R v Lacey & Lacey

Evidence Act 1977 (Qld), s 132C

Penalties and Sentences Act 1992 (Qld), s 9, s 155, s 156, s 160D, s 161A, s 161B, s 161C

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, referred to

R v B; ex parte Attorney-General [2000] QCA 110, considered

R v Bates; R v Baker [2002] QCA 174, considered

R v Clements (1993) 68 A Crim R 167; [1993] QCA 245, referred to

R v Cowie [2005] QCA 223, considered

R v HAC [2006] QCA 460, considered

R v Hoad (1989) 42 A Crim R 312, considered

R v Lacey [2009] QCA 275, referred to

R v Ottley [2009] QCA 211, considered

R v Powderham [2002] 2 Qd R 417; [2001] QCA 429, referred to

R v R and S; ex parte Attorney-General [1999] QCA 181; [2000] 2 Qd R 413, considered

M R Byrne SC with C N Marco for the Director of Public Prosecutions

[1] HIS HONOUR: Dionne Mathew Lacey and Jade Michael Lacey, on 24 March 2010 you were both convicted by a jury of the following offences: count 1, assault occasioning bodily harm whilst armed and in company; count 2, extortion; count 3, threatening violence at night; count 4, torture; count 5, malicious act with intent; count 6, deprivation of liberty.

[2] The sentence was adjourned until after the determination of applications for special leave to appeal to the High Court from the judgment of the Court of Appeal delivered on 11 September 2009. The applications were heard by the High Court on 24 June 2010. Dionne Lacey, your application for special leave was granted but only on the issue of sentence, your sentence having been increased to 11 years' imprisonment on appeal by the Attorney-General.

[3] The application for special leave to appeal by you, Jade Lacey, was refused.

[4] The applicable maximum penalties are as follows: count 1, assault occasioning bodily harm whilst armed and in company, 10 years' imprisonment; count 2, extortion, 14 years' imprisonment; count 3, threatening violence at night, 5 years' imprisonment; count 4, torture, 14 years' imprisonment; count 5, malicious act with intent, life imprisonment; count 6, deprivation of liberty, 3 years' imprisonment.

[5] Your antecedents are as follows: Dionne Lacey, you were born in 1987. You are 23 years old. You were 20 years of age at the time of the offences.

[6] On 29 November 2005 you were convicted in the Southport Magistrates Court of dangerous conduct with a weapon and possessing dangerous drugs. Both offences were committed on 2 February 2005. The Court ordered that convictions not be recorded and that you perform 80 hours community service. The circumstances of the weapon offence are set out in a police document which is Exhibit 85. You became involved in an argument at the Jupiters Casino. You lifted your shirt and showed the complainant the handle of a black handgun saying, "You don't know who you are dealing with here, mate." The complainant feared for his safety and informed security staff of the incident. You were detained. Security staff located a small .22 calibre handgun in your pocket. The weapon did not have a magazine and was unloaded.

[7] On 13 May 2009 you were sentenced in the Supreme Court at Brisbane for manslaughter. You had served approximately 2 years in custody prior to sentence which was not able to be declared as imprisonment served under the sentence. The sentencing judge determined that the appropriate sentence was 12 years' imprisonment, but taking into account the period of approximately 2 years in presentence custody, the sentence imposed was 10 years' imprisonment. There was a presentence custody declaration in respect of 1 day from 10 to 11 May 2007.

[8] On 11 September 2009, on appeal by the Attorney-General, the sentence was increased to 11 years' imprisonment. As I have mentioned, the High Court granted special leave to appeal on the issue of sentence on 24 June 2010. Your appeal is pending in the High Court.

[9] Jade Lacey, your antecedents are as follows: you were born in 1983. You are 27 years old. You were 24 years of age at the time of the offences.

[10] Your criminal history includes behaving in an indecent manner, for which you were fined $75 on 29 November 2002, breaching a bail condition, for which you were fined $150 on 19 June 2006, and obstructing a police officer, for which you were fined on 24 August 2006. On 15 September 2006 you appeared in the Southport Magistrates Court in relation to the unlawful possession of a weapon, possessing dangerous drugs, and obstructing a police officer. Convictions were not recorded and fines were imposed. All offences occurred on 16 January 2006. The weapon offence related to a silencer for a handgun belonging to a friend that was found at your family home at Mermaid Beach and was not secured as required. The drug offence related to steroids. You were convicted of possessing dangerous drugs in the Southport Magistrates Court on 10 October 2006, and, once again, you were fined and a conviction was not recorded. Again, the drugs were steroids. And on 5 April 2007 you were convicted in the Southport Magistrates Court of contravening a direction or requirement of police.

