.  Pressure from his body was causing the pain to her thigh.  She kept her eyes closed, pretending to still be asleep.  After the appellant climaxed, he moved off her and left the room briefly.
30. [30]
    She opened her eyes, tracking his movements, and closed them again when he returned to the room.  He walked up to her, spat on her and said, ‘Did you like getting fucked, you dumb bitch?  Oh, that’s right.  You’re unconscious’.
31. [31]
    She lay there for a further period until she believed he must have gone to sleep elsewhere in the house.  She showered, washing semen from her body and noting that there was some blood in the vicinity of her vagina.  She was not menstruating at the time.

The complainant’s pretence of being asleep during the rape was not inconsistent with the alleged conduct of the appellant

32. [32]
    The appellant submitted there was inconsistency between the complainant’s concern about being in danger if the appellant knew she woke up during the rape and the fact that, in light of the appellant’s vulgar comments in the aftermath, he evidently believed she was awake.  There is no inconstancy between the complainant pretending to be asleep and the appellant, as it turns out, realising that she was not.  True it is, when he found out, he did not proceed to physically inflict injury upon her.  On the other hand, he did proceed to spit on her and make very vulgar comments to her – conduct which rather suggests her concerns about his reaction were well placed.

The complainant conceded an error about the timing of the rape but not about its substance

33. [33]
    The appellant testified that in the area where she had felt the intense pain in her inner thigh, a significant bruise had been left and that she photographed it some days afterwards.  A photograph of the bruise, incorporating what may be metadata information about the photograph, including the date of 23 July 2018, was exhibited.
34. [34]
    The timing of the alleged rape was in issue.  It was charged as having been committed on a date unknown during July 2018.  More specifically the complainant testified it occurred the day after she hosted a party for her father’s birthday of 20 July.
35. [35]
    This evidence unravelled when it emerged in cross-examination that the party which occurred in that era was for the appellant’s mother and that both the appellant’s parents travelled to and stayed in the house of the appellant and complainant that weekend.  The complainant conceded she was mistaken about the date range when the rape occurred.  This in turn undermined the corroborative value of the photograph of the bruise, given its apparent date.
36. [36]
    Those developments may explain why the jury had a reasonable doubt in respect of the charge of rape.  However, the appellant also relies on the complainant’s error to contend the guilty verdicts for the assaults were unreasonable.  But the error only went to the approximate timing of the alleged event, not to the substance of what the event involved.  A reasonable jury would have been quite entitled to infer that, in doing her best to provide a timeframe for when the alleged rape occurred and, in attempting to do so long afterwards, the complainant had simply made a temporal error.  It was not the kind of error which would found broader reliability concerns about the complainant’s testimony regarding the episode of the assaults, the date of which was not in issue.

The date on the photograph of a bruise was of neutral significance

37. [37]
    The appellant’s submissions cast the above error as involving an accompanying, more damaging reliability concern, pointing to the apparent metadata on the print photograph adduced by the complainant of the bruise suffered by her during the alleged rape.  The date shown on the print aligned with the complainant’s evidence of the timing of the rape, which she conceded was wrong.  Either the apparent metadata was correct and the bruise was from something else or if the bruise was from the rape at some other time, then the apparent metadata for the photograph could not be correct.  When challenged on this topic the complainant posited the latter explanation, testifying it was not her but her family lawyer who had given rise to the apparent metadata date on the photograph, after taking a transfer of data from one telephone to another in the process of creating a case to obtain a no-contact order.
38. [38]
    The appellant’s argument on this issue was premised on the notion that errors cannot occur in connection with the accuracy of endorsed dates apparently deriving from metadata.  There was no expert evidence on this topic before the Court.  There was no evidence that the date and apparent digital details appearing on the exhibited print were in fact the metadata for the photograph.  There was no evidence from the person who had printed the image bearing the date endorsement, that person likely having been the complainant’s family lawyer.  The jury were in no position to reach any conclusion one way or the other on this issue, let alone regard it as materially impacting the complainant’s general reliability.

The complainant’s attitude to the prosecution case was that a conviction on one assault charge would satisfy her

39. [39]
    Another explanation for the jury’s harbouring of a reasonable doubt about the rape, and, for that matter, two of the assault charges, is the admission made by the prosecution at the start of the final day of the trial, on 16 May 2024, that the complainant had that morning told the prosecutor:

1. a. “My kids are safe.  One criminal conviction would be a slam dunk.”
2. b. “I’m not out to destroy him.  A conviction for the assault would be great because it would save me a heck of money on legal fees.”
3. c. “If we get a conviction that will be great but if we don’t I’d have to do that application and spend that money, if there is a conviction even on one count that would be enough not to do the application” and she could use the money elsewhere.

40. [40]
    The previous day the evidence had closed, defence counsel had completed his address and the Crown Prosecutor had largely completed her address.  In the wake of the making of the admission neither party sought to adduce further evidence from the complainant, however defence counsel was given leave to continue his closing address in the light of the admissions, before the learned Crown Prosecutor then finished her closing address.
41. [41]
    The admission did not involve a concession of any kind by the complainant as to the reliability of any aspect of her evidence.  However, the insight it gave into her attitude to the prosecution of her former husband may have prompted additional caution by the jury in respect of the less well corroborated aspects of her evidence.  Those less well corroborated aspects were her evidence of the alleged rape and the final two of the six assault charges.

