R v OAC[2024] QCA 52

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Morrison JA.
2. [2]
   MORRISON JA:  The applicant pleaded guilty to 32 counts on three separate indictments, and a summary charge sheet.  The bulk of the offences related to physical domestic violence perpetrated against the applicant’s partner between January and August 2019.  The most serious counts, 13 in total, occurred within a window of 16 hours over two days.  The applicant tortured his partner by assaulting, choking, and raping her.
3. [3]
   The first indictment (1509/21) concerned 21 counts, all but two of which were charged as domestic violence offences.  Those counts may be summarised as follows:^[1]

   1. counts 1, 4, 7, 10 and 17: common assault (DVO);
   2. counts 2 and 16: strangulation in a domestic setting (DVO);
   3. counts 3, 5 and 15: assault occasioning bodily harm (DVO);
   4. counts 6, 14 and 18: deprivation of liberty (DVO);
   5. count 8: torture (DVO);
   6. count 9: contravention of a Domestic Violence Order, aggravated offence;
   7. count 11: assault occasioning bodily harm, while armed (DVO);
   8. count 12: wilful damage (DVO);
   9. count 13: threats (DVO);
   10. counts 19 and 20: rape (DVO); and
   11. count 21: using a carriage service to make a threat to kill.
4. [4]
   The sentences imposed in respect of those counts were the following, ranked according to length of the terms of imprisonment:

   1. count 8 – nine years; declared to be a serious violent offence;
   2. counts 19 and 20 – seven and a-half years; declared to be serious violent offences;^[2]
   3. counts 2 and 16 – two and a-half years;
   4. counts 3, 5, 15 and 11 – 18 months;
   5. counts 6, 13 and 18 – 12 months;
   6. count 9 – 12 months;
   7. counts 12 and 14 – six months;
   8. counts 1, 4, 7, 10 and 17 – three months; and
   9. count 21 – conviction recorded and dismissed.
5. [5]
   On the second indictment (2375/21) was one count, count 10: contravention of a Domestic Violence Order, an aggravated offence.^[3]  The sentence imposed was imprisonment for 12 months.
6. [6]
   The third indictment was an ex officio indictment (199/23) containing two counts of contravention of a domestic violence order, an aggravated offence.  The sentence imposed on each was 12 months imprisonment.
7. [7]
   In addition there were nine summary charges (BCS 116/23):

   1. counts 1 and 2: stealing (DVO);
   2. counts 2 and 4, fraud: dishonestly gaining a benefit or advantage;
   3. counts 5, 6, 8 and 9: contravention of a police protection order; and
   4. count 7: wilful damage (DVO).
8. [8]
   On each summary count the sentence was six months imprisonment.
9. [9]
   All sentences on each indictment were made concurrent with all others, including the those imposed on the summary offences.  Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), pre-sentence custody totalling 1,275 days (from 20 August 2019 to 14 February 2023) was declared to be time served
10. [10]
    Counts 8, 19 and 20 having been declared to be serious violent offences, the applicant will be required to serve seven years and two and a-half months before he will be eligible for parole.
11. [11]
    Further, an order was made pursuant to s 42 of the Domestic and Family Violence Protection Act 2012 (Qld) that the Protection Order made by the Magistrates Court at Southport on 3 December 2020 be extended so that it continues in force up to and including 2 December 2030.
12. [12]
    The applicant now seeks leave to appeal the sentences on two grounds:

    1. that the learned sentencing judge erred by impermissibly taking into account uncharged acts; and
    2. that the sentence is manifestly excessive.
13. [13]
    No issue was taken with the nine-year head sentence.^[4]  The central point was expressed thus:^[5]

“The only challenge is to the imposition of the serious violent offence declarations. Taking into account the subjective considerations of the applicant, including his disadvantaged upbringing and significant mental health issues, no order as to his parole eligibility ought to have been made, leaving him to apply for parole at the halfway point of his sentence in accordance with the statutory regime.”

14. [14]
    The applicant accepts that the head sentence (nine years on count 8) reflected the criminality of all offending, with lesser concurrent terms of imprisonment being imposed for the remaining counts, consistent with the approach set out in R v Nagy.^[6]

Relevant facts

15. [15]
    The circumstances of the offending conduct were not in issue.  What follows is taken from the schedules of facts.

Indictment 1509/21 and summary offences – Exhibit 2

16. [16]
    In 2019, the applicant had been mocking and slapping the complainant and threatening to contact her family to abuse and threaten them.  The applicant handed the complainant his mobile phone so the complainant could call his father and asked him to pick the applicant up.
17. [17]
    Without warning, the applicant rushed at the complainant and punched her to the left side of her head, causing her to fall over sideways and black out for a few moments.  The defendant picked up the dropped phone and struck the complainant on the head with the corner of it, before sitting down on a chair and watching the complainant as she cried on the floor.^[7]
18. [18]
    After a while, the complainant got up and went to her room and sat on her bed.  The applicant came in afterwards and clamped his hand over the complainant’s nose and mouth.  The complainant tried to push the applicant off, so he pushed her down and applied pressure to the side of her head and neck and clamped his hand over her mouth and nose again.
19. [19]
    When the complainant managed to pull away, the applicant pushed his fingers into the complainant’s face around her teeth and gums, causing the complainant significant pain until she relented, and the applicant was able to clamp his hand over her mouth and nose again.  During this time, the complainant was unable to breathe at all.  When the applicant finally took his hand away, the complainant was still struggling to breathe and was choking.^[8]
20. [20]
    The applicant picked the complainant up and put her in the shower and turned the cold water on.  When the complainant still struggled to breathe the applicant retrieved the complainant’s asthma puffer and threw it on the floor in front of the complainant.  The applicant said, “I have a son, I can’t be here”, and ran out of the apartment.  The complainant passed out in the shower and woke up on the shower floor.  She remained on the shower floor for some time before eventually getting up and changing into some dry clothes.  When she looked outside, she noticed that the applicant’s car was gone.
21. [21]
    Hours later, the applicant returned to the unit with some KFC.  The applicant said to the complainant, “I don’t have to touch a hair on your head, I’ll head fuck you, I’ll destroy you emotionally.”

