Contents

Table of Contents

Queensland

Court of Appeal

R v OAC [2024] QCA 52 (9 April 2024) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Miscarriage of justice’ - ‘Unreasonable’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Torture' - ‘Threat to kill’ - ‘Sexual and reproductive harm’ - ‘Emotional and psychological abuse’ - ‘Economic and financial abuse’ - ‘Rape’ - ‘Prevention order’ - ‘History of domestic violence and family violence’ - ‘Mental health’

Charges: 5x common assault; 2x strangulation in a domestic setting, 3x assault occasioning bodily harm, 3x deprivation of liberty, 1x torture, 1x contravention of protection order, 1x assault occasioning bodily harm while armed, 1x wilful damage, 1 x threats, 2x rape, 1x using a carriage service to make a threat to kill

Proceedings: Application for leave to appeal against sentence.

Facts: The male applicant pleaded guilty to 32 counts on three separate indictments. The majority of the offences concerned physical domestic violence against the applicant’s female partner between January and August 2019. [16]–[65]; [72] During this period, the applicant was served with and subsequently breached a protection order. [36]–[38] The most serious offending occurred within 16 hours, across two days: the applicant tortured his partner, assaulting, choking and raping her. [2]; [44]–[65]

Grounds of Appeal : Applicant sought leave to appeal the sentence on two grounds:

1.

the sentencing judge erred by having regard to uncharged acts; and

2.

the sentence is manifestly excessive. [12]

Decision and Reasoning : Application for leave refused. Morrison JA (with whom Mullins P and Brown J agree) dismissed the applicant’s first ground of appeal. The uncharged acts were expressly confined as forming part of the background, and at no time were framed as relevant to the offending conduct. That the uncharged acts merely provided relevant context to the domestic violence offences was appreciated by the sentencing judge. [99]–[107]

Morrison JA further dismissed the applicant’s second ground of appeal that the imposition of a serious violent offence declaration is inappropriate as the applicant suffered from serious psychological issues at the time of offending. [114] Available medical assessments did not disclose a diagnosis of ‘mental illness or abnormality’. [120]

The absence of such a diagnosis is relevant to the submission that general deterrence did not have such a call on the sentencing process that it meant a serious violent offence declaration should not be made; put another way, that making such a declaration would render the sentence manifestly excessive [121]

As is apparent from Neumann, there must be an assessment of two relevant factors present in order that the consideration of mitigating factors or that of general deterrence are affected. The first is the mental abnormality. The second is a causal link between that abnormality and the offending conduct.

Neither is present in the applicant’s case. What the report reveals is that drug-induced psychosis was a likely operative factor. That is not, in my view, sufficient to call into question the making of the serious violent offence declarations [123]–[124]

R v WBZ [2023] QCA 256 (15 December 2023) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Unreasonable’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Exposing children to domestic and family violence’ - ‘inconsistent verdicts’

Proceedings: Appeal against conviction.

Charges: 2x common assault, 2x strangulation in a domestic setting, 2x assault occasioning bodily harm, 1x wilful damage.

Facts: The male applicant and female complainant had been in a domestic relationship from October 2016 to January 2021. On two separate occasions, the applicant physically assaulted the complainant, backhanding, kicking, strangling and throwing her on the floor. On both occasions, the offending took place in the presence of the couple’s baby. [11]–[35]

Grounds of Appeal : The applicant appeals against his conviction for one count of strangulation on the basis that it was unreasonable, irreconcilable with the verdicts of acquittal.

Decision and Reasoning : Appeal dismissed. Flanagan JA (with whom Buss AJA and Kelly J agree) held the inconsistency across the verdicts of guilty and not guilty was reconcilable. According to Flanagan JA, each count was ‘readily explicable by reference’ to different sets of considerations, both factual and legal [67]; notably, the inconsistencies in the evidence provided by the complainant and applicant, and differences in jury directions.

R v MDS [2023] QCA 228 (21 November 2023) – Queensland Court of Appeal

‘Appeal against sentence’ - ‘Manifestly excessive’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Exposing children to domestic and family violence’

Proceedings: Appeal against sentence.

Charges: 4x wilful damage, 2x common assault, 1x assault occasioning bodily harm, 1x strangulation in a domestic setting.

Facts: The male applicant and female complainant had been in a long-term de facto relationship, having five children together, prior to separation in 2015. The applicant and the complainant, both intoxicated, had a verbal argument which turned into a physical altercation. The applicant physically assaulted the complainant, including smashing her headphones with a golf club [4], assaulting the complainant with ‘cane knives’ and strangling her with a wicker basket. [3]–[13] The incident occurred in front of the couple’s 16 year old son, who called the police. [12]

The applicant was found guilty of the offences and was sentenced to 12 months imprisonment for each count of wilful damage, 18 months imprisonment for each count of common assault, 2 years imprisonment for the count of assault occasioning bodily harm and 3 years imprisonment for the count of strangulation in a domestic setting – where all sentences were ordered to be served concurrently.

Grounds of Appeal : Applicant sought leave to appeal the sentence on two grounds:

1.

the sentence was manifestly excessive; and

2.

the sentencing judge made a specific error (ie, the judge’s statement that ‘someone in the victim’s position could have been dead within a short space of time’ was ‘factually inapposite’) [26]

Decision and Reasoning : Appeal dismissed. Justice of Appeal Dalton (with whom Morrison and Boddice JJA agree) found the sentence to neither be manifestly excessive or erroneous with respect to the sentencing judge’s treatment of the offence of strangulation:

The sentencing judge obviously regarded strangulation as the most serious of these offences, although it must be noted that the common assault with the cane knives was also a very serious offence [14]

That the primary judge took a balanced view of the strangulation is plain from the remarks which I have extracted above. In particular her Honour recognised that the period of strangulation was short; that bare hands were not used, and that the force used was not such as to cause loss of consciousness or control of the bladder. Her Honour expressly recognised that this choking was not of the most serious kind. [28]

R v LBB [2023] QCA 162 (11 August 2023) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Miscarriage of justice’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Threat’ - ‘Medical evidence’ - ‘Exposing children to domestic and family violence’

Proceedings: Appeal against conviction.

Charges: 1x strangulation in a domestic setting, 2x assault occasioning bodily harm, 1x threatening violence. The offending occurred in one episode of domestic violence, against the applicant’s wife.

Facts: The male applicant was convicted on four counts of domestic violence offences; all of which occurred on 16 January 2019 against the applicant’s wife (the complainant). The complainant’s evidence was that the applicant strangled her, after she refused to allow him access to her mobile phone. As the complainant attempted to leave, the applicant grabbed her and threw her onto the floor and threatened to kill her and their child. [4]–[6] The complainant attended the doctor later that day.

Grounds of Appeal : Applicant sought leave to appeal the sentence on two grounds:

1.

The wrongful admission of medical evidence concerning the complainant’s injuries; and

2.

The false prosecutorial claims concerning the medical evidence.

Decision and Reasoning : Appeal allowed, conviction set aside and retrial ordered. Judge Dalton (with whom Boddice JA and Bradley J agree) held ‘almost all’ of the evidence led from the doctor’s consultation notes with the complainant to be inadmissible and highly prejudicial to the applicant. [21] Such evidence led from the notes included (and were not limited to):

•

A detailed narrative amounting a complaint against the appellant and a description of his physically assaulting her …

•

sympathetically recorded details as to the complainant’s general domestic circumstances …

•

a hearsay history of the appellant’s having been angry and having pushed and shoved the complainant in the past …. [21]

Judge Dalton equally regarded the prosecution’s address to the jury concerning this evidence improper, as too the prosecution’s reliance upon the existence of a fracture (suffered by the complainant) which was not established [55]–[56]:

It was improper for the prosecutor to seek to use the inadmissible narrative evidence she had led from the doctor to attempt to bolster the complainant’s credit as if the narrative given to the doctor on 7 October 2021 was a fresh complaint in a sexual assault case. The prosecutor expressly used this evidence to try to bolster the credit of the complainant and urged the jury not to have a reasonable doubt because of what the appellant had told police [27]

R v WBX [2023] QCA 151 (28 July 2023) – Queensland Court of Appeal

‘Appeal against sentence’ - ‘Manifestly excessive’ - ‘Prevention order’ - ‘Breach of protection order’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Following, harassing and monitoring’

Proceedings: Appeal against sentence.

Charges: 1x assault occasioning bodily harm, 7x contravention of prevention order

Facts: The male applicant was convicted on domestic violence offences and sentenced to six months’ imprisonment and an order for compensatory payment ($10,000 to the complainant).

The applicant and female complainant had been in a ‘toxic’ domestic relationship for two years.[9] A temporary protection order was placed against the applicant in May 2021: interaction between the complainant and applicant was conditional on it being agreed upon in writing. [15] The offending took place on June 2021, when the complainant and applicant were together at the applicant’s residence: an argument turned into a physical altercation, with the applicant physically assaulting and strangling/choking the complainant. Following the incident, the applicant proceeded to contact the complainant for the next six days, contrary to the protection order. [13]–[16]

Grounds of Appeal : The applicant appealed the sentence on the ground that it was manifestly excessive, having regard to the applicant’s: previously undiagnosed medical condition; plea of guilty; lack of prior criminal history; and ‘new and functioning domestic relationship’. [21]

Decision and Reasoning : Appeal dismissed. Justice of Appeal Boddice (with whom Dalton and Flanagan JJA agree) found the sentencing judge to have made no error:

The protracted nature of the applicant’s criminal conduct, including the repeated contraventions of the domestic violence order in the following days, was of a nature where the imposition of a sentence of imprisonment fell well within a sound exercise of the sentencing discretion, notwithstanding the early pleas of guilty, lack of criminal history, psychological conditions, prospects of rehabilitation and the payment of compensation. Such a conclusion is supported by a consideration of the relevant authorities [35]–[36]

R v RBJ [2023] QCA 162 (13 June 2023) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Miscarriage of justice’ - ‘Unreasonable’ - ‘Physical violence and harm’ - ‘Sexual and reproductive harm’ - ‘Rape’ - ‘Inconsistent verdict’

Proceedings: Appeal against conviction.

Charges: 3 x rape.

Facts: The male applicant was charged with three counts of rape; all of which were domestic violence offences. Following a trial before a jury, the applicant was only convicted of one count (and acquitted of two counts).

At the time of offending, the male applicant and female complainant were in a relationship. On 10 October 2022, the applicant attended the complainant’s mother’s house and entered the complainant’s bedroom uninvited while she was asleep. Despite the complainant’s protest, the applicant forcibly removed her clothes and raped her three times. Between the first and second time (ie, count 1 and 2), the complainant went to the bathroom to have a shower.

Grounds of Appeal : The applicant appealed the conviction on two grounds:

1.

The verdict on count 1 is unreasonable and inconsistent with the verdicts of acquittal on counts 2 and 3; and

2.

Miscarriage of justice (ie, trial judge did not provide jury directions on the use of text-message evidence).

Decision and Reasoning : Appeal allowed, conviction set aside and new trial ordered on count 1. Drawing on the principles of inconsistent verdicts set out in MacKenzie v The Queen (1996) 190 CLR 348, 365–8, the Court (Mullins P and Morrison and Flanagan JJA) regarded the jury’s treatment of count 1 as distinct from counts 2 and 3 to not be unreasonable:

It could not be said to be unreasonable that the jury treated the circumstances in which count 1 was committed when the appellant arrived in the complainant’s bedroom uninvited as different from the circumstances of counts 2 and 3 when the complainant returned to the bedroom without wearing clothes while the appellant was still there [39]

It was open for the jury to regard the complainant’s evidence, relating to the text messages sent following the offending, as only constituting count 1:

The text exchange immediately after the complainant arrived at work, in which she confirmed that it was not acceptable for the appellant to show up in her house unannounced and to have sexual intercourse with her after she said “no” 100 times was more referable to count 1 than the other counts. When the appellant then sent a message reminding the complainant that she said she did not want him to go, the complainant’s response was “that was way after” which could also be taken as referable to “way after” the act of sexual intercourse when he first arrived that constituted count 1 [38]

R v Kynuna [2023] QCA 112 (30 May 2023) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Miscarriage of Justice’ - ‘Unreasonable’ - ‘Physical violence and harm’ - ‘Following, harassing and monitoring’ - ‘Choking/strangulation’ - ‘Sexual and reproductive harm’ - ‘Rape’ - ‘Threat to kill’ - ‘Evidence’ - ‘Expert opinion’ - ‘Jury directions’

Proceedings: Appeal against conviction.

Charges: 3 x rape, 1 x attempted rape

Facts: The male applicant was convicted of one count of attempted rape. The applicant and complainant were in a sexual relationship, which after some time the complainant did not wish to continue. Despite the relationship ending, the applicant continued to pursue the complainant via text messages and loitering at her place of work throughout May 2020. On 3 June 2020, the applicant physically grabbed the complainant by the neck at her place of work and threatened to ‘kill’ her if she continued to ignore him. [16]–[17] Following the applicant’s demands, the complainant drove her vehicle to a deserted place and was physically forced to perform oral and anal sex. [18]–[25]

Grounds of Appeal : The applicant appealed the conviction on two grounds:

1.

The trial judge failed to discharge a jury following the admission of inadmissible and/or highly prejudicial evidence;

2.

The trial judge failed to provide adequate jury directions on opinion evidence; and

3.

The verdict is unreasonable.

Decision and Reasoning : Appeal allowed. Verdict set aside and retrial ordered.

Morrison JA (with whom Mullins P and Boddice JA agree) held the trial judge’s treatment of opinion evidence — specifically the opinion of a forensic nurse that ‘it was unusual to find multiple lacerations to the fourchette in consensual sex’ [48] — to be inadequate.

The Crown prosecutor failed to make reference to the evidence in their opening address [54] and to confine the use of the evidence to the relevant charge (ie, attempted anal rape). [56]–[57] The trial judge failed to correct any misuse of the evidence by the jury through an appropriate direction: ‘The only direction given was one concerned with how to deal with expert evidence. In itself, that was a misdirection because the forensic nurse examiner’s evidence was not expert evidence.’ [58] Consequently, the evidence should have been excluded as both ‘inadmissible’ and ‘prejudicial’ to the applicant. [60]

However, Morrison JA did not find the verdict to be unreasonable. [69] The ‘identified weaknesses in the evidence’ did not reduce the ‘probative value’ of the evidence so as to create ‘a significant possibility that an innocent person has been convicted’. [76]

R v WBV [2023] QCA 79 (26 April 2023) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ - ‘Manifestly excessive’ - ‘Physical violence and harm’ - ‘Choking/strangulation’ - ‘History of domestic violence and family violence’ - ‘Parole’

Proceedings: Application for leave to appeal against sentence.

Charges: 1x assault occasioning bodily harm whilst armed; 1x wilful damage; 2x choking in a domestic setting; 1x assault occasioning bodily harm (domestic violence offence) 1x wilful damage (domestic violence setting); 1x assault occasioning bodily harm; 1x suppling a dangerous drug with a circumstance of aggravation.

Facts: The male applicant entered early pleas to four indictments and was sentenced to five years’ imprisonment. The offending was perpetrated against the applicant’s female partner in their home. On 6 August 2020, the applicant verbally assaulted the complainant, threatening her with a knife. [30] On 19 November 2021, the applicant physically and verbally assaulted the complainant, punching her in the face, and strangling her twice, causing her to lose consciousness multiple times. [19]–[23] On 19 May 2022, the applicant assaulted a male co-worker. [33]–[34]

Grounds of Appeal : The applicant sought leave to appeal against sentence on the ground that the sentence imposed was manifestly excessive. Particularly, the applicant contended that the primary judge:

1.

started ‘too high’ in calculating the appropriate global sentence for the most serious offending — the two counts of choking in a domestic setting;

2.

departed from the ‘rule of thumb of one-third in imposing a parole eligibility date at the 40% mark of the head sentence’; and

3.

did not accede to the submission of defence counsel in respect of certainty of release [11]

Decision and Reasoning : Application to leave dismissed. Crow J (with whom Dalton and Boddice JJA agree) dismissed the applicant’s submission that the head sentence was ‘too high’, having regard to the applicant’s ‘antecedents, the serious nature of the offending of 19 November 2021, and the accumulation of the criminality of the offending of 6 August 2020 and 19 May 2022’. [36]

With respect to the non-parole date, Crow J (with whom Dalton and Boddice JJA agree) held that the ‘common practice of a one third reduction is not a rule’. [39] Rather, the determination of a non-parole period is made with regard to ‘the specific circumstances of the offender including his antecedents, character, and any prior criminal history’. [40]

Applying these factors to the present case, Crow J held the date to be appropriate:

The applicant’s prior criminal history of serious violence, his lack of anger control, his serious difficulty with alcohol and drugs, his poor prison record, his offence of supplying dangerous drugs in a correctional facility are each a circumstance supporting the parole eligibility date being set at two years [51]

R v BEA [2023] QCA 78 (26 April 2023) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ - ‘Appeal against conviction’ - ‘Manifestly excessive’ - ‘Unsafe/unreasonable jury verdict’ - ‘Physical violence and harm’ - ‘Sexual and reproductive harm’ - ‘Rape’ - ‘Protection order’ - ‘History of domestic violence and family violence’ - ‘victim’s mental health’

Proceedings: Appeal against conviction.

Charges: 13x rape, 2x assault occasioning bodily harm, 3x common assault.

Facts: Following a trial by jury, the male applicant was found guilty of thirteen counts of rape, two counts of assault occasioning bodily harm and three counts of common assaults. Each count involved the aggravating circumstance of being a domestic violence offence [3]: the applicant and female complainant were in a de facto relationship between 2013 and 2015. In this period, the complainant had received a protection order against the applicant. In 2014, the applicant contravened the protection order thrice and was imprisoned for nine months. [74] The female complainant reported the applicant’s offending in 2018. [29] The applicant was sentenced to (11 years head sentence for two counts of rape).

Grounds of Appeal : The applicant appealed against his conviction on several grounds.

1.

Unsafe and unsatisfactory jury verdicts (ie, complainant’s evidence was uncorroborated, ‘inconsistent [and] improbable’ and the complainant suffered from a mental illness). [6]

2.

Manifestly excessive head sentence for two counts of rape (11 years’ imprisonment).

Decision and Reasoning : Appeal dismissed.

With respect to the first ground of appeal, Bradley J (with whom Dalton JA and Gotterson AJA agree) held the evidence of the complainant (on which the verdict rested) to not be ‘improbable or incredible’ [10]. Further, the applicant’s evidence concerning the complainant’s mental health was erroneous and misleading. [22] Contrary to the applicant’s submission, the complainant suffered from depression (not bipolar disorder) which ‘does not raise a reasonable doubt about her credit or the reliability of her evidence’. [26]

Bradley J further held that the complainant’s two year delay in reporting the offences did not constitute a ‘significant forensic disadvantage’ to the applicant [34]–[35]:

The statute excludes the mere fact of delay as sufficient to show such a disadvantage and requires the nature of the disadvantage to be identified.7 The accused bears the onus of establishing there is a significant forensic disadvantage and that it is a consequence of the delay. The disadvantage must be forensic, so it must be a disadvantage in challenging, producing, or giving evidence in the conduct of the case

In the present case, no evidence likely to assist the appellant, which earlier existed, had been lost, gone missing, or become unavailable to him. No witness had died or become unlocatable. No one’s memory had been lost. The medical tests and photographs adverted to by the appellant were never within his power to obtain without the complainant’s consent. There was no evidence before the trial judge that the appellant had suffered a significant forensic disadvantage because of the delay in reporting the offences.

R v FBC [2023] QCA 74 (24 April 2023) – Queensland Court of Appeal

‘Children’ – ‘Exposing children to domestic and family violence’ – ‘Firearm’ – ‘Manifest excess’ – ‘Physical abuse’ – ‘Protection order’ – ‘Separation’ – ‘Sexual abuse’ – ‘Strangulation’ – ‘Suicide threat’ – ‘Threats to children’ – ‘Threats to kill’ – ‘Weapons’

Charges: 3x common assault, 2x wilful damage, 1x strangulation in domestic setting, 2 x assault occasioning bodily harm, 1x rape, 3x dangerous conduct using a weapon (all domestic violence offences except 1 x assault occasioning bodily harm).

Proceedings: Appeal against sentence.

Grounds: The sentence was manifestly excessive.

Facts: The applicant was sentenced to nine years imprisonment for rape and lesser concurrent periods of imprisonment for the remaining charges, being eligible for parole after serving 6 years. The applicant contended that the sentence was manifestly excessive.

The majority of the offending was committed against the applicant’s former partner over a 2.5-year period. During the relationship, the complainant had taken out protection orders against the applicant and he had been physically abusive, including incidents where he placed her in a headlock, choked her and punched her in the face.

The complainant left the family home after discovering that the applicant had been unfaithful. Following this, there was an incident where the applicant came to the complainant’s home and violently anally raped her, causing injury. Several months later the complainant asked the police to conduct a welfare check on the applicant. He then came to her house with a gun, aiming it at their two young children and threatening to shoot her, the children and himself.

Reasoning and decision: Appeal dismissed.

Boddice JA (Mullins P and Flanagan JA agreeing) held that the sentence was not unreasonable or unjust given the ‘depravity and persistence’ of the offending [31], which occurred over a significant period and included serious violence, protracted rape and aiming a loaded weapon at very young children. The authorities supported the sentencing judge’s observation that protracted rape would in itself attract a 10-year head sentence, using the case of R v TAQ [2020] QCA 200 as the most helpful yardstick but noting its distinguishing features. Boddice JA concluded that the period of actual custody reflected the criminality of the applicant, particularly the need for deterrence and denunciation in relation to the threats to the children [30].

R v SDI [2023] QCA 67 (18 April 2023) – Queensland Court of Appeal

‘Attempt to pervert the course of justice’ – ‘Circumstantial evidence’ – ‘Evidence’ – ‘Evidence of monitoring’ – ‘Evidence of stalking’ – ‘Evidence of technology-facilitated abuse’ – ‘False complaints’ – ‘Following, harassing and monitoring’ – ‘Inference drawn from nature of searches’ – ‘Judicial notice’ – ‘Judicial notice that mobile phones and laptops are prima facie accurate’ – ‘Rebuttable presumption of the accuracy of 'notorious' technical instruments’ – ‘Stalking’ – ‘Technology facilitated abuse’

Proceedings: Application to adduce further evidence, appeal against conviction for stalking.

Charges: 1x stalking, 1x attempting to pervert the course of justice.

Grounds of appeal:

1.

Verdicts unreasonable or unsupported by evidence

2.

Error in law in admitting documents

3.

Error in law in directing that it was open to find that the appellant caused ‘detriment’

4.

Error in fact in finding without evidence that the appellant and complainant had been married, renewed their lease and other matters

5.

Error in law by failing to rule on admissibility of two exhibits

6.

Denial of fair trial in refusal to adduce evidence

Facts: The complainant woman and defendant man were married but after the relationship deteriorated the complainant left the family home with their son and her daughter from a previous relationship. The defendant was alleged to have made intimidating phone-calls to the complainant, followed her, made false complaints and accusations, and the complainant also alleged the defendant planted drugs in her car.

(The attempt to pervert the course of justice conviction was not in question on appeal. Whilst in custody the defendant had made a number of phone calls to his brother and a friend (“Arunta calls”) asking them to contact a number of people and request those people provide false statements/statutory declarations admitting responsibility for the Crime Stoppers and PoliceLink submissions in order to assist him get bail and to support his acquittal [5].)

The admissibility of Exhibits 5 and 42 were central to the appeal. Exhibit 5 was a screenshot of the daughter’s computer screen showing that the respondent’s iPhone was synched with her Gmail account. Exhibit 42 was a series of printouts from the search history on the daughter’s Gmail account, including ‘how to pay to find someone,’ ‘what will happen if I take my children against a court order?’ and ‘mobile phone locater.’

Decision: The application to adduce further evidence refused; appeal dismissed.

Morrison JA (Mullins P and Flanagan JA agreeing), held that while neither of exhibits 5 and 42 could establish that it was the appellant who synchronised the phone or conducted the searches, this did not make them inadmissible [43]. The exhibits were at least admissible as visual records of what the complainant said she saw on the screen (R v Sitek [1988] 2 Qd R 284) [44]. Additionally, Exhibit 5 was admissible for the purposes of showing that one device was synchronised with another [45].

The trial judge’s use of Exhibit 42 was restricted to the searches where the only reasonable inference was that the appellant had conducted them [62] and that even had it been wrongly admitted there was no basis for finding a miscarriage of justice as it only affected one act of stalking [63]. While the appellant submitted that the complainant had fabricated the screenshot, this was not put to the complainant during cross-examination and in the circumstances there was a strong inference to be drawn from the nature of the searches that they were conducted by the appellant [116].

Consideration was also given to the rebuttable presumption of the accuracy of ‘notorious’ technical instruments, amounting to judicial notice of the fact that a device that is generally used and known to be trustworthy is prima facie accurate (Bevan v the State of Western Australia [2010] WASCA 101) [30]. Mobile phones and laptops were said to fall into this category and there was no evidence suggesting the complainant’s computer or her daughter’s iPad were other than accurate and trustworthy. The exhibits were therefore admissible as circumstantial evidence going to the question of whether the appellant had synchronised the phone and Gmail, and whether the appellant had conducted the searches [48].

The submission that no ruling on Exhibit 5 was made was said to be a misstatement as the trial judge had proceeded on the basis that the exhibit was to be admitted as record of what the complainant had seen on the computer and noted a reservation that the defence might wish to argue what it proved [53]. The appellant was also found to be bound by the defence counsel’s agreement that the admissibility of Exhibit 42 be deferred to the end of trial.

The appellant’s attempts to adduce further evidence were refused as they could have sought to adduce the evidence at trial and the evidence amounted to no more than a general attack on the complainant’s credit and therefore would not have affected the outcome.

R v Robbins [2023] QCA 18 (17 February 2023) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Dated allegations of historical violence’ – ‘History of violence to third party’ – ‘Murder’ – ‘Partial defence of killing for preservation in an abusive domestic relationship’ – ‘S304b criminal code (qld)’ – ‘Siblings’ – ‘Verbal abuse’

Proceedings: Appeal against murder conviction.

Grounds: The trial judge erred in not directing the jury in relation to the partial defence of killing for preservation in an abusive domestic relationship (s304B Criminal Code (Qld)).

Facts: The male appellant and homicide victim were brothers. The victim, his partner and the appellant’s daughter had come to stay with the appellant and his fiancée prior to the appellant’s wedding. During the course of dinner at the appellant’s home, an aggressive verbal argument broke out between the appellant and victim. At one point, the victim asked the appellant’s fiancé if she was really marrying the appellant and she responded that she wouldn’t if he continued to behave this way.

The appellant told the victim and his partner to leave and made further abusive comments towards the victim, apparently angered by his comment to his fiancé. They broke into a physical confrontation and both parties threw punches. During the struggle, the appellant grabbed a knife and stabbed the victim seven times. He died of knife wounds the following day.

The appellant gave evidence that the victim had been an abusive family member, making allegations of witnessing 3 separate assaults against his father. He contended that the victim had been verbally abusive towards the appellant, his father and other brother throughout his life.

Reasoning and decision: The partial defence did not arise fairly on the evidence; appeal dismissed.

A history of domestic violence in the relationship was required, necessitating a previous tendency by either party to engage in acts of serious domestic violence repeatedly or habitually against the other ([30]). The appellant’s claims regarding the victim’s past behaviour lacked an evidentiary basis and any available evidence did not clarify the nature of his conduct.

The age of the alleged incidents involving violence towards their father (occurring over 40 years ago) and fact that the conduct was not targeted at the appellant meant they did not support a history of an abusive relationship between the brothers. While it was possible for actual or threatened violence to a third person to be domestic violence against the second person in certain narrow circumstances, these were clearly not made out.

A ‘bare statement’ that verbal abuse had occurred was not enough to find family violence [39]. Repeated, habitual oral statements in certain circumstances could constitute domestic violence but this would require detail and evidence of impact. Additionally, verbal abuse was not found meet the required threshold of ‘serious’ domestic violence.

R v KBB [2022] QCA 273 (23 December 2022) (23 December 2022) – Queensland Court of Appeal

‘Allegations of infidelity’ – ‘Appeal against conviction’ – ‘Evidence’ – ‘Jealous behaviours’ – ‘Non-fatal strangulation’ – ‘Past domestic violence’ – ‘Physical violence’ – ‘Propensity evidence’ – ‘S132b of the evidence act 1977 (qld)’ – ‘Similar fact evidence’

Proceeding: Appeal against conviction for 1x strangulation in domestic setting.

Facts: The male appellant was charged with 1x strangulation in domestic setting, 1x suffocation in a domestic setting and 1x assault occasioning bodily harm while armed against his female partner. He was convicted on the first charge and acquitted on charges 2 and 3.

The complainant gave evidence that the appellant accused the complainant of infidelity, and the complainant slapped the appellant. The appellant he grabbed the complainant by the hair and throat, threw her onto the bed and covered her nose and mouth. When the complainant tried to leave the house, the appellant grabbed her by the throat and hit her on the head with a glass, knocking her unconscious. Medical evidence of bruising around her neck and head was submitted and the complainant gave evidence of four previous instances of physical violence.

Grounds:

1.

The verdict of the jury was unreasonable in that it was inconsistent with the verdicts of acquittal.

2.

There was an error of law in the admission of evidence of prior acts of domestic violence to demonstrate his propensity to commit domestic violence (under s132B of the Evidence Act 1977 (Qld)).

Decision and reasoning: Appeal dismissed.

Ground 1: McMurdo JA held that it was open to the jury to accept the evidence supporting the complainant’s testimony for the first charge while determining that they required independent evidentiary support before being satisfied about her credibility in relation to counts 2 and 3.