What occurred in the first four assaults?

42. [42]
    The charged assaults were alleged to have occurred in a single episode of violence on the night of 1 August 2019, over a year after the alleged rape.  The propriety of the joinder of the rape offence with the assault offences in the same indictment was not an issue in the appeal.
43. [43]
    On the day of the assaults, the complainant had withdrawn $160 from a bank account without the knowledge of the appellant.  After the complainant went to bed that night, the appellant discovered she had the money and became enraged.
44. [44]
    By that era, the appellant slept separately from the master bedroom where the complainant would sleep with the three children.  When the complainant had gone to bed, she shut the bedroom door and slid a chest of drawers some distance across it, to barricade it.  She fell asleep.
45. [45]
    The complainant awoke to the sound of the appellant screaming repeatedly down the hallway ‘Where did you get the $160 from?’  He slammed open the barricaded door of the bedroom and pushed the complainant’s shoulders forcefully backwards, causing her to collide into and break the chest of drawers.  This resulted in some bruising to her right arm and gave rise to count 2, a charge of assault occasioning bodily harm, of which the appellant was found guilty.
46. [46]
    As the complainant walked away towards the living area the appellant followed, saying she was ‘not fucking going anywhere’.  He pushed her forcefully in the upper back, causing her to collide with a bookcase and some glass to fall from it and shatter.  This push gave rise to count 3, a charge of common assault, of which the appellant was found guilty.
47. [47]
    The appellant then pushed the complainant’s front upper torso, causing her to stumble backwards into the broken glass on the floor.  He said, ‘Try and fucking run away now, you dumb bitch’.  This event attracted count 4, a charge of assault occasioning bodily harm, of which the appellant was found guilty.  The bodily harm, from standing on some of the broken glass, was an area of painful minor laceration to the complainant’s foot.  No suturing was required.
48. [48]
    The appellant then opened a nearby sliding door to the patio and pushed the complainant’s front upper torso, causing her to fall backwards down over the slight drop onto the concrete slab of the patio.  This gave rise to count 5, a charge of common assault, of which the appellant was found guilty.
49. [49]
    It is convenient at this point to pause to consider some reliability issues raised by the appellant of specific relevance to the first four assault charges in this episode, they being the four charges of which the appellant was convicted.

A doctor’s evidence supported the complainant’s account despite some inconsistency

50. [50]
    The complainant’s injuries were verified by a doctor who examined her the following day.  He noted multiple bruises to her upper right arm, bruises to either side of her torso, tenderness to both wrists, bruises to her lower legs and foot, a laceration of the sole of the left foot and tenderness to her lower back and forehead.
51. [51]
    The appellant submits there was a concerning inconsistency in the doctor’s record of what the complainant told him about the causation of injury.  That inconsistency was that, on the doctor’s account, the complainant had told him the appellant had broken a bottle and used glass to cut her feet or legs so she could not get away.  If the doctor’s evidence of that comment was accurate, it was plainly evidence of a past inconsistency in the complainant’s account.
52. [52]
    A reasonable jury would doubtless have weighed the significance of that inconsistency, not in isolation but in the context of it coming from a witness who did, after all, verify the existence of an array of injuries upon the complainant in the wake of the episode of assaults complained of by the complainant.  Further, the possibility that the doctor might have misunderstood or mis-recorded what he was told would not have escaped the jury’s attention, bearing in mind that, on the objective evidence, the laceration to the foot witnessed by the doctor – and for that matter witnessed in photographs by the jury – did not appear to be of the gravity that might be expected from the deliberate application of a broken bottle to cut the complainant.  Even allowing that the doctor’s evidence gave rise to the above discussed inconsistency, a reasonable jury could well have inferred that, on balance, the doctor’s verification of the complainant’s injuries supported her evidence to a greater extent than the above discussed inconsistency detracted from it.

The daughter’s account was corroborative despite an inconsistency about what furniture her mother was pushed into

53. [53]
    The daughter’s account was generally corroborative of the first four assaults.  However, the appellant submitted there was a concerning inconsistency in the evidence as between the daughter and her mother about the nature of the pieces of furniture into which the complainant collided.  The complainant’s recollection was that when the appellant forced open the bedroom door and pushed the complainant, she collided into and broke a chest of drawers.  The complainant testified this had caused some nails in the chest of drawers to have become exposed.  She described how her daughter put her hand between the back of the complainant and the nails, saying to her father, ‘You’re going to make her paralysed.  Leave her alone’.
54. [54]
    The daughter, on the other hand, gave evidence that the nails she protected her mother from were nails which were protruding from the bookcase that her mother had collided into in the living area.  There was some variability in her account about which item of furniture she was referring to, for example in her interview with police she at one point described it as a dresser before correcting herself and saying it was bookshelves.
55. [55]
    A jury acting reasonably could of course have taken this inconsistency into account in weighing the reliability of the daughter’s account and her mother’s account and the extent to which the mother’s account was accurately corroborated by the daughter’s.  But equally a reasonable jury would have been entitled to consider the fact that the complainant’s daughter was but seven years old at the time of the event and had not been called upon to recite her memory of the events in her capacity as a witness until long after them.  That the daughter’s memory may have been unreliable about some of the sequential details of impacts into furniture, scarcely meant her evidence was of no value.  A reasonable jury would have been entitled to take her evidence into account as being at least generally corroborative of the occurrence of the first four assaults, even if not corroborative of all details.