Theft of complainant’s jewellery in March 2019

22. [22]
    On 23 March 2019, while at the complainant’s home, the applicant stole four pieces of her jewellery.^[9]
23. [23]
    The same day, the applicant attended a Cash Converters store and obtained a loan for $130 for the four pieces of stolen jewellery.  The applicant signed a form declaring that he was the owner of the stolen jewellery.^[10]

Theft of complainant’s sunglasses in April 2019

24. [24]
    On 28 April 2019, while at the complainant's home, the defendant stole three pairs of her sunglasses.  The applicant denied stealing the sunglasses when the complainant realised that they were missing and challenged him.^[11]
25. [25]
    The applicant attended a Cash Converters store and sold the stolen sunglasses for $75.00.  The applicant again signed a form declaring that he was the owner of the stolen jewellery.^[12]

Incidents in May 2019

26. [26]
    In the course of a verbal argument on 8 May 2019, the applicant pushed the complainant onto the bed.  When the complainant tried to get up off the bed, the applicant hit the complainant’s ankle with his arm.  The complainant felt immediate pain and started crying.
27. [27]
    The complainant attended a hospital for treatment where she received an X-ray and pain relief before being discharged the same day.  While at the hospital, the complainant told medical staff that she had fallen down the stairs.  The complainant did not suffer a bone fracture but required crutches for a week.^[13]
28. [28]
    On another occasion, the applicant demanded the complainant give him her car keys so that he could drive to meet a friend late at night.  When the complainant refused, the applicant produced a small black purse from his pocket and hit the complainant’s right hand with it three times.  A hard object inside the purse caused the complainant’s hand to bruise.^[14]
29. [29]
    On 31 May 2019, the applicant returned to the home he shared with the complainant and banged on the front door loudly.  When the complainant went to open the door, she realised the lock was stuck, and told the applicant to wait.  While the complainant was still behind the door fiddling with the lock, the applicant kicked the door in, causing it to fling open with force and strike the complainant in the face.  This caused the complainant pain in her eye, which started to bleed.^[15]
30. [30]
    The applicant agreed to take the complainant to the hospital.  On the way there, the applicant stopped the car and said to the complainant, “I have a kid, if I never see him again because of you I’m going to come after your family, your mum, your dad”.  The applicant eventually resumed driving and told the complainant to stop crying.
31. [31]
    Once at the hospital the complainant was treated for a superficial laceration to her left eyelid which was closed with glue and steristrips.  The complainant returned from the hospital at 11.00 pm that night and went straight to her bedroom to go to sleep.  The applicant asked for the complainant’s car keys and she said no because she suspected the applicant wanted to go out to get drugs.  The complainant asked the applicant to leave her alone so she could rest.
32. [32]
    When the applicant continued to pester her, the complainant got up to leave the apartment.  The applicant went to the front door and locked it and told the complainant she was not going anywhere.  The applicant forced the complainant back into the bedroom and laid with his arm over the complainant while she cried.^[16]
33. [33]
    The applicant woke the complainant up early the next morning and asked her for money.  The complainant told the applicant to leave her alone, but he kept asking.  The applicant retrieved a stereo speaker and connected it to his mobile phone.  He shut the bedroom door and played music on his phone loudly, refusing to turn it down when the complainant asked.
34. [34]
    The complainant left the bedroom and lay on the couch.  The applicant followed her out and told the complainant that she would not be getting any sleep until she gave him money.  The applicant told the complainant to call her parents and get them to transfer money.  When the complainant told him that her parents would not have any money, the applicant told her to “start making calls” and find some money from someone else.
35. [35]
    The applicant placed his phone on the complainant’s head and played music loudly.  The music contained the lyrics “you’re an evil sadistic bitch”.  When the complainant ignored the applicant, he spat on her face.^[17]

Police Protection order in June 2019

36. [36]
    On 8 June 2019, the applicant was served with a Police Protection Notice which prohibited him from entering or attempting to enter the complainant’s premises, or from approaching within 100 metres of that address.  The Protection Notice also contained a condition which required the applicant to be of good behaviour towards the complainant and not commit domestic violence against her.
37. [37]
    On approximately 10 June 2019, the applicant attempted to call the complainant.  When the complainant did not answer her phone, the applicant sent the complainant a series of text messages in breach of the condition requiring him to be of good behaviour towards the complainant.  In these messages the applicant requested that the complainant call him, threatened that he was going to die and/or go to gaol, as well as the following: “you really messed up being with me ever again ey I fucken loved you so much and you knew u it was the drugs and you still did this”.^[18]
38. [38]
    On 11 June 2019, a Temporary Protection Order was made in the Brisbane Magistrates Court.  The Temporary Protection Order contained 11 conditions, including a condition requiring the applicant be of good behaviour, and various no contact conditions.  On 3 July 2019, the complainant obtained a Protection Order with the same conditions in the Brisbane Magistrates Court.

