R v King [2006] QCA 466

Judgment (41 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] McMURDO P: Like Keane JA I too would refuse the application for leave to appeal against sentence for the reasons he gives.

[3]

[2] The applicant was aged 25 and 26 at the time of the offences and 28 at sentence. He had a concerning prior criminal history for offences of dishonesty, drugs and violence. He had not taken up the many opportunities to rehabilitate offered to him in the past by numerous lenient community-based orders including community service. His offending subsequent to the present assaults did not suggest he had promising future rehabilitative prospects. The assaults on the applicant's 18 and 19 year old partner and mother of his children were serious examples of domestic violence and warranted salutary penalties for reasons of general and personal deterrence.

[4]

[3] He did however plead guilty and by the time of sentence seemed to be making commendable efforts to be a responsible father to his three young children and to support rather than terrorize the complainant with whom the children were by then again living. Psychologist Suzanne Drake considered that he was not at a high risk of committing like offences. She noted that he actively needed to seek treatment for his underlying psychological conditions and that financial difficulty could well limit his access to effective treatment. He had indicated to her a willingness to undertake any programme required of him in the immediate and long-term future to address his issues.

[5]

[4] In these circumstances the sentence was not lenient but nor was it manifestly excessive. At the appeal hearing there was some discussion of whether the learned sentencing judge in structuring the sentences imposed on all counts erred in giving insufficient weight to the applicant's prospects of rehabilitation and need for assistance and supervision; unlike probation or parole, a suspended sentence does not offer the offender or the community the benefit of the supervision and control apparently needed by him if he is to successfully rehabilitate; nor does it offer any immediate protection to the complainant.

[6]

[5] In addition to the sentences imposed for the present assaults, the judge could have imposed in relation to one or more of the four property offences a sentence which required the applicant upon his release from prison to be subject to the supervision and control of a probation order. Since the most recent amendments to the Penalties and Sentences Act 1992 (Qld) ("the Act"), a sentencing judge imposing a two year term of imprisonment as here must now under s 160B of the Act fix a date for the offender to be released on parole. At the time of sentence the judge could not have made a parole recommendation because the sentence of imprisonment imposed was not more than two years: see s 157 of the Act (now repealed). The judge did not err in failing to structure the sentences he imposed on the property offences so as to include a probation order upon the applicant's release from prison although such a thoughtful sentence would have provided an overall better outcome for the community, the victim and the appellant. His Honour, however, gave sufficient recognition to the applicant's plea of guilty and efforts and prospects of rehabilitation in suspending the two year term of imprisonment after nine months. If the applicant wishes to avoid returning to prison, he must exercise restraint and discipline during the three year operational period without the support and supervision offered by a parole or probation order.

[7]

[6] KEANE JA: On 3 February 2006, the applicant pleaded guilty to two counts of assault occasioning bodily harm, one count of wilful damage and three counts of unlawful use of a motor vehicle. The sentencing of the applicant was adjourned until 9 August 2006. On that date, he was sentenced to two years imprisonment in respect of the assaults occasioning bodily harm. These sentences were suspended after nine months for an operational period of three years. The applicant was sentenced to concurrent six month terms in respect of the other offences, and he was disqualified from driving for a period of three years.

[8]

[7] The applicant seeks leave to appeal against his sentence on the ground that it is manifestly excessive. In that regard, his challenge is only to the sentences for the assaults.

[9]

[8] On 23 December 2003, and again on 7 March 2004, the applicant assaulted the young woman with whom he had been in a de facto relationship since 2000. The complainant was 18 years old at the time of the first offence; and she had turned 19 years of age at the time of the second offence. There had been a history of violence against her on the part of the applicant: on 9 December 2002, the complainant took out a domestic violence order against the applicant following earlier incidents of violent conduct on his part.

[10]

[9] On 23 December 2003, the applicant became involved in an argument with the complainant. He chased her out of her house, and then grabbed her by the hair or neck and threw her against a fence. She struck her head suffering bruising and lacerations. A neighbour intervened, forcing the applicant to leave. During this incident, he also knocked two holes in the wall of the applicant's house, stuck a pair of scissors into the ceiling and smashed two dining room chairs on the floor.

[11]

[10] On 7 March 2004, the complainant was walking down the stairs of a friend's house when the applicant grabbed her by the hair, dragged her across the street and threw her to the ground. He then punched her repeatedly in the face and on the back and head while she screamed for help. The applicant had to be dragged away from the complainant. As he was dragged away, he screamed: "I'm going to kill you, you slut." It is a matter of concern that, at this time, the complainant was 10 weeks pregnant.

[12]

[11] The three offences relating to the unlawful use of motor vehicles occurred between 15 August 2004 and 22 January 2005 when he took motor bikes which he knew had been stolen from Australia Post for joyrides in parkland where, in his own words, he "trashed them".