There was not a concerning degree of alignment in the evidence of mother and daughter

56. [56]
    The appellant submitted the extent of the alignment in the accounts of the daughter and her mother ‘is troubling’.  That submission did not rest neatly with the above discussed complaint of inconsistency.
57. [57]
    Further, the daughter’s account, while broadly corroborative of the first four assaults, did not corroborate the occurrence of the last two alleged assaults.  The absence of such evidence tends against the argument that her account involves a troubling alignment with her mother’s.
58. [58]
    There were other differences.  On the daughter’s account, when the appellant first pushed through the bedroom door, he started yelling at the complainant about her drinking, ‘even though she doesn’t drink’.  Further, she described the appellant as drunk and asserted that he pushed the bedroom door off its hinges.  No such allegations were advanced by her mother.
59. [59]
    There were signs of animus by the daughter to her father who she said ‘was always a piece of shit’.  A reasonable jury would have treated the daughter’s evidence with some caution, given that animus and the inconsistencies as between her account and her mother’s.  Such caution was additionally justified by the fact she was only seven years old at the time of the event, yet was not interviewed regarding its detail until several years later.
60. [60]
    However, none of that precluded the jury from giving weight to the daughter’s evidence as generally corroborating the occurrence of the first four assaults in the episode.

What was alleged about the last two assaults?

61. [61]
    Turning to the final two assault counts, after the appellant had pushed the complainant, causing her to fall backwards onto the patio slab, she could allegedly remember seeing a knife but could not remember the detail of that.  She recalled screaming out, ‘Call the police, call the police’, hoping the neighbours would hear.  On her account, the appellant then stepped onto the patio and stomped on her left ankle, saying, ‘How are you going to run away now bitch?’  This allegedly caused a bruise to her left ankle and attracted count 6, a charge of assault occasioning bodily harm, of which the appellant was acquitted.
62. [62]
    The complainant recalled all three of the children were standing nearby crying.  The appellant allegedly then stepped back inside the house, locked the door and closed the curtains.  The complainant heard the appellant yelling that he was going to kill her, get her body into their car, put the three children into the back of the car, drive to the Sherwood boat ramp and release the car into the Brisbane River.  He said he would then be able to inherit her life insurance.  He went on to say he could set up a GoFundMe account and be ‘the poor Dad whose crazy bitch ex-wife committed suicide and murdered our three children’.
63. [63]
    Insight into a potential reason for the jury’s acquittal on count 6 can be gleaned from a question they posed to the learned trial judge for redirection during their deliberations.  The particulars of that count were that the defendant stomped on the complainant’s left ankle and that it occurred in the patio area.  The question posed by the jury was:

Re count 6.  For us to find him guilty, does the assault have to happened on the patio, or could it have happened inside?

Can we find him guilty if we think she was kicked inside causing bruising, or does it have to be from a stomp out on the patio?

64. [64]
    In the ensuing redirection the learned trial judge told the jury that the particulars were clear and the charge related to a stomp out on the patio.  Self-evidently, one or more jurors thought the bruise causing application of force to the ankle had occurred inside.  The prospect that the jury had a reasonable doubt on that point may explain the verdict of not guilty on count 6.  So too may the fact that the complainant’s daughter witnessed the earlier assaults but did not witness the assault on the patio.
65. [65]
    After the appellant closed the patio door the complainant recalled she had not earlier locked the laundry door when she had hung out some washing.  She walked to there and, as she walked inside the laundry, the appellant appeared in the doorway.  The complainant alleged he put his hands on either side of her head and slammed her head into the laundry wall.  This gave rise to count 7, a charge of common assault of which the appellant was acquitted.
66. [66]
    At this point there was a knock on the front door and the appellant said, ‘Did you call the police, you fucking bitch?’  He walked back through the house.  By the time the complainant walked through, the children were huddled on the lounge, crying.  There was a female police officer standing there and the appellant was apparently outside with a male police officer.

67. [67]
    The fact that, like for count 6, the assault alleged in count 7 was not witnessed by the complainant’s daughter, may explain why the jury was left with a reasonable doubt on count 7.  So too may an inconsistency in the complainant’s past accounts of the alleged blow to her head.