Graffiti

39. [39]
    Between 9 July 2019 and 27 July 2019, while living at the complainant’s address, the applicant used marker pens to cover the walls of the complainant’s unit in graffiti.  The writings consisted of stylised graffiti tags as well as general ramblings about the complainant and the applicant’s relationship with the complainant.^[19]

Offending on evening of 26 July 2019

40. [40]
    On 26 July 2019, the complainant accompanied the applicant to the Southport Magistrates Court for a hearing in relation to another matter.  After the hearing, the applicant stopped to speak with someone at the train station, whom the complainant recognized as a drug associate.
41. [41]
    The applicant told the complainant to walk away.  When he caught up with her afterwards, the applicant told the complainant that who he had spoken to was none of her business and called her a dog.  The complainant told the applicant that if he was going to associate with those people, she didn’t want him returning to her unit.  The applicant said it was his unit and told the complainant that she could not come back.
42. [42]
    The applicant and complainant returned to the unit.  The complainant said to the applicant, “you don’t want to see your son, you don’t want to change your life, so just leave. I see this is who you are, you don’t want to change, I’m choosing not to have this in my life so just leave.”
43. [43]
    The applicant refused to leave and sat down on the couch and started to smoke cannabis.^[20]

Count 8: Torture and Count 9: Breaching a Domestic Violence Order (aggravated offence)

44. [44]
    Upon returning to the complainant’s unit at around 1.30 pm on 26 July 2019, the applicant subjected the complainant to hours of severe physical, sexual and verbal abuse, which continued until the morning on 27 July 2019 and resulted in the complainant suffering severe physical and emotional pain and suffering.
45. [45]
    The offence of torture reflects a course of conduct comprising of a number of acts of abuse which are particularised as counts 8–19 on the indictment.  The offending the subject to Counts 8 to 20 on the indictment were all committed in breach of the Domestic Violence Order made in the Brisbane Magistrates Court on 3 July 2019.

Count 10: Common assault

46. [46]
    The complainant repeatedly asked the applicant to leave but he refused.^[21]  The complainant went to her bedroom, and after a few minutes, again asked the applicant to leave.  In response, the applicant got up and told the complainant, “be quiet or someone will call the police”.  He then punched the complainant on the left side of her head.  The applicant’s punch stunned the complainant, caused her a lot of pain and caused her ear to ring.

Count 11: Assault occasioning bodily harm, while armed

47. [47]
    The complainant got up and asked the applicant to leave a third time.  The applicant picked a vacuum cleaner up and threw it down hard on the complainant’s foot, making the complainant scream in pain.  A neighbour came up to the complainant’s unit to check that the complainant was OK.  The applicant left the unit when the neighbour repeatedly asked him to leave.
48. [48]
    When the applicant returned to the unit 15 minutes later, the complainant went downstairs to the neighbour’s unit.  She returned to her unit at 10.00 pm and found the front door locked.  When the complainant knocked on the door, the applicant opened it and asked her to apologise for “teaming up” on him.  The applicant refused to apologise for hurting the complainant’s foot and told the complainant that she deserved it.  The complainant suffered a large bruise to her foot.

Count 12: Wilful damage

49. [49]
    The complainant walked inside the unit and began packing her bag to leave.  The applicant picked up a pair of scissors and stabbed a hole in the complainant’s $400 bed quilt.  He yelled abuse and threats at the complainant and told her to jump out the window, because she was a waste of oxygen and would be doing the world a favour.  The complainant snatched the scissors from the applicant when he went to cut the quilt again.
50. [50]
    The applicant then told the complainant that he wished her brothers were there so that he could stab them, and threatened that they would never see their kids again.  The applicant also threatened to kill the complainant’s mother.

Count 13: Deprivation of liberty

51. [51]
    The complainant again asked the applicant to leave and when he did not move, picked up her bag to get her phone to call the police.  The applicant grabbed the complainant’s bag and ripped it in two.  He told the complainant that she was not leaving, and pushed her back into the bedroom and onto the bed.  He held the complainant down and told her to go to sleep.  Every time the complainant tried to get up and leave, the applicant dragged her back onto the bed.

Count 14: Threats

52. [52]
    Eventually the applicant put on his clothes and, while holding the complainant down on the bed, retrieved a large knife from his bag next to the bed.  The applicant told the complainant that he would kill her as soon as he heard a knock on the door and told her that she would not be leaving alive.  The applicant repeatedly told the complainant “I’m going to do it”, and he was shaking and frothing at the mouth.  The applicant dragged the blade up and down the complainant’s arm and neck and told her he was going to slit her throat.  The complainant was crying, and the applicant told her to stop crying or he would stab her.

Count 15: Assault occasioning bodily harm

53. [53]
    The applicant wrapped his legs around the complainant and dug his toenails into the complainant’s foot.  This caused cuts which bled and caused the complainant pain.

Count 16: Suffocation

54. [54]
    The applicant put his hand over the complainant’s mouth, causing her to struggle to breath.  She moved her entire body to try and get away.  The applicant held the complainant down and put his hands around her neck and told her to stop crying.

Count 17: Common assault

55. [55]
    The applicant bit the complainant on the shoulder and on her lip.  He told the complainant that it was just the beginning, and that the complainant and her family were “gone”.
56. [56]
    The applicant demanded the complainant hug him as he continued to bite her.  He dragged the complainant back towards him by her hair when she tried to leave.  The applicant continued to threaten, bite, pinch and pull the complainant’s hair for some time.

Count 18: Deprivation of liberty

57. [57]
    Eventually, the applicant let the complainant go to the bathroom when she told him she needed the toilet.  She stayed in the bathroom for a few minutes before trying to leave the house, thinking the applicant had fallen asleep.  As the complainant opened the bedroom door, it made a noise and the applicant ran over to her with the knife.  The applicant pinned the complainant against the wall with his hand around her throat.  The complainant told the applicant she was getting her pyjamas and needed to have a shower.
58. [58]
    Upon leaving the bathroom after her shower, the complainant saw the applicant sitting on the bed with a knife lying next to him and a second knife tucked between the mattress and the bedframe.  The applicant reluctantly let the complainant grab the knives after she told him that she would come to bed if he let her move them.  The complainant went to hide the knives in the cupboard in the kitchen, but the applicant became impatient and took the knife off her and told her to get back to bed.
59. [59]
    Over the next few hours, the applicant subjected the complainant to verbal abuse, threats and ridicule.  He called the complainant a mutt and said she needed to be put down.  He took the pillow and blankets from her and said, “your breed of dog doesn’t deserve blankets or a pillow”.  The applicant told the complainant he would inject her with heroin or air to kill her and no one would ever know.  He told her that she deserved to die and described ways that he was planning to kill her.

