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[2006] QCA 460
General information, not legal advice.
Court of Appeal (Qld)
2006-11-10
Williams, Jerrard and Holmes JJASeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v HAC [2006] QCA 460
PARTIES: R v HAC (applicant/appellant)
FILE NO/S: CA No 17 of 2006 / DC No 645 of 2005
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: District Court at Cairns
DELIVERED ON: 10 November 2006
DELIVERED AT: Brisbane
HEARING DATE: 27 October 2006
JUDGES: Williams, Jerrard and Holmes JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER: 1. The application for leave to appeal against sentence is allowed 2. The appeal against sentence is allowed 3. The sentence imposed for torture is varied by setting aside the 10 years imprisonment and ordering instead that the applicant be sentenced to seven and a half years imprisonment 4. The serious violent offender declaration and the declaration that 451 days spent in pre-sentence custody from 14 September 2004 until 9 December 2005 is time already served, will stand
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OTHER OFFENCES – sentence required reconsideration – sentenced to 10 years imprisonment for torture, five years for rape and two years for assault – whether torture sentence is manifestly excessive / R v B; ex part A-G [2000] QCA 110; CA No 379 of 1999, 4 April 2000, considered / R v Rankmore; ex parte A-G (Qld) [2002] QCA 492; CA Nos 223 of 2002, 285 of 2002, 288 of 2002, 15 November 2002, considered
COUNSEL: G Long for the applicant/appellant / M J Copley for the respondent
SOLICITORS: Legal Aid Queensland for the applicant/appellant / Director of Public Prosecutions (Queensland) for the respondent
Williams ja**:** I agree with the sentence proposed by Jerrard JA in his reasons, and I also agree with his reasoning.
JERRARD JA: On 11 August 2006 this Court dismissed an appeal by Mr HAC against his conviction for torture, and requested further submissions on an application for leave to appeal against his sentence. That was done because the conviction was upheld on the ground that what Mr HAC admitted doing to his former wife, and what his daughters described him doing to his former wife, understood in light of the intention he admitted, constituted an offence of torture on which the jury could properly convict him. That offence constituted by those matters admitted by Mr HAC or witnessed by his daughters was a little less horrific than the totality of the circumstances of the offence of torture described by the victim, Mr HAC’s wife. The reasons for judgment in the conviction appeal explain why the conviction was upheld on the more limited basis. The sentence originally imposed, 10 years imprisonment, therefore needs reconsideration, and Mr HAC has applied for leave to appeal the sentences imposed on him, of 10 years for torture, five years for rape, and two years for assault occasioning bodily harm. No argument was presented about the concurrent sentences for rape and assault, and those will stand.
The relevant acts of Mr HAC resulting in the offence of torture were committed over a six month period in the second half of 2002. Those acts included – accepting the list submitted by his counsel –
● insisting that his wife eat chillies and chilli powder when Mr HAC considered she was telling lies (by denying she had an affair which he believed she had had, when separated earlier in their marriage);
● on one occasion, after she had vomited when forced to each chillies, making her eat the vomit;
● forcing her to eat chillies or powder from a glass jar, which broke, resulting in her cutting her tongue;
● insisting that she sleep outside the house, and without access to amenities such as a toilet;
● hitting and kicking her, including hitting her with a wooden slat;
● spitting on her, including in the face;
● hosing her;
● twisting her arm when it was in a plaster cast after being broken, and pouring beer into the cast;
● insisting that the children refer to her by demeaning names such as “slut”, “whore”, “moll”, and not “mother”, or “mum”, and insisting the children not show affection for her;
● pointing an unloaded rifle at her on one occasion;
● repeatedly making her search in hot weather for a hose nozzle in a paddock when wearing Wellingtons and a jumper;
● frightening her by riding a motorcycle at her, threatening to kill her; and
● generally treating her in a humiliating and abusive manner, including attempting to persuade her to engage in a sexual act with a dog.
“When I tell counsellors now what I have experienced, it often feels like it happened to another person. It sounds unimaginable even to me. But that really was my life, and I believed him when he said he loved me.”
The list of acts constituting the offence of torture does not include the three suggested by Mr M J Copley for the Director of Public Prosecutions, namely using a wire brush to force a loose tooth back into position in his wife’s gum on some five or six occasions, nor an occasion when he burnt her leg with a poker, nor cutting her arm with a saw blade. Regarding the first, I agree with Mr Copley that Mr HAC’s explanation was improbable, namely that it was necessary for him to attempt to reposition the loose tooth because his wife would not ask for medical assistance for fear that “they’re going to think that you’ve done this on purpose” (loosened her tooth).1 His wife’s evidence was that she had wanted to go to a dentist, but he had obstructed her doing that. His behaviour was brutal, controlling, and deplorable, but he did not describe that conduct as part of what he otherwise admitted was a process of humiliating his wife. Likewise, Mr HAC claimed that he had accidentally burnt his wife’s leg with a poker, and although his account of that seems implausible too, it was part of an ongoing incident in which his wife described red hot nails being inserted into her vagina, which were the basis of a count on which there was an acquittal. To infer that the burning was intentional and part of the torture would go further than upholding the conviction for torture on the basis of his admitted acts or his daughters’ unchallenged evidence. Finally, regarding the cutting of her arm, her evidence was that she did that when removing a plaster cast – on his instructions – with a broken hacksaw blade over the course of about three hours. If his instructions that she use that blade are regarded as a substantial cause of the cuts being inflicted, there is the problem that one of her daughters gave evidence of observing that her mother had not cut her arm when doing that. For that reason that incident is not included either, as part of the facts on which Mr HAC is being re-sentenced for torture.