There was some inconsistency in the complainant’s accounts to others about events after the first four assaults

68. [68]
    The appellant submits the complainant’s credibility was damaged by inconsistencies in describing events when the episode moved outside.  In an affidavit sworn in 2022, filed in domestic violence proceedings, the complainant described the assaults ending with her being thrown outside and having her head smashed into the concrete a number of times whilst the appellant held a knife, stood on her ankle and pushed the children away with his other hand.  She alleged the smashing of her head into the concrete left an indentation in her right temple, of which there was no evidence.  She gave a not dissimilar description of this part of events when she spoke to a psychiatrist in 2020.
69. [69]
    Those inconsistencies, in some of the detail of what the complainant had told a psychiatrist a year after the event and had deposed to in a domestic violence affidavit two years after the event, warranted the jury’s scrutiny.  But a jury acting reasonably would have been entitled to take the view that such inconsistencies did not inevitably bespeak dishonesty, there being a risk of the complainant’s memory conflating events during one episode of violence with events during a different episode of violence.
70. [70]
    Further, the inconsistencies went to events after the first four assault charges.  While they were of relevance to the complainant’s reliability generally, the first four assault charges had some corroborative evidentiary support from the complainant’s daughter.  In such circumstances a jury acting reasonably and exercising due caution was entitled to regard the inconsistencies as carrying more weight in its determination of the last two assault charges.  The mix of verdicts returned is consistent with it having taken such an approach.

There clearly had been an altercation with violence done to the complainant

71. [71]
    The jury’s decision to convict the appellant of the first four assaults is unsurprising.  It was obvious there had been an event at the house that night involving violence done by the appellant to the complainant.  The sound of what occurred apparently concerned a neighbour sufficiently to call the police, who attended.  One of them took some photographs of injuries to the complainant’s feet and noticed she was limping.  The officer assisted in recovering the complainant’s mobile phone from the appellant’s physical possession and observed her locate the appellant’s wallet from which she removed her cards before the wallet was given to the appellant.  The complainant’s injuries were verified by a doctor who later examined her.  The appellant’s daughter gave evidence which was generally corroborative of much of the complainant’s account.  There was no contradicting account from the appellant, who did not give evidence.
72. [72]
    The practical equation presenting itself to the jury about the events of the night of 1 August 2019, was not whether there had been an altercation involving some violence by the appellant and minor physical injury done to the complainant.  Clearly there had been.  Rather, it was whether those events occurred in accordance with the particulars provided for counts 2 to 7 inclusive.  Such an equation is a poor platform for pursuit of the appellant’s complaint that it was not reasonably open to the jury to have convicted on some of those counts.

The scene photographs were of neutral relevance

73. [73]
    In trying to undermine the force of that equation the appellant submitted that such photographic evidence as there is of the scene does not support the complainant’s account of events on 1 August.  The submission rather misses the point that such photographic evidence as there is does not contradict the complainant’s account either.  It appears that the police who attended the scene were not particularly focussed on minutiae, such as the positioning of furniture or fragments of broken glass.  That is no criticism of the attending police.  However, it is quite clear from such digital imagery as was recorded that the relevant officer merely engaged in a cursory walk-through rather than focused evidence-gathering.

The appellant’s messages to the complainant’s mother were self-serving

74. [74]
    The appellant also tried to make much of some seemingly self-serving telephone messages by him.  Exhibit 15 at trial was a screenshot of two voice to text messages left in succession by the appellant on the complainant’s mother’s phone on the night of 1 August 2019 at about 11.44 pm.  That time roughly corresponds with the attendance of police who estimated their arrival was at about 11.40 pm.  The messages were:

• You need to come and get [Complainant] she’s drunk again and abusing me.
• She’s drunk again.  She’s drunk again she’s abusing me she’s hitting me in the face.

75. [75]
    The appellant submitted, ‘If the appellant was, in fact subjecting his wife to a protracted assault, why would he contact her mother and invite her to come to the house to get her?’  In answer to that rhetorical question, a reasonable jury could properly conclude that the appellant was laying a self-serving trail favouring his position at a time after he knew he had offended against the complainant.

Conclusion

76. [76]
    None of the issues raised by the appellant are so compelling, even when weighed collectively, as to have meant it was not reasonably open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of the offences on which they convicted.
77. [77]
    The sole ground of appeal against conviction having failed, that appeal should be dismissed.

The application for leave to appeal sentence

78. [78]
    The appellant is also an applicant for leave to appeal his sentence.  The merits of his proposed appeal were heard concurrently with his leave application.
79. [79]
    He was sentenced to these concurrent terms of imprisonment:

The sentence was suspended at the half-way point, after the applicant had served a period of eight months, for an operational period of 18 months.

80. [80]
    The effective head sentence of 16 months imprisonment appears to be disproportionately high relative to the objective circumstances that these domestic violence offences involved a single episode of repeated pushes occasioning minor injuries, perpetrated by a first offender.  It is so high as to suggest the aggravating consideration they were domestic violence offences may have overwhelmed other relevant sentencing considerations.  However, that is not advanced as an error in itself.  Rather the applicant’s proposed ground of appeal is that the sentence was manifestly excessive.  Such a ground requires consideration of whether the sentence was so unreasonable or plainly unjust as to compel the inference of error notwithstanding that the nature of the error is not discoverable.^[3]
81. [81]
    The sentencing outcome here compels such an inference.

What offending was the applicant to be sentenced for?