Ground 2: McMurdo JA noted that s132B has a wide operation and that ‘[o]nce the evidence is relevant, it is admissible (under s132B) subject only to the discretion to exclude it on the ground of unfairness according to s130 (Qld).’ Propensity evidence was held to constitute a relevant use, there was no requirement to satisfy the Pfennig test (Roach v The Queen [2011] HCA 12 (4 May 2011)) and there was no argument as to unfairness under s 130 or a miscarriage of justice.

R v CCU [2022] QCA 92 (27 May 2022) – Queensland Court of Appeal

‘Absence of remorse’ – ‘Application for leave to appeal against sentence’ – ‘Attempt to pervert the course of justice’ – ‘Coercive control’ – ‘Manifest excess’ – ‘Physical violence and harm’ – ‘Stepchildren’ – ‘Strangulation’ – ‘Uncharged acts’

Charges: 5 x assault occasioning bodily harm; 1 x common assault; 1 x assault occasioning bodily harm, while armed; 7 x common assault (a domestic violence offence); 4 x assault occasioning bodily harm (a domestic violence offence); 1 x torture (a domestic violence offence); 2 x strangulation in a domestic setting; 1 x suffocation in a domestic setting; 1 x attempting to pervert justice (a domestic violence offence).

Case type: Application for leave to appeal sentence.

Facts: On the second day of trial, the applicant was sentenced after pleading guilty to 20 counts of violence perpetrated over eight years towards his then-partner, K, and her son. As a result of a plea bargain, three counts were withdrawn. The learned sentencing judge imposed a head sentence of six years imprisonment, declaring 53 days as pre-sentence custody, and set a parole eligibility date at two years and four months from the date of sentence. The applicant’s offending was described by the learned sentencing judge as “violent, demeaning and an appalling attempt to exercise power over K” ([34]).

Issue: Whether the learned sentencing judge erred in taking into account the applicant’s uncharged acts? Whether the sentence was manifestly excessive?

Held: In sentencing the applicant, the learned sentencing judge considered his late guilty pleas, his absence of remorse and lack of relevant criminal history, his age at the time of offending, the nature of the offending, the significant effect that the conduct had on K, her son and daughter, his background, the fact that the offences were domestic violence offences and the character references. His Honour also had regard to the fact that domestic violence crimes demean society and are to be condemned and denounced ([34]).

The Court of Appeal (Mullins, Morrison and Fraser JJA) refused leave to appeal. The applicant argued that the learned sentencing judge erred in taking into account the applicant’s uncharged acts, because, inter alia, the Crown’s statement of facts included uncharged acts that were serious and should not have been included. The first ground of appeal was rejected on the basis that:

•

The statement of facts tendered on the sentencing hearing was an agreed statement.

•

Reference to the transcript and sentencing remarks revealed that His Honour only sentenced the applicant for the offences charged.

The second ground of appeal was rejected on the basis that:

•

The offending was “protracted, violent, demeaning and controlling”. It extended beyond the complainant and some of the offending was committed in view of her children. Importantly, “it involved an ultimate degradation, the threat of elimination of life itself”, and was committed with a lack of insight and remorse ([58]).

•

The conduct can be considered worse, given that it was broken by periods of time, because the threat was “always there” ([59]).

•

The applicant attempted to pervert the course of justice to protect himself from exposure to criminal charges ([61]).

R v GBI [2022] QCA 28 (7 March 2022) – Queensland Court of Appeal

‘Accusations of infidelity’ – ‘Application for leave to appeal against sentence’ – ‘Jealousy’ – ‘Physical violence’ – ‘Sentencing’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Torture’ – ‘Weapon’

Charges: Assault occasioning bodily harm x 1 (count 1), torture x 1 (count 2).

Proceedings: Application for leave to appeal against sentence.

Issues: Whether the sentence was manifestly excessive.

Facts: The male applicant and female victim were in an intimate relationship. The charges arose out of two separate assaults. During the first, the applicant punched the victim in the face. During the second, the applicant subjected the victim to several violent assaults over a 48-hour period. The assaults included kicking and punching in the face and stomach, stabbing with scissors, verbal abuse that included threats against the victim’s life, and repeated strangulation. The victim sustained serious physical and psychological injuries. The assaults accompanied accusations of infidelity by the applicant, who expressed feelings of jealousy on both occasions. The applicant pleaded guilty to the charges and was sentenced to 18 months’ imprisonment on count 1 and six and a half years imprisonment on count 2. The applicant sought leave to appeal on the ground that his sentence was manifestly excessive.

Decision and reasoning: The appeal was rejected.

Justice Morrison found that the matters raised by the applicant as demonstrating manifest excess had been considered by the sentencing judge. These matters included the applicant’s ‘remorse’, ‘good custodial behaviour’, ‘father’s poor health’, child support obligations, debts owed to his employer, ‘limited use of weapons’, the fact that the victim’s injuries did not require ongoing treatment, and the reduction in risk by a DVO and because the relationship had ceased. His Honour affirmed the sentencing judge’s conclusion that these matters did not warrant a further reduction in the sentence to be imposed, nor justify a finding that the risk of reoffending was reduced.

R v Lewis; Ex parte Attorney-General (Qld) [2022] QCA 14 (15 February 2022) – Queensland Court of Appeal

‘Appeal against sentence’ – ‘Assault’ – ‘Burning threat’ – ‘Immolation’ – ‘People affected by substance misuse’ – ‘Victim impact statement’ – ‘Weapon’ – ‘Young people’

Charges: The domestic violence charges were:

1.

Common assault,

2.

unlawful assault occasioning bodily harm

3.

causing grievous bodily harm with intent (malicious act with intent) x 1 and

4.

Causing grievous bodily harm (in the alternative to count 3).

Proceedings: Appeal against sentence by Attorney-General.

Issues: Whether sentence manifestly inadequate.

Facts: The male respondent and female victim were in a two-year relationship that was characterised as ‘troubled’ and involving physical violence [2]-[4]. Both parties were users of methylamphetamine and were aged 17 at the time of the offences. On one occasion, the respondent threw petrol on the victim and threatened to set her on fire. On another occasion, the respondent threw a screwdriver at the victim, which was embedded in her hip [3]-[4]. In May 2016, during verbal argument, the respondent used petrol to set the victim on fire [5]. The respondent fled when confronted by a neighbour [14]. The victim required surgery and was hospitalised for four weeks. She was left with ongoing pain and nerve damage [22]. In January 2021, the respondent pleaded guilty to common assault (count 1) and assault occasioning bodily harm (count 2) and was found guilty in relation to causing grievous bodily harm with intent (count 3). He successfully appealed against conviction regarding count 3 but was later resentenced to nine years and six months’ imprisonment [30]. The Attorney General of Queensland appealed on the basis that that sentence was manifestly inadequate [57].

Decision and reasoning: Appeal dismissed.

Justices Sofronoff, Morrison and Flanagan affirmed the decision and reasoning of the sentencing Judge. Their Honours endorsed the sentencing Judge’s consideration of the appellant’s plea of guilty, expressions of remorse, insight, youth and disadvantaged upbringing [67]-[70]. Their Honours agreed with the sentencing Judge’s characterisation of the offending ‘horrendous and disgraceful offending’ and ‘abominable behaviour’ [39]-[40], with ‘devastating consequences’ for the victim that included ‘significant and life-long physical, mental and emotional difficulties’ [72]. Their Honours continued that the sentencing Judge had correctly stated that ‘the sentence had to be “just having regard to all of the circumstances”, but in particular to punish, express community denunciation, meet general and specific deterrence, provide community protection, but also, in light of the offender’s youth, have regard to his prospects of rehabilitation’ [73]. Their Honours concluded that there was ‘no demonstrated error of principle… the sentence imposed was one derived by a careful balancing of competing requirements in an overall integrated sentencing approach’ [75]. This approach ‘was in accordance with what this Court said in R v Free; Ex parte Attorney-General (Qld) [2020] QCA 58 was one of the available approaches, namely to sentence towards the top of the bounds of appropriate discretion and not reduce the parole eligibility date, rather than sentence towards the bottom and impose a serious violent offence declaration’ [75].

R v EQ [2021] QCA 257 (30 November 2021) – Queensland Court of Appeal

‘Appeal against sentence’ – ‘Bomb threat’ – ‘Breach of protection order’ – ‘Children’ – ‘Exposing children to domestic and family violence’ – ‘Following, harassing and monitoring’ – ‘Limited criminal history’ – ‘People affected by trauma’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Separation’ – ‘Technology-facilitated abuse’ – ‘Weapons’

Charges: Breach of protection order x 1, assault of police officer x 1, making a bomb hoax x 1, stalking x 1, common assault x 2.

Proceedings: Application for leave to appeal against sentence and resentence.

Facts: The male defendant and female victim were married for 17 years and had two school aged daughters. The family immigrated to Australia from Egypt in 2011. After the couple separated, a domestic violence order was served on the appellant that prevented him from contacting the victim. In February 2019, the appellant repeatedly texted the victim before confronting her and their daughters at an airport. The appellant argued with the victim, before threatening her and airport staff with a knife, fake bomb, and electric shock device [12]-[17]. The appellant later admitted to police that he had been tracking the victim’s movements [19]. The appellant pleaded guilty to the charges and received a sentence of 6 years' imprisonment, with a non-parole period of 2 years and 6 months.

Grounds:

1.

The sentencing Judge erred in law by wrongly limiting the use to be made of evidence of the applicant’s mental health;

2.

The sentence was manifestly excessive; and

3.

In sentencing the applicant for count 2, the learned sentencing Judge mistook the offence to which he had pleaded guilty.

Decision and Reasoning: Application for leave to appeal allowed, charge 3 dismissed, resentenced for charge 2.

Due to an administrative error the appellant was sentenced for an offence with which he had not been charged and to which he had not pleaded guilty [52]. Therefore, the proceedings had miscarried, and the appeal was allowed. As ground three was made out, the court allowed the appeal and proceeded to resentence the applicant for count 2 to 5 years imprisonment with and non-parole period of 2 years 6 months. Justices Sofronoff, Davis and Williams noted that the offending was serious, with significant impact on the commercial operations of the airport, the distress experienced by witnesses, and ongoing psychological suffering of the victim and her daughters [57]. Their Honours noted that there were mitigating circumstances, such as the appellant’s limited prior convictions, cooperation with police, early guilty plea, expression of remorse and low risk of reoffending [58]. Their Honours summarised the appellant’s psychological report, which included details of the applicant’s diminishing symptoms of anxiety and depression, and noted the relevance of mental impairment under s 16A(2)(n) of the Crimes Act 1914 (Cth) [59]-[61]. Their Honours found that there were no comparative sentences [64]. Their Honours considered the maximum sentence for the offence, the sentencing considerations in s 16A of the Crimes (Aviation) Act 1991.

R v Hartas [2021] QCA 178 (27 August 2021) – Queensland Court of Appeal

‘Appeal against sentence’ – ‘Arson’ – ‘Jealous behaviours’ – ‘People affected by substance misuse’ – ‘People with disability and impairment’ – ‘People with mental illness’

Charges: Arson x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The 27-year-old male applicant and female victim were in a 6-week relationship. Shortly after the relationship ended, the intoxicated applicant used a petrol bomb to set fire to cars owned by the victim and her partner. The cars were parked directly in front of the victim’s house, where the victim, her partner, and her 6-year-old daughter were sleeping. In February 2021, the applicant was found guilty of one count of arson, constituting a domestic violence offence, and sentenced to three years’ imprisonment with a non-parole period of 12 months [1]-[8]. The applicant’s psychological report detailed ‘a complex medical history’ and ‘significant psychological problems’, which included chronic pain due to a spinal condition, alcohol misuse and a ‘longstanding mood disorder’ [25].

Grounds:

1.

The sentencing Judge failed to give sufficient weight to the applicant’s personal circumstances, specifically those evidenced by his psychological report

2.

The sentence was manifestly excessive [9].

Decision and Reasoning: Application for leave to appeal dismissed.

Fraser, Morrison and Applegarth JJ held the sentence imposed was not manifestly excessive. The sentencing Judge had given appropriate weight to the applicant’s personal circumstances and mitigated the sentence accordingly [42]. The contents of the psychological report had not shown that the applicant’s mental state at the time of the offence or at the time of sentence warranted substantial weight according to R v Verdins [2007] VSCA 102 (23 May 2007).The applicant’s mental state did not reduce his moral culpability, nor make imprisonment more burdensome such that it ‘became an inappropriate vehicle for’ general deterrence and specific deterrence [40], and his physical condition did not make imprisonment ‘unduly onerous’ [41]. The offence was serious, as indicated by its maximum penalty of life imprisonment with the aggravating factor that it was a domestic violence offence [50]. The victim impact statement indicated serious psychological harm caused to the victim and her daughter [51]. Their Honours accepted the sentencing Judge’s characterisation as ‘an extremely serious act of domestic violence’ due to ‘its grave potential’ impact on ‘life and property’, and the psychological harm that it has caused the victim and her six-year-old daughter [51].

R v RBE [2021] QCA 146 (20 July 2021) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ – ‘Arson’ – ‘Arson threats’ – ‘Error of fact’ – ‘Inference as to motive’ – ‘Motive’ – ‘People affected by trauma’ – ‘People with mental illness’ – ‘Section 132c evidence act 1977’ – ‘Sentence’ – ‘Separation’ – ‘Suicide threats’

Charges: Arson of a dwelling x 1 (domestic violence offence).

Proceedings: Application for leave to appeal against sentence.

Facts: As the complainant woman and applicant man were separating the applicant threatened to burn down the former matrimonial home. A protection order was granted protecting the complainant. The applicant has a history of major depression and complex post-traumatic stress disorder. On the date of the offence the applicant sent text messages to his son saying “goodbye” and that the house was alight. He also attempted to call the complainant and sent messages to a friend who went to the house, observed smoke, spoke to the appellant who was inside and called emergency services, then unsuccessfully attempted entry. The appellant’s evidence was that his intention was to commit suicide, but he fled the burning home having changed his mind after an unsuccessful attempted suicide. The sentencing judge expressed the view that the appellant’s expressed motives of suicide were not credible, despite accepting evidence of ligature marks on his neck supporting the appellant’s evidence he had attempted to hang himself during the incident. The judge found the appellant was seeking attention and acted vindictively to hurt his wife. The prosecution made no positive submission on motive and had submitted that all three motivations were open on the facts, advancing suicide or attention-seeking but not vindictiveness.

Decision and Reasoning: Leave to appeal, appeal allowed, sentence varied by:

•

Substituting three (3) years imprisonment; and

•

Suspending the sentence forthwith for an operational period of three (3) years.

Burns J (Morrison and McMurdo JJA concurring):

[26] ….it was not for the sentencing judge to decide what inferences arose from the agreed facts and, having done so, her Honour erred (and in a critical way) by determining a fact that was not in issue between the parties. Indeed, the procedure for resolving disputed facts provided in s 132C of the Evidence Act was not even engaged, the prosecutor having made no positive allegation about motive.

R v FBA [2021] QCA 142 (16 July 2021) – Queensland Court of Appeal

‘Adequacy of jury directions’ – ‘Admissibility of evidence’ – ‘Allegations of infidelity’ – ‘Attempt to withdraw allegations’ – ‘Choking’ – ‘Evidence’ – ‘History of domestic and family violence’ – ‘Jury directions’ – ‘People affected by substance misuse’ – ‘Relationship evidence’ – ‘Robinson direction’ – ‘S132b(2) evidence act 1977 (qld)’ – ‘Strangulation’ – ‘Threats to kill’

Charges: Non-fatal Strangulation x 4.

Proceedings: Appeal against conviction.

Facts: The appellant and complainant were in a relationship but maintained separate residences. The complainant had been staying with the complainant for 3 days when the alleged incidents occurred. The appellant made allegations of infidelity against the complainant, and they argued about that and money, the appellant refusing to drive the complainant home despite her giving him money for fuel. The complainant gave evidence that the appellant accused the complainant of stealing from him and that in four discrete incidents of physical altercations he applied pressure to her throat so that she could not breathe. She also alleged he made multiple threats to kill her and members of her extended family, locked her in the house and that she escaped with assistance from others. She went to hospital and photographs were taken of marks on her neck which were not there prior to the incident. The complainant also gave evidence of two prior incidents of violence by the appellant towards her. The complainant admitted using methylamphetamine at the time of the incidents and to attempting to withdraw her complaints, stating the reasons given for the withdrawal were false.

Grounds:

1.

The learned trial judge erred, causing the trial to miscarry, in:

(a) failing to clearly direct the jury as to the identification, purpose, and use of relationship evidence;

(b) admitting the evidence of the complainant’s daughter that she had ‘seen bruises on mum’ (the year prior to the instant allegations) as relationship evidence.

2.

The complainant’s evidence required a ‘Robinson direction’ and the failure to direct in those terms caused a miscarriage of justice.

3.

The complainant’s evidence in chief was inaudible in parts, which in the circumstances of the trial, caused the trial to miscarry.

4.

When regard is had to all the evidence, the jury verdicts are unreasonable, unsafe and unsatisfactory.

Decision and Reasoning: Appeal dismissed.

Ground 1(a) – rejected - further direction on relationship evidence would not have assisted the defence case (Sofronoff P [11], McMurdo JA agreeing, Boddice JA dissenting – the second paragraph of directions on the use of relationship evidence gave rise to a real risk of impermissible propensity reasoning).

Ground 1(b) – dismissed –the evidence was plainly admissible and relevant (Sofronoff P [13], MdMurdo JA agreeing Boddice JA dissenting – the evidence was inconsistent with the complainant’s evidence the appellant was only violent towards her in 2019).

Ground 2 – dismissed – it was clear why a ‘Robinson direction’ (pursuant to Criminal Code, s632(3)) wasn’t given, firstly the defence did not request one, and secondly “There was nothing in the present case which would have suggested to the learned judge that the jury required specific assistance in order to assess the complainant’s credibility and/or to suggest that, in the absence of such assistance, there was a risk that the jury might be unable to appreciate some exculpatory factor.” (Sofronoff P [14], McMurdo JA agreeing).

Ground 3 – dismissed – in absence of complaint at the trial it is impossible to conclude based on the transcript that evidence was inaudible (Sofronoff P [16], McMurdo JA agreeing).

Ground 4 – dismissed – while there was good reason for the jury to carefully scrutinise the complainant’s evidence (her drug use and its affects on her mental health, inconsistencies in her evidence and her attempts to withdraw the charges) it does not follow that it was not open to the jury to find her evidence as to the allegations of choking to be credible and reliable, especially as it was supported by medical evidence of injuries consistent with the allegations and her timely complaint to police. (Boddice JA [89]-[91], Sofronoff P and McMurdo JA agreeing).

R v Blockey [2021] QCA 77 (21 April 2021) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ – ‘Manifest excess’ – ‘Manslaughter’ – ‘Parole eligibility’ – ‘Victims as (alleged) perpetrators’ – ‘Weapon’

Charges: Manslaughter (domestic violence offence) x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The male deceased had committed acts of domestic violence against the female applicant during their relationship. He was the subject of a domestic violence order. The applicant stabbed the deceased with a hunting knife. She pleaded guilty and was sentenced to 9 years imprisonment, with parole eligibility after 3 years and 9 months imprisonment.

Grounds of appeal: Whether refusal to give parole eligibility date at one third of the sentence rendered the sentence manifestly excessive.

Held: Leave to appeal against sentence granted. Appeal against sentence allowed. Parole eligibility date was set on 22 April 2021, rather than 22 January 2022.

The Court noted the sentencing judge’s remarks, including the relevance of the applicant’s history as a repeated victim of domestic violence in sentencing:

The sentencing Judge found that: “The fact that you were such a victim of domestic violence as well as a perpetrator of domestic violence is, to my mind, sufficient to enable me to reach the conclusion that it is not reasonable in the present circumstances to treat the fact that your offending was a domestic violence offence as an aggravating feature.

Nevertheless, the sentencing judge’s conclusion that “the applicant’s cooperation was tempered by her failure to provide any comprehensive, reliable detail concerning the stabbing” was inconsistent with the conclusion that there was insufficient evidence to find that “the applicant ‘engaged in consciously-informed obfuscation or denial’ designed to minimise culpability.” The applicant was under no obligation to provide a comprehensive, detailed account of the sequence of events concerning the stabbing. She accepted unlawfully causing the victim’s death by stabbing him when she pleaded guilty to his manslaughter.

In these circumstances, finding that the applicant’s cooperation in entering a timely plea of guilty was to be tempered by her failure to provide such an account of the stabbing was a misapplication of sentencing principles, particularly where there was an acceptance that the applicant was sincerely remorseful for her conduct. It was therefore necessary to re-sentence the applicant. Parole eligibility was fixed after having served 3 years of the sentence.

MS v Commissioner of Police [2021] QCA 31 (2 March 2021) – Queensland Court of Appeal

‘Application for leave to appeal against conviction’ – ‘Breach protection order’ – ‘Parenting orders’ – ‘People with mental illness’ – ‘Protection order’

Charges: Contravention of a domestic violence order (aggravated offence) x 1.

Proceedings: Application for leave to appeal against conviction.

Facts: A protection order prevented the male applicant from contacting, attempting to contact, or asking someone else to contact his female former partner except under strict circumstances. A Family Court order was also in place granting the mother sole parental responsibility for their child and restricting contact between the parties. The applicant breached the protection order by sending an email addressed to a number of people including his former partner and solicitor titled, “[The child] need to know about my mental health diagnosis.” The applicant was sentenced in the Magistrates Court to 6 months imprisonment, suspended after 2 years. The applicant’s appeal to the District Court was dismissed.

Grounds of appeal:

1.

The primary judge erred in not allowing the appeal based on the existence of parental responsibility in the applicant’s communications.

2.

The primary judge erred in not applying s 24 of the Criminal Code (Qld).

Held: Application for leave to appeal was refused. There was no inconsistency: condition 6 of the protection order did not preclude the application of the exception in paragraph 18 of the Family Court order. The email was appropriately characterised as not for the “sole purpose of communication regarding parental responsibility,” and did not fall within the condition/exception in the protection order and Family Court order. On that basis, there was no room for the operation of s 24 of the Code which could not apply to a mistake by the applicant in the interpretation of the Family Court order.

R v Luxford [2020] QCA 272 (4 December 2020) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ – ‘Choking’ – ‘Controlling, jealous, obsessive behaviours’ – ‘Damaging property’ – ‘Following, harassing and monitoring’ – ‘People affected by trauma’ – ‘People with disability and impairment’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Post-traumatic stress disorder’ – ‘Protection order’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Weapon’

Charges: Choking, suffocation or strangulation in a domestic setting x 2; Assault occasioning bodily harm (domestic violence offence) x 8; Threat of actual bodily harm (domestic violence offence) x 1; Common assault (domestic violence offence) x 2; Wilful damage (domestic violence offence) x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The applicant man spent 15 years in the army, with several overseas deployments. He left on medical grounds with a shoulder injury, chronic pain, tinnitus and post-traumatic stress disorder, and was awarded compensation. He had no prior criminal history (except for a failure to secure storage of weapons charge in 2017). He participated in a Men’s Behavioural Change Program, and was accepted into a program to treat PTSD. The applicant pleaded guilty and was sentenced to a period of three years and six months imprisonment for the most serious offences on the indictment (choking, suffocation or strangulation in a domestic setting x 2, Counts 12 and 13), to be served concurrently with the remaining sentences. The date for parole was fixed at 29 September 2021. The expiry date for a protection order granted to the complainant in 2017 was extended to 7 October 2025.

Grounds of appeal: The sentence was manifestly excessive as the applicant was required to serve actual time in custody.

Held: The sentencing judge erred in the imposition of a sentence that required actual custody, and the applicant was re-sentenced.

The court held that the applicant’s offending could not be separated from his PTSD and also his PTSD caused custody to be a greater burden on him. While the sentencing judge applied the principles in R v Rix [2014] QCA 278 where the reduction in moral culpability due to an offender’s PTSD was taken into account, the sentencing judge failed to recognise in the sentence that a custodial sentence would have a hasher effect on him than a person not suffering PTSD. The sentence did not give sufficient weight to both factors relevant in the applicant’s case due to his PTSD (at [38]).

To reflect the gravity of the offending, the most serious offence was choking causing the complainant to lose consciousness (see R v MCW [2018] QCA 241) (Count 13), a higher head sentence of 4 years imprisonment was imposed to accommodate a sentence structure that provided for the applicant’s immediate release from actual custody. This reflected the totality of the offending, but adjusted in recognition of the effect of the PTSD as a cause of the offending. For the choking that lasted three seconds, a sentence of 2 years and 6 months imprisonment was imposed (Count 12). The effect of the applicant’s PTSD was further accommodated by suspending the sentence on Count 13 after 60 days and releasing him at the same time on parole for other offences (parole for 2 years and 4 months to provide supervision in the community). Supervision on parole was to ensure the applicant continued to access counselling and other treatment for his PTSD (at [39]).

R v Thomas [2020] QCA 236 (30 October 2020) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Application to adduce further evidence’ – ‘Evidence’ – ‘Intent’ – ‘Murder’ – ‘Provocation’ – ‘Strangulation’

Charges: Murder x 1.

Proceedings: Appeal against conviction; application to adduce further evidence.

Facts: The appellant man was found guilty of the murder of his female partner following a trial confined to the issue of intent. On 24 October 2015, the victim was found with injuries to her neck consistent with strangulation and rib fractures consistent with resuscitation or blunt trauma. Evidence at trial included: evidence from several of the victim’s former partners and her aunt; records of text messages/phone calls between the appellant and the victim commencing on 9 May 2015 (showing a volatile relationship); the appellant arranging to purchase a flight ticket overseas after the victim’s death; the appellant’s confession he killed the victim to a friend (that he had been humiliated and had “grabbed her and…squeezed”, accompanied demonstrating use of two hands); and evidence from a forensic pathologist of the victim’s injuries.

Grounds of appeal:

1.

The trial judge erred in law by admitting exhibit 41, which contained six inadmissible photographs, causing a miscarriage of justice.

2.

The trial judge failed to direct the jury as to how exhibit 41 could be used, thus creating the danger of impermissible reasoning by the jury.

3.

The trial judge failed to direct in relation to motive.

4.

The verdict was unreasonable and cannot be supported by the evidence.

5.

The trial judge failed to leave the partial defence of provocation.

6.

The trial judge’s failure to direct the jury in relation to opinion evidence may have caused a miscarriage of justice.

7.

A collation of faults caused the trial to miscarry.

Held: The appeal was dismissed.

Grounds 1 and 2: Exhibit 41 (photographs of bruising suffered by the victim in November 2014, identified by a former partner of the victim) was tendered by the prosecutor at the request of the appellant’s trial counsel for a forensic purpose. The fact that the appellant’s counsel abandoned the forensic purpose he had in mind for exhibit 41 did not mean that the evidence became prejudicial ([32]-[38]).

Ground 3: The trial judge did not fail to give a direction concerning motive which was requested by the appellant’s counsel, stating in summing up: “Any positive evidence that the defendant lacked a motive to cause [Jane’s] death or to do her grievous bodily harm is also relevant. It would be another circumstance to be taken into account in his favour in a case based on circumstantial evidence” ([39]-[42]).

Ground 5: The trial judge did not err in failing to leave open to the jury the partial defence of provocation (where the act was caused “in the heat of passion caused by sudden provocation…before there is time for the person’s passion to cool”). First, the appellant’s trial counsel expressly disavowed reliance on provocation, making it clear that the only live issue was intention. Second, there was no evidence of acts of provocation which might have led to loss of self-control. The evidence did not show any particular link between the alleged humiliation and strangulation. Third, there was no evidence to suggest provocation would have caused a loss of control in a reasonable person ([43]-[48]).

Ground 6: There was no merit in the appellant’s contention that evidence from the victim’s aunt that “whether she was an alcoholic or not…she didn’t deserve…what she got” may have introduced factors of prejudice or emotion to the jury, or influenced their decision, and the trial judge should have directed the jury to disregard those claims. The jury would not have been concerned that the victim’s aunt made a personal comment, and no direction was sought by the appellant’s counsel ([49]-[53]).

Ground 7: None of the failures of defence counsel to object to the prosecution’s case demonstrated that defence counsel’s conduct denied the appellant a fair trial ([54]-[62]).

Ground 4: The principles relevant to the role of the appellate court, and pre-eminence of the jury were recently re-stated in Pell v The Queen and R v Baden-Clay. There was ample evidence (from the pathologist and the appellant’s friend) to support the jury’s conclusion that when the appellant squeezed the victim’s neck, he did so with the intent to kill or cause grievous bodily harm. He applied pressure to her neck, and with two hands. In particular, “[t]he level of force necessary, the length of time it was applied for, the fact that the fingers moved around and the fractures to the neck all provide a foundation to infer the requisite intent”. It was open to the jury to be satisfied beyond reasonable doubt of the defendant’s guilt of murder ([63]-[71]).

The appellant’s application to adduce fresh evidence was refused. The evidence requested to be adduced would have been in the hands of the defence counsel at the time of the trial, or it was irrelevant ([72]-[76]).

R v TAQ [2020] QCA 200 (15 September 2020) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Application for leave to appeal against sentence’ – ‘Miscarriage of justice’ – ‘Sexual abuse’ – ‘Tendency/relationship evidence’

Charges: Common assault x 9; Assault occasioning bodily harm x 1; Assault occasioning bodily harm while armed x 4; Rape x 1 (Charge 15).

Proceedings: Appeal against rape conviction (Charge 15); Application for leave to appeal against sentence.

Facts: The female complainant was the male appellant’s former de facto partner. From 2006 the appellant became increasingly violent and controlling and committed numerous charged and uncharged assaults between 2006 and 2011. In October 2011, the appellant said to the complainant, “If you love me, darling, you’ll do it [anal]. If you don’t do it, I am going to turn you over and rape you”. The appellant then anally raped the complainant, after which he demanded oral sex and then hit her in the head. In December 2012, the complainant left the appellant but did not report the rape and assault to police until December 2016. In 2012, the appellant said to Mr P (a witness) that “he’d raped [the complainant]” and “if he didn’t get what he wanted, he’d take it”.

