R v B; ex parte A-G [2000] QCA 110

Director of Public Prosecutions (Qld) for the appellant

[1] McPHERSON JA: I have read and agree with the joint reasons given by Moynihan SJA and Atkinson J for dismissing this appeal. I do, however, wish to comment on one aspect of the judgment.

[2] Their Honours refer to the decision in R v Bojovic [1999] QCA 206 as showing that the exercise of the sentencing discretion is "an integrated process rather than a series of discrete steps". That is the effect of that decision in relation to sentencing in a matter in which a discretion arose under s 161B(3) of the Penalties and Sentences Act 1992 to make a declaration as to a serious violent offence. On that point, I took a different view of the relevant provisions in R v Collins (CA 238/ 1998; Sept 18, 1998); but I accept, as I must, that the decision in R v Bojovic decides that, to that extent at least, my view in Collins was wrong.

[3] This means or implies, as Moynihan SJA and Atkinson J say in their reasons, that, in a case in which the discretion is exercised to make a declaration under s 161B(3) and no doubt also s 161B(4), it is permissible to impose a head sentence toward the lower end of the sentencing range: R v Bojovic [1999] QCA 206, at [34]; and to do so because of the impact which such a declaration will have on the offender's prospects of parole. He (or she) will not be eligible for parole until 80% of the term of imprisonment has been served: Corrective Services Act 1988, s 166(1)(c)(i). The head sentence may thus, to some extent, be reduced by taking into account the deferral of eligibility for parole dictated by the statutory provision.

[4] A different approach has been adopted in some other circumstances. In R v Crossley (CA 477/1998; June 18, 1999) it was said that it was not for the sentencing judge to attempt to offset the statutory consequence prescribed by s 166(1)(c)(i) of the Corrective Services Act by imposing a head sentence of less than appropriate duration in order to maintain parity between two co-offenders. If, said Pincus JA in his reasons in Crossley:

"the judge thinks that two co-offenders would be fairly treated if one received twice the sentence fixed for the other and that the worse offender should be sentenced to 10 years, then the judge simply does that, imposes 10 years and 5 years, the result being that the worse offender, in a case caught by s 161A, is not eligible for parole until he has served 8 years."

Likewise it has been held by this Court that a sentencing judge may not impose a lower head sentence for an offence committed while on parole in order to ameliorate the requirement of s 156A(1)(b)(ii) of the Penalties and Sentences Act that a sentence committed while on parole must be cumulative on a sentence for an offence for which the offender was paroled. See R v Booth (CA 338/1998; Mar 30, 1999).

[5] Those two decisions accord with a long-standing rule or practice followed in sentencing in Queensland under which the sentencing judge does not set out to adjust a head sentence where a parole recommendation is contemplated or made. The practice dates back at least as far as R v Black [1948] QWN 23. There Brennan J had imposed a sentence of imprisonment for five years, which was based in part on an assumption that the Parole Board would act in accordance with a letter he was proposing to send to the Board regarding parole for the offender. The Court of Criminal Appeal set aside the sentence of five years and substituted one of three years. With reference to the process by which Brennan J had arrived at the term of five years, Philp J said it was a judge's duty to sentence a prisoner according to the terms of the Code, and that "it is no concern of his as to what the Parole Board may or may not do".

[6] In a sense, the course envisaged by Brennan J of sending a letter to the Board has since been adopted by legislation, now embodied in s 157(2) of the Penalties and Sentences Act 1992, authorising the court to recommend eligibility for release on parole after the offender has served a specified part of the term of imprisonment imposed. Since, however, the Board is still not legally bound by such a recommendation, it continues to be necessary or certainly desirable for sentencing judges to first arrive at an appropriate head sentence before considering whether or not any recommendation for parole should be added, and to do so without at that stage attempting to assess the impact, if any, that such a recommendation is likely to have on the duration of the period of actual imprisonment to be served.

[7] Among the reasons, apart from authority, that favour the adoption of that procedure are these. It is plainly not legitimate to increase the duration of the head sentence in order to offset or circumvent the provision for eligibility for parole after serving half of the prison term that is prescribed in s 166(1)(d) of the Corrective Services Act. That is, in substance, what was held to be wrong in R v Black, even if at that time there was no provision as there now is for automatic eligibility for parole. Strictly speaking, s 166(1)(d) does not make a prisoner eligible for parole after serving half the term. What it does is to provide that he (or she) is not so eligible until half of the term has been served. Practically, however, the result is, or perhaps should be, much the same in its effect. The head sentence ought not to be increased so as to defer or delay the moment at which a prisoner ceases to be ineligible for parole under s 166(1)(d) of the Corrective Services Act. There is no assurance that the parole recommendation will be acted upon. The offender's behaviour in prison may lead the Board to conclude that parole should not be granted in accordance with the recommendation.