82. [82]
    The offending of which the applicant was convicted involved four forceful pushes.  The first, inflicted after the applicant forced his way into the barricaded bedroom in which the complainant and children were sleeping, caused the complainant to fall against a dresser, resulting in bruising of her arm.
83. [83]
    The ensuing pushes were inflicted as the complainant tried to flee from the applicant and at least their daughter was exposed to the violence.  The commission of count 2 awoke the boys who started crying.  It is unclear whether they heard the abusive language used by their father towards their mother during the remaining assaults.
84. [84]
    The second push caused the complainant to collide into a bookcase.  The third push caused her to step onto some broken glass that was on the floor, resulting in a small cut to her foot.  The fourth push caused her to fall out onto the patio.
85. [85]
    The respondent submitted the case involved a ‘prolonged course of violence’, not a ‘few inconsequential pushes’, during which the complainant was helpless.  It is of course correct that the applicant was physically much stronger than his victim and some minor injuries were caused.  As to the duration of the violence the evidence suggests the second to fourth assaults occurred in quick succession after the first, as the complainant tried to move away through the house.  It was in that sense a ‘course of violence’ but it cannot be regarded as having been prolonged by the commission of the further alleged assaults outside and subsequently in the laundry, for the applicant was acquitted of those offences.
86. [86]
    The trial also explored much graver additional alleged misconduct.  A significant body of quite prejudicial evidence of the applicant’s past acts of domestic violence, including rape, was advanced at trial as relevant to liability.  Just as the misuse of such evidence at trial needed to be safeguarded against by appropriate directions, so too must care be taken in respect of such evidence in considering whether the sentence was manifestly excessive.  To the extent such past acts of domestic violence were separate offences of which the applicant had not been convicted, R v D^[4] stands as clear authority in Queensland against them being taken into account so as to increase the sentence for the offences of which the applicant was convicted.^[5]

Did the personal circumstances of the applicant suggest he was a recidivist or uncommitted to rehabilitation?

87. [87]
    The personal circumstances of the applicant did not suggest he was a recidivist or uncommitted to rehabilitation.  He was 37 when he offended on 1 August 2019.  He was 42 when eventually sentenced on 17 May 2024, about four years and nine months after the offences.  There was no evidence of when he was charged with the assaults, but it must have been by at least 2020, for he was said to have been complying with his bail since 2020.
88. [88]
    The applicant and complainant divorced in the meantime, well prior to the trial.  At the time of sentence, the applicant had not had contact with his children since February 2020.  No information was advanced as to what, if any, continuing financial obligations he had to support them.
89. [89]
    The applicant was not subject to any form of domestic violence order at the time of the assaults.  The applicant’s only prior conviction, for drink driving when he was 25, was irrelevant to a sentence of this kind.  He effectively fell to be sentenced as a first offender.
90. [90]
    The applicant gained a diploma in financial services after completing high school and was in almost constant employment thereafter.  He had long been employed as an insurance claims officer and still held that job at the time of sentence.

What reasons were given for the sentence below?

91. [91]
    The Crown Prosecutor below submitted for a sentence range of 18 months to two years imprisonment with release on suspension or parole after serving 50 per cent.  Defence counsel submitted for a sentence range of nine to 12 months imprisonment.
92. [92]
    The learned sentencing judge explained she attached the highest head sentence, of 16 months imprisonment, to count 4, pushing the complainant onto the area of the floor where there was broken glass, on the basis it was the most serious of the four offences.  Her Honour explained she had opted to suspend rather than fix a parole release date because the applicant had been on bail for a significant period and had complied with his bail conditions.  This was the only reference to the extraordinarily long time the applicant had spent awaiting trial – a topic to which these reasons will return.
93. [93]
    Her Honour noted what had been advanced about the applicant’s antecedents.  Her Honour acknowledged the absence of any relevant criminal history but observed ‘there is nothing unusual about a person committing these sorts of offences having no prior criminal history’.
94. [94]
    Her Honour noted the fact that the offences were domestic violence offences was an aggravating factor on sentence and that general deterrence was ‘the primary sentencing consideration here’.
95. [95]
    Her Honour observed that whilst the infliction of violence against any person is worrying, it was made worse in the present case by the context that the applicant committed it against his then wife and mother of their young children, violating her trust and expectation of safety and, at least so far as the initial assault occasioning bodily harm was concerned, committed in the presence of their young children.  The respondent submits these are weighty considerations.  As much is not in issue.  They are aspects of this type of offending which explain why the circumstance that this is a domestic violence offence is to be treated as an aggravating factor on sentence.
96. [96]
    Her Honour observed that, having pleaded not guilty, the applicant could not claim in mitigation that he had demonstrated any remorse or insight.  She observed that, while acquitted of three counts, the applicant did not admit his guilt at trial in relation to the four counts he was convicted of and that there was no suggestion he had ever offered to do so.  Her Honour also made observations, enlarged upon below, about the fact the complainant and her daughter had been cross-examined.
97. [97]
    Her Honour reasoned that, while there was no victim impact statement, ‘ongoing emotional and mental consequences of this sort of offending are almost an inevitable result of the offences’.

Was the applicant’s exercise of the right of cross-examination of any substantial relevance?

