R v ZC[2024] QCA 89

SUPREME COURT OF QUEENSLAND

1. [1]
   BODDICE JA:  I agree with Crowley J.
2. [2]
   CROW J:  I agree with Crowley J.
3. [3]
   CROWLEY J:  The applicant pleaded guilty in the District Court to offences of unlawful stalking, with violence (count 1), enter dwelling with intent (count 2) and sexual assault (count 3).  He was sentenced to concurrent terms of 15 months’ imprisonment for the count 1 offence and two years’ imprisonment for the count 2 offence.  For the count 3 offence he was sentenced to two years’ probation.  Each of the offences were domestic violence offences.  Convictions were recorded in each case.
4. [4]
   The applicant seeks leave to appeal against the sentences imposed upon him.  His sole proposed ground of appeal is that the sentence was manifestly excessive in all the circumstances.

Circumstances of the offending

5. [5]
   The circumstances of the offending were set out in an agreed statement of facts tendered by the prosecution.
6. [6]
   The complainant for the unlawful stalking offence was the applicant’s ex-girlfriend.  She was 17 years old at the time of the offence and lived at home with her mother and father.  She had dated the applicant for about seven months but ended the relationship, at the end of November 2022, by sending a text message to the applicant stating that she did not want to see him anymore.  During the relationship, in about June 2022, the applicant had told the complainant that he wanted to have sex with her mother.  The complainant for the sexual assault offence was the mother of the applicant’s ex-girlfriend.  She was 46 years old at the time of the offence.  The dwelling that was the subject of the count 2 offence was the family home in which the applicant’s ex-girlfriend lived with her parents.
7. [7]
   The offending involved a range of acts committed by the applicant over a period of four months.
8. [8]
   The applicant first harassed the complainant for a period of about a week, by sending her text messages every day or every second day asking her for sex.  She responded once, telling him to stop contacting her.  She blocked his number.
9. [9]
   Subsequently, on 26 November 2022, the complainant was at home with her mother, who saw the applicant in a nearby park and sent him a message saying that he could come inside the house to talk.  The applicant responded that the complainant had his wages and he wanted them back.  He came to the house and was let in by the complainant’s mother.  He spoke to the complainant in the hallway and demanded his money.  He pushed her with two hands causing her to stumble backwards into her bedroom.  He then pushed her again and she fell onto her bed.  The complainant’s mother tried to intervene and told the complainant to give the applicant his money.  The applicant then picked up the complainant’s wallet, removed cash from it, and threw the wallet back down.  As he left the house he said to the complainant ‘I am not going to see you again, piss off.’
10. [10]
    Later, in December 2022, the complainant twice found the applicant in her yard, uninvited.  On the first occasion, the applicant knocked on the complainant’s bedroom window at about 7.00 pm and asked her to let him in the house.  The complainant responded by saying ‘no, what are you doing here? Get out of my yard.’ and closed the curtain.  The second time was in the morning one day about two weeks later.  The complainant was sitting in her loungeroom when she saw the applicant walking through her front yard.  She ran to the bathroom and hid because she was scared.  While hiding, she could hear the applicant repeatedly calling out her name.  She ignored him and he eventually left.
11. [11]
    Finally, at about 10.00 am on 4 March 2023, the applicant again attended at the complainant’s home, uninvited, and approached her as she was leaving the house to get an Uber that was waiting for her out the front.  As she was locking the door she turned around and saw the applicant standing there.  The applicant said to the complainant ‘I want to have sex, can you wait? It won’ take long.’  The complainant said that she had to get into an Uber and told him to stop coming to her house.  The applicant continued asking for sex.  He told the complainant that he was going to get an Uber as well and showed her the Uber application open on his phone.  The complainant got into the Uber and left.
12. [12]
    Before leaving, and whilst the applicant was present, the complainant had placed her front door key in a shoe at the front of the house.  After she had gone, the applicant retrieved the key and used it to let himself into the house.  The complainant’s mother returned home from shopping at about 10.40 am, put the groceries away and then sat down at the kitchen table to eat.  While she was seated at the table, the applicant walked up behind her and touched the side of her right breast over her clothing.  The complainant’s mother turned around, saw the applicant and put up her hand to protect herself.  The applicant grabbed her hand and held it for less than a minute.
13. [13]
    The complainant’s mother was frightened.  The applicant asked her ‘do you know me?’.  She replied that she did and asked him why he was at the house and how he got in, to which he said, ‘your daughter has left.’  She then tried to distract and calm him by offering him food.  He then said to her, ‘I have been put up for a month’ (I haven’t had sex for a month).  The complainant’s mother ran to the front door, opened it, told the applicant to get out and threatened to call the police.  He responded by asking ‘why are you so scared of me?’.  He then said that he had to get his phone, walked to the complainant’s bedroom retrieved his phone and walked out the front door.  The complainant’s mother shut the front door and locked it.  The applicant remained outside at the window.  The complainant’s mother told him that what he had done was illegal and he could go to jail.  In response he said, ‘no one has educated me like this since I was a child and I can’t stop thinking about your daughter.’  He then accused her of having relationships with other men, including his father.  She told him again to leave and he did.
14. [14]
    Later that day, the complainant’s mother sent the applicant a text message telling him to reflect upon his behaviour. He replied (in Mandarin) ‘maybe I cant find anyone like her anymore, except you’.
15. [15]
    When interviewed by police on 12 March 2023, the applicant denied that the relationship with the complainant was over but accepted that she had sent him a text message saying that it was.  He admitted to being at the complainant’s house on 26 November 2022 and grabbing money from the complainant’s wallet by force.  He admitted that he had touched the complainant but said it was because he was trying to get his wallet, adding ‘why would I hurt the one I love’.  He further admitted that he went to the complainant’s bedroom, knocked on the window and asked to be let in.  He refused to answer questions about what happened on 4 March 2023.
16. [16]
    The applicant was sentenced on the basis that the count 1 unlawful stalking, offence was committed over the entire period of about four months.  The circumstance of the aggravation that violence was involved concerned the two instances where the applicant had pushed the complainant.  As for the count 2 offence of enter dwelling with intent, the statement of facts identified his intention as being to do any, or a combination of, the following:

    1. wait for the complainant to return to ask her for sex again (to continue stalking her);
    2. assault the complainant; and/or
    3. assault the complainant’s mother.
17. [17]
    As to those alternatives, the sentencing judge proceeded on the basis that the applicant had entered the house to wait, and in effect continue, his stalking of the complainant.

Circumstances of the offender

18. [18]
    The applicant was 19 years old at the time of the offending and 20 years old at the time of sentence.  He was born in China and had migrated to Australia in 2012.  He is not an Australian citizen.  His parents were separated and he lived with his father.  He had completed year 11 at high school and had previously worked in construction.  By the time he was sentenced he was again working in the construction industry, with his father.
19. [19]
    His father provided a character reference, stating that the applicant was truly remorseful, had shown a great deal of introspection and had taken steps to make amends for his mistakes, and had a strong work ethic and commitment to family.
20. [20]
    The applicant did not have a criminal history at the time he had committed the offences, but subsequently had committed breach of bail offences for not charging the GPS tracking device he was required to wear as part of his bail conditions and had committed a related wilful damage offence for damage he had caused to the device when he had forcibly removed it.
21. [21]
    After the last episode of offending, but before he was charged, the applicant had consented, without admissions, to a domestic violence order in which ex-girlfriend was the aggrieved, being made on 9 March 2023.  He had not contravened the order.
22. [22]
    The applicant’s counsel emphasised the factors in his plea in mitigation on behalf of the applicant:

    1. timely guilty pleas;
    2. remorse, as evidenced by the applicant’s pleas of guilty;
    3. co-operation with the administration of justice;
    4. previous good character;
    5. youthfulness;
    6. lack of relevant criminal history; and
    7. good prospects of rehabilitation.
23. [23]
    The applicant’s counsel also submitted that the court would take into account the prospect of the applicant being deported.

