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The applicant started the car. The complainant went to unlock the door and get out. She was screaming. The applicant restrained her by the throat. At his demand she fastened her seatbelt and he forcibly tightened it. The applicant drove the vehicle containing the complainant to an isolated spot along the Gateway Road towards the Gold Coast. The applicant again questioned the complainant about her sexual past. She pleaded with him saying, "Don't be angry with me. The baby and I need you."

He drove her to a dead-end track in remote bushland. The applicant turned off the engine of the vehicle and the lights. They were outside. Pushing her to the back of the car the applicant said, "So how do you want to die?" The complainant not responding, the applicant again asked, "I'll ask you again, tell me the truth." The applicant then dragged the complainant to a puddle of water, grabbing her by the back of the hair and pushing her face into the water holding her face down. The complainant could not breathe and thought she was going to die. The applicant pulled her head out of the water and said, "I'll give you the opportunity to tell the truth now and we can just go home." The complainant responded she had not done anything wrong. They walked back towards the car. The applicant started slapping the complainant about both sides of the head. He grabbed her by the hair and again dragged her back to the water, again forcing her face down into it. Her nose went as previously to the bottom of the puddle. She was naturally in extreme fear.

The applicant turned her over and again demanded to be told "the truth". The complainant insisted she had nothing to lie about and had done nothing wrong. The applicant pulled the complainant up by the front of her shirt and pushed her over towards the car. He got into the car. The complainant walked away from the car. The applicant then walked over behind the complainant and put a towel around her neck. The towel was twisted and the applicant pulled tightly on the towel dragging the complainant onto her back. She could not breathe and passed out.

The complainant next recalled waking up, with the applicant saying, "Were you playing dead or something?" The applicant picked the complainant up by her arm and told her to get into the car and they drove off. As they drove away the applicant started crying and said, "I hate myself. I don't want to live any more. I want to die." As the applicant was driving the car away from the bushland, driving erratically, he said to the complainant, "Have you ever been in a car accident?" When the complainant said, no, the applicant said, "How would you like to die in a car accident?" Having arrived back at the house the complainant showered and in fact spent the night with the applicant for the reason that she was concerned were she to do otherwise she would further inflame him, not to suggest that his conduct previously had in any sense been explained by conduct on her part.

The following day, following the applicant's departure for work, the complainant contacted the police by means of the neighbour's telephone. The complainant's victim impact statement, not surprisingly, shows she suffered both considerable physical injury from which she has not completely recovered and substantial residual emotional disturbance. It was a cruel, vicious and sustained attack by the applicant which was a terrifying ordeal for the complainant. In the course of it the applicant threatened to kill the complainant more than once and he inflicted a level of violence which would reasonably have led her to fear for her life.

Highly significantly for sentencing purposes this brutal offence followed upon a proximate earlier conviction for torture. The instant offence occurred on 29th March 2001. On 24th May 1999 the applicant was sentenced in the District Court for an offence of torture committed in April 1998 to 18 months' imprisonment with a recommendation for release on parole after serving six months. The complainant involved in that earlier case was the applicant's then wife. The subject incident included deliberate pricking or stabbing of the complainant's legs with a knife, repeated assaults by punching, an assault with a cricket bat and attempts at suffocation. The applicant's motivation again appears to have related to a question in his mind as to his wife's sexual fidelity.

In relation to that matter having served a term of imprisonment the applicant was released into home detention on the 11th of October 1999 which continued until 28 February 2000. He remained under the supervision of a correctional services officer until 23rd November 2000. The instant offence was committed only approximately four months after the completion of that period of corrective services supervision.

One wonders what could have motivated the applicant to commit these dreadful offences. A psychiatrist's report included in the record records that the applicant was electrocuted at work in the early 1990s. That led to a severe post traumatic stress disorder which found its expression in depression, obsessional behaviour and ambivalence of attitude. At the time of that report, which was December 1998, the applicant was also suffering from an alcohol dependent syndrome.

The learned sentencing Judge concluded his remarks by saying "I have imposed this sentence having taken into account the fact that you have already spent nearly one year in custody awaiting the resolution of this matter." Section 158 of the Penalties and Sentences Act 1992 provides that in such a case, "The Court may order that the term of the imprisonment is to have effect on and from the day the offender was arrested." This Judge did not take that course. Section 161 subsection 1 provides that, "If an offender is sentenced to a term of imprisonment for an offence any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence unless the sentencing Court otherwise orders."

This Judge is to be taken to have ordered otherwise in terms of that subsection, as if he had directed specifically in terms of Wishart and Jenkins [1994] 2 Queensland Reports 421 at 426:

"That any time the offender had then been held in custody to date was not to be taken to be imprisonment already served under the sentence."