The offence he committed did not involve the acute violence engaged in by the offender in R v B; ex part A-G [2000] QCA 110,2 whose seven year sentence for torture, with a declaration, was upheld by this Court, but that offender tortured his victim over a much shorter period. In R v B that offender had pleaded guilty to a number of offences committed against his daughter over a period of some six weeks, which included a count of torture. His offending conduct began on 20 December 1998, when he assaulted his daughter, striking her on the face repeatedly with an open hand, causing black eyes and cuts to her lips, followed by further assaults on 8 January 1999. Those involved a punch to the stomach, hitting her with a shovel handle on the arms and back, choking her, dragging her across the floor by her hair, jumping on her back and stomach, and threatening to kill her with an axe. After she complained to the police – on 27 January 1999 – he was charged, and on 31 January 1999 committed the most serious series of acts when on bail.
R
HAC [2006] QCA 460
Those were done to attempt to persuade her to withdraw her previous complaints, and included dragging her on the floor by her hair while holding a knife to her throat and cutting her chin, stabbing her twice in the right side of the chest, abducting her and threatening to kill her, recapturing her after she jumped out of his moving vehicle and returning her to his car, sending an attempted rescuer away with a threat to kill her with a knife if the rescuer came any closer, and, when he ultimately took her to a hospital, remaining there with her and urging her to drop the charges. This Court dismissed the Attorney-General’s appeal, remarking that where – as happened there – a declaration of a serious violent offence was made, a sentencing judge might impose a sentence towards the lower end of the applicable range, and that where there was a plea of guilty and a declaration, the appropriate reduction in sentence to reflect the plea of guilty would be a reduction in the head sentence.
That offender engaged in extraordinarily violent behaviour towards his daughter, while Mr HAC’s debasing conduct engaged in towards his wife over six months shows a lower level of violence but a higher degree of control over another person who was relentlessly abused. Mr HAC showed no insight or remorse, whereas the offender in R v B pleaded guilty to torture and other charges. In R v Rankmore; ex parte A-G (Qld) [2002] QCA 4923 this Court increased a sentence of seven years imprisonment imposed in respect of a count of torture to a sentence of 10 years imprisonment. However that offender, while pleading guilty to an offence of torture and one of deprivation of liberty, pleaded not guilty to a number of other offences; a jury convicted him of some of those. Two of them were further offences of torture, and it was on the third offence of torture that the sentence was increased from seven to 10 years. Sentences were also increased in that matter on two counts of rape, from nine years to 12 years.
That offender, apart from the acts of rape, deprivation of liberty, assault occasioning bodily harm and assault of which he was convicted, had committed offences of torture on the complainant on 14 December 2000, 19 March 2001, and 24 March 2001. The first torture – to which he pleaded guilty – involved his persuading the complainant from whom he had separated to let him into her house, then tearing her dress off and, when seated on top of her, burning her with a hot iron on her arm and leg. Later he forced her fingers into the power socket of a lamp.
That offender was convicted by a jury of assault on the following date, 15 December 2000 and pleaded to deprivation of the complainant’s liberty on that date; he was convicted by the jury of deprivation of her liberty on another occasion, 10 January 2001. The second offence of torture, committed on 19 March 2001, involved his again threatening the complainant with the hot iron held near her face and then her groin, and holding a knife to her throat. The third offence of torture, 24 March 2001, on which date he also committed two counts of rape, involved his entering her home, removing her clothes, threatening her with the knife in the vicinity of her vagina, breast, ear, and stomach; the Chief Justice described the threats as particularly revolting ones. He stabbed a knife into the mattress next to her head. His offending had accordingly persisted over a three month period, and repeatedly involved the use or threats to use dangerous weapons and instruments on her. His overall criminality was of a higher order.
Mr HAC’s counsel suggested a range of six to eight years, and the prosecution argued that seven years (with a declaration) was the bottom of the available range. A declaration that Mr HAC committed a serious violent offence is appropriate. He inflicted prolonged physical and mental abuse in a very serious offence, and has no insight into what he has done. The joint judgment in R v B remarked on the likelihood of such declarations where an offence of torture has involved the repeated infliction of pain and suffering, as was the case here. I would vary the sentence imposed for torture by setting aside the 10 year sentence for torture, and order instead that Mr HAC be sentenced to imprisonment for seven and a half years for that offence. The declaration that he has been convicted of a serious violent offence for that matter will stand, and so too will the declaration that the 451 days served in custody from 14 September 2004 until 9 December 2005 is imprisonment already served under that sentence.
HOLMES JA: I agree with the reasons and orders of Jerrard JA.