[11] On 13 May 2009 you were sentenced in the Supreme Court at Brisbane for unlawful wounding with intent to maim. You had served approximately 2 years in presentence custody that could not be declared as imprisonment served under the sentence. The sentencing judge determined that the appropriate sentence but for the period spent on remand was 7 years' imprisonment. Having regard to the period of approximately 2 years' presentence custody, the sentence actually imposed was 5 years' imprisonment. There was a presentence custody declaration in respect of 1 day from 10 to 11 May 2007. On 11 September 2009, the Court of Appeal dismissed your appeal. On 24 June 2010 the High Court refused your application for special leave to appeal.

Circumstances of offences on 6 May 2007 dealt with in the Supreme Court on 13 May 2009

[12] The circumstances of the offences on 6 May 2007 dealt with in the Supreme Court on 13 May 2009 are as follows: on the night of 6 May 2007 you both went to a unit at Nerang. Dionne had a concealed and loaded .25 calibre pistol. Jade was carrying a concealed and loaded .38 calibre revolver. The circumstances are set out in the sentencing remarks and the judgment of the Court of Appeal.

[13] Jade shot the victim who was unarmed. The bullet penetrated both thighs and would have resulted in a permanent loss of function.

[14] Dionne, you then fired your pistol. The bullet travelled through the victim's heart and lungs. He collapsed and died.

[15] The circumstances of the offences in April 2007, in respect of which you were convicted by the jury in this Court, are as follows: the victim was a 19 year old man. He did not know either of you. He had been a user of methylamphetamine and had assisted in selling drugs.

[16] In April 2007, he was asked to arrange the exchange of 500 ecstasy tablets for 3 pounds of marijuana. At the point of proposed exchange of the drugs, the ecstasy tablets were stolen. Although the victim claimed not to have been involved in what was referred to during the trial as the drug "rip-off" he was clearly suspected of having been implicated.

[17] The ecstasy tablets were purchased by Ashley Bowley from you, Dionne Lacey, on credit. When Bowley's partner, Alicia Swan, reported the "rip-off", attempts were made to contact the victim. He was persuaded to return to Bowley's house at Kidd Street Robertson, having been assured that it was accepted that he did not have anything to do with the "rip-off". After he had been at the house for a while, you two arrived. You were each carrying a baseball bat. You struck him with the bats. He suffered injuries, including a parallel linear red mark angling towards the right ear which bore features of what is called a tram track injury which is caused by a cylindrical object striking the skin.

[18] Jade, you produced a small pistol and aimed it towards the victim and fired it. The bullet did not strike the victim. There was no charge brought by the Crown in respect of that and you are not to be sentenced for it. Nevertheless, the discharge of the weapon must have caused the victim fear and perhaps contributed to his subsequent compliance. He was told that he owed $13,000 and he had to get the money to pay you back.

[19] He was led to your car. He was asked how he was going to get the money. He said he had money at Kenilworth where he was then living. You drove him to Kenilworth but the trip was unsuccessful in securing any money. After departing there, as you drove through the Maleny range, Jade asked the victim where he wanted to die. Jade said that you could "pop" him and throw him over the edge of the range. He was of course scared because he had been shot at at the Kidd Street house and he was mindful that Jade had a gun.

[20] You drove to View Street, Kingston, the residence of Mark Cone, who was one of those involved in the drug "rip-off". An occupant of the house, Michelle Gale, became aware of your vehicle being outside. She opened the door. She heard the sound of two gunshots. Jade fired two shots in the general direction of the house, although there was no actual damage caused.

[21] You then drove to your Ephraim Island apartment. You then took the victim by a small boat to Brown Island. The victim was so terrified that he might be killed that he dropped a piece of his Medicare card on Brown Island hoping that it would be discovered in the event that he did not make it off the island. Dionne gave the victim a shovel and told him to start digging. The victim said, "If I'm going to die I'd rather not dig." Dionne punched the victim in the face and told him to dig. The hole was dug. The victim was told to kneel down with his hands on his head. He then heard a gunshot and felt pain to the side of his head.

[22] Jade stood next to the hole and pulled the trigger two to three times but the gun did not fire.

[23] The victim was asked where he could get the money. He said that his mother had sold her house and he could try her.

[24] Jade then asked where he wanted to be shot to prove that you were not joking. The victim suggested that he be shot in the foot but he was told he would not be able to walk. He was told to put out his hand and Jade fired a shot through his hand.