Grounds: (1) Mr P’s evidence of the conversation with the appellant should not have been admitted.

Decision and reasoning: Appeal against conviction dismissed. Appeal against sentence allowed due to a calculation error.

The prosecutor at trial argued that Mr P’s evidence that the appellant had said he’d raped the complainant could amount to an admission. The trial judge expressed doubt as to whether the jury could infer that it was an admission to the specific incident (Charge 15). In the summing up, the trial judge explained to the jury that Mr P’s evidence related more generally to “other incidents in which the [appellant] has through his actions, demonstrated a sexual interest in the complainant even when she is not consenting and was prepared to act on that interest” [28]. The respondent relies on R v Sakail [1993] 1 Qd R 312 as making the evidence of Mr P admissible on the basis that an admission to a rape which is not charged can be used as evidence of the nature of the relationship relevant to the charged rape:

[32] Where the act in issue for [rape] count 15 was the act of anal intercourse without the consent of the complainant, evidence of other sexual acts between the appellant and the complainant as a result of the appellant’s threats or without the consent of the complainant was evidence that could rationally affect the assessment of the probability of the occurrence of the anal rape, as described by the complainant. The direction given by the trial judge focused on the nature of the conduct to which the appellant admitted in his conversation with Mr P which was a willingness to act on his sexual interest in the complainant in the absence of her consent. The evidence of Mr P was admissible as relationship evidence that revealed a tendency of the appellant to engage in sexual acts with the complainant without her consent.

[33] The appellant does not succeed on the ground of appeal that Mr P’s evidence was inadmissible.

R v SDJ [2020] QCA 157 (24 July 2020) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Child victim’ – ‘Section 93a evidence act statement’ – ‘Stepchild in the family’ – ‘Strangulation’ – ‘Unreasonable verdict’

Charges: Common assault x 1 (DFV offence); Choking in a domestic setting x 1 (DFV offence).

Proceedings: Appeal against conviction.

Facts: The complainant (10 years old) was the male appellant’s stepson. The appellant kicked the complainant and hit him on the side of the face two or three times with an open hand. The appellant then choked the complainant with ‘a neck lock’. The complainant’s mother and a friend of the family witnessed the assault. The appellant gave evidence that he did not assault the complainant.

Ground: Verdict was unreasonable.

Decision and reasoning: Appeal dismissed. There were inconsistencies between the child complainant’s s93A Evidence Act statement (taken in a timely way after the incident) and the cross-examination (conducted 16 months after the incident) as during the latter the ‘complainant had little recollection’ of the events. However, this did not preclude the jury from relying on the s 93A statement, especially considering that the complainant’s statement was supported by evidence given by his mother and the family friend, as well as consistent medical evidence. Therefore, it was not unreasonable for the jury to find the appellant guilty.

R v Young [2020] QCA 140 (26 June 2020) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Inconsistent verdicts’ – ‘Non-fatal strangulation’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Reliability’ – ‘Temporary protection order’

Charges: Assault occasioning bodily harm whilst armed x 1; common assault x 1; choking in a domestic setting x 1

Case type:Appeal against conviction, application to adduce evidence on appeal

Facts: The appellant man was charged on indictment with one count of assault occasioning bodily harm whilst armed (Count 1), one count of common assault (Count 2) and one count of choking in a domestic setting (Count 3). The Crown entered a nolle prosequi in respect of Count 1. All counts were domestic violence offences against the appellant’s female domestic partner. The complainant’s evidence at trial was that it was a mutually abusive relationship against a background of excessive drinking. A temporary protection order was made against the appellant in favour of the complainant in 2017. In relation to Count 2, it was alleged that the appellant kicked the complainant on the legs, causing her to fall. With respect to Count 3, it was argued that he grabbed the complainant around the throat. A jury found the appellant not guilty of Count 2, but guilty of Count 3. He was sentenced to 2 years’ imprisonment, with the conviction recorded as a domestic violence offence.

Issue: The appellant sought leave to adduce further evidence and appealed his conviction on the basis that the verdict was unreasonable or could not be supported having regard to the entirety of the evidence. He also submitted that the evidence against him was unreliable, inconsistent and not capable of supporting a verdict of guilty on Count 3, and that there was no corroborative evidence in relation to the complainant’s allegations as to how the strangulation occurred. The Crown argued that whilst there were weaknesses in the complainant’s evidence in terms of her reliability, those factors were fairly outlined by the trial judge in the summing up, and that the complainant’s evidence was able to be supported by other evidence.

Held: The application for leave to adduce further evidence was refused, and the appeal against conviction was dismissed. The Court found that the jury was undoubtedly fully aware of the inconsistencies in the evidence ([99]). Taking into account all of the appellant’s arguments, there was nothing which led the Court to doubt the appellant’s guilt. It was open to the jury, on the whole of the evidence, to be satisfied of his guilt beyond reasonable doubt. The complainant’s account of the choking after a sustained argument in the kitchen was compelling ([102]). That account of the attack and the pressure she felt was substantiated by the medical evidence, which also indicated that the injuries were consistent with choking ([103]). Further, the evidence of witnesses was substantially consistent with the complainant’s account. Whilst there is "no requirement that a complainant’s evidence be corroborated before a jury may return a verdict of guilty upon it" (Pell v The Queen [2020] HCA 12 (7 April 2020), there was in fact strong corroborative evidence here. Despite some inconsistencies, particularly in relation to the time of the choking, the Court was satisfied that the jury acting rationally would not have entertained a reasonable doubt as to proof of guilt. Given the complainant’s level of distress at the time and her acceptance during the course of her evidence that her memory of some events of that day were unclear, a mistake as to the time the choking event occurred was understandable ([104]-[105]).

R v Castel [2020] QCA 91 (6 May 2020) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ – ‘Female perpetrator’ – ‘Manifestly excessive’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Remorse’ – ‘Weapon’

Offences: Manslaughter (domestic violence offence)

Proceedings: Application for leave to appeal against sentence

Issue: Whether the sentence was manifestly excessive.

Facts: The woman applicant and her husband and victim had been married since 2010. Throughout this time, they argued occasionally, particularly about the husband arriving home from work after 6pm. On the day of the offending, the husband arrived home after 8pm and an argument developed while the couple were in the kitchen. The applicant threw the husband’s laptop at him, then picked up a 20.5cm long kitchen knife and threw it at him from 2-3m away. It landed in his chest region and either he pulled it out or it fell out. The applicant immediately said she was sorry, used a towel to cover the wound and called 000. Despite medical intervention, the husband died. The applicant was sentenced to nine years’ imprisonment, with no fixed date for parole eligibility. She appealed against her sentence.

Judgment: The majority (Sofronoff P and Mullins JA) held that the head sentence of nine years’ imprisonment was not inappropriate, but that failing to fix an eligibility date for parole was "unreasonable or plainly unjust" and was manifestly excessive [38]. They emphasised that the applicant had no criminal history, showed immediate remorse for her conduct, entered an early plea of guilty and was not at high risk of reoffending, and therefore ordered that her sentence be mitigated by including a date for eligibility for parole that was one-third of the sentence in custody [38].

Mullins JA (with whom Sofranoff P agreed) further provided that "section 9(10A) of the [Penalties and Sentences Act 1992 (Qld)] is a legislatively prescribed aggravating factor that must be taken into account in arriving at the appropriate sentence for the offence of manslaughter that is a domestic violence offence, unless the exception within the provision due to the exceptional circumstances of the case applies" [35]. Section 9(10A) refers to offenders convicted of domestic violence offences. In such cases, the fact that the offence is a domestic violence offence is an aggravating factor that is added to the other aggravating factors and balanced with any mitigating factors [35].

Boddice J (dissenting) dismissed the appeal, holding that the applicant’s offending was "an extraordinary act of violence" and was a "very dangerous action" [42] that occurred in circumstances where the applicant was sober, sane, not provoked and not acting in self-defence [43]. He considered the applicant’s offending to be a very serious example of a domestic violence offence, making the circumstance of aggravation a very relevant factor in sentencing [44]. He contended that the aggravating factors outweighed any mitigating features [45] and that the sentence "fell within a sound exercise of the sentencing discretion" [46].

R v HBZ [2020] QCA 73(17 April 2020) – Queensland Court of Appeal

‘Animal abuse’ – ‘Appeal against conviction’ – ‘Application for leave to appeal against sentence’ – ‘Choking’ – ‘Non-fatal strangulation’ – ‘Step-children’

Facts: The appellant man was convicted of choking the female complainant in a domestic setting (domestic violence offence) (count 1) and common assault (domestic violence offence) (count 2) after trial before a jury in the District Court. He was sentenced to imprisonment for two years and six months on count 1 to be suspended after serving 15 months’ imprisonment for an operational period of three years. He was sentenced to three months’ imprisonment for count 2.

The appellant often stayed at the complainant’s home where she lived with her five children; the appellant was the father of the youngest child. The appellant and his dog were staying at the complainant’s home when the appellant’s dog urinated on the floor and the complainant asked her son to tell the appellant.

The complainant’s evidence in chief was that:

•

The appellant hit the dog on the floor, rubbed it’s face in the urine and told the complainant his abuse of the dog was her fault. She asked him to leave, locked him out and went into a bedroom. He let himself back in with a spare key.

Re Count 1:

•

She dialled 000 and then: "[The appellant] moved the camp beds and he grabbed me, and he grabbed the phone, and then he put his hands around my neck – his right hand, and then he pushed on my shoulder at the same time to knock me onto the bed, and then he pinned me to the bed with his hand to stop me from speaking. So when I first started speaking, I could ask for help, but then the words wouldn’t come out, and I struggled to breathe."

•

The appellant grabbed the phone and smashed it. The appellant’s right hand was almost in a "V" around her throat and "instead of squeezing, he just was on top of me and used his body weight as the force to stop me from speaking". She couldn’t speak, felt pains in her chest and had black spots in her vision. She asked him to stop 3 or 4 times before she ran out of breath. She could not breathe for probably 70 seconds. She asked him to call an ambulance because she couldn’t breathe. [5]

Re Count 2:

•

"He grabbed my shoulders. When I was having difficulty breathing before he left, he grabbed my shoulders and shaked me and…. he shook me so hard that I was just flicking back and forth, and I could feel my neck – like, the back of my head hitting the back of my shoulders…."

•

He gave her "a really, really tight hug" and grabbed her by the shoulders. She told him to leave and he left.

•

She made a video diary of the incident and her injuries.

In cross-examination:

•

"The complainant denied, when it was put to her, that after the incident she was having trouble breathing due to a panic attack."

•

When it was put to the complainant that the appellant did not have his hand on her neck or throat "that much" she disagreed; "He pushed the air out of me and I thought I was going to die." [10]

•

She recorded in her video diary: "I’m finding it hard to breathe. I think it’s just a panic attack. Because he didn’t have his hand around my neck and throat that much." [11]

•

She did not call the ambulance immediately: "I was still having trouble breathing, which is why, on the video, I said I felt like I was having a panic attack during the video. Because I couldn’t understand, after his hand had been removed, why I was still having difficulty breathing.""[11]

•

She denied moving the camp beds into the bedroom after he left. [12]

Medical records included a note: "the patient states her partner pushed her onto the bed and strangled her with both hand pushing downwards then made multiple blows with fists to the shoulder and head. Patient unsure if knocked out."

In the complainant’s video record of interview he said there was a struggle for the phone. "He then sat down, gave her a big hug and got her to calm down. He denied choking her or trying to do that. He thought his thumb may have made contact with her during the struggle for the phone."[20]

Against the objection of defence counsel [21] the jury were given both a handout and direction in the terms: "‘Choked’ is an English word that bears its ordinary, everyday meaning – that is – ‘to hinder or stop the breathing of a person’."[20] Defence counsel argued there was only one definition given to the jury whereas dictionaries gave various definitions. [23]

Grounds: The grounds of appeal against conviction were:

1.

the learned trial judge erred in the direction given to the jury on the definition of choking;

2.

the appellant was deprived of a fair trial, because of the manner in which the allegations of fact in count 1 were particularised;

3.

the verdicts on counts 1 and 2 were unreasonable and cannot be supported, having regarded to the evidence.

The sole ground of the application for leave to appeal against sentence was that the sentences were manifestly excessive.

Held:

1. Appeal against conviction dismissed.

Ground 1: Mullins JA considered the construction of s 315A Criminal Code (Qld) in light of s14A Acts Interpretation Act 1954 (Qld) and the purpose given for the introduction of the offence in the relevant Bill Explanatory Notes referring to recommendation 120 of the Special Taskforce on Domestic and Family Violence (Queensland) in its Report Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland.

"In order to amount to choking, there must be some pressure that results at least in the restriction of the victim’s breathing. As the evidence in this trial illustrated, there were overt signs in the consequences the complainant described of her struggle to breathe, her inability to speak, the black dots in her vision, the pain in her chest, and her feeling disoriented from which it could be inferred there was some restriction of her breathing, as a result of the appellant’s hand around her neck. The consequence of the restriction of the complainant’s breathing was not a separate element of the offence, but the evidence required to prove the act of choking."

The direction given by the trial judge on the meaning of "choked" was correct. It was a direction on the law. The meaning of the word "choked" for the purpose of count 1 was a matter of legal interpretation and it was appropriate that the judge directed the jury to apply the meaning "to hinder or stop the breathing of a person"." [58]-[59]

Ground 2: The appellant’s argument was that as the particulars specified alternative conduct for each count they failed to sufficiently inform him of the case against him (Count 1: "stopped and/or hindered [the complainant’s] breathing and, in doing so, choked her"; Count 2: "shook and/or applied force to [the complainant’s] shoulders and, in doing so, he unlawfully assaulted her" [60]). The complaint re Count 1 was resolved by the conclusion as to meaning of "choke" re ground 1; it was sufficient that the jury be satisfied the complainant putting his hand around her neck hindered her breathing [62]. There was no substance to the complaint re Count 2 [63].

Ground 3: The jury were given extensive and appropriate directions that they could not convict unless satisfied beyond reasonable doubt that the complainant was "a reliable and truthful witness"… "that she was choked by the [appellant] by him placing his right hand around her throat and squeezed in the way that she described" and similar directions were given re Count 2 [65]. The jury’s verdicts were not unreasonable [66].

2. Application for leave to appeal against sentence granted.

3. Appeal against sentence allowed.

The trial judge considered the sentencing decisions in R v MCW [2018] QCA 241 and R v MDB [2018] QCA 283. Mullins JA said: "Objectively, the appellant’s offending was less serious than the offending in MCW and MDB. The appellant also was younger than those offenders and without the relevant prior criminal history. It was therefore surprising that the prosecutor at the trial submitted to the trial judge that a sentence in the order of three years and six months or four years’ imprisonment was appropriate. It does not assist a sentencing judge, when the prosecutor’s submissions propose a sentence that is outside the proper exercise of the sentencing discretion for the offending committed by the particular offender." [71]

4. Set aside the sentence imposed at first instance for count 1 and, in lieu, the appellant is sentenced to imprisonment for a period of two years with the parole release date fixed at 5 June 2020.

5. The declaration as to pre-sentence custody and other orders made at first instance are confirmed.

R v Ridgeway [2020] QCA 38 (10 March 2020) – Queensland Court of Appeal

‘Alternative hypothesis’ – ‘Attempted murder’ – ‘Children’ – ‘Evidence’ – ‘History of abuse’ – ‘Jury directions’ – ‘Miscarriage of justice’ – ‘Misdirection or non-direction’ – ‘Motive’ – ‘Post-offence conduct as evidence of consciousness of guilt’ – ‘Separation’ – ‘Verdict unreasonable or insupportable having regard to evidence’

Charges: Attempted murder x 1 (aggravating circumstance of being a domestic violence offence).

Case type: Appeal against conviction

Facts: The appellant man was convicted of one count of attempted murder (domestic violence offence) and was sentenced to 10 years’ imprisonment with a non-parole period of 8 years. The appellant, an electronics engineer, was alleged to have attempted to murder his wife (the victim) by connecting a garden hose to a nitrogen gas cylinder which was then attached to the inside of the caravan where the victim slept. There was evidence that the appellant had motive to kill the victim because she was taking preliminary steps to divorce him and had demanded that he leave the matrimonial home. She had also left a will making him her beneficiary. In his police interview, the appellant denied knowledge of the contraption. At trial, however, he admitted that he constructed the contraption as a drainage system ([74]). Further, the appellant acknowledged his relationship difficulties with the victim and told police that they had an argument concerning their daughter. According to the victim, that argument led to the appellant pushing her against a wall while threatening to punch her. As a result, she called the Domestic Violence Hotline.

In summary, the appellant’s case was that the Crown had failed to exclude the hypothesis that the victim had constructed the apparatus, because there was evidence that:

•

She had a motive to implicate her husband falsely in a murder attempt.

•

The appellant must have appreciated that the apparatus could not have killed his wife.

•

The contraption was ineffective to kill.

Issue: The appellant appealed against conviction. He submitted that the guilty verdict could not be supported by the evidence or was unreasonable ([52]) (Ground 1). He also claimed that the trial judge failed to direct the jury that an essential step in the chain of reasoning was that the appellant believed that introducing nitrogen into the caravan would kill his wife ([97]) (Ground 2), and complained about the trial judge directions as to the use of post-offence conduct as proof of his intention ([107]) (Ground 3). His appeal also included the claim that there was a failure to distinguish attempted murder from other offending based on the same physical acts, but with different mental elements, which might have explained the post-offence conduct ([114]) (Ground 4).

Held: All four grounds of appeal were dismissed. Sofronoff P (with Philippides JA and Flanagan J agreeing) noted that it was open to the jury to reject the appellant’s explanation for constructing the contraption. His credit was impaired by his failure to offer this explanation when first interviewed by police. Further, the verisimilitude of his explanation was reduced by the uselessness of the contraption as a drainage system, and the inconsistencies in his reasons for erecting the drainage system. The jury was therefore entitled to accept the victim’s evidence and be satisfied beyond reasonable doubt that the appellant constructed the apparatus to deliver gas into the caravan in which his wife was sleeping ([81]-[82]). The evidence that the victim had informed the appellant that she wanted a divorce, together with the evidence of lies to police, supported a conclusion that the appellant believed that he had built a system that would be effective to kill ([88]). His Honour therefore held that the jury could be satisfied beyond reasonable doubt of the appellant’s guilt.

As to the second ground of appeal, the appellant was unable to establish a miscarriage of justice by merely asserting that the trial judge miscarried through a lack of proper directions about proof of the appellant’s intention ([106]). A redirection was not sought ([101]). Whilst the trial judge did not identify the series of evidentiary steps that the jury could take to find guilty intent, doing so would have assisted the prosecution, not the defence ([106]).

Further, the appellant submitted that there was an alternative hypothesis that he had set up the apparatus to harass his wife, and therefore, his post-offence conduct was indicative of his sense of guilt for trying to harass her ([109]). This submission failed because harassment by the use of nitrogen, as an alternative hypothesis, did not arise as an issue in the case ([110]).

Ground 4 was also rejected. Citing R v Baden-Clay, the Court stated that "it is not necessary for a jury to consider a hypothesis which was not put to it for tactical reasons, which is directly contrary to the evidence that the accused gave at the trial and which is directly contrary to the way in which the accused’s counsel conducted the defence". Any intention on the appellant’s part to do anything other than kill his wife or drain water did not arise on the evidence and did not have to be considered ([120]).

R v Toweel [2019] QCA 303 (20 December 2019) – Queensland Court of Appeal

‘Children’ – ‘Evidence issues’ – ‘Jury directions’ – ‘Physical violence and harm’ – ‘Prior acts of domestic violence’ – ‘Propensity evidence’ – ‘Strangulation’

Charges: 1 x unlawful strangulation; 1 x unlawful assault

Case type: Appeal against conviction

Facts: The appellant was charged with 2 offences, committed on the same day against a woman (the complainant) with whom he was in a domestic relationship and had a child. Count 1 involved the appellant strangling the complainant ‘really tight’ for a period of about 15 seconds, stopping only when their son fell from a couch. Count 2 occurred shortly afterwards. The appellant grabbed the complainant’s hair and repeatedly said ‘bitch’ while she held their son. The appellant then destroyed her phone ([4]-[5]). The complainant also gave evidence of 5 previous incidents of domestic violence ([11]-[17]); however, the appellant did not give or call evidence ([18]). The jury convicted the appellant on both counts.

Issue: The issue for the Court was whether the appeal against the convictions should be allowed. The appellant appealed against each conviction on the ground that the trial judge wrongly admitted evidence of prior acts of domestic violence by him against the complainant. He also appealed against the conviction on the strangulation charge on the ground that the verdict was unreasonable.

Held: The Court dismissed the appeal. The evidence summarised at [4]-[18] was admitted under s 132B(2) of the Evidence Act 1977 (Qld). The question for the Court was whether the admission of the evidence resulted in a miscarriage of justice ([34]). The Court held that the evidence of prior events was relevant to establish that the alleged offending did not occur randomly and to demonstrate the nature of the relationship between the appellant and complainant. To minimise any risk of the jury engaging in propensity reasoning, the trial judge warned them that they were not to use the evidence as demonstrating the appellant’s propensity to commit similar offences ([37]-[38]). Overall, the jury directions avoided the misuse of the evidence, and no miscarriage of justice was caused by its admission ([40]).

Vital v DPP (Qld) [2019] QCA 290 (6 December 2019) – Queensland Court of Appeal

‘Appeal’ – ‘Assault’ – ‘Bail’ – ‘Physical harm and violence’ – ‘Separation’ – ‘Weapon’

Charges: Murder x 1; assault occasioning bodily harm while armed and in company x 1; burglary at night x 1; common assault x 1; and robbery with personal violence as a domestic violence offence x 1.

Proceedings: Appeal against refusal to grant bail.

Facts: The accused was a 19-year-old male with no prior criminal history. He was in an abusive relationship with the daughter of a man he was charged with murdering at the time of offending.

On the day of the offending, the daughter told the accused their relationship was over. That night, the appellant was in the daughter’s bedroom when she came home but was asked to leave by her flatmate. After leaving the apartment he began to make a nuisance of himself, causing the flatmate to call the daughter’s father (the victim) who soon arrived with another man. The appellant fled by car with his companion and was followed by the victim and the other man. The appellant eventually stopped the car and his companion went onto the road and took out a pistol which he pointed at the victim’s car. The victim’s companion approached the appellant, who was still in the car, and began to punch the window.

The appellant’s companion hit the victim with his pistol and knocked him unconscious. This blow ultimately killed the victim. The appellant and his companion then took off, briefly returning to the daughter’s home and punching her two or three times in the face before fleeing again.

The appellant submitted that the judge who refused his bail application ‘must not have given consideration to the appellant’s youth, his lack of criminal history and, as the appellant asserts, the weakness of the Crown case against him, the weight that these matters deserved’. He submits that it should be inferred that Justice Davis made an error, and in oral argument, he has also submitted, that Justice Davis must have overlooked the extraordinary delay of about 18 months until there can be a trial in this matter. (per Soffronoff P at [7-8]).

Issue: Whether to grant leave to appeal.

Decision and reasoning: Sofronoff P stated that ‘in an appeal against a discretionary decision, it is not a valid ground of appeal to contend that the judge did not give sufficient weight to a relevant factor or gave too much weight to a factor. Weight is a matter for the decision-maker alone’ [7]. His Honour thus dismissed the appellant’s related claims.

The submission that the judge must have overlooked the delay was not accepted as a delay of that order was to be expected [12]. Furthermore, regarding the appellant’s claim of error, Sofronoff P concluded that ‘[i]n an application for bail, the appellant’s actions after he returned to Jane’s house could, on their own, justify a refusal of bail. When they are taken into account in a case in which the applicant is also awaiting trial for murder, refusal of bail can hardly be regarded as so unreasonable that an error of some kind in the judge’s reasoning has to be inferred. Yet that is what the appellant must show in order to persuade this Curt to disturb the decision of Justice Davis. In my view, he has failed to do so, and the appeal should be dismissed’ [13].

R v O'Malley [2019] QCA 130 (28 June 2019) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Domestic violence offence’ – ‘Dysfunctional upbringing’ – ‘People with disability and impairment’ – ‘Physical violence and harm’

Charges: 1 x manslaughter

Case type: Appeal against sentence

Facts: The applicant pleaded guilty to manslaughter by unlawfully killing the deceased, with whom he was in a domestic relationship for some 18 months. The applicant was sentenced to 11 years’ imprisonment. The conviction was declared to be a domestic violence offence and a serious violent offence.

The applicant told ambulance offices that the deceased fell off the toilet shortly before he had called them, and that she had also fallen in the shower the night before ([11]). However, a post-mortem of the deceased’s body revealed that the most likely cause of death was multiple injuries, including multiple rib fractures and liver lacerations. Such injuries were inconsistent with a fall in a shower, and were most likely to have resulted from a ‘focused and severe force, such as kicking or stomping’ ([14]). Although the applicant disagreed with the pathology report ([21]), his mobile phone records demonstrated that he knew the deceased had broken ribs ([22]). The agreed statement of facts recorded that the applicant was to be sentenced on the basis that he (1) unlawfully assaulted the deceased causing the injuries which led to her death; (2) kneed her to the stomach and to the back; (3) caused head and facial injuries; and (4) assaulted her in the past as evidenced by the facial bruising previously observed by witnesses and the healing fractures, which demonstrate that this was not an isolated violent incident ([24]).

Issue: The applicant filed an application for leave to appeal against his sentence on the ground that it was manifestly excessive, and wished to add an additional ground of appeal, namely, ‘that the learned sentencing judge erred in finding that his post-offence conduct demonstrated a complete disregard for the deceased and did not demonstrate remorse or concern for the deceased’ ([48]).

Held: The applicant’s antecedents and criminal history is discussed at [25]-[36]). The applicant has Aboriginal heritage. He also had a history of criminal offending, including convictions for breaking and entering, and property damage, and, most importantly, for offences against his former partner for property damage, common assault, contravention of a prohibition or restriction in an apprehended violence order, and use of a carriage service to menace, harass or offend. He claimed to have had a ‘socially deprived upbringing’ - his father was a ‘professional and serial criminal’ and his step-mother was emotionally abusive. His biological mother was not involved in his care due to very heavy alcohol dependency and abuse. He also claimed to have been sexually abused when he was 11 years old. Psychological testing suggested that the applicant’s intellectual level likely fell in the intellectually disabled range. A psychologist observed that his dysfunctional and abusive upbringing likely significantly influenced his offending behaviour.

The Court distinguished the present case from DeSalvo, Murray, West and Heazlewood where the courts did not consider a domestic violence offence ([89]). The applicant had a relevant prior criminal history, including convictions for prior domestic violence episodes, which distinguished him from the offenders in Sebo, Baggott, Pringle and Hutchinson ([91]). Given the ‘seriousness of the offending manifested by the brutality of the applicant’s assault and the relative defencelessness of the deceased, the applicant’s remorse after the assault, his timely plea of guilty, his antecedents, his deprived social upbringing, his intellectual disability and the state of his mental health, and bearing in mind the need for some personal deterrence due to his past domestic violence offences and his moderate risk of reoffending, the related need for community protection, and the importance of denunciation of domestic violence offences causing death’, the sentence imposed by the trial judge was just in all the circumstances, and thus stood as ‘the appropriate sentence for the offender and the offence’ ([95]-[96]). Consequently, leave to appeal against sentence was dismissed on both grounds.

R v Sprott; Ex parte Attorney-General (Qld) [2019] QCA 116 (14 June 2019) – Queensland Court of Appeal

‘Attempted murder’ – ‘Leniency’ – ‘Mitigating factors’ – ‘Sentencing’

Charges: Attempted murder x 2.

Case type: Appeal against sentence.

Facts: The respondent and his partner had an argument after the respondent came home from the pub. The respondent later walked to his mother’s house, where his mother lived with her partner, and violently assaulted them. The respondent’s mother suffered multiple injuries, including a fracture to her eye socket, while her partner suffered fractures, 2 broken ribs and an injured liver. The respondent pleaded guilty to 2 counts of attempted murder. Crow J, the sentencing judge, sentenced the respondent to 2 concurrent sentences of 9 and a half years imprisonment.

Issue: The Attorney-General appealed against the 2 sentences on the ground of manifest inadequacy. Key questions included whether Crow J gave appropriate weight to the mitigating and aggravating factors of the offence and the respondent’s personal circumstances, and whether a sentence below 10 years imprisonment for 2 counts of attempted murder was manifestly inadequate.

Held: The Court dismissed the appeal. Appellate intervention is not justified simply because the result is markedly different from other sentences that have been imposed in other cases ([15]). Rather, the Attorney-General was required to demonstrate actual error with Crow J’s reasoning.

The Attorney-General’s submissions included that the attacks were premeditated, that the respondent lacked remorse, that his guilty pleas were late, and that he carried out the offending while he was subject to a Domestic Violence Order ([20]). The respondent had previously assaulted his mother. It was submitted that the Crow J did not give these matters appropriate weight ([21]).

The Court noted that the case involved substantial mitigating factors that were personal to the respondent ([23]). The respondent’s current state of health was partly caused by his mother’s lifelong neglect of him, and was significantly exacerbated by both of his victims’ irresponsibility over the respondent’s son’s death, and by their callousness afterwards ([40]).

It was in these circumstances that Crow J viewed the respondent’s case as ‘far from general.’ The most relevant circumstance was the killing of the respondent’s son by the victims’ dog ([37]). The offending was motivated by the son’s death ‘in a most violent fashion’ ([35]). The Court held that it was open for Crow J to give substantial weight to the mitigating factors and, subsequently, impose a somewhat ‘lenient’ sentence. It was not for the Court of Appeal to substitute its own views about these matters ([41]).

R v Black [2019] QCA 114 (11 June 2019)– Queensland Court of Appeal

‘Children’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Rape’

Charges: Assaults occasioning bodily harm x 3; Rape x 1.

Case type: Appeal against conviction.