98. [98]
    In the course of making her above observations about the applicant’s lack of remorse, her Honour observed ‘not only was the complainant cross-examined extensively at this trial, she was also cross-examined at the committal back in November 2021’.  Her Honour later reiterated the complainant had been cross-examined at length and that the applicant’s ‘young daughter was also unfortunately dragged into this, and she was cross-examined at some length too’.  Her Honour observed the complainant’s ‘distress when giving evidence about the offending was palpable’.
99. [99]
    No specific complaint of error is made about any of that.  However, in assessing whether the sentence is manifestly excessive, care must be taken with the consideration that the complainant and her daughter were cross-examined during the litigation, particularly given the emphasis placed upon it by the respondent’s submissions before this court.
100. [100]
     The facts advanced by the prosecution in this case were advanced on the basis they were cross-admissible in proof of all charges.  It is therefore inevitable that a substantial component of the cross-examination, on each of the occasions it occurred, was relevant to the two alleged assaults and the alleged rape, of which the applicant was acquitted.  That outcome makes it unjust to give substantial weight to the defendant’s exercise of the right of cross-examination as somehow weighing against him in the assessment of whether the sentence was manifestly excessive.
101. [101]
     This heralds a related point of importance.  The only consideration on sentence to which the exercise of the right of cross-examination could have had relevance was the absence of remorse inherent in denying guilt of the offences of which the applicant was convicted.  It must be borne in mind that an absence of remorse is an absence of a potentially mitigating factor.  It does not mean other mitigating factors are not present or should be given no weight.

Was the impact of alleged acts of which the applicant was acquitted or not charged relevant?

102. [102]
     The learned Crown Prosecutor informed the court of the impact of the offending by submitting:

“[T]he complainant has provided a victim impact statement, but I’m not going to tender it or read from it, except to say that she expresses the impact upon her and the children of the domestic and family violence.”

That was scarcely informative at all.

103. [103]
     It will be recalled her Honour reasoned there would inevitably have been ongoing emotional and mental consequences resulting from ‘this sort of offending’.  However, care must be taken with the weight to be given to such a consideration in the present case.
104. [104]
     In that process it is only the impact on the victim of the applicant’s conduct during the four assaults for which the applicant was sentenced which is relevant.  The impact of uncharged other alleged domestic violence or of the alleged offences of which the applicant was acquitted is not relevant.  That is because such impact was not the impact of the offending for which the applicant fell to be sentenced.

Did the aggravating circumstance that this was a domestic violence offence support the imposition of such a sentence?