Count 19: Rape

60. [60]
    When the complainant eventually fell asleep the applicant prodded her awake.  He pulled the complainant’s pyjama pants down despite her repeated protests for him to stop.  The applicant pulled the complainant’s pants off and climbed on top of her as she was lying on her back.  He was naked and inserted his erect penis into the complainant’s vagina.  While the complainant was crying and pleading for the applicant to stop, he continued to thrust inside the complainant until he ejaculated inside her vagina.

Count 20: Rape

61. [61]
    The complainant went to the bathroom and washed herself before returning to the bed.  The applicant had been smoking cannabis in the lounge room and took his pants off again when he returned to the bedroom.  The complainant asked the applicant not to touch her and to leave her alone.  She told the applicant that he was raping her and told him stop.  The applicant ignored the complainant and climbed on top of her and inserted his penis into her vagina again.  As he was thrusting the applicant said to the complainant “look, I'm raping you.
62. [62]
    The applicant placed his hands behind the complainant’s back and pulled her towards him.  He forced her arms behind her back and held them together when she tried to get up.  The complainant managed to pull herself away from him as he ejaculated, with some of the ejaculate landing on the complainant’s pants.  The complainant went to the bathroom and washed herself and changed her pants.  She placed the old pants on the floor near the bathroom.
63. [63]
    When the complainant returned to the room it was daylight.  The applicant saw the complainant was wearing different pants and accused her of keeping the old pants for evidence against him.  The applicant told her he would be taking her pants to work with him.
64. [64]
    As the applicant went to leave for work, he told the complainant that he hoped that he had gotten her pregnant and that she was stuck with a deformed child.  The applicant also said, “have fun telling everyone you sleep with that you have herpes now.”  The applicant told the complainant not to be there when he got back.
65. [65]
    As soon as the applicant had left, the complainant locked the door and put the second knife on a kitchen shelf.  She then called the applicant’s sister, YC.  She told YC what had happened overnight, including that the applicant had raped her.  The complainant then went downstairs and stayed in a neighbour’s unit until police arrived.
66. [66]
    Police conducted a search of the unit, during which they located:

    1. a large commando-style knife located on the bench in the kitchen;
    2. a large serrated barbeque knife located above the cupboards in the kitchen; the applicant’s fingerprints were located on the blade of this knife; and
    3. a pair of blue cloth pants belonging to the complainant, located on the floor in the bedroom; a sample taken from these pants tested positive for the applicant’s DNA.
67. [67]
    Police also saw that the walls of the complainant’s bedroom had been covered in marker-pen graffiti by the applicant.  The writings consisted of stylised graffiti tags as well as general ramblings about the complainant and the applicant’s relationship with the complainant.^[22]

Medical Examination and injuries

68. [68]
    An ambulance was called and transported the complainant to the hospital, where she was observed by a forensic medical officer.  The following injuries were observed:

    1. two scratches (1 cm and 2 mm in length) on the complainant’s forehead and a small bruise (0.5 cm in diameter) above the left side of her mouth;
    2. tenderness and two small scratches on the complainant’s voice box;
    3. two yellow (old) bruises to her chest (1.5 cm and 2 cm in diameter);
    4. two yellow (old) bruises to her right shoulder (both 1 cm in diameter);
    5. a raised and tender crimson bruise on her right wrist (3 cm by 2 cm in diameter);
    6. four purple bruises (each 1 cm in diameter) on the back of her right forearm, together with another similar bruise closer to her wrist;
    7. a fresh abrasion on her right thumb and a number of small scratches on the back of her right hand;
    8. an oval shaped raised and tender red bruise on her left shoulder (5 cm by 3 cm in diameter), just above a second similar red bruise (4 cm by 3 cm in diameter);
    9. a small purple bruise on the inner side of her left arm (0.75 cm in diameter);
    10. three small bruises (each 1 cm) near her left wrist;
    11. tenderness on her lower back with two recent scratches above her left buttock area (2 cm in diameter);
    12. three red bruises above the complainant’s right kneecap (ranging from 1 cm to 3 cm in diameter) as well as two older bruises on her right upper thigh (3 cm and 2 cm in diameter);
    13. a large raised and tender purple bruise on the complainant’s lower left leg (4 cm in diameter), as well as two older yellow bruises on her upper left thigh (2 cm and 1 cm in diameter);
    14. a large raised and tender purple bruise on the complainant’s left foot (9 cm by 8 cm in diameter); and
    15. a 3 cm long scratch on the complainant’s left ankle.
69. [69]
    The tenderness and scratches to the complainant’s voice box were consistent with pressure having been applied to the area.  The bruises on the complainant’s left shoulder were consistent with bite marks.  The bruising to the complainant’s wrists and forearm were consistent with pressure from fingertip pressure as a result of gripping.
70. [70]
    Vulva and vaginal swabs taken from the complainant during the medical examination later tested positive for the applicant’s DNA.

Further conduct

71. [71]
    On 29 July 2019 the applicant called police.  He identified himself and said: “I want to know what [the complainant] told on me for”.  Police advised the applicant that they were investigating domestic violence offences and invited him to the police station to discuss.  The applicant declined and refused to tell police where he was.