Facts: The appellant was found guilty of 2 counts of assault occasioning bodily harm and one count of rape. He was acquitted of another charge of assault. For the offence of rape, the appellant was sentenced to 5 years’ imprisonment, suspended after 27 months with an operational period of 5 years. He was sentenced to concurrent terms of 12 months’ imprisonment on the other counts.

The appellant and complainant were married and had 2 children when the offending allegedly occurred. They separated around one year later. The first count of assault occasioning bodily harm involved allegations that the appellant pushed the complainant against a staircase, verbally abused her, ripped off her clothes and grabbed her breasts. The complainant said that she suffered bruising as a result of this event. The second count involved allegations that the appellant unlawfully assaulted and caused bodily harm to the complainant by slamming a door closed, hitting her fingers. The appellant also allegedly raped the complainant. It was alleged that the appellant and complainant were on good terms for many years after the couple had divorced. The complaint was made to the police over 8 years after the alleged events occurred and at a time when the complainant and the appellant were in litigation about their children.

Issue: The appellant appealed against the convictions on the ground that the jury’s verdict was unreasonable having regard to the evidence.

Held: The appellant submitted that the complainant’s attitude towards the appellant after separation was not that which would be expected of someone who had suffered the conduct alleged ([24]). The Court held that the cordial relationship between the parties provided a substantial basis for challenging her testimony, and may have justified a reasonable doubt in the minds of the jury in relation to the count of rape ([35]).

However the question for the Court was whether it was open, on the whole of the evidence, for the jury to be satisfied of the appellant’s guilt, having regard to the advantage enjoyed by the jury over the Court, which had not seen or heard the complainant’s evidence being given ([36]).

Their Honours noted the importance of the timing of the complaint to police. While it strongly indicated that it was affected by the litigation between the couple about their children, it did not require the jury to have a doubt about the credibility of the complainant’s complaints. It was open to the jury to accept the complainant’s evidence, and the Court ordered the appeals against conviction to be dismissed ([37]-[38]).

R v ABE [2019] QCA 83 (14 May 2019) – Queensland Court of Appeal

‘Children’ – ‘History of abuse of accused’ – ‘People with disability and impairment’ – ‘Physical violence and harm’ – ‘Primary carer’ – ‘Stalking’

Charges: Stalking x 1 (Count 1); malicious act with intent x 1 (Count 2); grievous bodily harm x 1 (Count 3).

Case type: Sentence application and appeal.

Facts: The applicant experienced domestic violence from her husband (the complainant) from 2005. Cross-protection orders prohibited them from living together. The applicant arrived at the matrimonial residence with two children of the marriage. Her husband was residing at that residence. That night, the complainant sustained 4 stab wounds at the hands of the applicant. He also suffered 2 lacerations to the right hand that caused tendon and nerve damage. These events constituted Counts 2 and 3. The applicant and complainant were separated, and their severely disabled daughter, AA, was in hospital at the time of the offending. The applicant is her primary carer. The complainant for Count 1 was a family friend who was having an affair with the complainant.

The applicant pleaded guilty to the charges. She was sentenced to four months’ imprisonment for Count 1, and six years’ imprisonment with a parole eligibility date fixed after serving 15 months in custody for each of the other counts.

As the sentence for the stalking was already served, the purpose of the application was to review the sentence imposed for the other counts. The applicant applied for leave to appeal against her sentence on the basis that it was manifestly excessive and that the sentencing judge erred in failing to find that the circumstances of AA were exceptional and therefore justified a non-custodial sentence. The applicant also applied for leave to adduce further evidence, namely an affidavit from her adult daughter which detailed the care arrangements for AA since the applicant went into custody.

Issue: Whether the sentence was manifestly excessive; Whether the sentencing judge erred in failing to take into account the applicant’s disabled daughter’s needs.

Held: The appeal against the sentence was allowed, and the sentence was varied. Mullins J noted that the offences were committed in circumstances where the applicant was AA’s primary carer. When imposing an appropriate sentence, a balancing exercise needs to be undertaken which fulfils the purposes of ‘sentencing for serious offending involving premeditated use of a weapon to inflict injury in a domestic setting, but also [to] allow for the mitigating circumstances and particularly the applicant’s role in relation to the special needs of AA’. The period served in custody should be sufficiently long to reflect appropriate punishment for the crime, without separating the applicant from AA for any longer than is necessary ([47]). Her Honour held that, in light of AA’s needs, the custodial component of the sentence should have been reduced by a further period of 6 months. Therefore, the sentence was manifestly excessive to the extent of fixing the parole eligibility date after 15 months in custody rather than after a period of 9 months ([48]). Davis J and Sofronoff P agreed with the reasons of Mullins J. Citing R v Chong; ex parte Attorney-General (Qld) [2008] QCA 22, Davis J noted that although hardship to an offender’s family resulting from the offender’s imprisonment cannot override all other sentencing considerations, there will be some cases where family hardship results in a substantial reduction either in the sentence, or the period to be served before parole eligibility even where the offending is serious ([52]).

The Court also refused the application for leave to adduce further evidence because it was neither necessary nor expedient, in the interests of justice, to receive further affidavits of the adult daughter ([37]).

R v Lan [2019] QCA 76 (7 May 2019) – Queensland Court of Appeal

‘Attempted murder’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Self-serving statements’ – ‘Strangulation’

Charges: 1 x attempted murder

Case type: Appeal against sentence

Facts: The applicant was convicted on his plea of guilty of attempted murder (domestic violence offence) and sentenced to 9 years’ imprisonment with no further order ([1]). The applicant and complainant were involved in a relationship for approximately one year prior to separating, but remained friends. The offending conduct took place when the applicant attended the complainant’s unit. He made unwanted advances towards her, punched her and threatened to kill her. The complainant lost consciousness for a period and, upon regaining consciousness, saw the applicant standing over her with his pants and underwear down. He also strangled the complainant. The applicant later provided self-serving statements to the police which sought to blame the complainant for violent behaviour towards him ([3]-[13]).

Issue: The applicant sought leave to appeal against his sentence on the basis that it was manifestly excessive.

Held: The applicant made a number of written submissions in support of his application ([22]). He maintained that she had burned his face with a lighter ([23]), which was not part of the agreed statement of facts. He also asserted that the complainant suffered from a mental illness ([24]), and sought to minimise the seriousness of his conduct, which demonstrated a lack of remorse or insight ([25]).

The application for leave to appeal against the sentence for attempted murder was refused. Philippides and McMurdo JJA and Mullins J found that the applicant’s assertions conflicted with the agreed facts and partly reiterated the self-serving statements he made to police ([26]). Their Honours agreed with the respondent’s submissions that the sentence imposed was within the sentencing discretion and supported by authorities such as R v Sauvao, R v Ali, R v Seijbel-Chocmingkwan and R v Kerwin. After analysing these authorities at [28]-[31], their Honours found that they demonstrated that the 9 year sentence was within the sound exercise of the sentencing discretion ([32]).

R v Kau [2019] QCA 73 (3 May 2019) – Queensland Court of Appeal

‘Corroborative evidence’ – ‘Domestic violence offence’ – ‘Mistake direction’ – ‘Rape -sexual and reproductive abuse’

Charges: 2 x rape (domestic violence offence)

Case type: Appeal against conviction

Facts: The appellant was charged with 4 counts of rape, and convicted on 2 counts as a domestic violence offence. He was sentenced to 5 years’ imprisonment, suspended after 2 and a half years in custody. The complainant was the appellant’s wife. Counts 1 and 3 (subjects of the guilty verdicts) were particularised as vaginal rapes, while Counts 2 and 4 (subjects of the not guilty verdicts) were alleged anal rapes ([4]).

Issue: The appellant appealed against his conviction on 2 grounds ([5]):

•

‘The convictions should be set aside as unreasonable because the guilty verdicts were inconsistent with the not guilty verdicts on the other counts’;

•

‘There was a miscarriage of justice because the…trial judge ought to have directed the jury to consider whether they were satisfied beyond reasonable doubt that the appellant did not act under a mistake of fact as to the complainant’s consent on the two counts the subject of the guilty verdicts’.

Held: To succeed on the first appeal ground, the appellant must prove the verdicts were inconsistent as a matter of logic and reasonableness. The test is that ‘no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion’ ([6]). There were 3 differences in the quality of the evidence considered by the jury ([9]), namely, the difference in what the complainant told her confidantes before she reported to the police ([10]), the difference in her report to the police ([11]), and a recording of a conversation between the complainant and appellant in which she made no mention to anal penetration ([12]). There was also evidence that might have corroborated Counts 1 and 3 ([15]), but there was no such evidence about Count 2 or 4 ([20]). The Court held that it was open for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on Counts 1 and 3. The differences in the quality of the complainant’s evidence and appellant’s corroborative evidence provided a logical and reasonable basis for the jury to arrive at different conclusions and return different verdicts for Counts 1 and 3 and Counts 2 and 4 ([23]).

The second appeal ground argued that the jury ought to have been directed to consider whether the Crown had satisfied them beyond reasonable doubt that the appellant had not acted under an honest and reasonable, but mistaken, belief that the complainant had consented to the vaginal penetrations. To succeed on this proposed ground, the appellant must demonstrate that the trial judge should have given a mistake direction and that it is reasonably possible that the failure to do so may have affected the verdict ([24]). In light of the evidence, there was a negligible prospect of the jury, having accepted the occurrence of the vaginal penetrations, having a reasonable doubt whether the appellant acted under an honest and reasonable, but mistaken, belief as to the complainant’s consent. In the circumstances, the trial judge was under no duty to give such a direction ([39]). The appellant was therefore not deprived of a real chance of an acquittal by the failure of the trial judge to give a mistake direction to the jury.

Consequently, the appeal was dismissed.

R v Sollitt [2019] QCA 44 (19 February 2019) – Queensland Court of Appeal

‘Breach protection order’ – ‘Children’ – ‘Evidence’ – ‘Evidence issues’ – ‘Factors affecting risk’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sexual and reproductive abuse’

Charges: Assault occasioning bodily harm x 2; contravention of a domestic violence order; rape.

Case type: Appeal against conviction. Application for an extension of time.

Facts: The appellant was charged with a number of offences against the complainant, his then de facto partner. The complainant’s daughter and son gave evidence of the events ([33]-[40]). The complainant herself gave evidence asserting that she was in a ‘domestic violence cycle’ ([23]). After a trial, the appellant was convicted of two counts of assault occasioning bodily harm (domestic violence offence) and contravention of a domestic violence order. The jury acquitted the appellant of a charge of torture and was unable to reach a verdict in relation to a charge of rape. After a retrial on the charge of rape, the appellant was convicted and sentenced to seven years’ imprisonment ([1]-[4]). The appellant submitted that consent was given by the complainant and that sexual intercourse in the context of the violent circumstances was not a departure from the usual dynamics of the relationship. The Crown contended that if there was any ostensible consent by the complainant, it was induced by force and invalid at law, and that the appellant could not have held a mistake of fact as to consent ([46]). The appellant appealed against his conviction of rape on the grounds that the jury’s verdict was unreasonable and unsafe, and there was a miscarriage of justice, resulting from the trial judge’s misdirection of the jury on the defence of mistake of fact ([5]).

Further, the appellant sought an extension of time in which to appeal his sentence ([6]). The applicant’s explanation for delay in filing the application for leave to appeal against sentence was that his lawyer did not provide him with any information about appealing his sentence and that he thought he would be able to get more time ([69]).

Issues: Whether the verdict was unreasonable or insupportable. Whether the appeal should be allowed. The predominant issue at trial was the issue of consent, including a mistake of fact as to the complainant’s consent.

Decision and reasoning: The appeal against conviction was dismissed and the application for an extension of time was refused.

Appeal against conviction:

In relation to the appellant’s contention that the jury’s verdict was unreasonable or cannot be supported by the evidence, the Court considered whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty based on the whole of the evidence. In determining this question, the Court undertook its own independent assessment of the evidence, assessing its sufficiency and quality ([45]). As to the issue of consent, the Court held that it was entirely open to a jury to find that the complainant gave an honest and reliable account, and it was not surprising that the jury were satisfied that the prosecution had negatived any mistake of fact as to consent on the part of the appellant. There was no evidence from the appellant that he held an honest but mistaken belief as to voluntary consent. Moreover, the appellant’s conduct immediately following the offence and his admission to the complainant’s daughter undermined any assertion that the appellant honestly and reasonably believed that the complainant consented ([51]-[52]). It was also appropriate for the jury to have regard to the ‘ongoing domestic violence in the relationship’ and the complainant’s continuation of the relationship in considering the issues raised by the case ([53]).

The appellant also made a number of complaints about the trial judge’s directions, such as the fact that his Honour used a number of terms interchangeably regarding consent ([58]) and, in giving his final direction on mistake of fact, failed to give a repeat direction on the standard of proof required of the prosecution to negate the defence of mistake of fact beyond reasonable doubt ([64]). The trial judge’s use of the words other than ‘consent’ was not found to constitute a miscarriage of justice ([60]). Further, there was no error in failing to specifically mention the standard of proof in the final redirection, as it was given in conjunction with the aide memoire, which itself identified the requisite standard of proof ([66]).

Extension of time:

In considering whether an extension of time should be granted, the court examined whether there was any good reason to account for the delay and considered whether it was in the interests of justice to grant the extension ([68]). The Court was not persuaded that there was any good reason for the delay to grant an extension ([69]). Moreover, the applicant was 43 years old at the time of the sentence and had repeatedly been convicted of offences of violence, particularly in a domestic setting. These factors supported the sentence imposed and indicated that the sentence was not manifestly excessive ([70]).

R v ABB [2019] QCA 22 (19 February 2019) – Queensland Court of Appeal

‘Evidence’ – ‘Evidence issues’ – ‘Expert or opinion evidence’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Self-represented litigants’

Charges: Assault, constituting a domestic offence x 4.

Case type: Appeal against conviction. Application for extension of time.

Facts: The applicant was convicted on four counts of assault, each of which constituted a domestic offence. All four counts were committed against the applicant’s wife on the same day. The applicant grabbed the complainant’s hair and pulled her to the ground, put his hands around her throat and choked her, and punched her on the jaw with both fists, which resulted in a fracture and required her teeth to be wired together and the fracture closed with a plate and screws ([4]). At the trial, Dr Webster gave evidence, based on the complainant’s medical records, that the injury had been caused by a blunt force trauma to a significant extent ([30]). The applicant lodged a notice of appeal against his conviction when the time for lodging an appeal had expired over three weeks prior. As a result, the applicant also filed an application for extension of time within which to appeal.

The applicant appealed on the ground that the verdicts were unsafe and unsatisfactory ([32]). He also raised a number of specific grounds, including that

•

The prosecution led propensity evidence, the prejudicial effect of which outweighed any probative force, and created an unfair trial ([33]-[36]);

•

The evidence of Dr Webster was fabricated, causing a miscarriage of justice ([37]-[43]);

•

The complainant at trial had previously practiced her evidence and amended the part of the evidence that would have been harmful to the prosecution case ([44]-[45]);

•

A prejudicial answer was given by the complainant during the trial and there was no direction given to the jury to disregard it ([46]-[51]);

•

There was discrepancy in the complainant’s evidence as to how she was punched;

•

Dr Webster was not qualified to give an opinion that the injury constituted grievous bodily harm as he was merely a trainee as an oral and maxillofacial surgeon ([54]).

Issues: Whether the grounds of the applicant’s proposed appeal had reasonable prospects of success to justify granting an extension of time.

Decision and reasoning: When considering an application for extension of time, the court will examine whether there is good reason for the delay and whether it is in the interests of justice to grant the extension. Length of delay is also a relevant consideration ([7]). Although the length of the delay was not significant, the applicant was well aware of the time limit for filing and allowed the time to pass without taking steps to file a notice of appeal. The Court was inclined to grant the extension of time if the matter had been confined to these considerations; however as the merits of the proposed appeal could not be substantiated, the court refused the application ([22]-[23]).

The applicant’s grounds of appeal failed for several reasons. First, the jury was expressly directed that the evidence was not led as propensity evidence and therefore the trial did not miscarry on the basis that the prosecution led such evidence ([36]). Second, the applicant’s contention that Dr Webster’s alteration of his opinion constituted some sort of fabrication of his evidence, causing a miscarriage of justice, was misconceived ([37]). Third, any suggestion that the complainant was able to rehearse or practice her evidence at the first trial was simply the result of the fact that the first trial was aborted. Whatever benefit she got from giving evidence on that occasion was balanced by the fact that the defence counsel had the opportunity to cross-examine her more than once, and so no prejudice was caused ([45]). Fourth, the Court found that an answer by the complainant, which the applicant argued caused him prejudice as it revealed his infidelity, was unlikely to have carried much weight with the jury and did not deprive the applicant of a fair chance of acquittal ([51]). Fifth, the applicant contended that there were discrepancies in the complainant’s evidence because in her evidence in chief, she said that she was punched after she fell; however in cross-examination, she said she did not scream when she was punched, but when she fell. The Court held that there was no real inconsistency as the first piece of evidence related to when she was punched and the second to when she screamed ([52])-([53]). Sixth, it was admitted at the trial that the injury constituted grievous bodily harm. The fact that Dr Webster was a trainee did not mean that he was not a relevant expert ([54]-[58]).

In reviewing the evidence ([94]-[107]), the Court held that it was open to the jury to be satisfied of the applicant’s guilt. As all the grounds of the applicant’s appeal lacked merit, the appeal had no reasonable prospect of succeeding and the application for an extension of time was refused ([108]). The Court also took into account the fact that the applicant was self-represented ([59]).

R v MDB [2018] QCA 283 (19 October 2018) – Queensland Court of Appeal

‘Aggravating feature’ – ‘Appeal against sentence’ – ‘Breach protection order’ – ‘Domestic violence offences’ – ‘Strangulation’

Charges: 1x common assault, 1x threatening violence, 1x assault occasioning bodily harm, 1x choking in a domestic setting, and 1x wilful damage.

Appeal type: application for leave to appeal against sentence.

Facts: The applicant was in a relationship with the complainant from August 2016. On 22 December 2016, a protection order requiring that the applicant be of good behaviour and not commit acts of domestic violence against the complainant was issued pursuant to the Domestic and Family Protection Act 2012 (Qld) (DFVPA). On 17 February 2017, the applicant attacked the complainant. Consequently, the applicant was charged with five offences (common assault, threatening violence, assault occasioning actual bodily harm, choking in a domestic setting, wilful damage) and three summary offences (deprivation of liberty, breach protection order, unlawful possession of a weapon). On 15 February 2018, the applicant was convicted and sentenced on the five indicted offences and convicted of the three summary offences without any further punishment.

Issues: there were four grounds of the applicant’s appeal:

•

Four-year sentence imposed for the offence of choking was manifestly excessive

•

The sentencing judge erred by relying upon the protection order as evidence that the offending was not isolated.

•

The sentencing judge erred by finding that the applicant had made a threat to kill.

•

The sentencing judge erred by finding that the applicant was generally not credible because he told police it wasn’t illegal to possess a “flick knife” in a private place in circumstances where he was previously convicted of possessing a knife in a public place.

Decision and reasoning: application for leave to appeal against the sentence refused.

Whether the sentence was manifestly excessive was determined by Gotterson JA through a consideration of relevant authority, the nature and purpose of the offence of choking, and the circumstances of the case at hand. Both R v MCW [2018] QCA 241 and Bennet were referred to by his Honour to illustrate the seriousness of the offence and the factors relevant to sentencing offenders under the offence (see [44]-[50]). His Honour then noted there were five material facts that warranted the severity of the punishment; these factors included, among others, the disturbing circumstances of the offending, the physical, emotional and financial impact it had on the complainant, and the applicant’s concerning criminal history (see [52]).

As to the second ground of appeal, his Honour initially notes that the order was part of the agreed facts which formed the basis of the sentence proceedings. Gotterson JA then refers to s 9(3)(g) and s 9(10A) of the Penalties and Sentences Act 1992 in asserting that the existence and contravention of an order is a key consideration for the sentencing judge and forms an aggravating feature respectively. In doing so, his Honour dismisses the foundation of this contention that the order cannot be referred to as evidence. In addressing the applicant’s specific contention, his Honour observes that orders are only made on the basis of evidence of previous difficulties in a relationship and that accordingly, the sentencing judge’s inference that the order was a result of previous relationship difficulties was a reasonable one. Taking this into account, his Honour then affirms that it was correct for the sentencing judge to state that the offences committed on 17 February 2017 were not “an isolated and exceptional incident” (see [26]).

Gotterson JA rejected the third ground of appeal on the basis that the applicant’s contention mis-interpreted the sentencing judge’s remarks in coming to the finding that the applicant threatened to kill her (see [27]). Having regard to the seriousness and criminality of the applicant’s conduct, his Honour perceives the sentencing judge’s finding as reflecting no error at all (see [28]).

Similarly, his Honour also rejected the fourth ground of appeal on the basis that it was a misconstruction of the sentencing judge’s comments. Gotterson JA was of the view the judge made no error in his assessment of the reliability of the matters at hand on the basis of the applicant’s instructions (see [33]).

R v MCW [2018] QCA 241 (28 September 2018) – Queensland Court of Appeal

‘Breach of protection orders’ – ‘Fair hearing and safety’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’ – ‘Sentencing considerations’ – ‘Strangulation’

Charges: Assault occasioning bodily harm x 2; Choking, suffocation or strangulation in a domestic setting x 1; Contravention of domestic violence order x 1

Appeal type: Appeal against sentence

Facts: The applicant pleaded guilty to two counts of assault occasioning bodily harm, one count of choking, suffocation or strangulation in a domestic setting and one summary charge of contravention of domestic violence order ([4]). The prosecutor, relying on R v West [2006] QCA 252, R v King [2006] QCA 466 and R v RAP [2014] QCA 228, submitted to the sentencing judge that three years’ imprisonment was appropriate. A variation of the protection order was also sought so as to extend its operation and add a further ‘no contact’ condition.

The sentencing judge held that the offences were ‘cowardly, prolonged and particularly violent’ ([23]) and that the offender posed a genuine threat to the community and particularly, to the complainant ([25]). In respect of each of the assault occasioning bodily harm counts, the applicant was sentenced to imprisonment for two years and six months. Sentences of imprisonment for three years and six months was imposed for the offence of choking, suffocation or strangulation in a domestic setting, and three months for the summary charge. All sentences were concurrent. No date for eligibility for parole was specified. The applicant was therefore ineligible to apply for parole prior to having served half of the effective sentence of imprisonment of three and a half years ([4]).

The applicant appealed on the basis that the sentencing judge had denied him procedural fairness by failing to forewarn the parties of his intention to reduce the head sentence slightly to reflect the guilty plea, and to provide him with an opportunity for a parole at earlier than half the sentence. He also appealed on the basis that the sentence was manifestly excessive.

Issues: Whether the sentence was manifestly excessive; Whether there was a denial of procedural fairness.

Decision and reasoning: Application was refused on the basis that no procedural unfairness arose on the facts and the sentence was not manifestly excessive.

•

Manifestly excessive sentence

The applicant submitted that the sentence imposed was manifestly excessive and that the notional starting point of four years’ imprisonment for the offence against s 315A of the Criminal Code 1899 (Qld) (the ‘Code’) was too high ([33]). Conversely, the respondent contended that consideration must not only be given to the particular circumstances of the applicant’s case, but also to the legislative intention for enacting s 315A to provide for specific liability, and a potentially increased maximum penalty, for offences involving choking (and similar conduct) committed in a domestic setting ([34]). Prior to the sentencing, the Code was amended to create a specific offence of strangulation in a domestic setting (see s 315A). That section prescribes a maximum penalty of seven years to deter the increasing frequency of such behaviour. The Court referred to the Explanatory Notes for the Criminal Law (Domestic Violence) Amendment Bill (No 2) 2015 at [39] –

‘The new strangulation offence and the significant penalty attached, reflect that this behaviour is not only inherently dangerous, but is a predictive indicator of escalation in domestic violence offending, including homicide…’

The Court was cautious to apply authorities for sentences for offences constituted by conduct comparable to choking, suffocation or strangulation in a domestic setting, prior to the enactment of s 315A. R v West [2006] QCA 252, R v King [2006] QCA 466 and R v RAP [2014] QCA 228 involved assaults occasioning bodily harm, the maximum penalty for which was seven years’ imprisonment. The Court found that it was not useful to consider the sentences in those cases as comparable authorities for an offence of strangulation in a domestic setting, having regard to the legislature’s intention for enacting s 315A and the seriousness of that offence.

The test of manifest excessiveness depends on whether the sentence is unreasonable or unjust, in light of all the factors relevant to the sentence (see Hili v The Queen [2010] HCA 45). The fact that the complainant lost consciousness, and that the offending occurred only 18 days after his release from custody for breach of a previous domestic violence order, increased the severity of the offence. The applicant’s criminality was also increased by the fact that the choking incident was preceded, and then followed, by an assault occasioning bodily harm. Further, the applicant showed no remorse for the offending and refused to undergo counselling. Boddice J concluded that the circumstances indicated that the applicant’s offending amounted to ‘an episode of sustained violence undertaken by a recidivist who expressed no remorse’ ([47]). Therefore, the Court found that the sentencing judge did not err in sentencing the offender to three years and six months without any further mitigation, and that the sentence was not manifestly excessive in the circumstances ([44]).

R v Ellis [2018] QCA 70 (17 April 2018) – Queensland Court of Appeal

‘Appeal against sentence’ – ‘Emotional and psychological abuse’ – ‘Physical violence and harm’ – ‘Post-separation violence’ – ‘Risk factors - controlling, jealous, obsessive behaviours’ – ‘Self-represented litigant’ – ‘Women’

Charges: Torture x 1; Assault occasioning bodily harm x 1; Malicious act with intent x 1.

Appeal type: Appeal against sentence.

Facts: The complainant and the applicant had been in a relationship for two months ([4]). The complainant ended the relationship. The next day, the applicant attended at her home and she let him inside. He accused her of being unfaithful to him ([4]). Over the next four hours, the applicant did the following acts to the complainant: slapped her; ripped an earring from her ear; punched her; struck her with a garden trowel; locked her in a cupboard; heated the trowel and a butter knife over the flame of a gas stove and struck her on the legs and near her vulva, causing burns; and forced her to shower, exacerbating the burns ([5]).

The applicant was sentenced to six and a half years’ imprisonment for the torture charge, 18 months’ imprisonment for the assault occasioning bodily harm charge, and 6 years’ imprisonment for the malicious act with intent charge. A serious violent offence declaration was made in respect of the torture charge.

Issues: Whether the sentence of six and a half years’ imprisonment for the torture charge was manifestly excessive.

Decision and Reasoning: The application for leave to appeal against the sentence was refused. It was within the trial judge’s discretion to sentence the applicant and also make a serious violent offence declaration ([19]). The trial judge appropriately balanced the applicant’s personal circumstances, including the fact that he was subject to domestic violence as a child, with the fact that he had a criminal history including domestic violence ([12]).

Harvey v Queensland Police Service [2018] QCA 64 (6 April 2018) – Queensland Court of Appeal

‘Protection orders’ – ‘Related family law proceedings’ – ‘Self-represented litigants’ – ‘Systems abuse’

Charges: Contravention of temporary protection order x 9; Public nuisance x 1; Using a carriage service to menace, harass or cause offence x 1; Failure to surrender into custody in accordance with an undertaking x 1.

Appeal type: Application for leave to appeal against refusal to grant extension of time to appeal against conviction.

Facts: The applicant had been in a parenting dispute with the mother of his son. There were 5 proceedings in which the applicant sought extensions of time to appeal against his conviction:

1.

Six contraventions of temporary protection orders, involving sending threatening emails to the aggrieved.

2.

Public nuisance, involving swearing at police officers outside a police station.

3.

Two contraventions of domestic violence order, involving emailing the aggrieved.

4.

One contravention of domestic violence order and one charge of using a carriage service to menace, harass or cause offence, involving emailing and telephoning the aggrieved.

5.

Failure to surrender into custody in accordance with an undertaking.

The applicant sought to justify the breaches of domestic violence orders on the basis that they were justified under an order of the Family Court (which allowed the applicant to contact the aggrieved for the purpose of communicating in relation to contact with the child of the relationship) ([11]).

Issues: Whether the appeal should be allowed. The applicant sought leave to appeal on the basis that the District Court Judge erred in:

•

not having regard to exculpatory evidence of the applicant’s mental health issues;

•

not allowing exculpatory new evidence;

•

stating that the emails were not relevant to s 286 Criminal Code Act 1899 (Qld);

•

not following Supreme Court authority ([25]).

Decision and Reasoning: The application for leave was dismissed. Sofronoff JA held that none of the grounds were supported by evidence or could justify granted leave to appeal ([26]-[29]).

R v Hutchinson [2018] QCA 29 (9 March 2018) – Queensland Court of Appeal

‘Domestic violence as an aggravating factor’ – ‘Imprisonment’ – ‘Murder’ – ‘Retrospective operation of sentencing considerations’ – ‘Sentencing’

Charges: Murder x 1; Fraud x 1;

Appeal type: Appeal against sentence.

Facts: The deceased and the appellant had been married for a lengthy period. The fraud charge occurred when the appellant mortgaged the family home by using a third party to pretend to be the deceased ([5]). The deceased disappeared, and the appellant was charged with her murder. The appellant deceived the deceased’s family and friends in the days after she disappeared and never revealed how she died or the whereabouts of her body ([6]-[12]). At trial, the appellant was acquitted of murder, but convicted of manslaughter. He pleaded guilty to the fraud charge on the first day of the trial ([3]). The appellant was sentenced to 15 years and six months, and the manslaughter offence was declared a serious violence offence and a domestic violence offence under s 9(10A) of the Penalties and Sentences Act 1992 (Qld) (‘the Act’).

Issues: Whether the sentencing judge erred in retrospectively applying s 9(10A) of the Act or whether the sentence was otherwise manifestly excessive.