105. [105]
     The offence of assault occasioning bodily harm is punishable with a maximum of seven years imprisonment.  In practice, sentences imposed for the offence vary broadly, from fines or other community based orders to substantial periods of actual imprisonment.
106. [106]
     This broad variability of sentence range is in part because of the variable potential mixes of the type of assault and the mechanism by which it occasions harm.  For example, an assault may be constituted by a punch or kick, directly inflicting harm, or a push inflicting harm indirectly because of a consequential fall or other movement into some sharp or hard surface.
107. [107]
     The variability also flows from the wide range of potential injury falling within the definition of bodily harm in s 1 Criminal Code (Qld), which is ‘any bodily injury which interferes with health or comfort’.  This contrasts with the definition of grievous bodily harm in s 1, which is a more serious form of injury and includes injuries which would cause death or permanent injury to health without treatment.  Bodily harm may therefore range from an abrasion to an injury so serious as to border on causing death or permanent injury without treatment.  There may even be occasions where the injury likely meets the definition of grievous bodily harm but the prosecution elects in its discretion to proceed with a charge of assault occasioning bodily harm rather than a charge of grievous bodily harm – see, for example, R v Mahanitotonu,^[6]  where the ‘bodily harm’ injury was an undisplaced skull fracture and subdural and subarachnoid haemorrhages.
108. [108]
     The injuries in the present case – a bruise and a small cut – and the degree of violence from which they resulted – pushes – are towards the lower end of the potential range of injuries and violence which may constitute assault occasioning bodily harm.
109. [109]
     It is the circumstances in which the assaults occurred – the applicant’s abusive pursuit and forceful pushing of his wife about the family home, partly in the presence of their children – that raise its seriousness.  Pursuant to s 9(10A) Penalties and Sentences Act 1992 (Qld), the court was required to treat that fact ‘as an aggravating factor’ in determining the appropriate sentence for those offences.
110. [110]
     In now turning to whether the sentences in ‘comparable’ domestic violence cases referred to by the parties support the appropriateness of the sentence, it is to be appreciated that s 9(10A) commenced operation from 5 May 2016.  Of the commencement of s 9(10A) it was observed in R v Hutchinson,^[7] that it was ‘likely to have an effect over time on the sentencing for offenders convicted of offences that are also domestic violence offences’.
111. [111]
     That observation reflected the reasonable expectation that courts sentencing for violence in the context of it being domestic violence would more consistently treat that context as an aggravating factor than had occurred previously.  Such consistency means a more reliable indication of sentencing range is likely to be gleaned from comparable sentence cases which occurred after s 9(10A)’s commencement than before it.  However, the commencement of s 9(10A) did not make all past sentences in this area irrelevant.  Those past cases which took the aggravating context of violent offending in a domestic setting into account as a relevant circumstance, may retain some potentially comparable relevance.
112. [112]
     The 2014 case of R v RAP^[8] is such a case.  There, an offender without criminal history, entered timely guilty pleas to assault occasioning bodily harm of his wife and unlawful damage to property.  He was sentenced to two years’ imprisonment, suspended after eight months.  At a time after an acrimonious separation the offender returned to the former matrimonial home and hit his wife on both sides of the head.  He then punched her a further four times, pulled her towards him by the hair and repeatedly hit her in the face and back.  He then dragged her by the hair across gravel and timber surfaces, saying, ‘You’re fucking dead’.  This was witnessed by the couple’s 16 year old son who attempted to intervene.  The offender thereafter dropped the complainant, kicked her head and punched her again.  The son held the offender long enough for the complainant to run away, but the offender chased her and again punched her to the head from behind, causing her to fall over.  The offender subsequently smashed a door of the premises.  The complainant suffered significant injuries including three facial fractures to the cheek, cheekbone and eye socket.
113. [113]
     Leave to appeal was refused in RAP.  Alan Wilson J, with whom McMurdo P and Fraser JA agreed, observed that ‘in the case of a serious assault in a domestic setting, a sentence of imprisonment for two years or more is plainly within the proper sentencing range’.  The respondent’s submissions in this court appeared to categorise the present case as coming within the degree of ‘serious assault’ to which that observation referred.  It does not.
114. [114]
     Of course, all assaults in a domestic setting may be described as serious.  But the context in which Alan Wilson J deployed the above observation in RAP was in reference to the kind of level of seriousness of assault in a domestic setting with which the court was there concerned.  In that case both the level of sustained violence and the gravity of the bodily harm occasioned – harm bordering upon grievous bodily harm – were markedly more serious than in the present case.
115. [115]
     In R v GBM,^[9] a 2024 appeal case referred to in argument, the offender went to his ex-partner’s address and punched her 10 or more times, causing a laceration to her eye, swelling to the cheek and a fracture of the left middle finger.  He was subject to a domestic violence order prohibiting him from attending her address.  Moreover, he had an extensive criminal history which included offending against the same complainant on prior occasions.  In refusing leave, this court found a notional sentence in the order of three years’ imprisonment was within a sound exercise of the sentencing discretion in that case.  Again, it was a much more serious case than the present.
116. [116]
     A 2018 appeal case referred to in argument, R v Kelley,^[10] involved one punch to the eye of the complainant causing bruising by a youthful first offender who was subject to a domestic violence order.  At first instance he was sentenced to three months’ imprisonment with parole release after one month.  This court granted leave to appeal and substituted a sentence of three months’ imprisonment, wholly suspended.  The offending was objectively less serious than the present offending and the offender pleaded guilty, so it is not a particularly helpful comparative either.
117. [117]
     Of the cases referred to in argument the comparably closest to the present matter was the 2023 appeal case of R v WBX.^[11]  There a 32 year old offender without criminal history pleaded guilty to one count of assault occasioning bodily harm for which he was sentenced to six months’ imprisonment with immediate parole release.  He was convicted but not further punished of seven charges of contravention of the domestic violence order to which he was subject at the time of the assault offence.  Whilst charged as one offence it was effectively an episode of repeated violence towards the offender’s de facto wife, during which, in preventing her from leaving, he grabbed her from behind, put his arm around her neck, grabbed her about the throat twice, slammed her into a bed, threw her to the ground and got on top of her and pushed her down.  When she again attempted to leave, he grabbed her and they fell back to the floor.  He dragged her backwards by the head and slid his hands around her throat, and eventually when she escaped out of the bedroom in which this occurred and arrived near the front door, he pushed her out the front door.  She was left with a swollen jaw, a superficial laceration to the lip and eyebrow, bruising to the cheekbone and bruising to the front of the neck, both knees and her right arm.  The offender was refused leave to appeal.  The degree of force and harm occasioned by that offending was more serious than in the present case and he also contravened a domestic violence order.  Those features are counterbalanced by considerations that, unlike in the present case, the offending did not occur in the presence of children and the offender pleaded guilty.  The head sentence of six months imprisonment was far less than the 16 months imposed here.
118. [118]
     WBX cannot be regarded as having tested the upper range of an appropriate exercise of the sentence discretion in a case like the present, for it was an unsuccessful application for leave to appeal by the offender.  However, none of the other cases referred to by the parties suggest a single episode of first offender domestic violence offending involving the lower end of the potential range of injuries and violence for assaults occasioning bodily harm would usually result in a sentence as high as that imposed here.

Did the aggravating circumstance that this was a domestic violence offence exclude other relevant considerations on sentence?

119. [119]
     It is important to appreciate, as Mullins J (as her Honour then was) explained in Hutchinson, that s 9(10A) did not increase the statutory penalty.  Her Honour observed its effect was the same as that described by Keane JA in R v Pham,^[12] in referring to the effect of earlier amendments to s 9.  Keane JA emphasised such amendments relate to the principles to be applied by courts in sentencing and did not alter the punishment prescribed for such offending by the Criminal Code.  His Honour emphasised that while the application of the amending sentencing principles in the sentencing discretion ‘may’ result in a more punitive sentence than may have occurred prior to the amendments, it remains that the sentencing discretion must be exercised having regard to the individual circumstances of the case.
120. [120]
     Keane JA explained:

“In such a process, some of the principles described by s 9 of the PSA may have great weight and others little weight, depending on the circumstances of each offence and each offender.  In some cases, some of these principles will have little or no effect upon the outcome of the process because, in the particular circumstances, other principles have an almost overwhelming claim on the sentencing discretion.”^[13]

121. [121]
     It is therefore clear that, while s 9(10A) identifies a consideration which is to be treated as an aggravating factor, it does not exclude other relevant considerations on sentence.
122. [122]
     These reasons have already highlighted an array of other relevant considerations.  It remains to consider one more.