[8] As a general proposition, the converse seems to me also to be at least partly true. The duration of a head sentence ought not to be reduced because no, or only a limited, recommendation for parole is being made or proposed without making it clear that this is what is being done. One reason for this is that it tends to distort sentencing patterns for like offences. The "tariff" or range is disturbed if it is influenced in this way by recommendations for parole without making it clear that that process has taken place. Uniformity in sentencing patterns is not always easy to achieve. It becomes well-nigh impossible to maintain uniformity if parole recommendations are permitted, surreptitiously as it were, to influence the range of head sentences being imposed for offences of the same kind.

[9] In addition, it makes it difficult on appeals against sentence if the head sentence imposed at first instance has been discounted because no parole recommendation has been made, but without saying that that is what has been done. In general, a recommendation for early parole eligibility reflects factors personal to the particular offender, such as remorse, pleas of guilty, previous good record, degrees of moral culpability, and so on. Which is not to say that factors such as these may not properly be reflected in a reduced head sentence; but rather that if there are no such factors, a reduction in the head sentence is difficult to justify. If under s 166(1)(d) the Board grants parole in the case of a prisoner whose head sentence has already been judicially reduced in that way, the prisoner may end up serving less than the term of imprisonment appropriate for the offence in question. Such a result has a tendency to create a sense of grievance among different offenders in the same category, as well as to promote appeals by the Attorney-General against the duration of the sentence in question. It is therefore a salutary practice for the sentencing reasons to record whether, and preferably to what extent, the head sentence has been so reduced.

[10] No doubt what has been said here should be regarded as in the nature of generalisation; but that is so of most, if not all, of what pass for principles of sentencing. The point being made is, however, that describing the exercise of the sentencing discretion, including the possibility of parole, as an integrated process rather than a series of discrete steps is, on the authority of R v Bojovic, true of a case where the discretion has been or is being exercised under s 161B(3) or s161B(4) to make a declaration that the offender is convicted of a serious violent offence. It is much less true, if at all, of the sentencing process in R v Booth or R v Crossley. On the authority of those two decisions, no general discretion to reduce the head sentence arises where and simply because the requirements of s 161A(a) are satisfied. The distinction between that class of case and R v Bojovic may be difficult to justify as a matter of logic or statutory interpretation; but I respectfully suggest that the general principle underlying R v Black should continue to govern the exercise of the sentencing discretion until legislation or authority compel a different conclusion. If the head sentence is reduced because no parole recommendation is or can be made, it is desirable that the sentencing reasons should reflect that fact, and preferably also the extent of the reduction involved.

[11] Subject to this limited qualification, if that is what it is, I agree with the reasons of Moynihan SJA and Atkinson J. The Attorney's appeal should be dismissed.

[12] MOYNIHAN SJA AND ATKINSON J: The respondent was convicted in the District Court, on his own plea of guilty, of a number of criminal offences against his daughter committed between 19 December 1998 and 1 February 1999 and one offence against W, her aunt. He was convicted on one count of torture (count 1), six counts of common assault (counts 2, 3, 5, 6, 7, 14), four counts of assault occasioning bodily harm (counts 4, 9, 10, 15), one of which was against W, the aunt, one count of house breaking with intent (count 8), one count of grievous bodily harm (count 11), one count of deprivation of liberty (count 12) and one count of attempting to pervert the course of justice (count 13).

[13] In respect of the count of torture he was convicted and sentenced to imprisonment for seven years and declared to be a serious violent offender. In respect of the count of housebreaking with intent he was convicted and sentenced to imprisonment for four years to be served concurrently. In respect of the count of assault occasioning bodily harm against W, the aunt, he was sentenced to imprisonment for two years to be served concurrently and in respect of the count of attempting to pervert the course of justice he was sentenced to imprisonment for 18 months to be served concurrently. He was convicted of the remaining counts but no penalty was imposed. The Attorney-General has appealed against the sentence imposed on the ground that it was manifestly inadequate.