Decision and Reasoning: The appellant argued that s 9(10A) of the Act, which has the effect that a context of domestic violence is an aggravating factor in sentencing, should not apply because it should not have retrospective operation ([24]). The Court held that the section is a procedural provision and does not attract the common law presumption against retrospectivity. Therefore, the section applies to all sentencing from its commencement ([43]).

Justice Mullins, Fraser and Morrison JJA agreeing, stated that the sentence was not manifestly excessive, taking into account the context of domestic violence, the appellant’s deceit in impersonating the deceased and failing to disclose the whereabouts of the deceased’s body, his lack of plea of guilty, his lack of remorse and the unchallenged finding that the deceased died a violent death ([53]).

R v Maxwell [2018] QCA 17 (27 February 2018) – Queensland Court of Appeal

‘Following, harassing and monitoring’ – ‘Post-separation violence’ – ‘Revenge porn’ – ‘Sexual and reproductive abuse’ – ‘Systems abuse’

Charges: Stalking x 1; Attempting to pervert the course of justice x 1.

Appeal type: Appeal against conviction and sentence.

Facts: The applicant and the complainant had been in a relationship for 18 months. There were 2 instances of violence ([2]). After the relationship ended, the applicant followed the complainant and sent her a total of 77 text messages, 5 emails and phone calls by which the complainant felt threatened and harassed ([7]). After the complainant made a complaint to the police, the applicant sent further emails to her threatening to release recordings and videos of them having sex if she did not withdraw the charge ([9]).

The appellant was sentenced to a head sentence of 18 months’ imprisonment, with a parole release date after 3 months ([12]).

Issues: Whether the conviction should be set aside and whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed.

In relation to the appeal against conviction, the appellant had argued that he was not provided with proper legal advice ([30]). Justice Morrison (Sofronoff P and Phillip McMurdo JA agreeing) dismissed this argument as having ‘no merit’ ([44]).

In relation to the appeal against sentence, the appellant relied on the impact of the sentence on his ability to obtain licences to work in the financial services industry ([45]). Justice Morrison dismissed this argument because it could only be relevant to whether a conviction is recorded ([48]).

R v Stephens [2017] QCA 173 (15 August 2017) – Queensland Court of Appeal

‘Attempted murder’ – ‘Children present’ – ‘Deterrence’ – ‘Domestic violence order’ – ‘Firearms’ – ‘Moral culpability’ – ‘People with mental illness’ – ‘Post-separation violence’ – ‘Stalking’ – ‘Strangulation’

Charges: Attempted murder x 1.

Appeal type: Application for leave to appeal against sentence.

Facts: The applicant and complainant were separated ([6]). After they separated, the complainant obtained a domestic violence order against the applicant because he had sent her text messages threatening to kill her. On the date of the offence, the applicant followed the complainant and her children to a shopping centre, armed with a rifle and 13 rounds of ammunition ([7]). He shot her in the temple at close range, then attempted to strangle her. The four children in the car saw every detail of what had occurred ([8]-[9]). He was sentenced to 15 years’ imprisonment.

Issues: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed.

Justice Douglas, Holmes CJ and Gotterson J agreeing, found that the sentencing judge properly weighed the relevant factors. The applicant’s mental health disorders did not bear on his moral culpability ([43]). This was a ‘horrific example of the crime of attempted murder’. The victim continues to suffer severely. There was a strong need for protection and general and specific deterrence. The appropriate range would have been 13 to 17 years ([44]).

SCT v Director of Public Prosecutions (Qld) [2017] QCA 31 (13 June 2017) – Queensland Court of Appeal

‘Bail’ – ‘Choke hold’ – ‘Contravention of domestic violence order’ – ‘Strangulation’

Charges: Contravening domestic violence order x 2; Choking, suffocation or strangulation in a domestic relationship x 1.

Case type: Renewed application for bail.

Facts: The applicant and complainant had been in a domestic relationship. A domestic violence order had been granted ([7]). The complainant made the following allegations: the applicant went to the complainant’s house and punched her in the leg ([7]); he threw a pillow at the complainant; and put her in a choke hold ([8]). Bail was originally refused ([9]). Since then, new evidence of a demonstrated that a trial in the District Court would be more than a year away ([10]).

Issues: Whether the evidence of a new trial date justified a grant of bail.

Decision and Reasoning: Bail was granted with conditions that he not have contact with the complainant, that he reside at a specified address, and that he report to the police daily.

Under s 16(3)(g) Bail Act 1980 (Qld), for which the new offence of strangulation is a ‘relevant offence’, the onus was on the applicant to show cause why bail should be granted ([13]). The Court explained that on one hand, there was a real risk that he would reoffend because the applicant and complainant lived in the same town, and they may contact each other ([14]). On the other hand, he had accommodation with family members available, an offer of employment ([15]), and there was a real prospect that he would spend longer on remand than he would serve in custody ([16]). On balance, the risk of reoffending was not unacceptable (s 16).

Ackland v Director of Public Prosecutions (Qld) [2017] QCA 75 (28 April 2017) – Queensland Court of Appeal

‘Assault’ – ‘Bail’ – ‘Risk of re-offending’

Charges: 1 x Assault occasioning bodily harm; 1 x Choking.

Appeal type: Defendant’s appeal against denial of bail application.

Facts: The victim alleged that, during an argument, the appellant: threatened to knock her out; grabbed her by the throat; punched her in the face; and, when she indicated that she was going to call the police, destroyed photographs in the house (see [8]-[10]).

The trial judge refused bail on the basis that:

•

12 months earlier, the appellant had committed a breach of a domestic violence order against a former girlfriend (see [12]);

•

the Crown case appeared to be strong, by evidence of photographs of cuts and abrasions (see [14]); and

•

there was a danger to female victims in such domestic violence situations (see [18]).

His Honour referred to, but did not place weight on, a handwritten note from the victim indicating that she wanted to withdraw the charges (see [15]-[16]).

Issues: Whether the trial judge erred in denying bail to the defendant.

Decision and Reasoning: The appeal was dismissed.

Atkinson J, with whom Morrison JA and Douglas J agreed, considered that the trial judge’s discretion had not been improperly exercised (see [27]). The appellant had submitted that the trial judge based the risk of re-offending on an irrelevant ground, namely a generalised risk to victims of repeated offences. However, Atkinson J considered that the trial judge properly considered the particular risk to the victim, evidenced by two assaults being committed 10 hours apart, the victim’s concern, and the previous breach of domestic violence order (see [28]-[29])

At the time of the bail application, amendments to the Bail Act which reversed the presumption of bail for domestic violence offences had not come into effect (see [30]). By the time of the appeal against bail, the amendments had come into effect. Giving effect to the reversed onus, Atkinson J considered that the appellant had not satisfied the court that he did not represent an unacceptable risk of re-offending (particularly against the victim) while on bail (see [35]).

R v KAP [2016] QCA 349 (23 December 2016) – Queensland Court of Appeal

‘Expert evidence’ – ‘Rape’ – ‘Visible injury’

Charges: Rape x 1.

Appeal type: Appeal against conviction.

Facts: The accused and the complainant were married, but separated. The accused went to the home of the deceased, and sexual intercourse took place. The complainant said that the accused had held her down and threatened her, but the accused said that the intercourse was consensual ([1]).

Issues: Whether the conviction should be overturned on the grounds that expert evidence about the frequency of visible injury in sexual assault cases should not have been adduced, and the jury should have been given directions as to how to use that evidence ([2]-[3]).

Decision and Reasoning: The expert witness gave evidence that, according to cohort studies and his own personal experience, the absence of visible injury to genitalia is not determinative of whether sexual assault has occurred ([22]-[29]). Morrison JA (with whom Philip McMurdo JA and Mullins J agreed) held that the evidence:

•

was relevant ([31]-[32]);

•

was based on admissible data ([33]-[34]);

•

fell within the scope of expert evidence because injury arising out of sexual assault is accepted as being part “of a body of knowledge or experience” which ordinary lay people would not have (citing Osland v The Queen (1998) 197 CLR 316 ([35]-[37]);

•

was necessary to dispel a common fallacy that physical injury normally follows rape ([41]).

ZXA v Commissioner of Police [2016] QCA 295 (15 November 2016) – Queensland Court of Appeal

‘Domestic violence protection order’ – ‘Rights of appeal’

Appeal Type: Appeal against domestic violence protection order.

Facts: The applicant was named as the respondent in a domestic violence protection order under s 37 of the Domestic and Family Violence Protection Act 2012 (Qld). He filed an appeal to the District Court under s 164 of the Act. The appeal was dismissed. The applicant then attended the Supreme Court registry to file an application for leave to appeal under s 118 of the District Court of Queensland Act 1967 (Qld). Despite being told that there was no right of appeal, the applicant persisted until the registry acceded to his demands.

Issue/s: Whether the Court of Appeal had jurisdiction under s 169(2) of the Domestic and Family Violence Protection Act 2012 (Qld) to hear the appeal?

Decision and Reasoning: The appeal was dismissed. Under s 169(2) of the Act, the decision from which the applicant seeks leave to appeal ‘shall be final and conclusive’. While s 118(3) of the District Court of Queensland Act allows a party to appeal, it does not apply to a decision of the District Court in its appellate jurisdiction under s 169(1): see CAO v HAT & Ors [2014] QCA 61 [25] – [27]. The President concluded:

‘The scheme under the Act contemplates that domestic violence protection orders can be made by a wide variety of courts with a right of appeal from such orders…The scheme does, however, clearly contemplate only one level of appeal. The plain words of s 169(2) that such an appeal is “final and conclusive” indicate that the legislature intended that there be no further appeal. The applicant has exhausted his single right of appeal from the Magistrates Court to the District Court. He can, of course, apply to vary the domestic violence protection order under s 86 of the Act, including to vary the duration of the order: see s 86(3)(b) of the Act’.

R v Williams [2015] QCA 276 (18 December 2015) – Queensland Court of Appeal

‘Aggravating factor’ – ‘Attempted murder’ – ‘Breach of domestic violence order’ – ‘Burglary’ – ‘Impact on children’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Separation’

Charge/s: Attempted murder, burglary.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant had separated from his wife, and had recently found out that she was in a new relationship. He broke into her home, stabbed her while she was sleeping on her back next to her two year old daughter and then ran off. She immediately awoke to find a knife sticking out of her chest, which she removed, at which point she collapsed. He was sentenced to 15 years imprisonment and declared to be a serious violent offender.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave to appeal was refused. The applicant submitted that the trend of sentences for attempted murder cases shows that the appropriate range is 10 to 17 years, and that 15 years is excessive compared with analogous cases. This argument was rejected. Bond J (with whom Jackson J and Philip McMurdo JA agreed) at [17]-[30] provided a useful summary of previous attempted murder cases involving domestic violence. The Court acknowledged that the offence of attempted murder attracts a wide variety of punishments. However, consistent with the approach articulated by the High Court in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2, where comparable sentences can provide assistance, but do not set a range of permissible sentences, the Court held that the original sentence was within the discretion open to the trial judge.

R v Johnson [2015] QCA 270 (11 December 2015) – Queensland Court of Appeal

‘Consent’ – ‘Rape’ – ‘Sexual and reproductive abuse’

Charge/s: Rape.

Appeal Type: Appeal against conviction.

Facts: The appellant met the complainant on Facebook and was in a relationship with her for seven weeks. During sexual intercourse, the complainant withdrew her consent and alleged she was then raped by the appellant. The appellant was convicted of rape following a trial.

Issue/s: One issue concerned whether the verdict was unreasonable and unsupportable having regard to the evidence.

Decision and Reasoning: The appeal was dismissed. Morrison JA (with whom Gotterson JA and Philippides JA agreed) held that it was open to the jury to be satisfied beyond reasonable doubt that by the complainant saying ‘no’ and ‘stop’ multiple times, he was not under any mistake as to whether she had consented to sex.

R v Leedie [2015] QCA 216 (6 November 2015) – Queensland Court of Appeal

‘Deprivation of liberty’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Pre-recorded evidence’ – ‘Rape’ – ‘Sexual and reproductive abuse’ – ‘Support person’ – ‘Torture’

Charge/s: Rape, deprivation of liberty, torture.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted of eight offences including rape, deprivation of liberty and torture. The appellant had been in an ‘off and on’ romantic relationship with the complainant. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the appellant in favour of the complainant or other parties. There was no history of violence in the relationship. The offending arose after the appellant asked the complainant to visit his house to have sex. Consensual sex then occurred. However, following the appellant seeing a message from his brother on the complainant’s phone, he became angry, proceeded to become extremely violent, and raped the complainant multiple times across the night. He did not let her out of the house, and tortured her. The complainant was deemed a ‘special witness’, and gave pre-recorded evidence two days before trial, with her mother present as a support person (pursuant to s 21AK of the Evidence Act 1977). Her mother was made aware by the judge during the recording that she was not to have any participation in the proceedings other than as a support person. The mother then made comments to the complainant which reminded her about the details of one of the rape offences. It was accepted at [55] that her mother’s conduct was ‘inappropriate’. However, the trial judge, in response to defence counsel’s application for a mistrial, made detailed warnings to the jury about the caution they needed to apply when considering the complainant’s evidence.

Issue/s: One ground of appeal concerned whether the trial judge erred by failing to discharge the jury after the complainant’s mother suggested to the complainant what she might say in her evidence.

Decision and Reasoning: The appeal was dismissed. The Court held that these directions were sufficient to warn the jury that the reliability of the complainant’s evidence may have been undermined by her mother’s reminder of the details of the appellant’s offending. Furthermore, at trial, the judge offered to order a further pre-recording of the complainant’s evidence, which was declined by the appellant.

R v Andres [2015] QCA 167 (11 September 2015) – Queensland Court of Appeal

‘Circumstantial evidence’ – ‘Intent’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Self-defence’ – ‘Whether guilty verdict unreasonable’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted by a jury of the murder of his wife. His version of events included, (among other things) the contention that the deceased had injured him with a fork and he was placed in fear of his life. (See at [4]-[113]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of his wife.

Issue/s: The appellant admitted that he had caused his wife’s death, but maintained that he did not have the requisite intention to prove murder. As such, the question for the Court was whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. More specifically, the issue was whether the accused had the requisite intention to prove murder. Also at issue was whether he had killed his wife by accident or in self-defence.

Decision and Reasoning:

The appeal was dismissed, with the Court finding that a guilty verdict was open to the jury on the evidence. Boddice J, (with whom Morrison JA and Carmody J agreed), found that the only evidence to support the conclusion that the death occurred by accident or in self-defence was the appellant’s own evidence, which lacked probative force. This was because, among other things, the appellant admitted he had deliberately lied and changed his story, and he had dissolved the deceased’s body in acid, which made it difficult to determine the cause of death. While the case was wholly circumstantial, it was noted that intent can be proved by inference, by considering the probative value of the evidence as a whole.

R v Jones [2015] QCA 161 (1 September 2015) – Queensland Court of Appeal

‘Evidence’ – ‘Expert testimony’ – ‘Killing for preservation in an abusive relationship’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relationship evidence’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted for the murder of his mother. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of the victim or other parties. The issues at trial related substantially to self-defence and provocation. Evidence of the history of the relationship was admitted in the context of the defence under s 304B of the Queensland Criminal Code of killing in an abusive domestic relationship (See further at [3]-[13]).

Issue/s: Whether the trial judge erred by not admitting expert psychiatric evidence.

Decision and Reasoning: The appeal was dismissed. North J (with whom Holmes JA and Henry J agreed) held firstly that this evidence was not admissible under s 132B of the Evidence Act 1977. It was not relationship evidence. The Court also held that the matters that the psychiatrist spoke of were not complex in a scientific sense, and the jury, properly instructed, were able to understand them without needing to hear the expert evidence itself. The psychiatrist did not identify that the appellant was suffering from any recognised psychiatric illness. Rather, he only spoke generally that the appellant had developed coping strategies in response to his mother’s violent and difficult behaviour. The jury, in applying common sense, would have been able to reach this conclusion themselves. North J, comparing the ‘battered wife defence’, noted that there is no ‘battered child defence’ in law. That is, there is no defence where, ‘insults and abuse may be relied upon by a child by way of excuse for a fatal attack upon an abusive parent’ (See at [19]).

R v Pearson [2015] QCA 157 (28 August 2015) – Queensland Court of Appeal

‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Intent’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Relationship evidence’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted of the murder of his wife (See further at [2]-[5]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of his wife. The issues at trial concerned whether he had the requisite intent to kill or do grievous bodily harm, and whether the defence of provocation arose.

Issue/s: One issue on appeal was whether the trial judge misdirected the jury in regards to the relevance of evidence of prior acts of domestic violence and discreditable conduct. In particular, the appellant submitted that the jury were misdirected about how they could use the evidence when deciding whether the appellant had the requisite intent for murder.

Decision and Reasoning: The appeal was dismissed. At trial, the jury was directed to the effect that the evidence was relevant to explain the nature and animosity of the relationship between the appellant and the deceased. They were specifically directed that if they were to use that evidence to assist in determining the appellant’s state of mind at the time of the offence, they must be satisfied beyond reasonable doubt that the past acts occurred. Holmes JA (Morrison JA and Henry J agreeing) held that s 132B of the Evidence Act 1977 can be used to show a particular propensity of the accused to commit acts of a similar nature, as well for specific issues like intent. Her Honour, applying the approach of the High Court in Roach v The Queen [2011] HCA 12, noted that these two uses are distinct. In this case, the domestic violence evidence was only relevant as relationship evidence to prove intent. Propensity was not relevant because it was not in dispute that the appellant had caused the death of his wife. The jury were directed to this effect. A general propensity warning was not needed for the same reasons.

R v Piper [2015] QCA 129 (17 July 2015) – Queensland Court of Appeal

‘Aggravating factor’ – ‘Breach of domestic violence order’ – ‘Grievous bodily harm with intent’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Grievous bodily harm with intent, breach of domestic violence order.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant’s wife attended a hotel with a male friend. He falsely believed his wife to be in a romantic relationship with the friend. In an unprovoked attack, he stabbed the friend forcefully multiple times. The victim sustained six stab wounds, including one to his neck. The victim suffers lasting psychological difficulties as a result of the attack. There was a domestic violence order in place which prevented the applicant from coming within five metres of his wife. The attack breached this order, which became an aggravating feature in sentencing. He had no criminal history. He was sentenced to seven years’ imprisonment, becoming eligible for parole after three years.

Issue/s: One issue concerned whether the sentence was manifestly excessive.

Decision and Reasoning: Leave to appeal was granted. The offending was very serious. It was ‘a sustained, severe and premeditated attack, whilst armed with a knife, on a victim who had done nothing by way of provocation’ (See at [36]). It was committed in the context of a domestic violence order being in place. As such, the head sentence, whilst at the upper end of the scale, was within range, taking into account his lack of criminal history and plea of guilty. However, the Court concluded that the parole eligibility date should be brought forward. The applicant’s guilty plea, while late, ensured that witnesses did not have to give evidence, which was particularly important for the victim. The parole eligibility date was close to the ‘half-way mark’ in the sentence. This did not reflect the significance of his guilty plea, remorse and cooperation and lack of criminal history. As such, the parole eligibility date was changed and set at the one-third mark in the sentence.

R v Wallace [2015] QCA 62 (21 April 2015) – Queensland Court of Appeal

‘Emotional abuse’ – ‘Following harassing, monitoring’ – ‘Fraud’ – ‘Fresh evidence’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Verbal abuse’ – ‘Where the offender is also a victim’

Charge/s: Six counts of fraud.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant pleaded guilty at trial to six counts of fraud. See at [3]-[11]. It is unclear whether at the time of the offences, there was a current or lapsed protection order in place against the applicant’s ex-husband in favour of the applicant or other parties.

Issue/s: Whether the applicant could adduce fresh evidence not led at the original sentencing hearing.

Decision and Reasoning: The fresh evidence involved long term domestic violence that the applicant suffered from her ex-husband, including controlling behaviour such as taking the applicant’s phone and keys to prevent her from seeking help, threatening her children, stealing money from her business, and severe physical violence. It also included evidence from a psychiatrist detailing the effect of the abuse on her, to the extent that she did not fully understand the repercussions of her offending. This was found to be consistent with what has come to be known as the ‘battered person’s syndrome’. The appeal was allowed and the evidence was admitted. The head sentence was reduced by one year.

McMurdo P, (with whom Gotterson JA and Douglas J agreed) noted that lawyers acting for clients charged with criminal offences who claim to be the victim of domestic violence should take such claims very seriously to determine the relevance to their client’s alleged offending. They should then put such evidence before the primary court either as a defence, or in sentence mitigation.

See in particular the following remarks of McMurdo P at [37] -

'… The further evidence led in this application established that at the time of the offending the applicant was in an abusive, exploitive relationship which impaired her capacity to realise the full repercussions of her fraudulent behaviour and her ability to formulate a mature response to her financial and personal difficulties as she continued to take more and more money from the nursing home in the impossible hope that she would eventually repay it. As Dr Schramm (a psychiatrist) explained, she was not acting completely rationally. She was exhibiting behavioural disturbances following her prolonged and significant physical and emotional abuse, commonly known as “battered persons syndrome.” This took her offending behaviour out of the worst category of fraudulent offending in which the sentencing judge placed it. The further evidence raises the possibility that some other sentence than that imposed may be warranted; if so, its exclusion would result in a miscarriage of justice. '

R v Davidson [2014] QCA 348 (19 December 2014) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Grievous bodily harm’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victim credibility’

Charge/s: Assault occasioning bodily harm, grievous bodily harm.

Appeal Type: Appeal against conviction and sentence.

Facts: The offending involved an incident where the appellant asked the complainant to perform a sexual act on his male friend. The appellant also engaged in sexual activity with the friend. The case at trial was based on the complainant’s version of events, which included that the appellant kicked and punched the complainant (the appellant’s partner) for a long period. There was a history of domestic violence in the relationship. A domestic violence order was made some six years prior. The appellant had a long criminal history of similar offences, including a breach of a domestic violence order. However, there was no associated breach of a domestic violence order in this matter. The appellant was sentenced to five years imprisonment with parole eligibility set at 2.5 years.

Issue/s: Whether the failure to call new evidence from witnesses who challenged the complainant’s credibility established a miscarriage of justice.

Decision and Reasoning: The appeal was dismissed. The appellant contended specifically that the failure to call a particular witness established a miscarriage of justice and noted that his defence counsel did not explore the detail of the evidence in cross-examination. The Court rejected that argument – the failure of counsel to adduce this new evidence was justifiable as a strategic decision in the trial context to not risk other unfavourable evidence being admitted. The appeal against sentence was also dismissed.

R v Aplin [2014] QCA 332 (16 December 2014) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Community protection’ – ‘General deterrence’ – ‘Grievous bodily harm’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Serious violent offence declaration’

Charge/s: Grievous Bodily Harm.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant, an Aboriginal and Torres Strait Islander man, caused catastrophic harm to the 21 year old complainant, with whom he had recently commenced a relationship. She was in a ‘vegetative state’ at the time of trial. He made full admissions to police. He sought to have evidence of these admissions excluded, which was refused. He then pleaded guilty. The applicant had a long history of domestic violence including multiple breaches of domestic violence orders. The sentencing judge mentioned the need to have regard to this history, as well as the extent of the injuries and the need for deterrence (see at [12]). He was sentenced to 9 years’ imprisonment and a ‘serious violent offence’ declaration was made.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The applicant submitted that various mitigating factors applied including that no weapon was involved, there was no premeditation, he attempted to administer aid, requested that an ambulance be called and there was a degree of provocation. He also submitted that the sentencing judge was in error in using a 10 year head sentence as a starting point. Fraser JA (with whom McMurdo P and Morrison JA agreed) held that there was nothing to indicate the primary judge overlooked these factors or the applicant’s disadvantaged background. Indeed, given the ‘seriousness of the offence, the catastrophic consequences for the complainant, and the applicant’s bad history of violent offending in broadly similar circumstances’ (See at [16]), it was open to the primary judge to attach relatively light weight to the mitigating factors. Furthermore, the trial judge was correct in using a previous decision with a head sentence of 10 years for ‘guidance’. While the Court acknowledged that this sentence was severe given the maximum penalty, the guilty plea, the offender’s age and other mitigating circumstances, it was justified for this ‘extreme example of domestic violence by a repeat offender’,([26]) where general deterrence and community protection were very relevant.

R v Warradoo [2014] QCA 299 (25 November 2014) – Queensland Court of Appeal

‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Hearsay’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relationship evidence’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted of the murder of his girlfriend. (See further at [3]-[7]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of the victim. At trial, evidence relating to conversations with the deceased’s niece and mother which detailed instances of prior violence committed by the appellant was admitted. No warning was given by the trial judge as to the potential unreliability of this evidence as hearsay.

Issue/s: Whether the trial judge erred by not giving adequate warnings with respect to evidence admitted under section 93B of the Evidence Act 1977.

Decision and Reasoning: The appeal was dismissed. Holmes JA stated (at [8]) that section 93B operates to, ‘(render) the hearsay rule inapplicable to evidence of a representation of fact made by a person who is dead, if the representation was made shortly after the asserted fact happened and in circumstances making it unlikely to be a fabrication, or was made in circumstances making it highly probable it was reliable.’ It was held that a direction from the trial judge about the unreliability of the evidence as hearsay would not have been particularly helpful, and may have even been disadvantageous to the appellant. Also, the evidence was admissible under s 132B of the Evidence Act 1977 as evidence of the history of a domestic relationship.

R v RAP [2014] QCA 228 (11 September 2014) – Queensland Court of Appeal

‘Damaging property’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful assault causing bodily harm’

Charge/s: Unlawful assault causing bodily harm, unlawfully damaging property.

Appeal Type: Appeal against sentence.

Facts: The appellant pleaded guilty to unlawfully assaulting his wife, causing her bodily harm and unlawfully damaging property. The appellant had a relevant criminal history involving a breach of a domestic violence order. However, this was effectively ignored by the sentencing judge. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the appellant in favour of his wife. In mitigation, the sentencing judge considered a psychiatrist’s report indicating that at the time of the incident, the appellant was likely suffering from, ‘a major depressive episode and, probably, a form of alcohol dependence’. There was also a report from a psychologist who had treated the appellant before the offences and diagnosed him with, ‘an acute, moderate to severe adjustment disorder with mixed anxiety depressed moods at that time.’ A later review by that psychologist indicated he suffered a ‘chronic and mild adjustment disorder with anxiety’ and a year later ‘a mild borderline adjustment disorder’ was diagnosed. He was sentenced for the assault charge to two years imprisonment, suspended after eight months with an operational period of 2.5 years. He was sentenced to two months imprisonment for the property damage charge to be served concurrently.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The couple had previously separated, and the incident arose when the appellant returned to the matrimonial home. The complainant’s injuries were significant and she was in fear of her life during the attack. Wilson J (with whom McMurdo P and Fraser JA agreed) at [39] – [46] provided a useful summary of comparable cases. The Court held that a serious assault in the domestic context warrants imprisonment for two years or more. The suspension imposed was a correct application of the mitigating factors, and the serious nature of the violence.

R v Foster [2014] QCA 226 (9 September 2014) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Deprivation of liberty’ – ‘Following, harassing, monitoring’ – ‘Preliminary complaint’ – ‘Rape’ – ‘Sexual and reproductive abuse’ – ‘Victim disclosure and consent’

Charge/s: Rape, Assault occasioning bodily harm, deprivation of liberty.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted at trial of two counts of the rape of his partner, after he was found to have penetrated the complainant with a hairbrush, an aerosol can and a water bottle. He pleaded guilty to other charges including assault occasioning bodily harm and deprivation of liberty. There was no domestic violence order in place.

Issue/s: Whether evidence of the complainant’s response in a state of distress, to the question of ‘Had you been raped?’ amounted to an admissible preliminary complaint of rape. The complainant had not directly answered the question but ‘looked sad’ and ‘slumped her shoulders, to look as if she was about to burst into tears and to look beaten’. (See at [33]).

Decision and Reasoning: The Court found that this amounted to a complaint, within the meaning of Section 4A of the Criminal Law (Sexual Offences) Act 1978. Importantly, Gotterson JA (with whom McMurdo P Morrison JA agreed) noted that an admissible complaint need not require a verbal response. In particular, ‘A meaningful response may be signalled by conduct other than speech. That conduct may include the absence of a verbal rejection of the proposition’. However, Gotterson JA noted that the acceptance could have been clearer, and this was a ‘borderline’ example of a complaint. Furthermore, it is not necessary for a preliminary complaint of rape to refer to any specific incidence of penetration. Simply stating, ‘I was raped’ is sufficient to amount to a preliminary complaint.

R v Reed [2014] QCA 207 (26 August 2014) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Purpose of evidence’ – ‘Relationship evidence’

Charges: Assault occasioning bodily harm, murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted of the assault occasioning bodily harm and murder of his partner’s 16 month old child. See further at [6]-[17].

Issue: Whether the trial judge erred in admitting evidence of prior facial grazing injuries suffered by the child.

Decision and Reasoning: Henry J (with whom Gotterson JA and McMurdo P agreed) firstly held that this evidence was not inadmissible purely because of a possible innocent explanation for the injuries. His Honour considered all the non-fatal injuries on the child in their totality, and found that the probability that they occurred accidentally became too remote. The evidence was capable of supporting an inference (in combination with the other evidence) that the non-fatal injuries were the result of deliberate violence by the appellant. This evidence, of itself, was not indispensable to a finding of guilt – it assisted as ‘strands of a cable rather than as indispensable links in a chain’ (See at [39]). The evidence was also relevant to the proof of the charges as relationship evidence pursuant to 132B of the Evidence Act 1977. The trial judge correctly found that injuries can be probative of the history of a domestic relationship. It also potentially showed a propensity of the appellant to commit similar violence. However, the trial judge did not rule on this and in fact gave a warning against propensity reasoning. Notwithstanding, the trial judge did make an error of law in failing to sufficiently instruct the jury about the purpose of the evidence of the uncharged injuries, applying the High Court decision in Roach v The Queen [2011] HCA 12. The trial judge did tell the jury that the evidence could be used to show that the nature of the relationship was violent, but he did not go further to explain that the purpose of putting this history of violence before the jury was to provide an ‘informed context’ (See at [69] – [70]) for the jury’s consideration of the charges. Notwithstanding, the appeal was dismissed pursuant to the proviso.