[13]

[12] The applicant was born on 27 December 1977. He turned 26 years of age between the assaults in question. He has a lengthy criminal history which began in 1992. That history is principally of offences of dishonesty, and, in more recent years, of domestic violence involving assaults occasioning bodily harm and breach of domestic violence orders. He was dealt with in March 2003 for breaches of the domestic violence order obtained by the complainant.

[14]

[13] The applicant has been given the benefit of suspended sentences and an intensive correction order in the past. He has also been imprisoned for short periods. Subsequent to the offences presently under consideration, the applicant committed other offences, including possession of dangerous drugs in January 2005.

[15]

[14] The applicant has now had three children with the complainant. The eldest child is five years of age. As I mentioned above, the complainant was pregnant with their second child at the time of the March 2004 assault.

[16]

[15] It appears from a report of Suzanne Drake, a psychologist, that, before the applicant was sentenced, he was having access to his children, who are in the care of the Department of Child Safety, for three days per week. It is Ms Drake's opinion that the applicant suffers from a major depressive disorder, including substance abuse and dependence, and that he would benefit from cognitive behaviour therapy for an extended period. It may be noted that, when Ms Drake's report was written on 11 April 2006, the applicant was living with his mother and stepfather. Ms Drake described that environment as "a very stable home environment". The applicant had also become involved in an anger management program.

[17]

[16] The learned sentencing judge rightly described the applicant's attacks on the complainant as "appalling". His Honour noted the applicant's record of personal violence.

[18]

[17] His Honour took into account the applicant's pleas of guilty.

[19]

[18] The complainant, in her victim impact statement, indicated a wish that the applicant not be sentenced to actual imprisonment. The responsibility of the learned sentencing judge to fix a just sentence obliged him to give weight to the consideration that the applicant's offending, seen in the context of his record of domestic violence, called for strong denunciation and a significant measure of personal deterrence. That being so, the complainant's plea for a non-custodial sentence on the applicant's behalf could be given little weight, and his Honour did not err in proceeding on that footing.

[20]

[19] On the applicant's behalf, it was submitted to his Honour that a further intensive correction order would be an appropriate sentence. It is hardly surprising that this fanciful submission was rejected, having regard to the applicant's record, and the evident failure of measures short of actual imprisonment to persuade the applicant to mend his vicious and violent ways.

[21]

[20] On the applicant's behalf, it was submitted that a head sentence of two years imprisonment was excessive. Attention was drawn by counsel for the applicant to cases where assaults in a domestic situation have resulted in a lesser head sentence and period of actual imprisonment. In this regard, the applicant relied upon the decision of this Court in R v Pierpoint.[1] That was a case of assault occasioning bodily harm on a de facto wife, where a sentence of 18 months imprisonment with a non-parole period of six months was set aside on appeal, and a sentence of 12 months suspended after approximately two and a half months imposed instead. Reference to the reasons of Ambrose J, with whom Thomas JA and Cullinane J agreed, shows that only one assault was involved, and there was not the history of persistent violence which marks this case.

[22]

[21] The applicant also sought to rely upon the decision in R v Von Pein.[2] In that case, a sentence of 18 months imprisonment for one count of assault occasioning bodily harm whilst armed, one count of common assault and two counts of serious assault on a police officer in the execution of the officer's duty was varied by the suspension of the sentence after six months. The assault occasioning bodily harm occurred after the complainant, the offender's de facto wife, woke the offender to continue an earlier argument. The complainant shook him and struck him a few times. The offender then struck the complainant on the leg with a belt, and later pushed her and pulled her hair when she tried to telephone the police. The assaults on the police occurred when police officers arrived at his home with a view to questioning him in respect of the assaults upon the offender's de facto wife. These assaults did not go beyond the threatened use of force, and a small cut to one officer's hand when the offender slammed the door on the policeman's hand. Thus none of the assaults involved in Von Pein exhibited the disturbing and deliberate viciousness which characterises the conduct of the present applicant.

[23]

[22] In each of the assaults of present concern, the applicant's attack on the complainant was unrelenting, and ceased only after the intervention of a third party. In relation to the second assault, the complainant was pregnant. In my respectful opinion, the decision of this Court in R v Johnson,[3] which concerned two offences of assault occasioning bodily harm and one offence of wilful damage in a domestic context, confirms that a sentence of two years was comfortably within the appropriate range for multiple assaults of the kind in question here where they have been carried out by an offender with a record of violent offending. Especially is this so when one bears in mind the persistent criminal self-indulgence evidenced by the offences of unlawful use of motor vehicles committed after the assaults on the complainant.

[24]

[23] It was submitted on the applicant's behalf that the learned sentencing judge gave insufficient weight to the applicant's plea of guilty. In Johnson, the offender's plea of guilty was said to have been sufficiently recognised by the suspension of the sentence of two years imprisonment after eight months. The decision in Johnson thus also serves to deny the force of the applicant's contention that his Honour failed to give proper weight to the applicant's plea of guilty.