[25] You returned to Ephraim Island and went to your apartment. The victim was placed in the laundry. Dionne told him not to try to get out or he would be beaten up.

[26] On 23 April 2007 the victim endeavoured to obtain money from his mother. The amount being demanded was now $50,000. You drove with the victim to various locations between the Gold Coast and Brisbane. The clear purpose in doing so was to avoid any telephone calls being traced back to your Ephraim Island unit.

[27] Upon returning to the Ephraim Island apartment, the victim was handcuffed to a cupboard in the laundry. He was told that he had to go into the laundry or he would be shot.

[28] The key to the handcuff was missing and it was later removed by Dionne using a grinder to cut the chain.

[29] You left the unit with the victim to check to see if money had been deposited into his account by his mother. There was no money in the account and he called his mother.

[30] At one stage he was given takeaway food. Jade said that you were nice killers to give him his last meal. At one stage Jade said he did not care how long he had to have him, as long as he got his money.

[31] Upon return to the Ephraim Island unit, the victim went back to the laundry. He spent the night there. The next day Dionne drove the victim to a service station where Ashley Bowley was. The victim accompanied Bowley and was told that he had to work it out with him.

[32] There were some disputed facts. Mr Temby QC submitted that the verdicts of the jury did not necessarily mean the entirety of the victim's evidence was accepted. He referred in particular to the issue of the purpose of recovering the money from the victim.

[33] As I have mentioned, the prosecution case was that the victim was implicated in the "rip-off" of ecstasy tablets sold by Dionne to Ashley Bowley. Dionne's evidence was that he had lent Bowley $7,000 which was due to be repaid together with $500 interest on 22 April 2007. Dionne denied selling drugs to Bowley. Dionne claimed that he and Jade visited Bowley on the way to Brisbane in relation to the collection of that debt. Dionne said that the victim was being threatened and assaulted by Bowley. When the victim said he was able to get the money he owed Bowley, Dionne said he offered to assist him to obtain it. Dionne said that he would take the money owed to him from the money collected by the victim.

[34] The question of fact finding on sentence is governed by s 132C Evidence Act 1977. A disputed allegation of fact may be acted on if the Court is satisfied on the balance of probabilities that the allegation is true. However, s 132C(4) provides that the degree of satisfaction required varies according to the adverse consequences of finding the allegation to be true.

[35] The jury rejected Dionne's evidence on every issue that arose for determination in respect of each of the six counts. As Mr Temby QC submitted, that does not necessarily mean that the jury accepted the victim's evidence with respect to every fact.

[36] The shooting at View Street Kingston where Mark Cone lived is a strong indication that the offences were committed in an endeavour to recover money owed by Bowley to Dionne from the sale of drugs. The victim was suspected of having been involved in the "rip-off" of some of those drugs. You had no reason to go to View Street Kingston if you were simply endeavouring to assist the victim to obtain money that he owed Bowley.

JADE LACEY: Because I am sick, your Honour, I had to sit down.

HIS HONOUR: Well, by all means if you wish to sit down, you can. In fact, that applies to both of you if you are not feeling like standing. You can both sit down, if you wish, if you would prefer.

Mr Macgroarty, do you mind checking if a break is necessary?

[38] HIS HONOUR: I accept Ashley Bowley's evidence that he purchased the ecstasy tablets from Dionne.

[39] The suspicion that the victim was implicated in the theft of a quantity of the ecstasy tablets by Andrew McLeod and Mark Cone provided the motivation for these offences. Jade evidently had a strong interest in recovering the money as well. That is indicated by his prominent role in the offences and his statement to the victim at one stage that he didn't care how long he had to have the victim, as long as he got his money.

[40] The court is required by s 9(2)(c) Penalties and Sentences Act 1992 to have regard to the nature and seriousness of the offences, including any physical, mental, or emotional harm to the victim. Victim impact statements in compliance with s 15(9) Victims of Crime Assistance Act 2009 were tendered by the Crown. The victim's statement (Exhibit 105) shows that the offences have had a significant impact upon him. The offences have affected his social life, employment prospects, sleep patterns and recreational activities. He feels that his life has been destroyed. This is reinforced by his mother's victim impact statement (Exhibit 104). Her statement shows that the trauma for the victim has had ramifications for the whole family.

[41] There are mitigating factors. You are both young offenders. As I have mentioned, Dionne, you were 20 years of age at the time of the offences and, Jade, you were 24 years old. Dionne, you are now 23 years old and, Jade, you are 27.

