R v OAE[2025] QCA 129

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Morrison AJA.
2. [2]
   BRADLEY JA:  I agree with Morrison AJA.
3. [3]
   MORRISON AJA:  On 6 August 2024, the applicant was sentenced, after pleading guilty to two counts, namely:

   1. Count 1 – Torture (Domestic Violence Offence); and
   2. Count 2 – Contravention of a domestic violence order, with a circumstance of aggravation.
4. [4]
   Both counts arose out of the one set of circumstances which occurred on 2 November 2023.  Though I will deal with those circumstances in greater detail later in these reasons, they can be summarised in this way:

   1. the applicant and the complainant were living together having been in a relationship for about two years; the relationship began to deteriorate due to their use of cannabis and amphetamines;
   2. because of physical disputes between them, a temporary protection order was put in place, in favour of the complainant;
   3. on 2 November 2023, whilst affected by amphetamines, the applicant commenced a series of assaults on the complainant which included: (i) whipping or hitting her about her body using items such as a phone charger, electric cord, dog leash, a whipper snipper and a broom handle; (ii) strangling her with a dog leash; (iii) stomping on her head, punching and hitting her to the face; (iv) tying her hands and dragging her through the unit; and (v) pouring bleach over her body.
5. [5]
   The sentence imposed was a head sentence on count 1 (torture) of five and a-half years’ imprisonment with no parole eligibility date set.  A total of 278 days of presentence custody was declared as time served under the sentence.  On count 2, the applicant was convicted but not further punished.
6. [6]
   The applicant’s application for leave to appeal relies on the sole ground that the sentence imposed was manifestly excessive.