[25]

[24] Finally, it was submitted on the applicant's behalf that the learned sentencing judge failed to give proper weight to the apparent reconciliation between the applicant and the complainant in the period between the second of the assaults and the date of the applicant's sentence. There seems to have been some reconciliation in that the complainant and the applicant had had a further child subsequent to the assault in March 2004. It may be, however, that any improvement in the applicant's conduct towards the complainant is merely a reflection of a lively awareness on his part that "the day of judgment" was imminent. According to Ms Drake's report, the applicant was living with his mother and stepfather as at April 2006. The nature and extent of any "reconciliation" is thus unexplained and is largely speculative: indeed, it was described by the applicant's counsel at the hearing below as "early days". The applicant's history does not encourage an optimistic view of his prospects of rehabilitation.

[26]

[25] It should be noted here that the applicant committed further offences after the offences of present concern. It is not suggested that the applicant has successfully undergone any course of therapy whereby he might seriously address what is obviously for him a serious problem with personal violence. He is now, and was at the time of his assaults on the complainant, a mature adult. As the report from

[27]

Ms Drake shows, his problem with violence is not something which is simply going to "get better" by itself: according to Ms Drake, the applicant "would require ongoing treatment for an extended period of time for the [cognitive behaviour therapy] program ... to be considered effective".

[28]

[26] In the past, as appears from the complainant's victim impact statement, the applicant had refused the complainant's requests to seek counselling or to attend an anger management course. As has been noted above, the applicant had become involved in an anger management course when he saw Ms Drake in April 2006, that is, after he had pleaded guilty, but before he had been sentenced. At that time, he also expressed to Ms Drake a willingness to "undertake any program required of him in the immediate or long-term future in order to address his presenting issues". There was, however, at the date of sentence, no firm evidence that the applicant had actually begun to address his problems seriously.

[29]

[27] It is to be hoped that Ms Drake's expectation of possible improvement in the applicant's attitude is vindicated in the long term. But that expectation remains in the realm of hope rather than experience, and the learned sentencing judge was not obliged to proceed on any other basis. Whether or not the applicant is truly willing and able to rehabilitate himself, the sentence imposed upon the applicant does not require justification solely in terms of the need to protect the community, or the complainant herself, from the applicant's violent streak.

[30]

[28] It was open to the learned sentencing judge to take the view that, neither the circumstance that the applicant's behaviour may improve in the future, nor the circumstance that the applicant and the complainant have reconciled, denies the need for strong denunciation of the applicant's conduct, and for a sentence which serves as a personal deterrent to the applicant. One must not lose sight of the three offences of unlawful use of the motor vehicles which were committed after his earlier violent offences, as well as the drug offences committed in January 2005. These are indicators of the applicant's intransigent lack of regard for the law and the rights of others. The sentence which was imposed was justified by the need to denounce, in a substantial way, the applicant's conduct as unacceptable, and to bring home to the applicant a real awareness that indulging himself in personal violence against women will have seriously adverse consequences for him.

[31]

[29] In my opinion, the viciousness of the assaults (and especially that of 7 March 2004), and the circumstance that they are part of a persistent course of domestic violence, mean that a sentence of imprisonment was inevitable. The learned sentencing judge did not err in concluding that a sentence of two years suspended after nine months was appropriate. That sentence was in no way excessive, much less manifestly so.

[32]

[30] The application for leave to appeal against sentence should be refused.

[33]

[31] FRYBERG J: Most of the circumstances giving rise to this application are set out in the reasons for judgment of my colleagues.

[34]

[32] It appears that during the hearing below, no express attention was given to the possibility of imposing a sentence of imprisonment followed by probation, in lieu of a suspended sentence in respect of one of the two counts presently before the Court. That possibility was not referred to during counsels' submissions, nor in the judge's sentencing remarks. It appears likely that the omission was the result of a perception that, as the judge expressed it to the accused,

[35]

"you have a lengthy criminal record from which you have never learned your lesson, despite the gradation of penalties you have received since 1992 of repeated community service, fines, an intensive correction order in 1997, suspended sentences and actual imprisonment."

[36]

In the circumstances one could not safely conclude that the judge failed to consider that possibility.

[37]

[33] Were it demonstrable that the judge failed to take that possibility into account, an error of principle would be exposed. Although at the age of 28 the applicant was no longer a young man, he was not so old as to be unlikely to benefit from supervision after his release from prison. No such supervision is available to persons serving only suspended sentences. There was material to indicate that the applicant might have benefited from a period of enforced counselling and supervision, given his victim's attitude toward him and the incentive of a suspended sentence hanging over him. Sentencing judges should always be alert to the possibility of establishing such a regime when imposing a suspended sentence. As the President has observed, such a regime may provide an overall better outcome for the community, the victim and the perpetrator.

[38]

[34] I agree with my colleagues that the sentences imposed were not manifestly excessive. Understandably, the applicant showed little interest in making submissions which would not result in a reduction of either his period of actual imprisonment or his head sentence. For these reasons I concur in the order proposed by Keane JA.

[39]

[1] [2001] QCA 493.

[40]

[2] [2002] QCA 385.

[41]

[3] [2002] QCA 283.

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Judgment (41 paragraphs)

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