R v RBO

Some interesting issues arose for the Court’s consideration in this appeal against conviction and sentence. The appellant, the complainant’s former husband, had been convicted of two counts of assault occasioning bodily harm and two counts of common assault against her, whilst he was acquitted of various other counts. One of the primary aspects of note was whether a delay of four years in prosecuting the appellant, which had not been caused by him, was a relevant consideration on sentence. In addition, the Court examined the effect of s 9(10A) Penalties and Sentences Act 1992 in terms of whether the aggravating circumstance that this was a domestic violence offence excluded other relevant considerations on sentence. Ultimately, whilst the appeal against conviction was dismissed, the application for leave to appeal sentence was granted.

Mullins P, Brown JA and Henry J

8 November 2024

The appellant had been sentenced to concurrent terms of imprisonment, the highest of which was 16 months imprisonment, suspended after eight months. [5]. The sentences were for domestic violence offences on the same day which had resulted in minor physical injuries to the complainant. [4]. Evidence of an abusive relationship had been led including of uncharged acts over a sustained period. [11]–[17]. There had been a prolonged failure in the charges coming to trial (which was not the fault of the accused), and during that period of time he was on bail, had not re-offended and had maintained continual employment. [127].

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

It was readily apparent that the appellant and the complainant had had a protracted and tumultuous relationship. There was no victim impact statement tendered. [97], [102]. In terms of whether the impact of alleged acts of which the applicant was acquitted or not charged had any significance to the impact of the offending, in the lead judgment Henry J clarified that only the impact on the complainant of the appellant’s conduct during the assaults for which he was actually sentenced was relevant. [104].

The effect of s 9(10A) Penalties and Sentences Act 1992

Section 9(10A) of the Act provides that, in determining the appropriate sentence for an offender convicted of a domestic violence offence, the court must treat the fact that it is a domestic violence offence as an aggravating factor, unless the court considers it is not reasonable because of the exceptional circumstances of the case. In relation to the effect of this provision in the current matter, the Court observed:

(1)s 9(10A) did not increase the statutory penalty: see R v Hutchinson [2018] 3 Qd R 505, [40]. Importantly, whilst the provision identifies a consideration which is to be treated as an aggravating factor it does not eliminate other relevant considerations on sentence and the sentencing discretion needs to be exercised having regard to the individual circumstances of each case [119]–[121]; and

(2)the introduction of s 9(10A) [on 5 May 2016] did not render all past sentences in this area irrelevant. Previous case law which considered the aggravating context of violent offending in a domestic setting a relevant circumstance, may still be relied upon with discernment. [110]–[111].

Relevance of the four year delay in prosecuting the appellant

In the Court’s view, the delay which had occurred in this matter was “extraordinary” and it was relevant in four separate ways to the appellant’s sentencing. [126]. The first was that such a delay enables the court to gauge whether the offender has undertaken any prolonged rehabilitative progress: see R v L; Ex parte Attorney-General [1996] 2 Qd R 63, 66; R v Cockerell (2001) 126 A Crim R 444, [10]. Where there is evidence of such, that will warrant more considerable weight being given to the sentencing purpose of rehabilitation. Here, in the four years within which he awaited prosecution, the appellant showed an ongoing inclination to rehabilitate. [127].

Secondly, the prolonged failure to expedite his prosecution (which was outside of his control) would naturally have resulted in stress for the appellant. As Henry J put it, “[t]he punishing strain of that stress, albeit not part of the punishment formally imposed by the court on sentence, should not be ignored”. Rather, it was directly relevant pursuant to s 9(1)(a) Penalties and Sentences Act 1992. [128].

Thirdly the Court observed that the delay has an effect upon the relative importance of the sentencing purpose of personal deterrence. In the current matter the domestic setting in which the offences had occurred had come to an end well prior to the time of sentence. In the intervening period of time the stress which the appellant experienced resulting from the delayed disposition and his rehabilitative progress lessened the need for personal deterrence. [129].

Lastly, as a matter of fairness, extraordinary delay decreases the weight which ought otherwise be given to general deterrence. Here, the applicant was able to demonstrate that he was compliant with his bail conditions, had not been convicted of any other offending and remained employed. [130].

Disposition

The Court:

(1)Dismissed the appeal against conviction.

(2)Granted the application for leave to appeal sentence.

(3)Allowed the appeal against sentence allowed, to the following extent:

(a)set aside the sentence of 16 months’ imprisonment for count 4 and substitute a sentence on that count of 12 months’ imprisonment;

(b)set aside the order suspending the terms of imprisonment after eight months for an operational period of 18 months and substitute an order suspending the terms of imprisonment after six months for an operational period of 12 months.

A Jarro