Circumstances of the offending

7. [7]
   The circumstances of the offending were agreed in a statement of facts which was before the learned sentencing judge.  That revealed that the applicant was 33 years old at the time of the offences and the complainant was 38.
8. [8]
   In August 2023, a temporary protection order was put in place in favour of the complainant.  The order prohibited the applicant from contacting the complainant or coming within 100 metres of her.  Despite that, the applicant continued to live with the complainant in her home.
9. [9]
   The agreed statement of facts then set out a short summary of the offending much as is set out in paragraph [4] above, including that the complainant floated in and out of consciousness throughout the offending and that she was in excruciating pain.
10. [10]
    The agreed account of the offending was as set out below.
11. [11]
    At around 1 am on 2 November 2023, a fight ensued between the applicant and the complainant.  Although she retreated into the main bedroom to get away from him, he pursued her.
12. [12]
    While the complainant undressed and removed her jeans, the applicant walked in.  He flicked her in the face, pushed and jabbed her, she retreated into the ensuite of the bedroom, locked herself in and told him she would not put up with his "shit".  At this stage, she was only wearing a bra and a shirt and was unclothed from the waist down.
13. [13]
    The applicant yelled and banged on the door of the ensuite.  The complainant yelled for her neighbours to call the police.  However, the applicant threatened to kill her before the police arrived.  He walked to the back verandah, pulled the security screen off the ensuite window, and attempted to climb into the room.  He tried to reach for her, but eventually gave up and walked back into the house and managed to unlock the door to the ensuite.
14. [14]
    The complainant ran out of the ensuite and towards the head of the bed.  Her dog also ran to her, while the applicant remained at the bottom of the bed and jammed the complainant and her dog into the wall with the bedframe.  She pleaded with him to stop, but he ignored her.
15. [15]
    The applicant picked up several items and hit the complainant across her bare lower body.  She could not recall every single item he hit her with, as she was in and out of consciousness.  However, he repeatedly whipped her legs with a mobile phone charger with a broad connecter attached, which stung each time it connected with her bare body.  She tried to escape, but there was nowhere to go as she was jammed between the bed and the wall.
16. [16]
    At some point, the complainant was knocked out, and was dragged to the floor of the bedroom by the applicant, where he continued to assault her with other items, including a whipper snipper and a broom handle.  He hit her repeatedly and so hard that both the whipper snipper and the broom handle broke.  While he hit her, he said “Tell the truth about the black eye, I didn't give it to you. Stop telling people I did”.  To make him stop, she agreed and told him that she would tell people that she hit her head on the closet.
17. [17]
    The applicant then grabbed an electric cord and whipped the complainant on her body countless times.  The pain was excruciating.  She sustained numerous bruises, welts, and cuts across her body, including her back and her bottom.  Although she could not recall the exact number of times he whipped her, she believed it was over fifty times.
18. [18]
    While she was on the ground, the applicant stomped on her head and punched her with his fists.  She suffered a bloodied nose and bruising to her eyes.  The left side of her face was completely swollen and bruised.
19. [19]
    The applicant also grabbed a dog leash, which had a silver shackle attached to the end, and whipped her on her body.  The shackle connected with her bare skin each time, while she was on the ground cowering down, covering the back of her head with her hands.  He then placed the leash around the front of her neck and pulled backwards, strangling her.  She felt pressure on the front of her neck and had difficulty breathing.  She thought she was about to die, but he quickly released the leash, and she got up and ran to the toilet at the front of the house and locked herself in.
20. [20]
    The applicant pursued her and punched through the door causing a hole in the door, and to break off the hinges.  He tried to pull her through the hole, but the hole was too small, so he struck her in the face repeatedly with the broken door and cornered her against the wall.  He then managed to drag her out of the toilet and into the laundry area, where he struck her with the dog leash.  While in the laundry, he picked up a tub, which contained a mixture of bleach and water they used to clean the toilet, and poured it over her body, which spilled into her eyes.  The liquid made her skin itch and sting.
21. [21]
    He wrapped the leash around her hands and dragged her along the floor of the unit to the front door, dragging her outside, onto the timber decking.  This frightened the complainant, as she had no clue where he intended to take her.  He eventually released her and walked down the street, while she ran back inside and grabbed her phone.  She fled to her neighbour's house and hid in her kitchen and called the police.  At this stage, she still only wore a top and was bare from the waist down.
22. [22]
    A short time later, the police arrived.  The complainant was extremely distressed and fearful and had blood oozing out of her nose and mouth.  She had welts and whip marks across her body and was in extreme pain.  The ambulance was called, and she was transported to the Gympie Hospital.
23. [23]
    The complainant was found to have a series of injuries including bruising to the right eye, swelling to various parts of her body, multiple marks on her back, bruising around her body and a left wrist fracture.  Her wrist was put in a plaster cast but she was otherwise expected to make a full recovery without medical intervention.  She had a raspy voice from being strangled by the dog leash and subsequently lost her voice.  Further medication was given for that.

The sentencing remarks

24. [24]
    The learned sentencing judge noted that the maximum penalty for count 1 was 14 years’ imprisonment.  Her Honour also accepted that the applicant had made an early guilty plea, thus saving the State time, resources and expense, and sparing the complainant from the need to give evidence.  Her Honour accepted, too, that the applicant was remorseful.
25. [25]
    Having set out the facts of the offending from the agreed statement, her Honour turned to the applicant’s personal circumstances.  She noted that he was 34 at the date of sentencing and had a criminal history consisting of multiple breaches of probation orders.  Her Honour considered that the present offences were a “very, very serious escalation in your offending”.
26. [26]
    Her Honour examined the circumstances of some previous sentences imposed on the applicant in 2020, 2021 and 2022 for contravention of a domestic violence order in favour of the complainant (2020), breach of bail, wilful damage, enter a dwelling, and failure to appear, failure to comply with a community services order, and contravention of a domestic violence order (2022).  The circumstances surrounding the 2020 contravention of a domestic violence order involved each of the applicant and complainant having injected amphetamines, after which he became violent and began to attack her in the bedroom.
27. [27]
    Her Honour made it clear that the applicant was not being sentenced for those earlier entries in his criminal history, but “what they show is that this offending is not an isolated aberration”.
28. [28]
    Her Honour then turned to the offending that is the subject of this appeal.  Her Honour noted that s 9(3) of the Penalties and Sentences Act 1992 were relevant, in that there was no requirement that imprisonment should be imposed only as a last resort.  Her Honour noted the purposes of sentencing, namely, to punish to an extent that was just, to provide conditions to assist rehabilitation, to deter the applicant or others from committing a similar offence, to make clear the community’s denunciation of the conduct, and to protect the community.
29. [29]
    Her Honour then noted a number of factors which characterised the offending conduct and revealed her Honour’s process of reasoning:

    1. the offending was “very serious, as is reflected by the maximum penalty”;
    2. the offending was “unprovoked, protracted perpetration of violence of a cruel, callous and brutal nature”;
    3. it could be described as “a savage beating, involving multiple attacks in different forms, including with weapons, including when the complainant was in multiple defenceless positions”;
    4. the offending included extended violence such as punching, a threat to kill, hitting and whipping the complainant, knocking her out and dragging her on more than one occasion, as well as stomping on her head;
    5. the violence also included repeatedly hitting her with a part of a door and pouring bleach over her;
    6. by virtue of the plea of guilty, the applicant accepted that it was his intention to inflict severe pain and suffering on the complainant;
    7. the offending was a “gross abuse of trust”, as it occurred in the complainant’s home and in contravention of a domestic violence order;
    8. the applicant had been using cannabis, methylamphetamine and GHB on the day of the offending, and had not taken GHB before; and
    9. whilst he was not able to recall the offending the applicant accepted he had done it and was sorry.
30. [30]
    Her Honour then referred to the victim impact statement from the complainant:

“I have read what the complainant has had to say about your offending in the various emails that have been tendered.  It talks about her hopes for you.  It is a very benevolent attitude.  She would like for you to be given the opportunity to rectify your mistakes.  What she has to say, though, cannot, of course, be allowed to overwhelm an appropriate sentence.”

31. [31]
    The learned sentencing judge then turned to the report and evidence of Mr Innes a psychologist.  That report revealed the applicant’s prejudicial background, being a witness to, and participant in, frequent domestic violence.  It also recorded that even with that prejudicial background the applicant was able to complete year 12, undergo an apprenticeship, and work as a trades assistant in the mines.  The applicant lost his job because of drug use.
32. [32]
    Her Honour noted that drugs had been a problem for the applicant, having been introduced to cannabis when he was nine and started using it when he was 16, and using other drugs such as speed, ice, opioids, cocaine and liquid fantasy (or GHB).  The applicant was about 23 when he was diagnosed with a drug-induced psychosis.
33. [33]
    Her Honour then addressed the substance of the report and evidence by Mr Innes in these terms:

“Mr Innes did not have access to any of your medical records, but on the basis of your reporting, he did consider that you had a substance abuse disorder.  He considered that on account of the multiple forms of childhood trauma you have been exposed to, which includes impulsivity, anxiety and depressive symptomatology, he thought you attempted to suppress with your drug use, that you also have complex PTSD.  While your diagnoses and prejudicial background are relevant to understanding your personal circumstances, the factual background against which the offending occurred, and may well reduce your moral culpability and the deliberation involved with your offending, it is also these same very factors that increases the importance of protecting the community from you and potentially making you a more intractable subject for reform.  What I am saying is that the matters addressed in the psychologist’s report and the subject of lengthy oral submissions by your counsel may seem, on one view, to lead to a lenient sentence, and on another, to a sentence which is more severe.”

34. [34]
    The learned sentencing judge noted the psychologist’s opinion that prison would be harder for the applicant than for someone without moderate depression and severe anxiety.  In terms of risk of reoffending, her Honour noted the psychologist’s obvious point, that the applicant’s ceasing drug use would reduce his risks.
35. [35]
    Her Honour then referred to the prognostic factors applicable to the applicant:

“Apart from your substance abuse disorder, the other poor prognostic factors for you are the frequency and intensity of your symptoms and the prolonged period they have been untreated for.  There is also your maladaptive defence mechanisms and significant destabilising facts, such as financial and housing insecurity, being away from your children, and lack of social supports.  The good prognostic factors for you are your past resilience, future plans, and your willingness to commit to a mental health intervention plan.  Mr Innes was reserved about your prognosis.  He thought the significant psychosocial stresses in the future would increase your risk of suffering a relapse of your mental health and substance use.  While you are not without hope of rehabilitating, your prospects in this respect are considered guarded.