Count 21: Using a carriage service to make a threat to cause serious harm

72. [72]
    From 27 July 2019 to 18 August 2019 the applicant repeatedly sent the complainant abusive and threatening texts.  Examples of some of the messages sent include:

    1. telling the complainant that the abuse from 26 July was to teach her a lesson for what she was doing;
    2. telling the complainant that he was going to cross the line and make her family pay for her mistakes;
    3. telling the complainant that he would hurt her family and then take his own life;
    4. telling her that people would get bashed because of the applicant’s “head problems”;
    5. telling her that he was not “going down” without bringing people down with him;
    6. telling her that he was about to kill her brothers and he was not joking;
    7. repeatedly threatening to kill himself and blaming the complainant for this;
    8. demanding the complainant retract her statements before her close ones “got hurt”;
    9. threatening to kill her whole entire [family] and to put a bullet in one of her brothers;
    10. telling the complainant she would have to hide in witness protection until the police found him; and
    11. telling the complainant he would hurt her family and then take his own life.
73. [73]
    On 18 August 2020 the applicant contacted the complainant via face-time (a video conferencing application).  During the call the applicant showed the complainant a black handgun.  The applicant told the complainant that he had a motorbike and a gun to kill the complainant’s family.
74. [74]
    The text messages and facetime were also in breach of the Protection Order imposed in the Brisbane Magistrates Court on 3 July 2019.^[23]

Applicant’s arrest

75. [75]
    On 20 August 2019 the applicant was located by police.  He ran from police onto a street where he was restrained.  He struggled with police before being handcuffed.  The applicant was assessed by paramedics because he appeared to be under the influence of drugs before being arrested and transported to the Watch House.
76. [76]
    On 21 August 2019, police executed a search warrant at an address where the applicant had been staying.  During the search, police located and seized two toy handguns belonging to a child of the owner of the address.

Ex Officio Indictment and Indictment 2375/21

77. [77]
    The victim is FMB.  The applicant and FMB were in a relationship for four and a-half years, beginning in 2014.  The victim conceived a child, a boy, with the applicant in 2016.
78. [78]
    On 25 November 2018, FMB attended a police station with her son and provided an affidavit detailing instances of abuse by the applicant.  As a result, on the 28 November 2018, a Temporary Protection Order was made by the Southport Magistrates Court, which contained conditions that prohibited the applicant from approaching FMB and required him to be of good behaviour towards her.

Ex-officio - Count 1

79. [79]
    On 13 December 2018 the applicant sent an email to FMB.  He threatened her, called her a dog, that he would have the last laugh and that she was a “dead dog.”

Ex-officio - Count 2

80. [80]
    Between 20 December 2018 and 19 February 2019, the applicant sent numerous emails to FMB.  Most of the emails contained text only, however several contained photos and videos.
81. [81]
    On 1 January 2019, the applicant made several phone calls, and sent several text messages to FMB.
82. [82]
    On 25 January 2019, FMB received a transaction in her bank account which read “call me asap, [the applicant].”

Count 10

83. [83]
    On 1 March 2019, a further Domestic Violence Order was made in Southport Magistrates Court which included a condition prohibiting the applicant from contacting or attempting to contact FMB by any means.
84. [84]
    On 5 August 2019 the applicant called XTZ, a friend of FMB who had only once met the applicant back in 2013.  The applicant introduced himself as FMB’s ex-partner and told XYZ to tell FMB that he was sorry.  The applicant told XYZ that he was going to kill himself that night and asked XYZ to give FMB his mobile number so that he could say goodbye and to tell her that he loved her before he killed himself.  XYZ hung up the phone and later attended the Southport Police Station and reported the call to police.

Arrest

85. [85]
    On 6 December 2019, police spoke with the applicant.  The applicant agreed to participate in a formal interview with police but declined to answer any questions when he was asked about the offending.  The applicant was issued with a Notice to Appear.

Ground 1 - taking into account uncharged facts

86. [86]
    This ground concerns the inclusion, in the schedule of facts tendered at the sentencing hearing, of facts relating to the relationship between the applicant and the complainant before the offending conduct.
87. [87]
    Under the heading “Background”, the schedule set out details of:^[24]

    1. when the applicant and complainant met and when they started to cohabit;
    2. the controlling, abusive and physically violent nature of the applicant’s treatment of the complainant, and his drug use;
    3. the nature of the physical violence, including hitting, punching, choking and various other instances of violence which caused the complainant pain and often caused her to bruise;
    4. the verbal abuse to the complainant and her family, including threats to kill and threats to infect the complainant with HIV using a contaminated syringe;
    5. an incident of physical violence in October 2013 which lead to a Temporary Protection Order being made;
    6. an incident of physical violence in December 2013, which led to the applicant being charged with contravening the Temporary Protection Order; the Temporary Protection Order was extended in scope;
    7. an incident of physical violence in February 2014, which led to the applicant being charged with, and pleading guilty to, contravening the Temporary Protection Order; and
    8. the complainant’s separation from the applicant in May 2014 and the lack of contact between then and December 2018, when they resumed their relationship; and how the applicant began controlling the complainant’s finances in February 2019.
88. [88]
    Then the schedule lists the circumstances of each count of the offending conduct, commencing with the heading “Incident in 2019”, that being count 1.^[25]  The counts are dealt with chronologically, and broken up with headings:

    1. “Theft of complainant’s jewellery in March 2019”;^[26]
    2. “Theft of complainant's sunglasses in April 2019”;^[27]
    3. “Incidents in May 2019”;^[28]
    4. “Police Protection order in June 2019”;^[29]
    5. “Graffiti”;^[30]
    6. “Offending on evening of 26 July 2020”;^[31] and
    7. thereafter for counts 8-21, under the specific count number and nature of the offence.
89. [89]
    The applicant’s contention is that the sentencing judge impermissibly took the uncharged circumstances (the “background” prior to count 1) into account.^[32]  That centred on part of this passage from the sentencing remarks:^[33]

“The circumstances of your offending are set out in exhibit 2, the schedule of facts concerning the majority of the charges as well as exhibit 6, which refers to the ex officio indictment. I will not embark on a narrative of the entirety of the facts, because they are well canvassed in exhibit 2 and they have been discussed extensively during submissions today. I endeavour to summarise some of the salient features, though. You had been in a relationship with the complainant previously in 2012 or from 2012 and you cohabited in 2013, during which period the complainant says that you were controlling, abusive and violent and using drugs, including methylamphetamine daily. You hit, punched and choked her. You were verbally abusive and threatening.