[14] The circumstances of the offences were that the respondent lived with his family. There was a disagreement between him and his daughter, who was 17, about her seeing her boyfriend. On Sunday 20 December 1998 she cycled to her boyfriend's home. Shortly afterwards the respondent pulled up in his car and told her to go home. Later in the lounge room at home he accused her of lying and slapped her face with his open hand. In her bedroom he pushed her onto her bed and slapped her face repeatedly with his open hand. Her eyes were puffed, she had cuts to both lips which were bleeding, and both eyes were black for a week or longer.

[15] On about Friday 8 January 1999 a second series of incidents occurred. The respondent's daughter was hosing the front lawn and her father was watching her saying he was still angry with her. He asked, "Why did you do it?" and suddenly punched her in the stomach with his fist causing her pain (count 2). He told her to get under the house and he questioned her repeatedly about her boyfriend and punched her in the face with his fists (count 3). He grabbed a shovel handle and hit her several times on both arms which she had placed across her chest. He hit her several times on her back when she turned around, poked her several times in the stomach with the end of the shovel handle, and continued hitting her on the arms (count 4). He then grabbed her around the throat and choked her causing her to feel dizzy and said he should kill her (count 5). She was then dragged across the floor by her hair (count 6). She fell on a bed and he jumped on her body, on her back and her stomach (count 7). He then brought in a steel tow chain and she was terrified he was going to hit her with it. He picked up an axe and walked towards her causing her terror. He asked if he should kill her and hit an adjacent table with the back of the axe.

[16] The police then arrived and he told her not to say anything. She was taken by the police to hospital and was found to be suffering bruising around the left eye, hair was pulled away from behind her ear, her lower lip was swollen, there was great pain and discomfort to the jaw and abrasions to the right arm, right chest and left upper arm.

[17] On 27 January 1999, the respondent's daughter made a statement to the police and the respondent was charged with the offences. She then went to live with her aunt W.

[18] On Sunday 31 January, while he was on bail, a further and the most serious series of incidents occurred. At 11.00 am the respondent telephoned the aunt's house to speak to his daughter about dropping the charges but she refused to speak to him. She later saw him come through the open back door carrying a butcher's knife in his hand (count 8). He said he wanted to talk to her and she ran to her aunt. Others in the house called out for someone to call the police and the respondent tried to pull the complainant who was on the floor up by her hair. He dragged her along the floor holding a knife at her throat and cut her chin causing it to bleed (count 9). W tried to get the knife from him and used a broom to try to disarm him. During the struggle she was cut and she received minor wounds to her thumb and forefinger (count 10). He continued to drag his daughter by her hair but then stabbed her twice in the right hand side of the chest. It took her breath away and resulted in bleeding from the chest (count 11). He then forced her to her feet and in to his car and said he was taking her off to kill her.

[19] The respondent drove out of town and pulled her out of sight as a motorcyclist passed by. He kept the knife in his right hand (count 12). He then turned off onto a dirt track and drove over a train line. She jumped out of the moving car and ran back towards the road. He jumped out as well. He caught her on the road but had dropped his butcher's knife by then. He then produced a fold-out pocket knife. He walked her back to the car and drove further in the bush. The knife wound to her chest had started to bubble, and she had difficulty breathing and her chest was painful.

[20] The respondent walked her into the bush for two or three minutes during which she started to pass out, but he forced her to her feet to continue walking. She asked for water and he got it from the car. He then challenged her about pressing charges against him for the previous assaults and continued to do this (count 13). He asked her why she had laid charges and she said that she was scared of him and didn't want to be hit any more. He kicked her as she sat in the car and she fell to the floor. He continued to kick her and jumped on her with both feet. He kicked her in the head and the upper body and she passed out (count 14). She woke in the back seat to find him cutting her hair with the knife and also her scalp. Blood ran down her face (count 15).

[21] The respondent place tree branches on the car apparently to hide it. A car approached driven by W's husband, H. H saw the knife at the girl's throat and the respondent threatened to kill her if H came close. He told H he had cut the girl to the lung and if he saw a police car or a plane he would stab her in the heart. H urged the respondent to let him take the girl to hospital but he refused. H left. The complainant was in fear of her life.

[22] The respondent said he was thinking of letting his daughter go later that night. Shortly afterwards he made her drive into town and as they were driving he made apparent suicide attempts by rubbing his pocket knife against his throat. He said he was going to kill himself and made apparent attempts to stab himself in the heart. He made her promise to drop the charges. If his actions on 20 December and 8 January could be explained by a sudden loss of self-control, these could not. His actions on this day were calculated to prevent her continuing to press charges against him.