Was the extraordinary delay of four years in prosecuting the applicant a relevant consideration on sentence?

123. [123]
     By the time of his trial the applicant had been facing the assault charges and complying with his bail for at least four years.  There is no evidence to suggest this extraordinary delay was his fault.
124. [124]
     The committal proceedings in respect of the assault charges occurred in 2021.  An indictment in respect of the assault charges was at first presented in 2022.  The pre-recording of the applicant’s daughter’s evidence occurred in December 2022.  The trial was subsequently listed but, about two weeks before it was due to commence, the Crown decided to add the charge of rape.  This resulted in the presentation of a new indictment on 19 July 2023 and necessitated a Basha hearing^[14] in December 2023.
125. [125]
     That was all for nothing.  In the result, when the trial finally proceeded in May 2024, the applicant was acquitted of the rape charge, just as he was of two of the assault charges.
126. [126]
     At first instance the fact there had obviously been an extraordinary delay was self-evident.  Indeed, the fact the applicant had been on bail without misconduct for so long was the reason why the learned primary Judge opted for eventual release on suspension rather than parole.  Regrettably her Honour was not assisted by submissions highlighting the broader relevance of the delay to sentence.  That does not make its relevance any less important now, for an assessment of whether the sentence was manifestly excessive necessarily requires consideration of all the relevant circumstances of the case.  Extraordinary delay, in circumstances where it has not been caused by the offender, is relevant in four ways here.
127. [127]
     Firstly, such a delay allows the court to see whether there has been prolonged rehabilitative progress.^[15]  If there has been such progress then it will justify greater than ordinary weight being given to the sentencing purpose of rehabilitation.  The respondent submitted that because the applicant had exhibited no remorse he is likely to be less susceptible to rehabilitation.  The force of such a submission logically dissipates the more prolonged the period of rehabilitative progress is between the offence and sentence.  In this case, during four years awaiting prosecution, the applicant exhibited his capacity to rehabilitate by continuing in paid employment, not being convicted of any offences and complying with his bail conditions in the meantime.
128. [128]
     Secondly, it may be inferred the prolonged failure to have prosecuted a case more quickly left the defendant in a prolonged period of stressful uncertainty.^[16]  Direct evidence of that impact is not required where the inference of the protracted anxiety of a pending prosecution is obvious.^[17]  It is obvious here, given the four year delay.  The punishing strain of that stress, albeit not part of the punishment formally imposed by the court on sentence, should not be ignored.  It is relevant to the court’s imposition of a punishment that is just in all the circumstances, pursuant to s 9(1)(a) Penalties and Sentences Act.
129. [129]
     Thirdly, the delay bears upon the relative importance of the sentencing purpose of personal deterrence.  The domestic relationship in which the offences had occurred was long over by the time of sentence.  In the meantime the combination of the punishing effect of the stress of the delayed disposition and the apparent rehabilitative progress had logically reduced the need for personal deterrence.
130. [130]
     Fourthly, fairness dictates that the extraordinary delay reduces the weight which ought otherwise be given to general deterrence.  In the meantime, the applicant demonstrated he was compliant with his bail conditions, had not been convicted of any other offending and remained in employment.  None of this means general deterrence is irrelevant.  But it makes emphatic use of the sentence as a vehicle for general deterrence less just than it usually would be in such a case.
131. [131]
     This moderation of the claims of the sentencing purposes of personal and general deterrence per s 9(1)(c) Penalties and Sentences Act reflects the dynamic referred to by Keane JA in Pham, that the weight to be given to principles in s 9 will vary with the circumstances of each case.
132. [132]
     The upshot is that the consequences of the extraordinary delay in this case carry material mitigating relevance in the assessment of whether the sentence imposed was manifestly excessive.

The sentence was manifestly excessive

133. [133]
     Having regard to all the relevant circumstances of this case, the head sentence of 16 months’ imprisonment is so severe as to compel the conclusion that the sentencing discretion miscarried.  In my conclusion the upper bounds of an appropriate sentence range here did not exceed 12 months imprisonment.
134. [134]
     I would grant leave to appeal, allow the appeal and substitute a lesser sentence, appropriate to all the above discussed circumstances of the case.  In so doing, I would maintain due regard for the features of the case which legitimately concerned the learned trial judge on sentence below.  I would therefore substitute a still relatively high sentence of 12 months imprisonment, and adopt the same course as below of suspending the sentence at the halfway point, namely after six months.

Orders

135. [135]
     Accordingly, I would order:

1. 1.Appeal against conviction dismissed.
2. 2.Application for leave to appeal sentence granted.
3. 3.Appeal against sentence allowed, to the following extent:

1. (a)
   set aside the sentence of 16 months’ imprisonment for count 4 and substitute a sentence on that count of 12 months’ imprisonment;
2. (b)
   set aside the order suspending the terms of imprisonment after eight months for an operational period of 18 months and substitute an order suspending the terms of imprisonment after six months for an operational period of 12 months.