A temporary protection order was taken out in October 2013. In December 2013 you choked her. In February 2014 you strangled but otherwise assaulted her, and police were called, and you were prosecuted and you pleaded guilty. Unsurprisingly, the relationship, therefore, ceased in May of 2014. It resumed in December 2018, when you, in essence, said that you had mended your ways. It turns out you had not. There was more controlling behaviour. You deprived the complainant of money and food and withdrew her money for gambling. In 2019 count 1 involves punching her to the head and hitting her with a phone.”

90. [90]
    The applicant’s contentions objected to only four lines of the remarks above, namely:^[34]

“You had been in a relationship with the complainant previously in 2012 or from 2012 and you cohabited in 2013, during which period the complainant says that you were controlling, abusive and violent and using drugs, including methylamphetamine daily. You hit, punched and choked her. You were verbally abusive and threatening.”

91. [91]
    Several matters are evident from what his Honour said in the greater passage and the four lines quoted above.
92. [92]
    First, his Honour noted that the circumstances of the offending were set out in the two schedules, Exhibits 2 and 6.  Those schedules were tendered without objection.  They were referred to in the Crown’s written submissions on sentencing,^[35] where the Crown referred only to paragraphs 7-14 of Exhibit 2, as explaining the background of the sentence imposed in 2014.^[36]
93. [93]
    Secondly, the facts had been discussed extensively during submissions.  That is true but the comment has to be seen in proper context.
94. [94]
    In the prosecutor’s oral submissions at the sentencing hearing, the “Background” section of Exhibit 2 was read out.^[37]  That ended with this being said:^[38]

“By February 2019 the defendant was controlling her finances as well, forcing her to give him all of her wages. He would empty her bank account, and the complainant estimates he took about $10,000 worth of her savings over that period. So, your Honour, that information is just by way of background. The offending for which he is to be sentenced is from paragraph 19 of the statement of facts. The first incident is in the afternoon in 2019,…”

95. [95]
    Thus, the prosecutor plainly identified the background as just that, and not part of the facts as to the offending.
96. [96]
    Defence counsel did not refer to the schedules or the facts, except to make a contrast between the nature of the present offending overall and that in other cases.
97. [97]
    Thirdly, early in the passage above the sentencing judge referred to the applicant and complainant having “been in a relationship with the complainant previously in 2012 or from 2012 and you cohabited in 2013”.  That period was qualified by the words that follow: “during which period the complainant says that you were controlling, abusive and violent and using drugs…”.  That is plainly a reference to the time the complainant and applicant cohabited, and a qualification as to the source of the facts as to that period, namely “the complainant says”.
98. [98]
    Fourthly, when the sentencing judge then dealt with each count, the count number was used as a point of reference; as in “count 1”, “count 2” and so forth.  Nothing more was said as to the period or conduct in the impugned passage.

Consideration

99. [99]
    For several reasons I am unable to accept the applicant’s submissions on the ground.
100. [100]
     First, the impugned facts were simply part of the background, and expressly confined as such by the Crown.  The statement that “that information is just by way of background” expresses the limitation.  Then, the statement, “The offending for which he is to be sentenced is from paragraph 19 of the statement of facts”, makes it plain what facts are relevant, and what are not.
101. [101]
     They provided a context to the making of the temporary protection Orders, and the applicant’s convictions for contravention of those orders.  At no time did the Crown suggest that they were relevant to the offending conduct on each count.
102. [102]
     Secondly, the defence did not object to the presence of those facts in the schedules, either at the point of tender, or later.  Indeed, the defence provided the schedules to Dr Ellis-Smith for the purpose of compiling a pre-sentence report,^[39] the report recorded the applicant’s agreement to the facts in the schedules,^[40] and referred to some of the 2013/2014 history.^[41]  Thus the defence made use of the full schedules for their own forensic purposes.
103. [103]
     Thirdly, in my view, the sentencing judge indicated that he understood that the impugned passage was not part of the facts relevant to sentencing for the specific counts.  His Honour referred to the applicant’s and complainant’s cohabitation in 2013 and noted that the description of the applicant’s controlling, abusive and violent behaviour, and use of drugs, in that period were what “the complainant says”.  That marked a distinction between those matters and those relevant to the actual offending.
104. [104]
     Fourthly, after the impugned passage nothing more was said by the sentencing judge as to those facts when assessing the offending conduct and the appropriate sentences.  If they had an impact at all one would have expected to see some reference to them.  That, in my view, suggests that they had no impact on the sentences.
105. [105]
     Fifthly, the facts in the impugned passage provided context.  These were domestic violence offences and that rendered the background relevant.^[42]  For the reasons expressed above there is no basis to think that the matters in that passage were taken into account in the sentencing.^[43]
106. [106]
     I do not consider there is a realistic prospect that the impugned passage was taken into account, or that it may have led to the imposition of a higher sentence.^[44]
107. [107]
     This ground fails.

Ground 2 - sentence manifestly excessive

108. [108]
     In R v Pham^[45] French CJ, Keane and Nettle JJ said:

“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”

Approach of the learned sentencing judge

109. [109]
     The sentencing judge noted the fact that the offences were very serious, a number of them carrying a maximum penalty of life imprisonment.  Having summarised the facts his Honour characterised the offending conduct in this way:^[46]

“All of this falls, sadly, in the context of your criminal history, which does you no credit. Sadly, you are now still only 30 years of age. You have convictions for street offences, drug offences, bail breaches, domestic violence breaches for which you have been to prison before, further drug offences and stealing. What is said correctly by the prosecution is that this is very serious conduct involving cowardly, unprovoked and vicious attacks on the complainant. It was degrading, humiliating and escalating behaviour, including escalating for the two acts of rape. You sought to and did impose your will upon her through terror and violence, partly, it seems, as amusement for yourself. You were subject to a domestic violence order at the time and you had a history of domestic violence breaches. You represent, so it is argued, a danger to the community.”