[42] It was submitted that you made admissions of fact during the course of the trial which had the effect of reducing the number of witnesses and the length of the trial. It was submitted that this warranted credit. Mr Byrne SC for the Crown accepted that it was a relevant consideration and I will take it into account. The same approach was taken when you were sentenced in the Supreme Court on 13 May 2009. However, it is not a factor that can attract significant weight, particularly since you have displayed absolutely no remorse, and lack of remorse is a relevant consideration pursuant to s 9(4)(i).

[43] In each case there was a considerable body of affidavit and other written material tendered. I have read it. The material shows that those who know you believe that you have many positive attributes, and they find these offences out of character for people they know to be respectful and caring.

[44] I have also read the letters written by your mother and your sister.

[45] Dionne has also provided a letter. Dionne, you have undertaken many courses and programs in gaol which you say have changed your outlook. Your ambition is to obtain a degree in business or marketing. There are documents from the Education and Vocational Officer at the Woodford Correctional Centre that show that you are highly motivated in courses you have undertaken.

[46] Jade has undertaken courses in business and fitness while in custody at the Borallon Correctional Centre. Your offender case file (Exhibit 89) indicates that you are polite and cooperative to staff and that you have behaved well in custody. I have read the letters written by you, your father and your fiancee.

[47] Mr Byrne SC for the Crown submitted that making appropriate allowance for the totality principle you should each be sentenced to 8 to 10 years imprisonment to be served cumulatively upon your present sentences.

[48] Mr Temby QC, for you, Dionne Lacey, submitted that as you must serve 80% of your 11 year sentence, there is no prospect of release until 1 March 2018 when you will be almost 31 years old.

[49] Mr Temby QC emphasised the importance of rehabilitation, a factor that is contained in ss 9(1)(b) and 9(4)(g) Penalties and Sentences Act 1992. He submitted that the appropriate sentence was 7 years imprisonment for torture to be served concurrently with your present sentence. He submitted that a serious violent offence declaration should not be made. And he submitted that no sentence should be imposed on the other counts.

[50] Mr Macgroarty relied on delay during which time Jade has demonstrated rehabilitation while in gaol and a motive for rehabilitation. He submitted that Jade's demonstrated efforts towards rehabilitation should lead to the sentence being concurrent with your present sentence without a serious violence offence declaration. He also submitted that the appropriate sentence for torture is 7 years imprisonment and that lesser sentences should be imposed on counts 1, 2, 3 and 6.

[51] Counsel referred to a number of comparable cases. As was observed by de Jersey CJ, Keane, Muir and Chesterman JJA in Jade's appeal, the task of analysing comparable cases can be valuable in identifying a sentencing range but the task is to be approached with caution (R v Lacey [2009] QCA 275 at paragraph [43]).

[52] Mr Byrne SC for the Crown referred to the judgments of the Court of Appeal in R v Ho CA No. 65 of 1990, judgment delivered 28 June 1990, and R v Kelly, Baker and Perry CA Nos. 144, 155 and 147 of 1991, judgment delivered 29 August 1991. These decisions are of limited assistance since they do not involve the offence of torture which was not introduced into the Criminal Code until 1997.

[53] Mr Byrne SC also referred to R v Cowie [2005] QCA 223. The applicant in that case was convicted after a trial of supplying a dangerous drug, torture, kidnapping and receiving. He was sentenced to 12 years imprisonment for torture and lesser concurrent sentences for the other offences. The victim was an 18 year old backpacker who had come to Australia from New Zealand on a holiday. He purchased drugs from the applicant. The next evening the applicant and four others took the complainant to an abandoned building at Milton and over the course of several hours the complainant was subjected to various assaults in an effort to obtain property from him, particularly the PIN for his bankcard. Over the course of this period the complainant was punched, kicked, burnt with a cigarette lighter and a piece of paper, choked with a chain and assaulted with a wooden bat. The applicant was 26 years of age at the time of the offences and 28 when he was sentenced. He had a lengthy criminal history which included sentences of imprisonment for offences of violence. Two co-offenders who pleaded guilty and did not have a significant criminal history for violence were sentenced to 8 years imprisonment with declarations that they were convicted of serious violent offences. The Court of Appeal dismissed Cowie's application for leave to appeal against sentence.

[54] Mr Temby QC referred to R v B; ex parte Attorney-General [2000] QCA 110, R v R and S, ex parte Attorney-General [1999] QCA 181; [2000] 2 Qd R 413, R v HAC [2006] QCA 460 and R v Ottley [2009] QCA 211. Mr Temby QC provided a helpful written summary of these cases, which is Exhibit 88.