[23] After she promised to drop the charges, they drove to the hospital and he helped her up the front steps and apologised to her. The hospital staff asked him to leave but he refused and even when she was put in a bed he remained urging her to drop the charges. This tells against the remorse that his action in taking her to hospital might otherwise suggest.

[24] The respondent's daughter suffered two stab wounds to the chest, the most serious being a 2 cm wound on her right chest at the level of the fourth rib. The second wound was 1 cm below that. She suffered a collapsed right lung and a collection of air and blood in the lung. A catheter was inserted and a litre of blood was lost over the next six days. Her condition was potentially life threatening. She also had a laceration on her forehead about 10 cm in length inside the hairline and abrasions and stab wounds on her chin and her hands.

[25] The respondent was arrested at the hospital. He participated in an interview and said that he had "lost it", and that he was not the same bloke. He said he stabbed his daughter but did not know how far the knife had gone into her chest.

[26] The respondent's daughter required substantial hospital treatment and was in hospital for nine days. She still has scarring to her face and her relationship with her father and the rest of her family has been seriously adversely affected by what occurred.

[27] The respondent had a criminal history including other offences of violence being two convictions for assault occasioning bodily harm in 1987 and a conviction for assault occasioning bodily harm in 1993 against his de facto wife.

[28] This was a serious example of the offence of torture which was introduced into the Criminal Code[1] in 1997.[2] In the relatively short period since it was introduced, the Court of Appeal has been able to provide some guidance as to the appropriate sentences to be imposed for offences of this type[3 ], but never in a similar factual context to this case. Torture may involve the intentional infliction of pain or suffering on one or more occasion. In this instance, it involved a course of conduct over several weeks of escalating violence, abuse of the parent/child relationship, the abuse of the autonomy of a 17 year old girl and a prolonged and vicious attempt to induce his daughter to drop charges against him.

[29] This Court is circumspect in interfering with the sentencing judge's discretion. As the Court held in R v Melano, ex parte Attorney-General [1994] QCA 523; [1995] 2 Qd R 186 at 189:

"Unless the sentencing judge has erred in principle, either because an error is discernible or demonstrated by a manifest inadequacy or excessiveness, the sentence he or she has imposed will be `proper': cf Griffiths v The Queen (1977) 137 CLR 293, 310, 327, 329-330; Everett [v The Queen],[4] . . . Variation by this Court will not be justified in such circumstances, unless, perhaps, in exceptional circumstances; for example, to establish or alter a matter of principle or the sentencing range which is appropriate.[5]"

[30] The appropriate sentencing range in the circumstances of this case appears to us to be imprisonment of 7 to 10 years with a declaration that the respondent is a serious violent offender.

[31] The circumstances warranting that range include on the one hand the repeated and escalating violence used, the serious injuries the complainant suffered, the breach of trust of the father-daughter relationship, the desire of the respondent to impose his will through terror and violence both to control his daughter's behaviour and more significantly to cause her to drop the charges laid against him, and on the other hand, his early plea of guilty, previous good relationship with his daughter and his age and good employment history.

[32] It is likely that a person who is convicted of the crime of torture particularly where it involves the intentional infliction of pain or suffering on more than one occasion will be declared a serious violent offender. To do so reflects the nature of the offence. It was clearly appropriate in this case. This declaration is part of the exercise of the sentencing discretion which is an integrated process[6] rather than a series of discrete steps. When such a declaration is made it is likely to have consequences on the rest of the sentencing discretion. Firstly the sentencing judge may impose a sentence towards the lower end of the applicable range.[7] Secondly if there is a plea of guilty, the appropriate reduction in sentence[8] will reduce the head sentence rather than require a recommendation for parole earlier than half the sentence to be served.

[33] Taking into account the appropriate sentencing range, the declaration and the plea of guilty, the sentence of imprisonment for seven years on the count of torture with a declaration that he is a serious violent offender is within the appropriate range. We would therefore dismiss the appeal.

[3] R v Geddes; exparte A-G [1999] QCA 84; CA No 486 of 1998, 19 March 1999; R v Robinson and Stokes [1999] QCA 181; CA No 390 and No 391of 1998, 28 May 1999.

[4] [1994] HCA 49; (1994) 181 CLR 295 per Brennan, Deane, Dawson and Gaudron JJ at 300.

[5] cf Everett (supra) per McHugh J at 306.

[6] R v Bojovic [1999] QCA 206; CA No 4 of 1999, 8 June 1999 at [31].

[8] Penalties and Sentences Act 1992 s 13.