110. [110]
     His Honour then noted these features:

     1. the applicant had taken steps to improve his circumstances, and he had the support of his mother;
     2. his difficult early life, including his father’s suicide;
     3. the views of the medical practitioners as to the applicant having been psychotic and paranoid, his depression, self-harm, and other mental conditions;
     4. Dr Ellis-Smith’s central findings and the protective factors identified by her; and
     5. that the applicant was remorseful and regretful, and motivated to abstain from illegal substance abuse.
111. [111]
     Having noted the fact that the making of a serious violent offence declaration was part of the instinctive synthesis process of sentencing, the sentencing judge cited R v Free, Ex parte Attorney-General (Qld)^[47] as providing guidance for the consideration of such declarations.  Then, noting the purposes of sentencing,^[48] his Honour said:^[49]

“As these are offences of violence, I am required to have primary regard to a number of features: the risk of physical harm to the community if a custodial sentence were not imposed; the need to protect the community from that risk, the personal circumstances of the victims; the circumstances of the offending, including the injuries and other impacts on the complainants; the nature and extent of the violence used, which I have referred to; your past record - and, unfortunately, it does include convictions for domestic violence - your antecedents more generally, 5 which I have referred to; and your age and character. I accept that you are remorseful and I take into account the contents of Dr Ellis-Smith’s report, including her reference to the opinions of the psychiatrists.”

112. [112]
     The sentencing judge explained his approach to the making of the declarations:^[50]

“I have considered carefully the discretion to declare, in particular, the torture to be a serious violent offence and I have considered it in terms of the various features of section 9 of the Penalties and Sentences Act, which I have referred to. In my conclusion, there are circumstances which aggravate the offence in a way that suggests that the protection of the public or adequate punishment do require the declaration, and, therefore, count 8 and counts 19 and 20 will each be the subject of the declaration as a serious violent offender.”

Consideration

113. [113]
     The applicant’s contentions on this ground centred on the declarations that counts 8, 19 and 20 were serious violent offences.  The applicant accepted that, in appropriate cases involving serious violence, there is a need to send a message of general deterrence to the community signifying intolerance to that offending.^[51]  The applicant also accepted that the applicant’s offending warranted consideration of declarations of serious violent offences.^[52]
114. [114]
     The submission was:^[53]

“43. At the time of the offending, the applicant was a sick man. His psychiatric assessments in 2019 and 2020 were proximate to the offending and disclosed that he was suffering from serious psychological issues. Dr Ellis-Smith’s assessment revealed that he was likely to be impulsive and reckless due to his various diagnoses.

44. Going back further, his original violent conduct toward the torture complainant occurred at a point in time where the applicant had commenced using methylamphetamine and had been hospitalised for depression. Following his imprisonment in 2014, there was a gap in offending consistent with his ability to gain stability in his life working as a fencer.

45. That psychological history, and his mental health conditions, were such that it rendered his case an inappropriate vehicle for general deterrence in the sense of needing to impose a serious violent offence declaration to signify intolerance for his conduct: R v Neumann; Ex parte Attorney-General (Qld) [2007] 1 Qd R 53.”

115. [115]
     Central to the resolution of this issue is the proper analysis of the pre-sentence report, and in particular whether it showed the applicant was suffering from severe psychological issues.
116. [116]
     The report recorded the applicant’s explanation for his offending as being his addiction to methamphetamines and gambling.^[54]  Specifically, the report said:^[55]

“He advised he recognised that his behaviour changes when he is using methylamphetamine and that he becomes paranoid and aggressive. He also recognised his problems with emotional regulation and the management of anger.”

117. [117]
     The report also noted that the applicant “described a history of ice use over many years, with periods of abstinence; however advised chronic daily use during 2019, when the current offences occurred”.^[56]
118. [118]
     The previous assessments of the applicant revealed:

     1. he was diagnosed with ADHD as a child;
     2. what he described as psychotic episodes and paranoia associated with methylamphetamine use;^[57] and
     3. previous diagnoses of 118] - ADHD, drug induced psychosis, depression, and adjustment disorder with depressed mood on the background of illicit substance use and antisocial personality traits, features of Antisocial Personality Disorder, Borderline Personality Disorder, and Polysubstance dependence.^[58]
119. [119]
     Dr Ellis-Smith’s assessment revealed the applicant to have marked or moderate potential for problems:^[59]

     1. with Acting Out, i.e. impulsive, sensation-seeking, and reckless, and to have a disregard for convention and authority;
     2. within the Suicidal Thinking domain;
     3. within the Alienation domain; i.e. he is very likely to feel unsupported and treated unfairly by others;
     4. within the Negative Affect domain; follow-up assessments are very likely to identify significant problems with depression, anxiety, personal distress, tension, worry, and feeling demoralized;
     5. within the Psychotic Features domain, indicating a potential for problems with persecutory or delusional thinking;
     6. within the Hostile control domain, indicating possible significant problems in interpersonal relationships arising from strong needs for control and from a potentially self-inflated image;^[60]
     7. within the Anger Control domain; and
     8. within the Social Withdrawal domain, suggesting problems with social detachment and discomfort in close relationships.
120. [120]
     However, no diagnosis was made of a mental illness or abnormality.
121. [121]
     The absence of such a diagnosis is relevant to the submission that general deterrence did not have such a call on the sentencing process that it meant a serious violent offence declaration should not be made; put another way, that making such a declaration would render the sentence manifestly excessive.
122. [122]
     In R v Neumann; Ex parte Attorney-General (Qld),^[61] this court said:^[62]

“[27] In R v Dunn this court cited with approval the statement of Bray CJ in R v Kiltie, approved in R v Masolatti, that “low intelligence and diminished responsibility falling short of insanity will (if otherwise relevant) operate on sentence as a mitigating factor.” It diminishes the moral culpability of the offender. Further, as was observed in R v Elliott by Davies and Thomas JJA (McPherson JA concurring), “Mental abnormality falling short of insanity may be a significant mitigating factor. Apart from the question of culpability, it makes it difficult for the court to apply a factor such as general deterrence.” That reflected (albeit without direct reference) what was written by Gleeson CJ in R v Engert:

‘The circumstance that an offender suffers from a mental disorder may well be of considerable significance in a number of respects to the sentencing task. One of those respects depending upon the facts and circumstances of the individual case may relate to the matter referred to by this Court in the case of R v Scognamiglio (1991) 56 A Crim R 81. At 86 the passage in a judgment of the then Chief Justice of Victoria was cited with approval. That passage was in the following terms:

‘In sentencing generally, it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other, but in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should often be given little weight.