To your credit, I am told that you have been attending AA meetings in jail.  You want to return to work in drilling, and live with your brother in Gladstone on your release.”

36. [36]
    The learned sentencing judge then referred to the submission of the Crown, namely that the sentence should be of the order of six and a-half to eight years’ imprisonment, with a serious violent offence declaration.  Her Honour then referred to authorities to which she had been referred in the course of submissions, and said:

“Of course, decisions in other cases are not determinative of the sentence in this case and they do not set a range of permissible sentences.  However, they may assist in understanding how the various relevant factors should be treated in deciding the sentence.  What may give rise to a precedent is a statement of principle that affects how the discretion should be exercised.

Balancing all of the relevant considerations in relation to count 1, I intend to reflect your plea, the contents of Mr Innes’s report that I have summarised, in particular as to your moral culpability, and your other mitigating factors that I have summarised in fixing the head sentence.  For that count, I order that you be imprisoned for a period of five and a-half years.  I am not persuaded to make a Serious Violent Offence declaration as the aggravating effect of that declaration cannot be ignored.  Having said this, I am satisfied that the circumstances here which make your offending very serious, which I have summarised, mean that the protection of the public and adequate punishment means that I am not setting a parole eligibility date.  This means that you will become eligible for parole automatically at the halfway mark of this sentence.”

The applicant’s submissions

37. [37]
    Mr Kennedy, appearing for the applicant, referred to three decisions of this court, namely, R v Ellis,^[1] R v GBI^[2]and R v Galleghan^[3] and submitted that as a matter of instinctive synthesis, bearing in mind those three cases as yardsticks, the sentence on the applicant was manifestly excessive.  The point made was that Ellis, GBI and Galleghan did not involve mitigating factors such as (i) the applicant’s mental health condition, and (ii) the express views of the complainant.  It was urged that those two factors, either alone or in combination, warranted further recognition in the imposition of the sentence, by setting a release date or an eligibility date at one-third of the sentence.
38. [38]
    The other submission was that the complainant’s views were relevant and should have been afforded more weight in the exercise of the court’s discretion.

Consideration

39. [39]
    The principles applicable where the ground of appeal against sentence is that it is manifestly excessive, are well established.  As this court observed in R v Abdullah:^[4]