[55] In R v B; ex parte Attorney-General, the Court of Appeal dismissed an appeal by the Attorney-General against a sentence of 7 years imprisonment with a serious violent offence declaration imposed upon the respondent for the offence of torture upon his 17 year old daughter. In that case, Moynihan SJA and Atkinson J commented that the appropriate range was 7 to 10 years imprisonment with a serious violent offence declaration.

[56] In R v R and S, ex parte Attorney-General, the Court of Appeal increased the sentences of the respondents to 11 years imprisonment for torture and other offences committed upon R's 3 year old child. S was her partner. The respondents pleaded guilty. They were relatively young. R had no previous convictions and S had minor drug and stealing offences on his criminal record, as well as an offence of unlawful sexual intercourse with a 15 year old girl when he was about 21 years old.

[57] In R v HAC, the applicant tortured his wife over a six month period. A sentence of 10 years imprisonment with a serious violent offence declaration was set aside and a sentence of 7 ½ years imprisonment with a serious violent offence declaration was substituted.

[58] In R v Ottley, the applicant was sentenced to 6 years imprisonment for torture and other offences committed upon the complainant with whom he was in a relationship. He was convicted following a trial. The Court of Appeal substituted a sentence of 5 years imprisonment with a declaration that the applicant was convicted of a serious violent offence. The Court was influenced by the fact that weapons were not used and nor was there the degree of calculated sadism and perversion involved in HAC.

[59] Mr Macgroarty referred to R v B; ex parte Attorney-General [2000] QCA 110, R v Maher [2004] QCA 198, R v Kennedy and Watkins; ex parte Attorney-General [2002] QCA 26, and R v El-Masri [2003] QCA 52.

[60] Although there are some similarities in the conduct in R v Kennedy and Watkins, the Court of Appeal considered the sentences to be somewhat lenient and I do not regard that case as providing a reliable guide. Indeed, the Court of Appeal in El-Masri said as much, and El-Masri itself did not involve torture. The offences there were deprivation of liberty, assault occasioning bodily harm in company, and kidnapping for ransom. And in each case there were pleas of guilty.

[61] In the present case, the act of torture includes count 5, which relates to the shooting at Brown Island. There is force in the submission of Mr Byrne SC that a guide to the appropriate sentence for that offence, if it stood alone, is provided by Jade's sentence for wounding with intent to maim. The Court of Appeal concluded that Jade's sentence of 5 years imprisonment, in addition to the 2 years that he had spent in presentence custody could not be regarded as excessive, let alone manifestly so.

[62] The case that provides most assistance in my view is Cowie. The Court analysed R and S, and other cases which involved domestic situations. After discussing a number of these decisions, the Court said at paragraph [25]:

"That the injuries actually inflicted in the present case may be less serious than those inflicted in the cases to which the applicant's counsel has referred does not mean that the overall criminality of the applicant is significantly less than that of the offenders in those cases. That is because, as the learned sentencing judge noted, the offence of torture in this case was the result of cold blooded detention and torture for money by several men of a vulnerable man who did not know them and who was alone in a foreign country. These circumstances reveal a distinctly different form of criminality but one which is at least as serious as that involving the decisions to which the applicant's counsel referred. Indeed the view was open to her Honour that the demands of deterrence are considerably stronger in this case than in the cases to which the applicant's counsel has referred because of the callous, impersonal, organised and financially-motivated brutality visited upon the complainant by the applicant and his co-offenders."

[63] As I have mentioned, the co-offenders in Cowie who pleaded guilty were sentenced to 8 years imprisonment with serious violent offence declarations.

[64] The decision in Cowie supports the Crown's submission that the appropriate range is 10 to 12 years imprisonment. While that is the appropriate starting point, the actual sentences to be imposed must take into account the totality principle.

[65] The Court is required by s 9(2)(l) Penalties and Sentences Act 1992 to have regard to the sentences already imposed which have not been served. The totality principle of sentencing requires that the aggregate sentence be just and appropriate: Mill v. The Queen [1988] HCA 70; (1988) 166 CLR 59.

Section 16 Criminal Code

[66] The offence of torture encompassed all of the acts at Brown Island including the shot fired by Jade through the victim's hand which was the subject of count 5. It was common ground that s 16 of the Criminal Code precluded the imposition of sentence for count 5. The standard practice in similar cases is for the conviction to stand but that no penalty be imposed: R v R and S, ex parte Attorney-General at paragraphs [16] and [49], R v Sams [2003] QCA 240 at page 6, and R v Ottley at paragraph [58].