…

General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.’”

That decision also demonstrates that it is not essential that there be a causal relationship between the abnormality and the commission of the offence; although causation must be taken into account in assessing the circumstances of the case.”

123. [123]
     As is apparent from Neumann, there must be an assessment of two relevant factors present in order that the consideration of mitigating factors or that of general deterrence are affected.  The first is the mental abnormality.  The second is a causal link between that abnormality and the offending conduct.
124. [124]
     Neither is present in the applicant’s case.  What the report reveals is that drug-induced psychosis was a likely operative factor.  That is not, in my view, sufficient to call into question the making of the serious violent offence declarations.
125. [125]
     In R v Free; Ex parte Attorney-General (Qld),^[63] this Court referred to consideration of a serious violent offence declaration and said:

“[53] Where a case calls for consideration of whether to exercise the discretion to make a serious violent offence declaration, as part of the integrated process, what the sentencing court is required to do is consider all relevant circumstances, including in a case such as this the matters in ss 9(1), 9(2) and, primarily, 9(6) of the Penalties and Sentences Act 1992, to determine whether there are circumstances which aggravate the offence in a way which suggests that the protection of the public, or adequate punishment, requires the offender to serve 80 per cent of the head sentence before being able to apply for parole.”

126. [126]
     In my view, there was, in the present case, an ample foundation to warrant the making of the declarations:

     1. the offending was serious and prolonged;
     2. it involved the deliberate and degrading violent abuse and violent sexual abuse of a domestic partner while subject to a domestic violence order;
     3. the offending in count 8-20 occurred in the context of seven earlier episodes of domestic violence;
     4. it was made more egregious by the fact that it occurred after contravening a domestic violence order against another domestic partner;
     5. the applicant’s domestic violence against multiple partners revealed him to be a significant risk of re-offending and heightened the need for community protection;
     6. the offending was deliberate and caused the complainant serious harm, not just physically, but also mentally and emotionally;
     7. the degree of callousness is demonstrated by what the applicant said to the complainant when committing the rape in count 20, “Look, I’m raping you”; and
     8. the serious nature is also emphasised by the threats to kill not just the complainant but also her family.
127. [127]
     The sentencing judge took those matters into account, as part of the overall process of determining the appropriate sentence, and whether to make the declarations.  His Honour also had specific regard to the passage in Free quoted above.  His Honour also had regard to R v BH.^[64]
128. [128]
     The applicant also contended that the prospects of rehabilitation were such that the declaration should not have been made.  In that regard reference was made to Free where this Court said:^[65]

“[90] On balance, we are not persuaded that there are circumstances here which aggravate the offence in a way which suggests the protection of the public or adequate punishment requires a longer period of actual custody, namely 80 per cent. As already discussed, this is not a case in which adequate punishment requires a longer period of actual custody; that objective can be achieved by the imposition of a substantial head sentence. In terms of protection of the public, plainly that is a significant consideration in the case of an offender such as the respondent. Protection of the community is relevant to both the fixing of the head sentence and the period before the offender becomes eligible for parole. There may be cases in which the circumstances support a conclusion that a longer period in actual custody is warranted, for the protection of the community, even where the just and proportionate head sentence is less than 10 years. But implicit in that is a forecast of future behaviour; essentially a finding that the prospects of rehabilitation for the offender are so limited as to require them to serve all, or almost all, of the sentence imposed.”

129. [129]
     Attention was drawn to the last sentence in support of the submission that it established a principle that unless the prospects of rehabilitation for an offender were “so limited as to require them to serve all, or almost all, of the sentence”, no declaration should be made.  The submission was that the applicant had prospects of rehabilitation and therefore could not be said to fall into the category mentioned in the last sentence of the passage above.
130. [130]
     I do not consider the passage referred to in Free supports the conclusion advanced.  The court was referring to those cases where a longer period in prison was warranted even though the head sentence was below 10 years.  In other words, that category of case where a declaration might be made as a matter of discretion, because the automatic trigger at 10 years was inapplicable.  In that type of the case, the court said, the exercise of the discretion to make a declaration involved an implicit forecast that the prospects of rehabilitation was limited sufficiently to warrant the declaration.  In my respectful view, no principle was established thereby.  What was said was a simple recognition that, in such a case, the prospects of rehabilitation must be sufficiently limited to warrant the order.
131. [131]
     The point has no traction in the present case, given the matters addressed above as to the serious nature of the offending – see paragraph [126] above and the absence of any relevant mitigating feature to do with the applicant’s mental state.
132. [132]
     I do not consider the discretion to make the declarations miscarried.

Correction of the Verdict and Judgment Record

133. [133]
     As noted earlier, whilst the sentencing judge declared the offence on counts 19 and 20 to be serious violent offences that was not recorded in the Court Order Sheet or the Verdict and Judgment Record.  That must be corrected.

Conclusion

134. [134]
     The application for leave to appeal must be refused.  I propose the following order:

1. Application for leave to appeal refused.
2. The Registrar of the Court of Appeal is directed to amend the District Court order sheet by adding in respect of Counts 19 and 20 the words “Serious Violent Offence Declaration s 161A, s 161B Penalties and Sentences Act 1992” and “Declare the conviction on each of counts 19 and 20 to be a conviction of a serious violent offence”: and this amendment is to be reflected in the verdict and judgment record issued consequent upon this appeal.

135. [135]
     BROWN J:  I agree with the orders proposed by Morrison JA and his reasons.