In the result the sentence of three years' imprisonment in fact imposed on the applicant by the learned sentencing Judge should be regarded as equivalent to a sentence of at least four years.

The applicant contends that that sentence is manifestly excessive and that an appropriate sentence should not have exceeded three years' imprisonment with the 313 days of pre-sentence custody declared to be time already served or alternatively two years imprisonment.

An examination of the previous decisions on torture to which counsel for the applicant referred us, shows that a penalty of the order of two years imprisonment would have been manifestly, indeed absurdly inadequate. The four year sentence imposed on the 28 year old female offender in Edwards, 173 of 2001, who pleaded guilty equates to six years imprisonment after allowing for the one-third reduction because of section 13A. Yet that offender, who was in company with others, played a less significant role than her co-offenders in terms of physical participation and, highly significantly, she had no previous criminal history.

In addition there were circumstances personal to her which warranted lenient treatment. She was a reluctant participant who felt constrained to participate because of involvement with one of the principal male offenders and her past history was one of violent relationships where she had been badly treated by others.

That sentence suggests the effective approximately four year term here to be manifestly low. Working from Edwards, in my view, this applicant should have been sentenced from a base of at least eight years then reduced for the plea of guilty.

The circumstances of Burns 399 of 1999, where an effective three and a half year term was imposed, were not as serious as those of the present case, certainly not life threatening or as protracted as these. It appears the Burns sentence was based on seven punches only. Again, highly significantly, the present applicant carries the burden of the previous conviction for very similar offending within a relatively short time span, warranting substantially more severe treatment.

The level of violence in Real, 92 of 2001, where on appeal a sentence of five years suspended after two was imposed on a plea of guilty, was generally comparable with that of the present case, but it was not as protracted and produced no lasting injury. Further Real had not previously been imprisoned and there was need to secure parity with an eight year term imposed on his co-offender, treated more seriously because older, with a more extensive record, and already serving a term with which that penalty would be concurrent. In my view comparison with Real would warrant at least six years here, even after allowing for the plea.

Kennedy and Watkins, 259 and 260 of 2001, is plainly distinguishable, the three years imposed for the torture being regarded by the Court on an Attorney's appeal as not "sitting comfortably within the requisite range". As the Court said, that should be regarded as a low order penalty surviving appeal only because the Court was constrained to focus on aggregate terms, and its being an Attorney's appeal. In that case the three years for the torture was to be served cumulatively upon four years for drug trafficking.

The Court added that had it been faced with a sentence of three years for torture taken alone, even following a plea of guilty, there would have been a strong case for increase on appeal.

Having regard to the protracted brutality of this torture, the serious effect on the victim, and the shocking circumstance that the applicant committed this offence after having been convicted for another similar offence and so soon after release from the previous custody and supervision related to that offence, the need for appropriate punishment, special deterrence and protection of the community, especially women, and rehabilitation militated incarceration of substantial extent, even after allowing for time already served and the plea of guilty.

My own view is that the sentence of three years which, as I have said, translates, allowing for time already served, to four years or a little more, should be regarded as unsustainably lenient, indeed absurdly so. It is certainly obviously not manifestly excessive. Offending of this substantial proportion warrants a condign response from the Court. The nature of this offence was close to attempted murder.

I consider the appropriate starting point was eight to 10 years reduced to six for the plea of guilty. I suggest that this case should be regarded as signalling a need to strengthen the approach to sentencing for torture.

After we had heard argument in the case we signalled our attitude to the application and indicated that were leave granted the Court would be inclined to take the unusual course of imposing a substantially increased penalty upon the applicant. Consistently with the High Court decision of Neale we then invited Mr Moynihan, who appeared for the applicant, to seek instructions as to whether his client wished to proceed with the application for leave to appeal.

When the Court reconvened Mr Moynihan unsurprisingly indicated that his client did not in those circumstances wish to proceed with the application and he sought leave to withdraw it, which the Court granted. The only order of the court, of course, is that the application for leave to appeal by leave be withdrawn, but nevertheless it was important to have on the record the reasoning which, for my part, led to my taking that course in relation to the application.

JERRARD JA: I agree with the remarks of the Chief Justice as to the level of sentence appropriate in this matter. I have nothing else to add.

WILSON J: I also agree. I would add only one thing. The sentencing Judge's election not to declare the pre-sentence custody as time already served under the sentence but rather to reduce the head sentence to allow for it, did, in the context of a declaration of a serious violent offence, work to the advantage of the applicant, who must serve 80 per cent of the head sentence actually imposed.