[67] As I have mentioned, the Crown's submission is that each of you should be sentenced to 8 to 10 years imprisonment cumulative upon your present sentences.

[68] Dionne, your full-time discharge date is 11 May 2020. You must serve 8.8 years before being eligible for release on parole. Having regard to the 2 years presentence custody, the total period is 10.8 years. A cumulative sentence of 8 to 10 years would result in a total sentence of 19 to 21 years imprisonment. Your full time discharge date would be between 11 May 2028 and 2030. Section 182(2) Corrective Services Act 2006 provides that the parole eligibility date for a person serving a term of imprisonment for a serious violent offence is the day after the day on which the person has served the lesser of 80% of the term of imprisonment for the serious violent offence, or 15 years. That is unless a later parole eligibility date is fixed under Part 9 Division 3 of the Penalties and Sentences Act 1992. Section 182(2) applies to the term of imprisonment as defined in s 4 Penalties and Sentences Act 1992. By way of illustration, taking the lower end of the range proposed by the Crown, which is 8 years imprisonment to be served cumulatively, you would be required to serve 80% of 11 years (8.8 years) and 80% of 8 years (6.4 years) which totals 15.2 years. The 15 year maximum period provided by s 182(2) applies to each term of imprisonment, not to the overall period of imprisonment. Of course having regard to the 2 years presentence custody that would mean that you would serve 17.2 years in custody before being eligible for parole.

[69] Jade, you are serving a sentence of 5 years imprisonment. The imposition of a cumulative sentence of 8 to 10 years imprisonment would result in a total sentence of 13 to 15 years imprisonment. You also served 2 years in presentence custody, meaning the effective sentence would be 15 to 17 years.

[70] Jade's current parole eligibility date is the day after he has served half of the 5 year sentence (s 184(2) Corrective Services Act 2006). If the Crown's submission is accepted and a sentence of 8 to 10 years imprisonment is imposed with a declaration that you have been convicted of a serious violent offence, your parole eligibility date is arrived at by applying s 185 Corrective Services Act 2006. Your notional parole date is the day after you have served 2.5 years. If a cumulative sentence of 8 to 10 years is imposed with a declaration that you have been convicted of a serious violent offence you would be required to serve 6.4 to 8 years of that sentence, which is referred to in s 185(3) as the additional eligibility period. In accordance with s 185(4) your parole eligibility date would be the day after you have served 8.9 to 10.5 years. Of course, as I have mentioned, you also served 2 years in presentence custody. That means you would serve a total of between 10.9 and 12.5 years.

[71] When imposing cumulative sentences, the court must not lose sight of the overall effect of the sentence: R v Clements [1993] QCA 245; (1993) 68 A Crim R 167. It has been recognised that sometimes the impact of such a sentence can be unduly onerous.

[72] Your counsel urged the Court to impose wholly concurrent sentences. As I have already mentioned, Mr Temby QC referred in particular to the aspect of rehabilitation. Mr Macgroarty emphasised that aspect of the matter this morning. In that regard, I note the observations of de Jersey CJ in R v Bates; R v Baker [2002] QCA 174 at paragraph [34]. In dealing with Baker's case, his Honour said:

"As to the matter of rehabilitation, a shorter term would no doubt assist (the applicant) personally, although one hopes the educational and vocational courses and counselling undertaken in gaol will nevertheless prove beneficial. But the circumstances of some serious violent offending are so grave that the considerations of punishment and deterrence outweigh the liberal pursuit of rehabilitation."

[73] Your treatment of the victim was callous and cruel. He was assaulted with baseball bats at Kidd Street Robertson on the afternoon of 22 April 2007. He was subsequently tortured at Brown Island. The offence of torture involves the intentional infliction of severe pain or suffering. Before he was eventually released on the afternoon of 24 April 2007, Bowley received a text message, presumably from one of you, saying words to the effect, "Do you want your t-shirt back" or "Do you want me to hang it on your door?" His treatment was appalling and this terrifying ordeal has had a significant impact upon his life.

[74] Mr Byrne SC submitted that you are equally culpable, and I accept that. He initially submitted that you should each receive the same sentence. In written submissions (Exhibit 106) and subsequent submissions this morning, he contended that complications in structuring Dionne's sentence provided grounds for distinguishing your respective cases. There are perhaps some grounds upon which your cases could be distinguished. Jade, you were on bail for assault occasioning bodily harm and extortion at the time of these offences. And the totality principle has more significance in Dionne's case because you are serving an 11 year sentence compared to Jade's 5 year sentence.