R v HBL [2014] QCA 270 (24 October 2014) – Queensland Court of Appeal

‘Abduction’ – ‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Domestic violence order’ – ‘Family law orders’ – ‘Mitigating factors’ – ‘Sentencing’

Charge/s: Abduction, breach of domestic violence order.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant was in a long-term, intermittent relationship and had one child. His partner sought and obtained a domestic violence order (DVO) in 2011. In 2012, an order in the Federal Magistrates’ Court was made that the child was to live with the mother. Limited contact was allowed with the mother’s consent. The mother left the child at a friend’s house, whereupon the applicant arrived unannounced and took the child, drove away, and held the child for a period of time, in breach of the DVO. He made repeated calls stating he would not return the child if the child was to be handed back to the mother or her friend. The applicant had a long criminal history of over fourteen court appearances, including a previous breach of a child protection order (albeit towards the lower end of seriousness). The applicant pleaded guilty to the abduction and breach offences and was sentenced in the District Court to 4 years’ imprisonment for abduction. He was convicted but not further punished for the breach. The primary judge implicitly accepted the Crown’s submission that this conduct was in the worst category of offending.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was allowed. While the applicant had a long criminal history, Fraser JA (with whom Mullins J and Gotterson JA agreed), compared analogous decisions and highlighted factors which made them distinguishable. His Honour noted that the child was not unrelated or unknown, there was no sexual motivation and the taking was non-violent. As such, the Court held that this was not within the worst category of offending. Notwithstanding, the Court noted that such conduct (including the fact that the appellant was motivated to be with his son and breaching court orders) cannot be condoned and deterrence is important. As such, a custodial sentence was imposed but was reduced to 18 months’ imprisonment with immediate parole eligibility.

R v Francis [2014] QCA 258 (14 October 2014) – Queensland Court of Appeal

‘Arson’ – ‘Breach of domestic violence order’ – ‘Damaging property’ – ‘Deterrence’ – ‘Fresh evidence’ – ‘Mitigating factors’ – ‘Sentencing’ – ‘Separation’

Charge/s: Arson.

Appeal Type: Appeal against conviction and sentence.

Facts: The arson was targeted at the appellant’s ex-wife’s new partner’s mother’s car. The offence constituted a breach of a domestic violence order (See further at [3]-[18]).

Issue/s: Appeal against conviction: Whether the verdict was unreasonable and not supported by the evidence, and whether the appellant could adduce further evidence not led at trial.

Appeal against sentence: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal against conviction was dismissed. McMurdo P noted that while the case was circumstantial, it was strong, and a guilty verdict was open to the jury. The application to adduce further evidence was also dismissed. The court held that while an affidavit from the appellant’s former partner was somewhat inconsistent with her evidence at trial, there was no significant possibility that the jury would have acquitted him on this basis. However, the appeal against sentence was allowed, reducing the head sentence from 4.5 to 4 years. Defence counsel submitted that the sentence was excessive for arson of a car rather than a house, while the prosecution submitted that it was a flagrant breach of a domestic violence order and general deterrence was necessary for an arson committed as a jealous rage due to a relationship breakdown. McMurdo P held that the sentence was manifestly excessive. The trial judge did not take into account pre-sentence custody, and the appellant only had a minor criminal history prior to this offending.

R v Murray [2014] QCA 160 (18 July 2014) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Community protection’ – ‘Damaging property’ – ‘Deterrence’ – ‘Grievous bodily harm’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Recidivism’ – ‘Sentencing’ – ‘Victim’ – ‘Weapons’

Charge/s: Grievous bodily harm.

Appeal Type: Application for an extension of time to appeal against conviction.

Facts: The applicant, an aboriginal man with a dysfunctional background, pleaded guilty to the grievous bodily harm of his girlfriend. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the applicant in favour of the victim. He ripped off a door handle with which he struck her on the head, then punched her and struck her with a frying pan, causing severe injuries.

Issue/s: Whether an extension of time should be granted on the basis that the applicant only pleaded guilty due to the strong urging of his lawyers, and that he was denied the right to present his defence.

Decision and Reasoning: The application was refused - the applicant was an adult, of sound mind who understood the charge and entered a guilty plea after obtaining legal advice. An application for leave to appeal against sentence was also refused. McMurdo P (Fraser JA and Morrison JA agreeing) held that notwithstanding that he told the complainant to go to hospital, he had failed to demonstrate compassion or insight into the injury that he had caused. He had a substantial history of domestic violence and this recidivism made the protection of future intimate partners important. This was a serious example of grievous bodily harm in the context of domestic violence. General deterrence and denunciation were key considerations. McMurdo P described his girlfriend as a ‘reluctant complainant’. However, this was not a mitigating factor. The only mitigating factors were his guilty plea and dysfunctional background.

R v Seijbel-Chocmingkwan [2014] QCA 119 (27 May 2014) – Queensland Court of Appeal

‘Attempted murder’ – ‘Attempted strangulation’ – ‘Dangerous operation of motor vehicle’ – ‘Denunciation’ – ‘General deterrence’ – ‘Impact of offence on victim’ – ‘Mitigating factors’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Serious violent offender’

Charge/s: Attempted murder, dangerous operation of a motor vehicle.

Appeal Type: Appeal against sentence.

Facts: While on parole for assault offences committed against her daughter, the applicant drove into her former husband’s car twice. She then stabbed her husband’s new partner in the shoulder and attempted to strangle her. There was no domestic violence order in place. She pleaded guilty to attempted murder and dangerous operation of a motor vehicle, for which she was sentenced to ten years’ and 12 months’ imprisonment respectively.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. Morrison JA (with whom Gotterson JA and Martin J agreed) at [41] – [79] provided a useful summary of past Court of Appeal authority regarding sentencing of attempted murder offences which have an element of domestic violence. The Court considered factors such as premeditation, cooperation with authorities, remorse, the gravity of the attack and prior convictions. (See full list at [79]). The applicant was also suffering from a mental disorder, namely an ‘adjustment disorder with anxious and depressed mood’. While this was a mitigating factor, the Court held that the original sentence did adequately recognise this and other mitigating features such as her efforts at rehabilitation by enrolling in study and other courses, which were correctly balanced with the need for denunciation and general deterrence.

R v Martin [2014] QCA 80 (14 April 2014) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Consistency of sentence with other orders’ – ‘Costs’ – ‘Following, harassing, monitoring’ – ‘Stalking’ – ‘Systems abuse’ – ‘Using carriage service’

Charge/s: 41 offences, including stalking, 26 counts of breaches of domestic violence orders, two counts of assault occasioning bodily harm, five counts of using a carriage service to make a threat to kill and six counts of using a carriage service to menace or harass.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant pleaded guilty in the Magistrates’ Court to all offences. The stalking was committed against the applicant’s ex-partner. A head sentence of two years imprisonment was imposed in the Magistrates’ Court, with all sentences to be served concurrently. The applicant was also placed on a domestic violence order in favour of his ex-partner for 5 years. The Magistrate made adverse findings in relation to the applicant’s offending, his lack of remorse and the real risk of him re-offending. Mitigating factors included pleas of guilty and completion of a domestic abuse program while in custody. His parole release date was set after he had served one third of the head sentence, taking into account pre-sentence custody.

Issue/s: Whether the remaining period on parole should be substituted with a suspended sentence, due to the comparative administrative ease of a suspended sentence in obtaining permission to leave the state.

Decision and Reasoning: Leave to appeal was refused. A previous appeal to the District Court was struck out due to the applicant’s uncooperative nature, and the many opportunities that were given to him through adjournments to allow him to appear personally in Court, as well as the primary judge’s finding of fact that he had misled the Court. The Court found that the primary judge acted appropriately.

R v MBY [2014] QCA 17 (18 February 2014) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Mitigating factors’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Rape, maintaining a sexual relationship with a child under 16.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant, an Aboriginal man committed the offences against his daughter. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the applicant in favour of the victim or other parties. (See further at [6]-[20]).

Issue/s: Whether the primary judge failed to give appropriate weight to circumstances of deprivation in his upbringing, including the social and economic disadvantage associated with his Aboriginality and the physical, sexual and emotional abuse that he had suffered as a child. Another issue was whether the primary judge failed to have regard to the applicant’s rehabilitative prospects.

Decision and Reasoning: In dismissing the appeal, Morrison JA (Muir JA and Daubney J agreeing) discussed the relevance of the applicant’s Aboriginality in sentencing. See in particular at [60]-[73] where his Honour provides a detailed summary of relevant authority including the High Court decision of Munda v Western Australia [2013] HCA 38. Essentially, his Honour accepted that social, economic and other disadvantages (including alcohol and drug abuse) which may be related to an offender’s Aboriginality, should be taken into account as a mitigating factor in sentencing. Indeed, there is authority to suggest that when an Aboriginal offender is being sentenced, the Court should, ‘sentence (the offender) as leniently as the circumstances of his offence admitted’. (See R v Bell [1994] QCA 220). However, this cannot undermine individualised justice. That is, the deprived background of an Aboriginal and Torres Strait Islander offender may be given appropriate weight in sentence mitigation, but it cannot be given undue primacy. It cannot result in a punishment being imposed that does not reflect the gravity of the offending, or which does not pay sufficient regard to considerations such as specific and general deterrence, which are particularly important in domestic violence cases. The second ground of appeal, that the applicant’s rehabilitative prospects were not given enough weight was also dismissed.

R v Dibble; ex parte Attorney-General (Qld) [2014] QCA 8 (11 February 2014) – Queensland Court of Appeal

‘Abuse of process’ – ‘Breach of domestic violence order’ – ‘Concurrent criminal proceeding’ – ‘Double punishment’ – ‘Grievous bodily harm’ – ‘Permanent stay’

Charge/s: Grievous bodily harm.

Appeal Type: Appeal against a permanent stay of proceedings.

Facts: This decision was not directly related to domestic violence. However, it is relevant to situations where the Court is dealing with a breach of a domestic violence order and another criminal offence concurrently. The respondent was originally charged with public nuisance, which was dealt with summarily. However, following a formal statement made by the complainant to police and a medical opinion received, he was charged with grievous bodily harm (GBH). At trial, an application was made for a permanent stay on the basis of Section 16 of the Queensland Criminal Code, which provides that a person cannot be punished twice for the same act or omission. The application was granted, with the primary judge holding that the act which formed the basis of the GBH charge was the same act which formed the basis of the public nuisance charge.

Issue/s: Whether the trial judge was correct in granting the permanent stay based on the rule against double punishment.

Decision and Reasoning: The appeal was dismissed, with the Court applying the approach previously articulated in R v Gordon where Hanger CJ stated - “Section 16, in saying that a person cannot be twice punished for the same act or omission, must be referring to punishable acts or omissions; and the prohibition applies though the acts or omission would constitute two different offences. It is to these cases that the section is directed.” Hanger CJ held that a punishable act of being in charge of a motor vehicle while under the influence of a substance was not the same as the punishable act of dangerous driving causing GBH with which the offender in that case was subsequently charged. In the present matter, the Court held that the punishable acts for which the respondent was convicted in the Magistrates Court included punches which landed on the complainant, causing harm. It therefore followed that s 16 would be violated if the respondent was to be punished a second time for those acts.

Prima facie, the same test would apply when considering whether a breach of a DVO constitutes the same act for which another criminal charge is based. However, it should be noted that there is uncertainty about the application of Section 138 of the Domestic and Family Violence Protection Act 2012 (Qld) in this context, particularly as to whether Section 138 allows double punishment. For further information, see pages 111-113 of the Queensland Domestic and Family Violence Protection Act (2012) Bench Book, which considers various District and Magistrates’ Court decisions and the summary of R v MKW [2014] QDC 300 (18 June 2014).

R v Bartram [2013] QCA 361 (6 December 2013) – Queensland Court of Appeal

‘Defence of dwelling’ – ‘Physical violence and harm’ – ‘Self-defence’ – ‘Unlawful wounding’ – ‘Where the offender is also a victim’

Charge/s: Unlawful wounding.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted for unlawful wounding. The offence was committed in the following circumstances: the appellant had obtained a domestic violence order against the complainant; the complainant had previously been convicted for breaches of that order; according to evidence at trial, the complainant kicked down a door in breach of the DVO and, on the appellant’s evidence, the complainant had threatened violence towards her on the previous evening. The jury was directed about self-defence, but was not directed about the possibility of the ‘defence of a dwelling defence’ under s 267 of the Queensland Criminal Code.

Issue/s: Whether the appellant was denied the possibility of an acquittal under 267 of the Queensland Criminal Code.

Decision and Reasoning: The appeal was upheld – Muir JA (with whom Gotterson JA and Daubney J agreed) held that there was ‘ample evidence’ that the complainant unlawfully entered and remained in the dwelling, which could support the elements of the defence. The offending occurred under the house, but his Honour held that the definition of ‘dwelling’ in s 1 of the Code was broad enough to encompass underneath the house. As such, a retrial was ordered.

R v Brennan [2013] QCA 316 (25 October 2013) – Queensland Court of Appeal

‘Breach of domestic violence order’ – ‘Denunciation’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Murder (two counts).

Appeal Type: Application for leave to appeal against sentence and appeal against conviction.

Facts: The appellant was convicted of murdering his estranged wife and her daughter in their home. Prior to the killings, the appellant made threats to his wife and to witnesses. These threats occurred in person and over the phone, resulting in a domestic violence order being served and two charges of using a carriage service to make threats. Several witnesses testified that the appellant made threatening remarks to his wife at the hearing for these charges. He was sentenced to life imprisonment on both counts of murder, with a 22 year non-parole period ordered, which was two years above the statutory minimum. The crime was also in breach of a domestic violence order in place to safeguard his wife.

Issue/s: Whether the circumstances of the killings warranted the non-parole period to be extended beyond the 20 year statutory minimum, so as to make the sentence manifestly excessive.

Decision and Reasoning: Leave to appeal was refused. In the appellant’s favour, the killing was not drawn out, there was no prolonged suffering and there was minimal planning involved. On the other hand, he killed not only his estranged wife, but a defenceless 14 year old girl in defiance of a domestic violence order which was intended for his wife’s protection. Also, the appellant displayed no remorse and pleaded not guilty which had made the process agonising for those affected. These factors warranted a strong element of denunciation and vindication for the victims in the sentence. The appeal against conviction was also dismissed.

R v Postchild [2013] QCA 227 (20 August 2013) – Queensland Court of Appeal

‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Rape

Appeal Type: Appeal against sentence.

Facts: The applicant was convicted of the rape of his girlfriend and was sentenced to six years’ imprisonment. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the applicant in favour of the victim. The applicant had an extensive criminal history, consisting of street and property offences, as well as a previous conviction for carnal knowledge of a 13 year old girl. He had previously breached a reporting condition associated with this conviction. He committed the rape while on parole for unrelated offending. The primary judge described the rape as a ‘brutal act’, and that the applicant had treated his girlfriend as, ‘an object for his own sexual gratification and had had no regard for her feelings’ (See at [15]).

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed by majority. The Chief Justice, (with whom Gotterson JA agreed) held that the sentence was appropriate, and upheld the trial judge’s findings in relation to the brutality of the act.

However, Holmes JA dissented and was of the view that the sentence should be reduced to 5 years with the non-parole period shortened. Her Honour’s judgment contains very useful summaries of all comparable cases, (see [17]-[32]). Holmes JA noted factors including that this was a single incident of a short duration, and was not a ‘protracted exercise in humiliation’ (at [33]). There was no forced entry or weapons used. Her Honour also noted that the, ‘offence did not occur in a context of fear or intimidation’, as the relationship was still on foot. Holmes JA was of the view that the nature of the relationship made these circumstances distinguishable from rapes performed by strangers (See at [34]). It was also noted that the victim was, ‘a strong minded young woman who was left humiliated and angry by what occurred, but not terrified’ and, ‘There was no evidence of lasting psychological harm’.

R v Susec [2013] QCA 77 (12 April 2013) – Queensland Court of Appeal

‘Evidence’ – ‘Hearsay evidence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Post-offence conduct’ – ‘Probative value’ – ‘Relationship evidence’ – ‘Separation’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted by a jury for the murder of his wife, and sentenced to life imprisonment (see further at [5]-[25]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of his wife.

Issue/s:

1.

Whether the trial judge should have admitted evidence of a previous incident of the appellant sharpening a knife in the presence of the deceased and two witnesses.

2.

Whether evidence of the victim’s statement that she believed her husband was going to kill her was admissible.

3.

Whether evidence of a conversation between the deceased and a co-worker, which was initially held to be hearsay evidence because it was too vague and unreliable but later inadvertently admitted during the questioning of the co-worker at trial resulted in a miscarriage of justice.

4.

Whether a conclusion that the appellant’s post-offence conduct involved inflicting wounds on himself, putting pepper in his own eyes and exaggerating the seriousness of his condition was open on the evidence.

Decision and Reasoning:

1.

Gotterson JA (with whom McMurdo P and Muir JA agreed) held that such evidence was admissible under s 132B of the Evidence Act 1977. Its probative force was not outweighed by its potential prejudice to the accused. It was relevant to the state of the relationship, as well as to self-defence and provocation. It did have subjective elements, (such as the witnesses’ descriptions of their emotions during the incident), but this was not such as to enliven the s 130 discretion to exclude it, and the trial judge gave a sufficiently clear warning against its use as propensity evidence.

2.

The Court held that this evidence was admissible. The deceased’s fear of the appellant was relevant to the jury’s consideration of whether the deceased initiated an assault or provoked the attack.

3.

While the Court held that this evidence should not have been admitted, it did not amount to a miscarriage of justice so this ground was dismissed.

4.

The Court held that this conclusion was clearly open on the evidence (see at [70]).

R v James [2012] QCA 256 (24 September2012) – Queensland Court of Appeal

‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Plea of guilty’ – ‘Sentencing’

Charge/s: Breach of domestic violence order.

Appeal Type: Application for leave to appeal against sentence.

Facts: The complainant (the appellant’s de facto partner) was receiving treatment at a hospital necessitated by an earlier assault by the appellant. The appellant then waited outside a toilet door at the hospital and punched her in the face which caused pain, discomfort and swelling. He was sentenced to 9 months imprisonment for contravening a domestic violence order. He had a long criminal history including six prior breaches of domestic violence orders and convictions for other offences.

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: Leave to appeal was refused, with the Court upholding the 9 month sentence. The maximum penalty for breaching a domestic violence order applicable at the time was 12 months imprisonment. This was later increased to two years (three years if the accused has prior convictions). Also, Henry J observed that there ought not exist an expectation that a one third discount to the head sentence will be applied where there is a plea of guilty, although such an outcome may be common (Holmes JA and McMurdo P agreed). McMurdo P (Holmes JA agreed) found that a further exacerbating feature was that the offence occurred in a hospital where the victim and other patients should be entitled to freedom from exposure to such violence.

R v Murgha [2012] QCA 255 (24 September 2012) – Queensland Court of Appeal

*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Grievous bodily harm’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victim’

Charge/s: Grievous bodily harm, breach of domestic violence order.

Appeal Type: Appeal against sentence.

Facts: The applicant pleaded guilty to doing grievous bodily harm (GBH) to his de facto partner and breaching a domestic violence order. The offending was committed during the operational period of six suspended sentences. It involved the applicant throwing a knife at his partner who was pregnant. The knife became embedded in her skull. He was sentenced to three years’ imprisonment for the GBH offence and was convicted but not further punished for the breach offence.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: McMurdo P (Holmes JA and Henry J agreeing) dismissed the appeal and held that the sentence was appropriate. Mitigating factors included his remorse and corporation with police, his lack of similar criminal history, good rehabilitation prospects and his good standing in the community. The complainant also tendered a letter stating that: she wanted their child to grow up knowing their father; they planned to reconcile and that she found it hard to cope as a single parent. Notwithstanding, the sentencing judge correctly imposed a deterrent sentence. The primary judge noted that ‘the use of knives in domestic disputes on Palm Island was all too common’, which required a deterrent sentence. Other relevant factors included the fact the offence constituted a breach of a DVO and occurred while the applicant was subject to suspended prison sentences.

R v Pringle; ex parte Attorney-General (Qld) [2012] QCA 223 (24 August 2012) – Queensland Court of Appeal

‘Exposing a child’ – ‘Manslaughter’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Serious violent offence declaration’

Charge/s: Manslaughter.

Appeal type: Appeal against sentence.

Facts: The respondent pleaded guilty to the manslaughter of his partner. He was in a long term relationship with the deceased, with whom he had three young children. He was a heavy cannabis user. In the weeks leading up to the killing, the deceased had confided to others about problems in the relationship. The respondent believed the deceased was having an affair and was upset as the deceased’s sister owed him $15 000. He was concerned the deceased was preparing to leave him and take his children – he claimed that she was ‘messing with my head’ (See at [10]). On the day of the killing, the respondent spoke to his parents who both encouraged him to seek help from a counsellor or psychiatrist. He then strangled the deceased until she was unconscious in the presence of the children. After moving the children to another room, he stabbed the deceased twice in the chest, killing her. He also stabbed himself but the injuries were not life threatening. After being declared fit to stand trial, but of diminished responsibility (under section 304A of the Queensland Criminal Code) by the Mental Health Court, he pleaded guilty to manslaughter. The psychiatrist stated that the respondent, ‘suffered from a personality disorder with paranoid traits.’ This, as well as his drug abuse and the viciousness of the killing suggested that his condition was likely to endure after being released from custody (see at [29]). However, gradual improvement may be expected with regular treatment (See at [15]). He had no relevant criminal history. He was sentenced to nine years’ imprisonment. Parole release would depend on his illness and progress of rehabilitation while in prison.

Issue/s: Whether the sentence was manifestly inadequate and whether the sentencing judge should have made a ‘serious violent offence’ declaration.

Decision and Reasoning: The appeal was dismissed. McMurdo P (with whom Muir JA and Gotterson JA agreed) held that as deterrence and denunciation were of less importance in this case due to the limited moral culpability of the respondent (because of his mental illness), the primary purposes of sentencing were the protection of the Queensland community and punishment of the offender. However, the Court found that a nine year sentence with no serious violent offence declaration and no parole eligibility date was within range for a spousal manslaughter based on diminished responsibility. There was a plea of guilty, no evidence of further danger to the community and evidence of remorse. A recovery was not certain, but the respondent was responding positively to medication and treatment. Also, the fact that he strangled the deceased in front of the children was an aggravating feature, but this had to be considered in the context of diminished responsibility which reduced his moral culpability for the crime.

R v Hughes [2012] QCA 208 (14 August 2012) – Queensland Court of Appeal

‘Evidence’ – ‘Hearsay evidence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relationship evidence’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted by a jury of murdering her de facto partner. There was a history of domestic violence between the appellant and the deceased and multiple domestic violence orders were taken out against each other on separate occasions. (See further at [5]-[49]).

Issue/s: Whether the primary judge erred by admitting evidence of statements made by the deceased to various witnesses that he suspected the appellant had drugged him and whether the verdict was unreasonable having regard to the evidence.

Decision and Reasoning: Both grounds of appeal were dismissed. The appellant submitted that the statements made by the deceased were not admissible because no relevant inference could be drawn from them, so they were hearsay statements and therefore inadmissible. This submission was rejected – the Court held that unlike in R v Lester [2008] QCA 354, the statements were not ‘reports of statements made to (the deceased) by others’. Instead, they were statements about the deceased’s own physical sensations after falling asleep in an unusual manner, and came after an episode of domestic violence between the appellant and the deceased. Such evidence was relevant to the ‘deceased’s relationship with the appellant, their mutual dealings and their attitudes for each other’, and to whether the appellant drugged the deceased (See at [64]). As such, it was admissible under section 93B of the Evidence Act 1977 as an exception to the hearsay rule. The other ground of appeal that the verdict was unreasonable having regard to the evidence was also dismissed.

R v Amery [2011] QCA 383 (23 December 2011) – Queensland Court of Appeal

‘Malicious act with intent’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Pre-sentence custody’ – ‘Sentencing’

Charge/s: Malicious act with intent.

Appeal Type: Appeal against sentence.

Facts: In breach of a domestic violence order made that morning, the appellant returned to his de facto partner’s house and hit her head twice with a sledgehammer while she was sleeping, causing substantial injuries. The applicant pleaded guilty to a malicious act with intent and was sentenced to 8 years’ imprisonment, with no parole eligibility date set. No adjustment of the sentence was made for time already served in pre-sentence custody.

Issue: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld. The Court noted that the head sentence was not outside the permissible range. The offending was very serious, was not a spontaneous response, and was committed in breach of the DVO. Also, he had a serious criminal history, including a similar breach of a domestic violence order. However, the trial judge erred in not adjusting the sentence for pre-sentence custody and not imposing a parole eligibility date. As such, also taking into account the (albeit late) plea of guilty, the sentence was reduced to seven years, seven months’ imprisonment, with the appellant becoming eligible for parole after three years.

R v Rowe [2011] QCA 372 (16 December 2011) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Burglary with violence’ – ‘Common assault’ – ‘Damaging property’ – ‘Exposing a child’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Stalking’ – ‘Wilful damage’

Charge/s: Stalking with violence, burglary with violence, assault occasioning bodily harm, common assault and wilful damage.

Appeal Type: Application for leave to appeal against sentence.

Facts: The appellant had been in a relationship with the complainant for 6 years and had one child. The relationship ended, at which point the stalking began via telephone and text messages. There had been some conflict in the relationship about the care of the child. He broke into her home, demanded to see her phone and punched her on the head multiple times. He pushed a lighted cigarette on her leg, causing burns. He threatened to kill her. He tackled her to the ground to prevent her from seeking help and punched her again multiple times. He drove her to the hospital after she had cleaned up at his request. He yelled and threatened her while in the car, drove dangerously, and backhanded her to the side of her face. All of this occurred in front of their two year old child. Once the complainant was released from hospital he attended her workplace and caused significant damage to her car. He had a criminal history, including previous break and enter and assault occasioning bodily harm offences. The sentencing judge noted that the stalking was not prolonged, but it was very intense and violent. It was also noted that the child and the complainant must have been terrified.

The applicant pleaded guilty to the above offences, and was sentenced to three years’ imprisonment for stalking with violence, two years’ imprisonment for burglary with violence and assault occasioning bodily harm and 12 months’ imprisonment for common assault and wilful damage. The sentences were to be served concurrently. He was on parole at the time for a prior violent offence. This resulted in a head sentence of three years which was cumulative on an existing term of three years imprisonment, with parole eligibility set at one year after the cumulative term had been served.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave to appeal was refused. The applicant submitted that as the head sentence was reduced for the totality principle, the sentencing judge must have used a starting point of over three years which was not consistent with the comparable authorities. This was rejected. While the offending was short, it was intense, and was accompanied by actual and threatened violence, in the presence of a terrified child. The applicant’s stalking was more serious than in any of the relevant comparable authorities, and a head sentence of three years was appropriate given the circumstances of the offending and the appellant’s history, including that he was on parole for prior offences. The parole eligibility date was also found to be appropriate, given the offender was already subject to an existing term of imprisonment.

R v. Major; ex parte Attorney-General (Qld) [2011] QCA 210 (30 August 2011) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Denunciation’ – ‘Deterrence’ – ‘Impact on children’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Social abuse’ – ‘Verbal abuse’ – ‘Wounding’

Charge/s: Seven counts of assault occasioning bodily harm, threatening violence at night, wounding, assault occasioning bodily harm while armed and various summary offences.

Appeal Type: Appeal against sentence.

Facts: The respondent pleaded guilty to the above charges. The offending included 8 episodes of domestic violence over a three year period, involving severe physical abuse such as punching, cutting off the tip of the victim’s finger, choking, wrestling, smashing objects on the victim’s head and verbal abuse. There were lasting physical impacts on the victim including nerve injuries, loss of sensation to her finger-tip and depression and anxiety. He was sentenced for the unlawful wounding offence to 3 years’ imprisonment, suspended after 741 days (the period already served) with an operational period of 5 years. He was sentenced to 2 years imprisonment for the remaining counts.

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The appeal was upheld, with the Court holding that the original sentence was manifestly inadequate. The Court noted that when concurrent sentences are imposed, it is important to ensure that the primary term adequately reflects the nature of each individual feature of the offending. This was not reflected in the trial judge’s sentence. The mitigating factors were not particularly powerful. For example, the absence of any prior history of violence was outweighed by the prolonged duration of the offences. The fact that the respondent was not subject to a domestic violence order was not a mitigating factor but merely a distinguishing feature from analogous cases. The Court noted that the original sentence should have been in the range of six to eight years. However, given that the defendant had commenced rehabilitation, it was deemed that imposing such a sentence on appeal would be inappropriate. Also, the respondent had no prior history of violence, and was not subject to any court order at the time of the offending. Nevertheless, the sentence was increased to 5 years with the same suspension period. Probation was added for another count.

See in particular the useful remarks of McMurdo P at [53], regarding the considerations the courts should take into account for sentencing domestic violence offences – ‘The dreadful effects of prolonged episodes of domestic violence are notorious…Deterrence, both personal and general, is an important factor in sentencing in domestic violence cases. So too is denunciation. The community through the courts seeks sentences which show the public disapprobation of such conduct. The effects of domestic violence go beyond the trauma suffered by victims, survivors and their children to their extended families, and friends. Domestic violence also detrimentally affects the wider community, causing lost economic productivity and added financial strain to community funded social security and health systems.’

R v McMullen [2011] QCA 153 (1 July 2011) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Deprivation of liberty’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Rape’ – ‘Relationship evidence’ – ‘Threatening violence’

Charge/s: Assault occasioning bodily harm, deprivation of liberty, rape and threatening violence.

Appeal Type: Appeal against conviction.