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

40. [40]
    In my respectful view, the applicant cannot meet the test of showing manifest excess in this case.
41. [41]
    First, reference to Ellis, GBI and Galleghan does not compel the conclusion that there was any misapplication of principle or that the sentence was unreasonable or plainly unjust.  True, it is, that they do not involve a mental health condition or support for the victim, as is the case here, but as is often the case, the so-called comparable cases come with their own set of facts and influencing aspects.
42. [42]
    Thus, in Ellis the torture count involved a prolonged series of attacks which, itself, attracted a sentence of six and a-half years, and a declaration that it was a serious violent offence.  However, count 3 in that case (malicious act with intent) involved the offender using a heated trowel to inflict more than 15 burns to the complainant’s upper thigh and left leg, resulting in partial thickness burns, removal of a superficial skin layer and disfigurement.  That offence by itself attracted a sentence of six years’ imprisonment.  However, the question of totality of the offending was taken into account in imposing the sentence on the torture count.  That and the fact that an SVO declaration was imposed, render Ellis of little assistance in this case.
43. [43]
    GBI involved torture which attracted a six and a-half year sentence.  The violence was triggered by the offender’s perception that the complainant had been engaging in sex with the people downstairs where they lived.  The violence included pushing her backwards onto the bed, punching her in the head, berating her and poking her in the shoulder with a pair of scissors.  The violence was relentless and constant.  A second count (assault occasioning bodily harm) involved the offender punching the complainant in the face without warning, resulting in her being taken to hospital by ambulance.  Significant features were the sheer volume and frequency of the assaults, the controlling and denigrating behaviour of the offender, the fact that he derived pleasure from the attack and the long-lasting impact on the victim.  The total sentence reflected the overall criminality on both counts, with the head sentence being within the range of what the applicant had contended at sentencing.  That is sufficient to demonstrate that GBI does not result in a conclusion that the sentence here was manifestly excessive.
44. [44]
    Galleghan involved prolonged torture resulting in a sentence of eight years with an SVO declaration.  The offending involved repeated assaults to the complainant’s head, dragging her across the floor, kicking her, applying pressure to the point of loss of consciousness, and threats to kill her.  However, it also involved chasing a person who tried to intervene and threatening to kill him.  Further, one aspect of the torture involved a murderous plan to tie the complainant up in a shipping container and leave her there until she died.  He put that plan into action but it failed because the police were able to open the shipping container without his assistance.  None of that suggests that Galleghan ought compel the conclusion that there has been error in this case.
45. [45]
    In the end, reference to Ellis, GBI and Galleghan does no more than demonstrate the vice in attacking a sentence on the ground of manifest excess, by reference to comparable cases.  The fact that a sentence imposed is different from other sentences, and even markedly different, does not establish that it is manifestly excessive.
46. [46]
    The applicant relies on the two features which were said to be absent in other cases, namely the applicant’s mental health condition and the expressed views of the complainant.
47. [47]
    Neither are sufficient to establish success.  The learned sentencing judge took into account that the psychologist’s report suggested a causative link between the applicant’s complex PTSD and the offending.  It was, on any view, indirect.  What the psychologist said was that the unfortunate events in the applicant’s life lead to the PTSD, and one maladaptive way in which the applicant attempted to cope with the PTSD was by drug use.  It was the drug use or, more properly, the applicant’s drug induced state on the night of the offences, that was the direct causative link.
48. [48]
    However that may be, the fact is, it was taken into account by the learned sentencing judge when reaching a head sentence on count 1.
49. [49]
    The complainant’s expressed views were to the effect that she would like to see the applicant have an opportunity to engage in rehabilitation rather than be incarcerated.  Benevolent as those sentiments may be, it would be wrong to allow them to interfere with the imposition of a sentence that was otherwise just in all the circumstances.  The learned sentencing judge took into account the complainant’s views, but proceeded on the basis that they could not displace an otherwise proper sentence.
50. [50]
    The contention that these two factors, in combination, warranted further recognition by setting an earlier release or eligibility date should be put to one side.  The applicant’s criminal history weighed against him, as did his defiance of a temporary protection order.  Further, count 1 involved the admitted intention on the applicant’s part to inflict severe pain and suffering by way of unprovoked, protracted violence in a cruel, callous and brutal way.  As the learned sentencing judge said, it was a savage beating involving weapons, in some cases used so forcefully that they broke.
51. [51]
    The psychologist’s report also dealt with the risks posed by the applicant.  The risk to himself and others was assessed as increased and it was noted that his risk profile can change within a very short period of time, depending on circumstances.  His risks were predominantly associated with his substance use and maladaptive coping skills in the face of stressors.  Ceasing drug use would reduce that risk whilst using illicit drugs dramatically increased the risk.
52. [52]
    The final submission made was that insufficient weight was given to the complainant’s views.  As this court has repeatedly said in respect of an appeal against sentence based on manifest excess, a submission to the effect that insufficient weight was given to a particular factor is not a proper ground of appeal.  In Gronow v Gronow^[5] Aickin J said:

“Statements of the general principles to be applied by an appellate court when asked to set aside an order made in the exercise of a judicial discretion generally include a reference to the trial judge giving inadequate weight to some factors and excessive weight to others.  It is however a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge.”

53. [53]
    Therefore, I am unable to conclude that it has been demonstrated that the sentence is manifestly excessive.  The application for leave to appeal must be refused.