[75] The sentences that I impose will be ordered to be served cumulatively upon your present sentences with serious violent offence declarations where applicable for reasons I will state shortly. My conclusion on these aspects of the matter therefore requires careful consideration of the totality principle to ensure that the overall sentence in each case is not unduly severe.

[76] Your efforts towards rehabilitation are encouraging but I am not satisfied that you are remorseful.

[77] In my view a sentence of 6 years imprisonment to be served in respect of the torture count balances all of the competing considerations. That is the appropriate sentence in each case.

[78] In your case Dionne Lacey your total sentence will therefore be 17 years imprisonment. You are required by s 182(2) Corrective Services Act 2006 to serve 80% of each term of imprisonment before being eligible for parole. This means that you will serve 8.8 years plus 4.8 years, making a total of 13.6 years before parole eligibility. Having regard to the period of 2 years presentence custody, you will serve a total of 15.6 years before being eligible for parole. I consider that s 109 Corrective Services Act 2006 applies to the calculation of the full time discharge date for cumulative sentences. In your case that will be 11 May 2026. Your present parole eligibility date is 1 March 2018. You will be required to serve an additional period of 4.8 years before being eligible for parole. I consider that s 160D Penalties and Sentences Act 1992 does not require that a parole eligibility date be fixed because of the definition of that term in s 160.

[79] In your case Jade Lacey, your total sentence of imprisonment will be 11 years. You will be eligible for parole after a total period of 7.3 years. Having regard to the 2 year period in presentence custody, your total period of imprisonment before you are eligible for parole will be 9.3 years.

[80] It was submitted by Mr Temby QC that a sentence should be imposed in respect of count 4 and that no sentence should be imposed in respect of any of the other counts. That would be contrary to standard Queensland sentencing practice, and I do not propose to follow that course. Mr Macgroarty did not support taking the approach urged by Mr Temby QC. Therefore, lesser concurrent sentences of imprisonment will be imposed in respect of counts 1, 2, 3 and 6. As I have already indicated, it is not appropriate to impose any sentence in respect of count 5.

[81] As to the question of whether the sentences should be concurrent or cumulative, as I have mentioned, Mr Byrne SC for the Crown submitted that the sentences should be served cumulatively upon your present sentence.

[82] Mr Temby QC and Mr Macgroarty submitted that the sentences should be served concurrently.

[83] Section 155 Penalties and Sentences Act 1992 provides:

155 Imprisonment to be served concurrently unless otherwise ordered

Unless otherwise provided by this Act, or the Court imposing imprisonment otherwise orders, if-

(a) an offender is serving or has been sentenced to serve imprisonment for an offence; and

(b) is sentenced to serve imprisonment for another offence;

the imprisonment for the other offence is to be served concurrently with the first offence."

[84] Mr Temby QC relies on this provision and contends that: "In the ordinary case terms of imprisonment will be concurrent."

[85] Section 156 permits the imposition of cumulative sentences.

[86] Mr Temby QC cited the judgment of Cooper J in Hoad (1989) 42 A Crim R 312 at 315 where the applicable principles are stated as follows:

(a) is there some clear reason why the sentence should be served cumulatively?

(b) is the combined sentence out of proportion to the combined seriousness of the offences?

(c) sentences imposed in respect of offences arising out of one incident or transaction are ordinarily ordered to be served concurrently;

(d) sentences for offences which are separate in character and seriousness are often made to run concurrently.

[87] Mr Temby QC relied in particular on the fourth principle.

[88] While it is correct that sentences for offences that are different in character and seriousness are often ordered to be served concurrently, much depends on the particular circumstances of the case. Hoad affords a good example. He was sentenced for 85 offences committed in the course of a professionally operated business of stealing and disposing of motor vehicles. He was sentenced to a total term of 11 years imprisonment consisting of sentences of 7 years and 4 years imprisonment to be served cumulatively. He was sentenced for all offences on the same date. The court was therefore able to determine the appropriate overall sentence for the entire criminality. The Court of Criminal Appeal varied the sentence by ordering that the applicant be sentenced to 7 years imprisonment in respect of each of the 85 counts to be served concurrently. Interestingly, the sentencing judge had ordered the 11 year sentence to be served concurrently with a 3 year sentence imposed four months earlier for uttering forged cheques. Those offences were unconnected with the offences relating to the theft and disposal of motor vehicles. The Court of Criminal Appeal considered that the order of the sentencing judge that the sentence be served concurrently with that sentence would have the effect of reducing the effective term of imprisonment for the 85 offences and was therefore inappropriate. The Court ordered that the 7 year sentence commence at the expiration of the earlier sentence.