Facts: The offences were committed against the appellant’s de facto partner. There was a current domestic violence order in place. The complainant alleged the appellant breached that order the night before he raped her.

Issue/s: Whether the primary judge erred in admitting evidence of the appellant’s previous history of domestic violence and drug use, as well as other discreditable conduct.

Decision and Reasoning: McMurdo P (with whom Cullinane J and Jones J agreed) held that the evidence of prior domestic violence was admissible to assist the jury in understanding the nature of their relationship, and was particularly relevant to the rape charges, where the lack of consent was the critical issue. However, her Honour noted that its admissibility remained ‘extraordinary and exceptional’ (at [83]) and warranted careful directions from the trial judge to warn the jury against propensity reasoning, applying the High Court decision of Roach v The Queen [2011] HCA 12. See in particular at [84], where her Honour referenced a model direction from the Queensland Supreme and District Court Bench Book. In this case, while the trial judge went ‘part way’ in warning the jury about the limits of the use of the evidence, he did not specifically give a warning against propensity reasoning. This amounted to an error of law. However, the appeal was dismissed pursuant to the proviso, with McMurdo P taking into account the ‘discerning’ verdicts of the jury on each count and the fact that defence counsel did not ask for a redirection during the trial.

R v Harold [2011] QCA 99 (17 May 2011) – Queensland Court of Appeal

‘Character’ – ‘Criminal history’ – ‘Cumulation of sentence’ – ‘Manslaughter’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Manslaughter, assault occasioning bodily harm, various summary offences.

Appeal Type: Application for leave to appeal against sentence.

Facts: The circumstances of the offending included the applicant stabbing his de facto partner multiple times and striking her with a cricket bat (See further at [3]-[9]). The applicant had a substantial and relevant criminal history of violence against the deceased committed over a 10 year period. He was convicted a number of times for severe assaults (both common assaults and assaults occasioning bodily harm) on the deceased, including punching her and hitting her over the head with an iron bar. He had previously been the subject of multiple domestic violence orders in her favour, which he had often breached. The applicant was convicted for the manslaughter of the deceased and was sentenced to 14 years’ imprisonment, including 12 years for manslaughter. The extra two years took into account 9 summary offences and two counts of assault occasioning bodily harm to which he had pleaded guilty.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. Martin J (with whom Chesterman JA and White JA agreed) held that the sentencing judge correctly made the 2 year sentence for the two charges of assault occasioning bodily harm cumulative because they were separate offences committed at different times, even though they were committed in a 10 year course of conduct. The total effective sentence was appropriate and within range. The sentencing judge observed this was a repetitive and prolonged attack with a knife making it a serious case of manslaughter.

R v Murray [2010] QCA 266 (8 October 2010) – Queensland Court of Appeal

*Note this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Aggravated stalking’ – ‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Following, harassing, monitoring’ – ‘Grievous bodily harm with intent’ – ‘Physical violence and harm’ – ‘Serious violent offence declaration’ – ‘Stealing’ – ‘Threatening to enter premises with intent to intimidate’

Charge/s: Aggravated stalking (two counts), assault occasioning bodily harm, stealing, grievous bodily harm with intent, breach of domestic violence order (two counts).

Appeal Type: Application for leave to appeal against sentence.

Facts: The offending involved continued harassment of the complainant (the former partner of the applicant), culminating in the charge of grievous bodily harm with intent. The applicant broke into the complainant’s home which she shared with her new partner and children. He hit her on the head with a frying pan, causing her to fall to the ground. He held a knife against her throat, tied her wrists and ankles and dragged her into the car. She then threw herself out of the car, at which point the applicant stabbed her in the left side then on her right side. He had a relevant criminal history, including prior offences of violence as well as a breach of a domestic violence order. Two of these offences involved violence against his mother as well as a former partner. Two psychiatric reports detailing the mental issues suffered by the applicant were put before the sentencing judge. The total effective sentence imposed at trial was 8 years’ imprisonment. A ‘serious violent offence’ declaration was made.

Issue/s:

1.

Whether the sentencing judge erred in not giving reasons for making a ‘serious violent offence’ declaration.

2.

Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave to appeal was refused.

1.

In relation to the serious violence offence declaration, the applicant’s counsel at trial conceded that it would be impossible to submit that the declaration should not be made. The sentencing judge referred to this concession, in applying the ‘integrated approach to sentencing’ which is required in cases where a serious violent offence declaration is appropriate (See at [22]-[23]).

2.

Counsel for the applicant contended that 8 years’ imprisonment was manifestly excessive, as it was outside of the range established by comparable authorities and it did not have regard to the psychiatric problems suffered by the applicant. This argument was dismissed, with Cullinane J (Fraser JA and Chesterman JA agreeing) finding that eight years was not outside the permissible range. The mental health issues were considered at trial, as the sentencing judge expressly referred to them.

R v Clark [2009] QCA 2 (6 February 2009) – Queensland Court of Appeal

‘Attempted murder’ – ‘Circumstantial evidence’ – ‘Damaging property’ – ‘Directions and warnings for/to jury’ – ‘Impact on children’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Relationship evidence’ – ‘Separation’

Charge/s: Attempted Murder.

Appeal Type: Appeal against conviction and sentence.

Facts: The appellant was convicted for the attempted murder of his former wife. There were cross domestic violence orders in place against each other. He was sentenced at trial to 16 years’ imprisonment. The case turned on purely circumstantial evidence. See further at [3]-[38].

Issue/s: Whether the trial judge made errors by -

1.

Not issuing a Shepherd v R [1990] HCA 56 direction which deals with the how the jury must use pieces of evidence individually.

2.

Allowing the jury to consider evidence of the history of the relationship between the parties.

The other issue was whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal against conviction was dismissed. The Court noted that in a case turning on circumstantial evidence alone, it is not necessary that every intermediate conclusion of fact made by the jury be proven beyond reasonable doubt. There may be some instances, as McMurdo P observed (at [40]) if it is necessary to ‘reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, that conclusion must be established beyond reasonable doubt’. However, generally, only the offence as a whole needs to be proven beyond reasonable doubt. In regards to the relationship evidence, the primary judge directed the jury to the effect that such evidence was not directly relevant to the alleged offence, but only to put the relationship between the parties in context. The Court held that this direction was adequate. The Court also refused leave to appeal against sentence, finding that the premediated nature of the offending and the lack of mitigating factors meant that this was at the highest end of the scale of attempted murders.

R v Chong; ex parte Attorney-General of Queensland [2008] QCA 22 (22 February 2008) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Breastfeeding mother’ – ‘Exceptional circumstances’ – ‘Hardship on children’ – ‘Mitigating factors’ – ‘Orders affecting children’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Unlawful wounding’

Charge/s: Unlawful wounding, breach of intensive correction order.

Appeal Type: Appeal against sentence.

Facts: The complainant was the respondent’s mother. They lived on the Aboriginal and Torres Strait Islander community of Mornington Island. Following an argument, the respondent stabbed the complainant three times, causing no lasting injuries. The respondent was sentenced to two and a half years’ imprisonment with immediate court ordered parole for the wounding offence.

Issue/s: Whether the sentence was manifestly inadequate, particularly in relation to the order of immediate parole.

Decision and Reasoning: The appeal was dismissed. The respondent had a substantial and relevant criminal history. In mitigation, the respondent had performed well on the intensive correction order, had pleaded guilty and was committed to looking after her seven children, including breastfeeding a baby and ensuring that those of school age attend school. She was an Aboriginal and Torres Strait Islander woman who had suffered abuse as a child. Atkinson J (with whom Keane JA and Fraser JA agreed) held that the head sentence was not manifestly inadequate. In considering whether the immediate parole order was appropriate, her Honour considered various factors, including the respondent’s disadvantage associated with her Aboriginality. Her Honour observed that, ‘The fact that the respondent is an Aboriginal and Torres Strait Islander woman living on Mornington Island is relevant to the question of the effect on her family’. (See at [36]). While the Court noted that the effect on an offender’s children can only be one relevant circumstance in determining sentence, the Court considered that exceptional circumstances were present. The respondent was a breastfeeding mother. Imprisonment would necessitate moving to the mainland, which would remove any practical means of maintaining the breastfeeding of the baby and personal contact with her other children. Her Honour quoted various secondary sources which discuss the substantial effect of incarceration on families, particularly on Aboriginal and Torres Strait Islander families. (See at [37] – [42]). The original sentence sufficiently incorporated deterrent and punitive elements, while the immediate parole allowed for rehabilitation.

R v Sauvao [2006] QCA 331 (1 September 2006) – Queensland Court of Appeal

*Note this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Attempted murder’ – ‘Breach of domestic violence order’ – ‘Community protection’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Serious violent offence declaration’

Charge/s: Attempted murder, breach of domestic violence order.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant pleaded guilty to the attempted murder of his de facto wife and to a breach of a domestic violence order. The couple had separated. The complainant initially obtained an apprehended violence order in 2003 in New South Wales, which was then registered in Queensland upon moving to that state. In May 2005, at a railway station, the applicant attempted to stab the complainant with a small knife. The knife snapped on the complainant’s jacket, causing her no harm. He continued to punch and kick her, and hit her head into a chair and a pole. He was then stopped by bystanders. He admitted that if they had not intervened he would have persevered. He surrendered to police and made full admissions. He gave a full account and added details to his disadvantage. It is unlikely without his interview that anyone would have known about the use of the knife (the complainant herself was not aware of it), or about the applicant’s intention to kill as opposed to assault the complainant. The applicant’s only relevant criminal history was a breach of the domestic violence order in the preceding year, when he attended the house of the complainant. The applicant was sentenced to nine years’ imprisonment. A ‘serious violent offence’ (SVO) declaration was made.

Issue/s: Whether the ‘serious violent offence’ declaration should have been made.

Decision and Reasoning: Firstly, the Court held that the head sentence was ‘unremarkable’. However, Holmes JA (with whom McPherson JA and Douglas J agreed) upheld the appeal. The applicant showed profound and sincere remorse and the case involved ‘unusual’ mitigating factors. The Court found the SVO declaration should not have been made for two reasons. Firstly, there was nothing in the offence itself in terms of, ‘duration, its force or its consequences which took it out of the ordinary run of cases’. The offender had almost no criminal history. There was no element of community protection as the likelihood of repetition was remote. Secondly, he had cooperated utterly. However, the only sentence reduction he received for this cooperation and remorse was 9 and a half months (the difference between the nine year sentence with an SVO declaration, and a 10 year sentence). This was a minor reduction in the circumstances and made the SVO declaration manifestly excessive.

R v HAC [2006] QCA 291 (11 August 2006) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Emotional and psychological abuse’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sexual and reproductive abuse’ – ‘Torture’ – ‘Verbal abuse’

Charge/s: Torture, assault occasioning bodily harm, rape.

Appeal Type: Appeal against conviction.

Facts: The appellant held a longstanding belief in his wife’s infidelity. The acts relied on to constitute the offence of torture included abusive and humiliating acts such as: insisting that the children refer to the complainant as a slut or a whore rather than Mum, not allowing the children to show physical or verbal affection to her; forcing her to chew and swallow chillies in the appellant’s presence and forcing her to lick her vomit up; insisting that she perform sexual acts on his friends for money; insisting that she sleep outside the house without amenities; demanding that she drink his urine and attempting to persuade her to engage in a sexual act with a dog. The assault occasioning bodily harm conviction occurred when the appellant broke the complainant’s arm after she denied having sexual dealings with a neighbour. The rape conviction involved the appellant inserting the wooden handle of a ‘gaff hook’ into the complainant’s vagina. He was sentenced to 10 years’ imprisonment for torture, two years’ imprisonment for assault occasioning bodily harm and five years’ imprisonment for rape. A ‘serious violent offence’ declaration was made.

Issue/s:

1.

Whether the directions given by the trial judge in respect of torture were inadequate.

2.

Whether the proviso should be applied.

Decision and Reasoning: The appeal was dismissed in respect of issue 2.

1.

It was accepted that the directions given by the trial judge were not consistent with McMurdo P’s judgment in R v LM [2004] QCA 192 which requires that when more than one act in a series is relied upon to prove the elements of torture, the jury must be unanimously satisfied beyond reasonable doubt that the appellant committed at least one of the particularised acts. In this case, the trial judge’s directions, ‘effectively permitted the jury to convict of torture even though the jury might not have been unanimously satisfied as to which act or series of acts were intentionally inflicted to cause severe pain or suffering’ (see at [2]).

2.

The Court held that notwithstanding this error, no substantial miscarriage of justice occurred and the proviso should be applied. Jerrard JA (Holmes JA agreeing) held that it was clear which acts amounted to torture and this evidence was substantiated by unchallenged evidence from the complainant’s daughters. Williams JA (Holmes JA agreeing) held (despite some initial concerns with applying the proviso) – ‘The offence of torture was clearly established beyond reasonable doubt by the evidence; the relevant particulars being the conduct sworn to by the complainant, supported by the evidence of her daughters, and admitted by the appellant’ (see at [11]).

R v Friday [2005] QCA 440 (30 November 2005) – Queensland Court of Appeal

‘Physical violence and harm’ – ‘Sentencing’ – ‘Wounding’

Charge/s: Wounding.

Appeal Type: Appeal against sentence.

Facts: The applicant and the complainant were in a de facto relationship. While intoxicated early in the morning, an argument started after the applicant alleged that she was seeing other men. The applicant got off the bed then stabbed her through the upper arm and side of the chest. The wound did not damage internal organs, but required deep and superficial stiches. He had a criminal history, consisting of various violent offences, and one offence of breaking and entering and committing an indictable offence. He pleaded guilty to wounding and was sentenced to three years’ imprisonment with no recommendation for post-prison community based released. This sentence was made cumulative upon an existing six month sentence that he was already serving. The sentencing judge referred to the need to deter others from obtaining a knife and stabbing someone just because of an argument. This conduct was prevalent on Palm Island, where the offence occurred. He was also sentenced for breaches of an intensive correction order and a domestic violence order.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld. The applicant submitted that if the sentencing judge had moderated the sentence for the mitigating factors (such as the guilty plea, the applicant’s age and an apology made to the complainant), then the starting point must have been four years, which is outside the permissible range of sentences for this type of offence. The Court agreed and suspended the three year sentence after nine months, with an operational period of three years.

R v Collins [2005] QCA 172 (27 May 2005) – Queensland Court of Appeal

‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Grievous bodily harm’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Grievous bodily harm.

Appeal type: Application for leave to appeal against sentence and appeal against conviction.

Facts: The applicant was convicted by a jury for the grievous bodily harm of his then partner. The applicant beat his then partner so severely that she suffered a ‘life-threatening subdural haematoma’ (See further at [2]). He was severely intoxicated at the time of the offence. The offence was committed in breach of a domestic violence order. The appellant also pleaded guilty to several other violent offences. These offences demonstrated a history of domestic violence committed against his then partner. He was sentenced to four years’ imprisonment, suspended after two years with an operational period of five years. This sentence for grievous bodily harm was ‘intended to reflect the applicant's criminality for all the offences to which he had pleaded guilty’ (See at [27]).

Issue/s:

1.

Whether the guilty verdict was unreasonable.

2.

Whether the sentence was manifestly excessive.

Decision and reasoning:

1.

The appeal against conviction was dismissed – see at [21]-[25].

Leave to appeal was refused. The applicant did not take his partner to hospital for treatment until one day after the injuries were sustained, which showed a complete disregard for her welfare. The fact that the offence was committed in breach of a domestic violence order was described as a ‘matter of concern’ (see at [31]). The applicant showed no remorse for the life-threatening injuries he inflicted on his partner, who is the mother of at least one of his children. Even though he had no memory of inflicting the injuries as a result of his intoxication, the Court stated that with ‘sober hindsight’ he ought to have been shocked at the injuries he caused (See at [31]). Deterrence was an important factor for the safety of the complainant as well as the interests of the community. The Court held at [37] that the applicant’s small prospects of rehabilitation were not such as to warrant a more lenient approach. The sentence for grievous bodily harm, when considered in isolation was not excessive. Therefore, considering the fact that it was a sentence intended to take into account all of the offending behaviour, it was actually at the lower end of the range of appropriate sentences.

R v Fairbrother; ex parte AG (Qld) [2005] QCA 105 (15 April 2005) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Denunciation’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Assault occasioning bodily harm.

Appeal Type: Appeal against sentence.

Facts: Following being released from police custody subject to conditions imposed under the then Domestic Violence (Family Protection) Act 1989 that the respondent not have contact with the complainant (his domestic partner) and that he not go to her residence, the respondent returned to her home and threw boiling water onto her twice. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the respondent in favour of the complainant. He pleaded guilty on the second day of trial and was sentenced to 2.5 years imprisonment for assault occasioning bodily harm, wholly suspended with an operational period of four years.

Issue/s: Whether the full suspension of the sentence made it manifestly inadequate.

Decision and Reasoning: The appeal was dismissed. The injuries caused the complainant severe pain over a long period and also caused some mental health issues. The respondent had some history of domestic violence. This was a ‘reasonably bad’ (at [21]) example of the offence which occurred hours after the appellant had been removed from the complainant’s home by police. However, mitigating factors included his guilty plea, his good work history and his efforts at rehabilitation. Furthermore, the respondent was not sentenced at trial for deliberately pouring boiling water on the complainant. If it had been deliberate, he would have been sentenced to actual imprisonment of at least 12 months before suspension. This was nevertheless a ‘serious example of domestic violence’ with the sentence imposed at trial being a correspondingly ‘substantial penalty’ (See at [24]).

See in particular McMurdo P’s (Jerrard JA and Cullinane J agreeing) comments on the impacts of domestic violence and the approach to sentencing at [23] –

‘Domestic violence is an insidious, prevalent and serious problem in our society. Victims are often too ashamed to publicly complain, partly because of misguided feelings of guilt and responsibility for the perpetrator's actions. Members of the community are often reluctant to become involved in the personal relationships of others where domestic violence is concerned. Perpetrators of domestic violence often fail to have insight into the seriousness of their offending, claiming an entitlement to behave in that way or at least to be forgiven by the victim and to evade punishment by society. Domestic violence has a deleterious on-going impact not only on the immediate victim but on the victim's wider family and ultimately on the whole of society. It is not solely a domestic issue; it is a crime against the State warranting salutary punishment. The cost to the community in terms of lost income and productivity, medical and psychological treatment and on-going social problems is immense. Perpetrators of serious acts of domestic violence must know that society will not tolerate such behaviour. They can expect the courts to impose significant sentences of imprisonment involving actual custody to deter not only individual offenders but also others who might otherwise think they can commit such acts with near impunity.’

R v Gill; ex parte Attorney-General of Queensland [2004] QCA 139 (30 April 2004) – Queensland Court of Appeal

‘Attempted rape’ – ‘Following, harassing, monitoring’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Stalking’

Charge/s: Aggravated stalking, attempted rape.

Appeal Type: Appeal against sentence.

Facts: The respondent pleaded guilty to aggravated stalking and attempted rape and was sentenced to two years and three years’ imprisonment respectively, to be served concurrently. There was no domestic violence order in place at the time of the offence. The Court recommended consideration of post-prison community based release after 12 months (See further at [2]-[3]).

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The appeal was dismissed by majority. Holmes J (with whom Davies JA agreed) discussed R v Stephens [1994] QCA 507 and noted that it is not correct to approach rapes occurring in an existing relationship more leniently. However, this is not to say that that in the circumstances of a particular case, a sexual assault committed by a current or former partner will necessarily be equivalent to a sexual assault committed by a stranger. In comparing this case to R v McNamara, her Honour stated at [16], ‘I do not think that the traumatic effect of sexual assault in a case such as this, where the complainant had, albeit without enthusiasm, admitted the respondent to the house and gone to sleep with him present, is readily equated with the likely shock and fear of a woman sleeping in her home who without warning is assaulted by an intruder; as happened in McNamara.’ As such, also taking into account the respondent’s plea of guilty and comparable cases, her Honour held that the sentence, while ‘lenient’ ([21]), was adequate. However, de Jersey CJ dissented. His Honour also discussed Stephens. His view was that the statement in Stephens about an ‘honest but unreasonable’ mistake as to consent in the relationship context as a mitigating factor did not apply. The complainant had made her lack of consent clearly known and had previously shown reluctance to let the respondent into the house. His Honour stated, ‘This is a case where the circumstance of the prior relationship should in no degree have led to more lenient treatment than would otherwise be accorded’ (See at [5]). His Honour then went onto consider the respondent’s serious and relevant criminal history, including stalking offences as well as breaches of domestic violence orders (on four occasions over an eight year period with other partners). As such, having regard to this context, his view was that the sentence for attempted rape should be increased to four and a half years and that the order for community release should be removed. Nevertheless, he was in dissent and the appeal was dismissed.

R v AN [2003] QCA 349 (11 August 2003) – Queensland Court of Appeal

‘Cumulative sentencing’ – ‘Following, harassing, monitoring’ – ‘Sentencing’ – ‘Stalking’ – ‘Totality’

Charge/s: Stalking with circumstances of aggravation.

Appeal Type: Appeal against sentence.

Facts: The applicant met the complainant while on remand and they lived together for a short period until the relationship broke down. The stalking occurred over the phone and included death threats and threats to the complainant’s children. There was a psychologist’s report before the trial judge, indicating that the applicant presented with a borderline personality disorder and would not be able to alter his behaviour without counselling. The applicant had a long criminal history of stalking, stealing, breaches of domestic violence orders and other offences. The applicant pleaded guilty to the stalking of the complainant with circumstances of aggravation and was sentenced to three years’ imprisonment.

Issue/s: Whether the three year sentence offended the totality principle and was therefore manifestly excessive.

Decision and Reasoning: The Court allowed the appeal, reducing the sentence to two years. The effect of the conviction was that an existing suspended sentence for other offences was activated. The applicant had also been sentenced previously for common assault and wilful damage charges. The effect of this was that the applicant was liable to four years and two months imprisonment, becoming eligible for parole at eighteen months. There was no error in the cumulative term being imposed. However, the Court did conclude that the three year term offended the totality principle. In citing comparable cases, the Court found that a three year sentence is at the top of the range for offending of this nature. Lesser sentences were imposed in comparable cases which involved more serious stalking in the domestic context, such as surveillance, letters and attempts to run the victim off the road. Such conduct was not present in this case.

R v Foodey [2003] QCA 310 (25 July 2003) – Queensland Court of Appeal

‘Aggravated stalking’ – ‘Damaging property’ – ‘Deterrence’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Wilful damage’

Charge/s: Stalking with circumstance of aggravation (violence), wilful damage.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant separated from his wife after an eight year marriage and fourteen year relationship. Temporary protection orders were in place against the applicant in favour of his ex-wife. In breach of those orders, he stalked her on a number of separate occasions by assaulting her, driving his car at her, making threats against her and their children and following her car. His criminal history involved drug offences committed a considerable time ago. He pleaded guilty. The sentencing judge noted that the applicant showed no remorse and his conduct was of such seriousness that a deterrent sentence was more important than is normally the case. He was sentenced to 12 and a half months imprisonment, suspended for five years.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave was refused. Jerrard JA (with whom Davies JA and Helman J agreed) stated at [11] that, ‘The applicant's behaviour towards Jennifer Foodey in the two and a half months between their separation and his incarceration was persistently cruel and aggressive. At different times he insulted, degraded, and terrified her. His conduct throughout was in breach of court orders intended to give her protection. Considered in isolation, the sentence imposed by the learned judge does not appear manifestly excessive, and indeed far from it. The same result occurs if regard is had to other sentences for unlawful stalking imposed or approved by this court.’ The sentence was upheld.

R v Layfield [2003] QCA 3 (29 January 2003) – Queensland Court of Appeal

‘Following, harassing, monitoring’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Stalking’

Charge/s: Stalking with a circumstance of aggravation (threats of violence).

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant was convicted of stalking his former fiancee with the aggravating circumstance that he threatened to use violence against her. A previous domestic violence order was obtained by the complainant and the relationship deteriorated about a year after this. The stalking occurred over a period of less than one year. It occurred over the telephone, as well as by following and loitering outside of her place of employment. He was sentenced to two years imprisonment.

Issue/s: Whether the trial judge should have exercised the option of suspending the sentence after twelve months, on the basis of several factors including the applicant’s youth, lack of criminal history and a strong support network.

Decision and Reasoning: Davies JA (with whom McPherson JA and Mullins J agreed), refused the application, holding that while the trial judge could have imposed the lesser sentence, it was not argued for at trial, and the sentence that was imposed did not demonstrate any error. Davies JA also noted the applicant’s lack of remorse as a relevant factor.

R v Millar [2002] QCA 382 (25 September 2002) – Queensland Court of Appeal

‘Following, harassing, monitoring’ – ‘Irrelevant considerations’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Stalking’ – ‘Verbal abuse’

Charge/s: Stalking with circumstances of aggravation, common assault, and dangerous operation of a motor vehicle.

Appeal type: Application for leave to appeal against sentence.

Facts: The applicant was in a relationship with the complainant for nine months. They then lived together as a married couple for two weeks until the complainant moved out due to physical and verbal abuse by the applicant. The complainant indicated that she wished to cease all contact with the applicant. There was a domestic violence order in place, which was subsequently breached by the applicant. The stalking (committed when the order was in place) ‘involved menacing telephone calls, banging on her door, threats and letters and other items left at her residence culminating in the applicant's attempting to run the complainant off the road during the day’. This caused the complainant to veer to the wrong side of a busy rode. He then drove his car into hers and assaulted an off duty police officer who was trying to help the complainant. The applicant’s criminal history was comprised of dishonesty offences which had resulted in prison terms. Concurrent sentences of two years imprisonment (with the full activation of an unrelated nine month suspended sentence) were imposed. The complainant indicated that she was still in fear for her safety.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave was refused. The applicant submitted, inter alia that his criminal history was confined to dishonesty offences, he was young and a psychological report indicated he was remorseful. He stressed that the comparable decisions before the Court concerned situations where there was no emotional relationship between the complainant and the offender, so that in his case, a more lenient penalty should have been imposed. This argument was rejected. de Jersey CJ (with whom Helman J and Jones J agreed) held – ‘I would say for my part that that (the presence of an emotional relationship between the offender and the victim) is not a feature which should necessarily lead to a lower penalty being imposed, where the stalking follows the break-up of an emotional relationship.’

R v M [2001] QCA 166 (1 May 2001) – Queensland Court of Appeal

‘Assault’ – ‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Burglary’ – ‘Circumstantial evidence’ – ‘Deprivation of liberty’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Indecent assault’ – ‘Intent’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Separation’ – ‘Sexual and reproductive abuse’

Charge/s: Burglary, rape, assault occasioning bodily harm, deprivation of liberty, two counts of aggravated indecent assault and assault.

Appeal Type: Appeal against conviction and sentence.

Facts: One week prior to the offences the victim had removed her former partner’s name from their joint lease, terminating his right to enter. He (the appellant) then broke into the victim’s house, after cutting the telephone wires. He then pulled her into the bedroom, punched her, tied her up and forced her to perform oral sex on him at knife point on two separate occasions. He waved his knife at her and said that if the police were called, he would cut off her breasts and have anal sex with her. He then raped her. The appellant was the subject of a domestic violence order obtained by the complainant a month before the offences were committed. He was sentenced to 9 years’ imprisonment.

Issue/s:

1.

Whether the sentence was manifestly excessive.

2.

Whether the trial judge erred in allowing the jury to infer that it was the appellant who cut the telephone lines.

3.

Whether the trial judge erred by failing to direct the jury that they needed to be satisfied that the appellant cut the phone lines beyond reasonable doubt.

4.

Whether evidence of a domestic violence order being in place could be a relevant factor in determining whether the appellant had the requisite intent to commit an offence when he entered the house.

5.

Whether the appellant could rely on the defence of an honest and mistaken belief for the purposes of consent.

Decision and Reasoning:

1.

McPherson JA noted that a sentence of less than seven years could not have been expected – the appellant had a substantial history of domestic violence (including against the complainant’s mother) and breaches of these orders.

2.

McPherson JA held that the judge was correct in allowing the jury to infer that the appellant had caused the damage. There was uncontradicted circumstantial evidence to this effect.

3.

This argument was dismissed. Only each element of the offence needs to be proven beyond reasonable doubt, not every piece of circumstantial evidence.

4.

The Court held that evidence of a domestic violence order being in place could be a relevant factor for the jury to determine intent for the purposes of the burglary charge.

5.

This argument was dismissed. In fact, the trial judge had omitted the requirement of a ‘reasonable’ belief, which was favourable to the appellant.

R v Matamua; ex parte Attorney-General (Qld) [2000] QCA 400 (28 September 2000) – Queensland Court of Appeal

‘Assault’ – ‘Deterrence’ – ‘Going armed in public in such a manner as to cause fear’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful assault causing bodily harm while armed’

Charge/s: Unlawful assault, unlawful assault causing bodily harm while armed, going armed in public in such a manner as to cause fear.

Appeal Type: Appeal against sentence.

Facts: The respondent became involved in an argument with the complainant, with whom he was in a de facto relationship. The respondent smashed a stubby of beer on his forehead which broke. He then pushed the complainant onto the bonnet of a car and held the broken bottle on her throat and threatened to slice her with it. Another argument ensued, at which point the respondent swung an axe at the complainant. He hit her on the back of the head with the handle while yelling abuse at her. She was knocked to the ground. Then, he swung the axe to the ground so that the axe head became stuck in the ground next to the complainant’s head. After a struggle, he winded the complainant and held the axe to her throat, while threatening to kill her. He was severely intoxicated. The relationship ended after the offences. The complainant experienced severe pain, but suffered no permanent physical injury. However, she suffered lasting psychological injuries. The respondent’s criminal history consisted of drug and traffic offences, as well as one offence of behaving in a threatening manner. He was sentenced to a total effective sentence of 18 months’ imprisonment, wholly suspended with an operational period of two and a half years. A $1000 fine and $1000 compensation was also ordered.

Issue/s: Whether the sentence was manifestly inadequate. In particular, whether a custodial sentence was required.