Submissions on penalty at the sentence hearing

24. [24]
    The prosecution submitted the unlawful stalking offence would attract a sentence in the order of 15 to 18 months’ imprisonment alone.  The prosecution accepted that the sexual assault could be regarded at the lower level of offending of that kind, but noted that it was aggravated by the burglary offence.  Accordingly, the prosecution submitted that the criminality of those two offences would attract a sentence of 12 months’ imprisonment alone.
25. [25]
    Ultimately, the prosecution submitted that a global head sentence in the range of two to two and a half years’ imprisonment was appropriate and that it would be open for the sentencing judge to impose a sentence that would require the applicant to serve a period in actual custody.  The prosecution further submitted that, given the lack of any psychological report or any indication of rehabilitation by the applicant, some sort of ongoing supervision of the applicant was required, whether by way of parole or probation.
26. [26]
    The applicant’s counsel submitted that having regard to the applicant’s mitigating factors of youthfulness, timely pleas of guilty, remorse, prospects of rehabilitation and lack of relevant criminal history, a probation order for a period of between 18 months to two years, with no convictions recorded, could be imposed.  In the event that the sentencing judge considered it was appropriate to impose a sentence of imprisonment, the applicant’s counsel urged her Honour to consider imposing a wholly suspended sentence of imprisonment.
27. [27]
    Each of the parties referred the sentencing judge to sentences that had been imposed in other cases which were said to be comparable.  Counsel for the prosecution accepted that the cases she had provided were all of limited assistance.  The applicant’s counsel accepted that the cases he provided were distinguishable on their own facts and circumstances.

Sentencing remarks

28. [28]
    The sentencing judge accepted that the acts of violence that constituted the circumstance of aggravation for the unlawful stalking offence were “in terms of physical violence to the lower end of the scale of seriousness”.  Similarly, her Honour accepted that the sexual assault by the touching of the complainant’s mother’s breast on the outside of her clothing was “to the lower end of the scale of seriousness of that offence” but further observed that “the specific contact involved, whilst relevant, is, of course, not the only matter to be considered in an assessment in the overall gravamen of the offending.”
29. [29]
    Her Honour noted the unlawful stalking offence had had an effect on the complainant and had caused her fear.  She considered there were aspects of the applicant’s conduct that were “concerning”, particularly in circumstances where the complainant had told the applicant that she did not want to be in a relationship with him and that he was not to come to the house.  Her Honour considered the fact that he had propositioned the complainant for sex on the last occasion he had attended her home suggested an apparent lack of insight into what was clearly wrong about his behaviour.
30. [30]
    The sentencing judge noted, and seemingly accepted, the submissions made by the applicant’s counsel that the applicant was young and that the complainant was his first girlfriend and therefore, to the extent that he may have felt entitled to continue to sexually proposition the complainant, there was an aspect of naivety and an unwillingness on his part to accept that the relationship was over.  Her Honour further noted, and seemingly accepted, the prosecutor’s concession that, notwithstanding the serious aspects of his offending, because of his youth and lack of prior criminal history, the applicant had good prospects of rehabilitation.
31. [31]
    Her Honour acknowledged that by pleading guilty to the offences the applicant had co-operated with the administration of justice and had spared the State the time and expense of a trial and spared the complainants and other witnesses from having to give evidence.  Her Honour expressly stated that she would impose lesser sentences than she would otherwise have imposed because the applicant had pleaded guilty.
32. [32]
    In terms of the applicant’s status as a non-citizen and the prospect that he might be deported as a result of the sentences that might be imposed, her Honour observed that:

“…it is properly accepted that there is some degree of speculation involved in that, and also whether in the event of the cancellation of your visa, there may in turn be a revocation of that cancellation in the discretion of the Minister.”

33. [33]
    Nevertheless, her Honour accepted that the prospect of deportation was “of some relevance in the way identified in the authorities”,^[1] in particular because the applicant would suffer some hardship in the event he was deported to China.
34. [34]
    Her Honour referred to the purposes for which sentences may be imposed and stated that the circumstances of the offending and the fact that they were domestic violence offences meant that general deterrence and denunciation were of significance.  However, she also accepted the applicant’s ongoing rehabilitation remained a relevant consideration.  Her Honour further noted that, because of the circumstances of the offending, the principles that a sentence of imprisonment should only be imposed as a last resort, and a sentence that allows an offender to stay in the community is preferable were displaced.
35. [35]
    Her Honour did not consider there were any exceptional circumstances in the applicant’s case and therefore, in accordance with s 9(10A) of the Penalties and Sentences Act 1992, she treated each of the applicant’s convictions for domestic violence offences as an aggravating factor when determining the appropriate sentence.
36. [36]
    The sentencing judge acknowledged that both parties had referred her to a number of decisions which she considered might assist as yardsticks in determining the appropriate sentence to be imposed.  Her Honour observed that none of the cases were precisely the same as the applicant’s case but, to the extent that they bore similarities or evidenced relevant sentencing considerations or principles, she had regard to them.
37. [37]
    Her Honour considered that the sentencing orders to be imposed upon the applicant should include some component of supervision as that would be both in the interests of the applicant’s ongoing rehabilitation and also in the interests of the community.
38. [38]
    The sentencing judge ultimately concluded:

“…it is my view that the appropriate sentence here is one of imprisonment, but I accept that, on balance, having regard to your youth, lack of prior criminal history and other mitigating circumstances, that the sentences may be structured so as to wholly suspend the terms of imprisonment and impose a concurrent period of probation.”

Consideration

39. [39]
    A contention that a sentence is manifestly excessive involves a challenge to the discretionary judgment exercised by the sentencing judge.  Such a challenge is constrained by the principles espoused in House v The King.^[2]  Absent specific error, what must be established by an appellant is that interference by the appellate court is warranted because on the facts of the case the result reached by the sentencing judge is unreasonable or plainly unjust, such that it may be inferred there has been a failure to properly exercise the discretion which the law reposes in the court of first instance.
40. [40]
    To succeed on a complaint of manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters.  Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.^[3]
41. [41]
    In R v Pham, French CJ, Keane and Nettle JJ emphasised that appellate intervention:^[4]

“… 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.”

42. [42]
    At the hearing of this application, the applicant’s counsel drew the Court’s attention to the same appellate and first instance sentence cases that had been relied upon by the parties at the sentencing hearing.  Whilst it was submitted that the sentences considered or imposed in those cases were relevant to the Court’s consideration of whether the sentence imposed upon the applicant was manifestly excessive, it was also accepted that they were of limited assistance.
43. [43]
    In view of that concession, and the similar concessions made by each of the parties before the sentencing judge, it is worth repeating what the High Court said about the use of comparable cases in R v Pham:^[5]

“It is settled that, in the absence of binding authority from this Court, an intermediate appellate court must follow a statement of legal principle by another intermediate appellate court unless persuaded that it is plainly wrong. It is also settled that a ‘sentence itself gives rise to no binding precedent’. Where, however, decisions of other courts in sentencing appeals are referred to in the context of determining whether a given sentence is manifestly excessive or inadequate, it should now be accepted that intermediate appellate courts must have regard to sentencing decisions of other intermediate appellate courts in comparable cases as ‘yardsticks’ that may serve to illustrate (although not define) the possible range of sentences available. A court must have regard to such a decision in this way unless there is a compelling reason not to do so, which might include where the objective circumstances of the crime or subjective circumstances of the offender are so distinguishable as to render the decision irrelevant, or where the court is persuaded that the outcome itself in the other court was manifestly excessive or inadequate.”

44. [44]
    In my view, it is not necessary to review the details of the cases to which we were referred.  None of the cases were sufficiently comparable in terms of the combination of offences involved, the objective circumstances of the offending or the subjective circumstances of the offender, to provide anything other than broad guidance as to the range of sentence that might be appropriate in the applicant’s case.
45. [45]
    Both before the sentencing judge at first instance and again at the hearing of this application, the applicant placed considerable emphasis upon the following statement of principle reiterated by Fraser JA in R v Hopper; Ex parte Attorney-General (Qld):^[6]

“…because the rehabilitation of young offenders is in the interests of the community, ‘youthful offenders with limited criminal histories and promising prospects of rehabilitation who have pleaded guilty and cooperated with the administration of justice, even where they have committed serious offences … should receive more leniency from courts than would otherwise be appropriate.’”

46. [46]
    In R v Kelley^[7] Morrison JA prefaced his reiteration of what Fraser JA had said in R v Hopper with the following statement:

“…in coming to the conclusion that a sentence of actual custody was required, the learned sentencing judge would have had to take into account the well-established sentencing principles that call for the seriousness of the offending conduct to be balanced against the fact that the offender was a youthful first offender, with an unblemished record, good character, and excellent prospects of rehabilitation.”