[89] In my view there are similar considerations in this case. The imposition of concurrent sentences of imprisonment would not involve any actual punishment. The sentencing guideline in s 9(1)(a) Penalties and Sentences Act 1992 requires that offenders be punished in a way that is just in all the circumstances. And s 9(1)(d) requires that the sentence makes it clear that the community acting through the court denounces your conduct. The imposition of wholly concurrent sentences of imprisonment would not achieve these objectives in my view.

[90] As to the question of serious violent offence declarations, s 161A Penalties and Sentences Act 1992 provides that:

161A When an offender is convicted of a serious violent offence

An offender is convicted of a serious violent offence if-

(A) against a provision mentioned in the schedule; and

(ii) sentenced to 10 or more years imprisonment for the offence, calculated under section 161C.

[91] The offences in counts 1, 3, 4 and 5 are contained in the schedule.

[92] Dionne, as I have mentioned, you are serving an 11 year sentence with a serious violent offence declaration for manslaughter. The imposition of a cumulative sentence for offences in the schedule attracts the operation of the calculation provision in s 161C(2). This means that the imposition of cumulative sentences will attract a declaration that counts 1, 3 and 4 are serious violent offences. Even if the question of the declaration of serious violent offences was discretionary, in your case I would declare that the conviction on count 4, the offence of torture, is a conviction of a serious violent offence.

[93] In your case Jade, the sentencing judge on 13 May 2009 did not declare the conviction for wounding with intent to maim to be a serious violent offence, although the Court of Appeal was of the view that the sentencing discretion would not have miscarried if such a declaration had been made.

[94] An issue for determination in your case is whether the imposition of a cumulative sentence, which takes your sentence to 10 years or more, has the result that the calculation provision in s 161C(2) is engaged so that you are required to serve 80% of the whole sentence. The explanatory notes to the Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 and the second reading Speech of the Honourable D E Beanland, Attorney-General and Minister For Justice, on 19 March 1997 gives some indication that the parliamentary intention may have been that in the present circumstances, the imposition of a cumulative sentence, taking the total sentence to 10 years or more, would result in the serious violent offence provisions applying to the whole sentence.

[95] However, the decision of the Court of Appeal in R v Powderham [2001] QCA 429; [2002] 2 Qd R 417 shows that the calculation provision does not take account of sentences imposed at an earlier time. That decision was applied in R v Irving [2001] QCA 472 and R v Dutton [2005] QCA 17.

[96] The imposition of a sentence of 5 or more but less than 10 years imprisonment for offences in the schedule means that the Court has a discretion under s 161B(3) to declare the convictions to be serious violent offences. The relevant factors are discussed by the Court of Appeal in R v McDougall and Collas [2006] QCA 365; [2007] 2 Qd R 87 at 96, paragraph [19]. The circumstances of the offence of torture are particularly callous and chilling. Moreover, as Moynihan SJA and Atkinson J observed in R v B; ex parte Attorney-General [2000] QCA 110 at paragraph [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."

[97] In this case, the victim was made to dig a grave at Brown Island and shot at. It was a terrifying ordeal. The offence of torture warrants a declaration that Jade has been convicted of a serious violent offence. As the serious violent offence declaration is discretionary in your case, I do not propose to make declarations as to serious violent offences in respect of counts 1 and 3.

[98] Dionne Mathew Lacey, in your case I make the following orders:

(1) convictions are recorded on counts 1, 2, 3, 4 and 6;

(2) in respect of count 5, you are convicted but no penalty is imposed;

All sentences are to be served concurrently with each other;

(4) I direct that the sentences commence at the expiration of the sentence you are serving for manslaughter;

(5) I declare the convictions on counts 1, 3 and 4 to be convictions of serious violent offences.

[99] Jade Michael Lacey, in your case I make the following orders:

(1) convictions are recorded on counts 1, 2, 3, 4 and 6;

(2) in respect of count 5, you are convicted but no penalty is imposed;

All sentences are to be served concurrently with each other;

(4) I direct that the sentences commence at the expiration of the sentence of 5 years imprisonment for unlawful wounding with intent to maim imposed in the Supreme Court at Brisbane on 13 May 2009;

(5) I declare the conviction on count 4 to be a conviction of a serious violent offence.

[100] I make the usual order for the return of the exhibits.