47. [47]
    Compelling rationales for the leniency that is to be extended to youthful, first-time offenders appear in an oft-cited passage from Lahey v Sanderson,^[8] where Bunbury CJ stated:

“The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed. There has accordingly been a universal acceptance by the courts in England, Australia, and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and in the ordinary run of crime the dominant consideration in determining the appropriate punishment to be imposed. It has been said by Lord Goddard, the former Lord Chief Justice of England, that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility. With that I respectfully agree.”

48. [48]
    Other reasons that may justify the leniency extended to youthful offenders relate to the potential for their cognitive, emotional and/or physiological immaturity to contribute to their breach of the law. Such offenders may lack the capacity for mature decision-making or may not fully appreciate the seriousness and consequences of the criminal conduct in which they engage.^[9]  The effect of immaturity on culpability is often recognised as a factor which mitigates the seriousness of offending behaviour.^[10]
49. [49]
    Whilst the applicant in this case was a youthful first-time offender, that did not mean that it was unreasonable or plainly unjust in all the circumstances for the sentencing judge to impose the sentences that she did.  The nature and circumstances of the offending were not such that they could be simply explained by naivety or immaturity on the part of the applicant, nor any inability to comprehend the seriousness of his conduct and its consequences.  It is apparent from the sentencing remarks that the sentencing judge applied the above stated principles when determining the appropriate sentences to be imposed upon the applicant.  Her Honour noted that the applicant was 19 years of age at the time of the offending and accepted he was to be sentenced as a young man with no prior convictions.  She noted that rehabilitation was a relevant sentencing purpose and clearly articulated that a sentence involving supervision would enable the applicant’s ongoing rehabilitation, which would be both in the applicant’s interest and in the interests of the community.
50. [50]
    In my view, each of the applicant’s relevant personal circumstances and mitigating factors were noted and properly taken into account by the sentencing judge.  The sentences imposed were deliberately structured by her Honour in a way that would impose sentences that recognised the seriousness of the applicant’s offending and the important sentencing purposes of general deterrence and denunciation, whilst at the same time enabling the applicant to avoid serving any time in actual custody and to remain in the community under the type of supervision that he obviously needs to ensure his ongoing rehabilitation.  The sentences imposed adequately reflected the applicant’s youth, lack of prior convictions, timely guilty pleas and his prospects of rehabilitation.
51. [51]
    In my opinion neither the individual sentences, nor the overall sentence imposed upon the applicant were manifestly excessive.  It may be accepted that the sentence of 15 months’ imprisonment for the unlawful stalking offence was at the higher end of the available sentencing range, but it was not outside the range of reasonable sentencing discretion.  The sentence of two years’ imprisonment for the enter dwelling with intent offence was well within the appropriate sentencing range.
52. [52]
    Each of the offences committed by the applicant was serious.  Whilst the sexual assault and the use of violence in the commission of the unlawful stalking offence were properly considered to be at the lower end of the scale of offending of that kind, the sentencing judge was correct to conclude that there were aspects of the applicant’s conduct that were concerning.  The offending occurred over a period of four months and escalated in seriousness.  The applicant continued to be fixated with the complainant and refused to accept that she had ended their relationship.  There were clearly sexual motivations underpinning the commission of each of the offences.  There was no evidence that the applicant had done anything to seek psychological treatment or other assistance to address any difficulties he may have with emotional regulation, domestic violence offending or controlling his sexual urges.  There was scant evidence of any demonstrated rehabilitation.  The evidence that he had since developed insight into the seriousness and inappropriateness of his conduct was far from compelling.  It was limited to his consent to the making of a domestic violence order and an absence of any further offending.
53. [53]
    The recording of convictions was mandatory for the count 1 and 2 offences for which sentences of imprisonment were imposed but discretionary in the case of the count 3 offence for which the applicant was placed on probation.  In my view, it was appropriate that a conviction be recorded for that offence, particularly having regard to the circumstances in which the sexual assault was committed by the applicant.

Orders

54. [54]
    I would make the following orders:

1. Leave to appeal granted.
2. Appeal dismissed.