Decision and Reasoning: The appeal was upheld. Pincus JA (with whom Thomas JA and de Jersey CJ agreed) held that the degree of violence was such as to warrant a term of actual imprisonment. A deterrent sentence was needed. His conduct was prolonged. The axe could quite easily have gone through someone’s head. It involved other people as well as his partner. The sentence was increased on the principal charge of assault occasioning bodily harm to 18 months’ imprisonment with a recommendation for parole after six months. It was recommended that the respondent receive counselling for his alcohol problems.

R v MacKenzie [2000] QCA 324 (11 August 2000) – Queensland Court of Appeal

‘Battered wife syndrome’ – ‘Manslaughter’ – ‘Negligent manslaughter’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Where the offender is also a victim’

Charge/s: Manslaughter.

Appeal Type: Appeal against conviction and sentence.

Facts: The applicant was married to her husband for 39 years and was subjected to severe domestic violence during that time. She pleaded guilty to the manslaughter of her husband. She was sentenced to 8 years imprisonment with a non-parole period of 3 years. (See further at [26]-[30]).

Issue/s:

1.

Whether a miscarriage of justice occurred because of advice the appellant was given to plead guilty to manslaughter, instead of pleading not guilty to murder and seeking an acquittal on the basis of self-defence.

2.

Whether the sentence was manifestly excessive.

Decision and Reasoning:

1.

This argument was dismissed – the applicant never claimed she was acting in self-defence, and there was minimal evidence to that effect. However, McPherson JA did note that evidence of ‘battered wife’s syndrome’, can be relevant as expert evidence for the purposes of self-defence (or provocation), as demonstrating the heightened awareness and arousal which may be experienced by ‘battered women’, which would be relevant to whether they had reasonable grounds to use the level of force they did.

2.

The appeal against sentence was upheld. McMurdo P (Dutney J concurring as to the orders made) held that notwithstanding that the applicant’s conduct was negligent and not a willed act, a substantial period of imprisonment was required to deter people from handling guns negligently, particularly in the context of domestic violence. Such conduct was not excused by the ‘grim history’ of domestic violence the appellant suffered. Nevertheless, this history did impact upon the appellant in that it contributed to (as a psychologist who interviewed her put it at [21]), ‘ineffective problem solving behaviour and a perception by [the applicant] of the narrowing of her options over time. A perception of narrowed options can often result in decisions made by the abused woman that from the outside look like poor judgment.’ This grave history of abuse was therefore an additional mitigating factor which partly explains how her behaviour came about. As such, taking into account all of the unusual circumstances, the sentence was reduced to 5 years, with a non-parole period of 1 year. McPherson JA agreed that the sentence should be reduced but proposed a slightly longer term.

R v Lane [1998] QCA 167 (8 May 1998) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Good behaviour bond’ – ‘Physical violence and harm’ – ‘Recording a conviction’ – ‘Self-defence’ – ‘Where the offender is also a victim’

Charge/s: Assault occasioning bodily harm.

Appeal Type: Appeal against the recording of a conviction.

Facts: The applicant was convicted of assault occasioning bodily harm. She was released and placed on a good behaviour bond for two years. For a number of years, the applicant had been the subject of severe physical and emotional abuse by her de facto partner. It is unclear whether at the time of the offence, there was a current or lapsed protection order in place between the applicant and her de facto partner. The incident involved the applicant hitting her de facto partner on the head with a heavy mortar bowl when he was sleeping. She later shot him, after a struggle for the gun. She was acquitted of the shooting charges on the basis that the jury found there was a reasonable doubt as to whether self-defence was available due to a reasonable fear of serious attack. However, she was convicted for the striking incident, with self-defence being excluded beyond reasonable doubt. The sentencing judge commented on the need for a ‘deterrent aspect in the element of sentencing in a case such as this’ (and noted) ‘Little point…would be served at this stage by not recording a conviction’ (See at page 6).

Issue/s: Whether the conviction should have been recorded.

Decision and Reasoning: The application was refused. Derrington J noted at [4] that the ‘(trial judge) made full allowance for the applicant's suffering at the hands of the complainant and for all other features favourable to her. With this approach I agree unreservedly.’

R v Stephens & Attorney-General of Queensland [1994] QCA 507 (28 November 1994) – Queensland Court of Appeal

‘Consent’ – ‘Indecent assault’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Rape, indecent assault.

Appeal Type: Appeal against sentence.

Facts: The respondent was convicted of two counts of rape and one count of indecent assault of his de facto partner. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the respondent in favour of the victim. He was sentenced to three years imprisonment with a recommendation for parole eligibility after six months. The context of the relationship was one of intimidation and fear.

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The Court upheld the appeal, holding that while the trial judge was correct to take into account the respondent’s youth, irrelevant considerations were taken into account. The sentence was increased to five years imprisonment with a recommendation for parole eligibility after two years. The Court found that the primary judge erred by approaching rapes occurring within an existing relationship in a more lenient way. The Court stated that generally, it is not correct to approach rapes occurring in existing relationships more leniently. There may be circumstances where the existence of such a relationship may be relevant to the sentence imposed due to the offender’s state of mind, in that, ‘there may be greater scope for a genuine belief on the part of the man that the woman has or is likely to consent to sexual intercourse. And where that mistake is honest but unreasonable, it may be relevant to take it into account in sentencing the offender.’ (Note: This statement has been both distinguished and applied in subsequent Court of Appeal decisions - In R v Conway [2012] QCA 142, Henry J (with whom Muir JA and McMurdo P agreed) stated in obiter that Stephens is ‘of limited utility given its age'. However, the case has been discussed after Conway such as in R v Postchild [2013] QCA 227.) In Stephens itself, the Court of Appeal found that the circumstances of the relationship in that case did not give reason to distinguish it from a rape between strangers. There was a high degree of violence and the complainant made it clear through her protests and tears that she was not consenting.

R v Bell & Anor; ex parte Attorney-General (Qld) [1994] QCA 220 (20 June 1994) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Mitigating factors’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful wounding’ – ‘Victim’

Charge/s: Unlawful Wounding.

Appeal Type: Appeal against sentence.

Facts: The respondent, an Aboriginal man, was intoxicated and following an argument with the complainant (his de facto partner), stabbed her in the thigh, punched her in the mouth twice and continued to shout and threaten her. He pleaded guilty to unlawful wounding and was sentenced to two years’ probation and ordered to perform 120 hours of community service, with no conviction recorded. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the respondent in favour of the complainant. The complainant was supportive of the respondent, but did not wish to see him in prison.

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The appeal was upheld. The respondent was re-sentenced to a suspended period of imprisonment for one year, with an operational period of two years. A conviction was recorded. The Court of Appeal imposed a sentence of imprisonment of 1 year despite the wishes of the complainant, the fact that the relationship had resumed and the fact the respondent had returned to his community and returned to work. However, the operational period of the sentence was suspended. Fitzgerald P (at 6) made the following comments relating to how social and economic disadvantage (both generally and in remote Aboriginal and Torres Strait Islander communities) is relevant when sentencing domestic violence offenders –

“It was right for (the trial judge) to have regard to the respondent’s disadvantages and open to him, as a result, to sentence the respondent as leniently as the circumstances of his offence admitted. However, such disadvantages do not justify or excuse violence against women or, to take another example, abuse of children. Women and children who live in deprived communities or circumstances should not also be deprived of the law’s protection. A proposition that such offences should not be adequately penalised because of disadvantages experienced by a group of which the offender is a member is not one which is acceptable to the general community or one which we would expect to be accepted by the particular community of which an offender and complainant are members.”

R v Kina [1993] QCA 480 (29 November 1993) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Battered woman syndrome’ – ‘Expert evidence - social worker’ – ‘Fresh evidence’ – ‘Murder’ – ‘Physical violence and harm’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: In September 1988, after a trial which lasted less than a day, the female appellant, an Aboriginal woman, was convicted of murder for killing her abusive male partner of three years and was sentenced to life imprisonment. The appellant did not give or call evidence at her trial. It was only five years later, after the appellant had spent years speaking to a particular social worker (Mr Berry) in prison, that evidence of the abuse she suffered emerged. Kina applied to the Governor in Council for the exercise in her favour of the royal prerogative of mercy. Section 672A of the Criminal Code preserves the pardoning power of the Governor, adding in para. (a) ‘that the Crown Law Officer may refer the whole case to the Court of Appeal, to be heard and determined as in the case of an appeal by a person convicted.’ Under this provision on 24 May 1993 the Attorney General referred to the Court of Appeal ‘the whole case with respect to the conviction of … Robyn Bella Kina on the charge of murder …’ of Anthony David Black.

Issue/s:

1.

The appellant did not receive a fair trial and a miscarriage of justice occurred because of problems of communication between the appellant and her lawyers which led to fundamental errors at trial.

2.

There was fresh evidence of such a nature that, had it been placed before the jury who decided the case, there was a substantial possibility of acquittal.

3.

The fresh evidence was of such a nature that refusal of it would lead to a miscarriage of justice.

Decision and Reasoning: The appeal was allowed, the conviction and verdict set aside and a new trial ordered. Evidence of Mr Berry, the social worker, was important in this case. Mr Berry first saw the appellant before her trial in April 1988. Over the following months, the appellant slowly disclosed her story to Mr Berry – that the deceased had continually beaten her up, forced her to have anal sex with him and that he tied her up. Mr Berry tried to communicate with the appellant’s lawyers before the trial but was advised that her legal representatives wished that he ‘would not interfere with proceedings’. After the trial, the social worker saw the appellant in a counselling capacity. The appellant’s self-esteem improved and in 1991 she was able to give evidence about the deceased’s threat to anally rape her 14 year old niece.

In finding there was a miscarriage of justice, Fitzgerald P and Davis JA held that:

“In this matter, there were, insufficiently recognised, a number of complex factors interacting which presented exceptional difficulties of communication between her legal representatives and the appellant because of: (i) her aboriginality; (ii) the battered woman syndrome; and (iii) the shameful (to her) nature of the events which characterised her relationship with the deceased. These cultural, psychological and personal factors bore upon the adequacy of the advice and legal representation which the appellant received and effectively denied her satisfactory representation or the capacity to make informed decisions on the basis of proper advice”.

Last updated: July 2024

Queensland

Court of Appeal

R v OAC [2024] QCA 52 (9 April 2024) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Miscarriage of justice’ - ‘Unreasonable’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Torture' - ‘Threat to kill’ - ‘Sexual and reproductive harm’ - ‘Emotional and psychological abuse’ - ‘Economic and financial abuse’ - ‘Rape’ - ‘Prevention order’ - ‘History of domestic violence and family violence’ - ‘Mental health’

Charges: 5x common assault; 2x strangulation in a domestic setting, 3x assault occasioning bodily harm, 3x deprivation of liberty, 1x torture, 1x contravention of protection order, 1x assault occasioning bodily harm while armed, 1x wilful damage, 1 x threats, 2x rape, 1x using a carriage service to make a threat to kill

Proceedings: Application for leave to appeal against sentence.

Facts: The male applicant pleaded guilty to 32 counts on three separate indictments. The majority of the offences concerned physical domestic violence against the applicant’s female partner between January and August 2019. [16]–[65]; [72] During this period, the applicant was served with and subsequently breached a protection order. [36]–[38] The most serious offending occurred within 16 hours, across two days: the applicant tortured his partner, assaulting, choking and raping her. [2]; [44]–[65]

Grounds of Appeal : Applicant sought leave to appeal the sentence on two grounds:

1.

the sentencing judge erred by having regard to uncharged acts; and

2.

the sentence is manifestly excessive. [12]

Decision and Reasoning : Application for leave refused. Morrison JA (with whom Mullins P and Brown J agree) dismissed the applicant’s first ground of appeal. The uncharged acts were expressly confined as forming part of the background, and at no time were framed as relevant to the offending conduct. That the uncharged acts merely provided relevant context to the domestic violence offences was appreciated by the sentencing judge. [99]–[107]

Morrison JA further dismissed the applicant’s second ground of appeal that the imposition of a serious violent offence declaration is inappropriate as the applicant suffered from serious psychological issues at the time of offending. [114] Available medical assessments did not disclose a diagnosis of ‘mental illness or abnormality’. [120]

The absence of such a diagnosis is relevant to the submission that general deterrence did not have such a call on the sentencing process that it meant a serious violent offence declaration should not be made; put another way, that making such a declaration would render the sentence manifestly excessive [121]

As is apparent from Neumann, there must be an assessment of two relevant factors present in order that the consideration of mitigating factors or that of general deterrence are affected. The first is the mental abnormality. The second is a causal link between that abnormality and the offending conduct.

Neither is present in the applicant’s case. What the report reveals is that drug-induced psychosis was a likely operative factor. That is not, in my view, sufficient to call into question the making of the serious violent offence declarations [123]–[124]

R v WBZ [2023] QCA 256 (15 December 2023) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Unreasonable’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Exposing children to domestic and family violence’ - ‘inconsistent verdicts’

Proceedings: Appeal against conviction.

Charges: 2x common assault, 2x strangulation in a domestic setting, 2x assault occasioning bodily harm, 1x wilful damage.

Facts: The male applicant and female complainant had been in a domestic relationship from October 2016 to January 2021. On two separate occasions, the applicant physically assaulted the complainant, backhanding, kicking, strangling and throwing her on the floor. On both occasions, the offending took place in the presence of the couple’s baby. [11]–[35]

Grounds of Appeal : The applicant appeals against his conviction for one count of strangulation on the basis that it was unreasonable, irreconcilable with the verdicts of acquittal.

Decision and Reasoning : Appeal dismissed. Flanagan JA (with whom Buss AJA and Kelly J agree) held the inconsistency across the verdicts of guilty and not guilty was reconcilable. According to Flanagan JA, each count was ‘readily explicable by reference’ to different sets of considerations, both factual and legal [67]; notably, the inconsistencies in the evidence provided by the complainant and applicant, and differences in jury directions.

R v MDS [2023] QCA 228 (21 November 2023) – Queensland Court of Appeal

‘Appeal against sentence’ - ‘Manifestly excessive’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Exposing children to domestic and family violence’

Proceedings: Appeal against sentence.

Charges: 4x wilful damage, 2x common assault, 1x assault occasioning bodily harm, 1x strangulation in a domestic setting.

Facts: The male applicant and female complainant had been in a long-term de facto relationship, having five children together, prior to separation in 2015. The applicant and the complainant, both intoxicated, had a verbal argument which turned into a physical altercation. The applicant physically assaulted the complainant, including smashing her headphones with a golf club [4], assaulting the complainant with ‘cane knives’ and strangling her with a wicker basket. [3]–[13] The incident occurred in front of the couple’s 16 year old son, who called the police. [12]

The applicant was found guilty of the offences and was sentenced to 12 months imprisonment for each count of wilful damage, 18 months imprisonment for each count of common assault, 2 years imprisonment for the count of assault occasioning bodily harm and 3 years imprisonment for the count of strangulation in a domestic setting – where all sentences were ordered to be served concurrently.

Grounds of Appeal : Applicant sought leave to appeal the sentence on two grounds:

1.

the sentence was manifestly excessive; and

2.

the sentencing judge made a specific error (ie, the judge’s statement that ‘someone in the victim’s position could have been dead within a short space of time’ was ‘factually inapposite’) [26]

Decision and Reasoning : Appeal dismissed. Justice of Appeal Dalton (with whom Morrison and Boddice JJA agree) found the sentence to neither be manifestly excessive or erroneous with respect to the sentencing judge’s treatment of the offence of strangulation:

The sentencing judge obviously regarded strangulation as the most serious of these offences, although it must be noted that the common assault with the cane knives was also a very serious offence [14]

That the primary judge took a balanced view of the strangulation is plain from the remarks which I have extracted above. In particular her Honour recognised that the period of strangulation was short; that bare hands were not used, and that the force used was not such as to cause loss of consciousness or control of the bladder. Her Honour expressly recognised that this choking was not of the most serious kind. [28]

R v LBB [2023] QCA 162 (11 August 2023) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Miscarriage of justice’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Threat’ - ‘Medical evidence’ - ‘Exposing children to domestic and family violence’

Proceedings: Appeal against conviction.

Charges: 1x strangulation in a domestic setting, 2x assault occasioning bodily harm, 1x threatening violence. The offending occurred in one episode of domestic violence, against the applicant’s wife.

Facts: The male applicant was convicted on four counts of domestic violence offences; all of which occurred on 16 January 2019 against the applicant’s wife (the complainant). The complainant’s evidence was that the applicant strangled her, after she refused to allow him access to her mobile phone. As the complainant attempted to leave, the applicant grabbed her and threw her onto the floor and threatened to kill her and their child. [4]–[6] The complainant attended the doctor later that day.

Grounds of Appeal : Applicant sought leave to appeal the sentence on two grounds:

1.

The wrongful admission of medical evidence concerning the complainant’s injuries; and

2.

The false prosecutorial claims concerning the medical evidence.

Decision and Reasoning : Appeal allowed, conviction set aside and retrial ordered. Judge Dalton (with whom Boddice JA and Bradley J agree) held ‘almost all’ of the evidence led from the doctor’s consultation notes with the complainant to be inadmissible and highly prejudicial to the applicant. [21] Such evidence led from the notes included (and were not limited to):

•

A detailed narrative amounting a complaint against the appellant and a description of his physically assaulting her …

•

sympathetically recorded details as to the complainant’s general domestic circumstances …

•

a hearsay history of the appellant’s having been angry and having pushed and shoved the complainant in the past …. [21]

Judge Dalton equally regarded the prosecution’s address to the jury concerning this evidence improper, as too the prosecution’s reliance upon the existence of a fracture (suffered by the complainant) which was not established [55]–[56]:

It was improper for the prosecutor to seek to use the inadmissible narrative evidence she had led from the doctor to attempt to bolster the complainant’s credit as if the narrative given to the doctor on 7 October 2021 was a fresh complaint in a sexual assault case. The prosecutor expressly used this evidence to try to bolster the credit of the complainant and urged the jury not to have a reasonable doubt because of what the appellant had told police [27]

R v WBX [2023] QCA 151 (28 July 2023) – Queensland Court of Appeal

‘Appeal against sentence’ - ‘Manifestly excessive’ - ‘Prevention order’ - ‘Breach of protection order’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Following, harassing and monitoring’

Proceedings: Appeal against sentence.

Charges: 1x assault occasioning bodily harm, 7x contravention of prevention order

Facts: The male applicant was convicted on domestic violence offences and sentenced to six months’ imprisonment and an order for compensatory payment ($10,000 to the complainant).

The applicant and female complainant had been in a ‘toxic’ domestic relationship for two years.[9] A temporary protection order was placed against the applicant in May 2021: interaction between the complainant and applicant was conditional on it being agreed upon in writing. [15] The offending took place on June 2021, when the complainant and applicant were together at the applicant’s residence: an argument turned into a physical altercation, with the applicant physically assaulting and strangling/choking the complainant. Following the incident, the applicant proceeded to contact the complainant for the next six days, contrary to the protection order. [13]–[16]

Grounds of Appeal : The applicant appealed the sentence on the ground that it was manifestly excessive, having regard to the applicant’s: previously undiagnosed medical condition; plea of guilty; lack of prior criminal history; and ‘new and functioning domestic relationship’. [21]

Decision and Reasoning : Appeal dismissed. Justice of Appeal Boddice (with whom Dalton and Flanagan JJA agree) found the sentencing judge to have made no error:

The protracted nature of the applicant’s criminal conduct, including the repeated contraventions of the domestic violence order in the following days, was of a nature where the imposition of a sentence of imprisonment fell well within a sound exercise of the sentencing discretion, notwithstanding the early pleas of guilty, lack of criminal history, psychological conditions, prospects of rehabilitation and the payment of compensation. Such a conclusion is supported by a consideration of the relevant authorities [35]–[36]

R v RBJ [2023] QCA 162 (13 June 2023) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Miscarriage of justice’ - ‘Unreasonable’ - ‘Physical violence and harm’ - ‘Sexual and reproductive harm’ - ‘Rape’ - ‘Inconsistent verdict’

Proceedings: Appeal against conviction.

Charges: 3 x rape.

Facts: The male applicant was charged with three counts of rape; all of which were domestic violence offences. Following a trial before a jury, the applicant was only convicted of one count (and acquitted of two counts).

At the time of offending, the male applicant and female complainant were in a relationship. On 10 October 2022, the applicant attended the complainant’s mother’s house and entered the complainant’s bedroom uninvited while she was asleep. Despite the complainant’s protest, the applicant forcibly removed her clothes and raped her three times. Between the first and second time (ie, count 1 and 2), the complainant went to the bathroom to have a shower.

Grounds of Appeal : The applicant appealed the conviction on two grounds:

1.

The verdict on count 1 is unreasonable and inconsistent with the verdicts of acquittal on counts 2 and 3; and

2.

Miscarriage of justice (ie, trial judge did not provide jury directions on the use of text-message evidence).

Decision and Reasoning : Appeal allowed, conviction set aside and new trial ordered on count 1. Drawing on the principles of inconsistent verdicts set out in MacKenzie v The Queen (1996) 190 CLR 348, 365–8, the Court (Mullins P and Morrison and Flanagan JJA) regarded the jury’s treatment of count 1 as distinct from counts 2 and 3 to not be unreasonable:

It could not be said to be unreasonable that the jury treated the circumstances in which count 1 was committed when the appellant arrived in the complainant’s bedroom uninvited as different from the circumstances of counts 2 and 3 when the complainant returned to the bedroom without wearing clothes while the appellant was still there [39]

It was open for the jury to regard the complainant’s evidence, relating to the text messages sent following the offending, as only constituting count 1:

The text exchange immediately after the complainant arrived at work, in which she confirmed that it was not acceptable for the appellant to show up in her house unannounced and to have sexual intercourse with her after she said “no” 100 times was more referable to count 1 than the other counts. When the appellant then sent a message reminding the complainant that she said she did not want him to go, the complainant’s response was “that was way after” which could also be taken as referable to “way after” the act of sexual intercourse when he first arrived that constituted count 1 [38]

R v Kynuna [2023] QCA 112 (30 May 2023) – Queensland Court of Appeal

‘Appeal against conviction’ - ‘Miscarriage of Justice’ - ‘Unreasonable’ - ‘Physical violence and harm’ - ‘Following, harassing and monitoring’ - ‘Choking/strangulation’ - ‘Sexual and reproductive harm’ - ‘Rape’ - ‘Threat to kill’ - ‘Evidence’ - ‘Expert opinion’ - ‘Jury directions’

Proceedings: Appeal against conviction.

Charges: 3 x rape, 1 x attempted rape

Facts: The male applicant was convicted of one count of attempted rape. The applicant and complainant were in a sexual relationship, which after some time the complainant did not wish to continue. Despite the relationship ending, the applicant continued to pursue the complainant via text messages and loitering at her place of work throughout May 2020. On 3 June 2020, the applicant physically grabbed the complainant by the neck at her place of work and threatened to ‘kill’ her if she continued to ignore him. [16]–[17] Following the applicant’s demands, the complainant drove her vehicle to a deserted place and was physically forced to perform oral and anal sex. [18]–[25]

Grounds of Appeal : The applicant appealed the conviction on two grounds:

1.

The trial judge failed to discharge a jury following the admission of inadmissible and/or highly prejudicial evidence;

2.

The trial judge failed to provide adequate jury directions on opinion evidence; and

3.

The verdict is unreasonable.

Decision and Reasoning : Appeal allowed. Verdict set aside and retrial ordered.

Morrison JA (with whom Mullins P and Boddice JA agree) held the trial judge’s treatment of opinion evidence — specifically the opinion of a forensic nurse that ‘it was unusual to find multiple lacerations to the fourchette in consensual sex’ [48] — to be inadequate.

The Crown prosecutor failed to make reference to the evidence in their opening address [54] and to confine the use of the evidence to the relevant charge (ie, attempted anal rape). [56]–[57] The trial judge failed to correct any misuse of the evidence by the jury through an appropriate direction: ‘The only direction given was one concerned with how to deal with expert evidence. In itself, that was a misdirection because the forensic nurse examiner’s evidence was not expert evidence.’ [58] Consequently, the evidence should have been excluded as both ‘inadmissible’ and ‘prejudicial’ to the applicant. [60]

However, Morrison JA did not find the verdict to be unreasonable. [69] The ‘identified weaknesses in the evidence’ did not reduce the ‘probative value’ of the evidence so as to create ‘a significant possibility that an innocent person has been convicted’. [76]

R v WBV [2023] QCA 79 (26 April 2023) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ - ‘Manifestly excessive’ - ‘Physical violence and harm’ - ‘Choking/strangulation’ - ‘History of domestic violence and family violence’ - ‘Parole’

Proceedings: Application for leave to appeal against sentence.

Charges: 1x assault occasioning bodily harm whilst armed; 1x wilful damage; 2x choking in a domestic setting; 1x assault occasioning bodily harm (domestic violence offence) 1x wilful damage (domestic violence setting); 1x assault occasioning bodily harm; 1x suppling a dangerous drug with a circumstance of aggravation.

Facts: The male applicant entered early pleas to four indictments and was sentenced to five years’ imprisonment. The offending was perpetrated against the applicant’s female partner in their home. On 6 August 2020, the applicant verbally assaulted the complainant, threatening her with a knife. [30] On 19 November 2021, the applicant physically and verbally assaulted the complainant, punching her in the face, and strangling her twice, causing her to lose consciousness multiple times. [19]–[23] On 19 May 2022, the applicant assaulted a male co-worker. [33]–[34]

Grounds of Appeal : The applicant sought leave to appeal against sentence on the ground that the sentence imposed was manifestly excessive. Particularly, the applicant contended that the primary judge:

1.

started ‘too high’ in calculating the appropriate global sentence for the most serious offending — the two counts of choking in a domestic setting;

2.

departed from the ‘rule of thumb of one-third in imposing a parole eligibility date at the 40% mark of the head sentence’; and

3.

did not accede to the submission of defence counsel in respect of certainty of release [11]

Decision and Reasoning : Application to leave dismissed. Crow J (with whom Dalton and Boddice JJA agree) dismissed the applicant’s submission that the head sentence was ‘too high’, having regard to the applicant’s ‘antecedents, the serious nature of the offending of 19 November 2021, and the accumulation of the criminality of the offending of 6 August 2020 and 19 May 2022’. [36]

With respect to the non-parole date, Crow J (with whom Dalton and Boddice JJA agree) held that the ‘common practice of a one third reduction is not a rule’. [39] Rather, the determination of a non-parole period is made with regard to ‘the specific circumstances of the offender including his antecedents, character, and any prior criminal history’. [40]

Applying these factors to the present case, Crow J held the date to be appropriate:

The applicant’s prior criminal history of serious violence, his lack of anger control, his serious difficulty with alcohol and drugs, his poor prison record, his offence of supplying dangerous drugs in a correctional facility are each a circumstance supporting the parole eligibility date being set at two years [51]

R v BEA [2023] QCA 78 (26 April 2023) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ - ‘Appeal against conviction’ - ‘Manifestly excessive’ - ‘Unsafe/unreasonable jury verdict’ - ‘Physical violence and harm’ - ‘Sexual and reproductive harm’ - ‘Rape’ - ‘Protection order’ - ‘History of domestic violence and family violence’ - ‘victim’s mental health’

Proceedings: Appeal against conviction.

Charges: 13x rape, 2x assault occasioning bodily harm, 3x common assault.

Facts: Following a trial by jury, the male applicant was found guilty of thirteen counts of rape, two counts of assault occasioning bodily harm and three counts of common assaults. Each count involved the aggravating circumstance of being a domestic violence offence [3]: the applicant and female complainant were in a de facto relationship between 2013 and 2015. In this period, the complainant had received a protection order against the applicant. In 2014, the applicant contravened the protection order thrice and was imprisoned for nine months. [74] The female complainant reported the applicant’s offending in 2018. [29] The applicant was sentenced to (11 years head sentence for two counts of rape).

Grounds of Appeal : The applicant appealed against his conviction on several grounds.

1.

Unsafe and unsatisfactory jury verdicts (ie, complainant’s evidence was uncorroborated, ‘inconsistent [and] improbable’ and the complainant suffered from a mental illness). [6]

2.

Manifestly excessive head sentence for two counts of rape (11 years’ imprisonment).

Decision and Reasoning : Appeal dismissed.

With respect to the first ground of appeal, Bradley J (with whom Dalton JA and Gotterson AJA agree) held the evidence of the complainant (on which the verdict rested) to not be ‘improbable or incredible’ [10]. Further, the applicant’s evidence concerning the complainant’s mental health was erroneous and misleading. [22] Contrary to the applicant’s submission, the complainant suffered from depression (not bipolar disorder) which ‘does not raise a reasonable doubt about her credit or the reliability of her evidence’. [26]

Bradley J further held that the complainant’s two year delay in reporting the offences did not constitute a ‘significant forensic disadvantage’ to the applicant [34]–[35]:

The statute excludes the mere fact of delay as sufficient to show such a disadvantage and requires the nature of the disadvantage to be identified.7 The accused bears the onus of establishing there is a significant forensic disadvantage and that it is a consequence of the delay. The disadvantage must be forensic, so it must be a disadvantage in challenging, producing, or giving evidence in the conduct of the case

In the present case, no evidence likely to assist the appellant, which earlier existed, had been lost, gone missing, or become unavailable to him. No witness had died or become unlocatable. No one’s memory had been lost. The medical tests and photographs adverted to by the appellant were never within his power to obtain without the complainant’s consent. There was no evidence before the trial judge that the appellant had suffered a significant forensic disadvantage because of the delay in reporting the offences.

R v FBC [2023] QCA 74 (24 April 2023) – Queensland Court of Appeal

‘Children’ – ‘Exposing children to domestic and family violence’ – ‘Firearm’ – ‘Manifest excess’ – ‘Physical abuse’ – ‘Protection order’ – ‘Separation’ – ‘Sexual abuse’ – ‘Strangulation’ – ‘Suicide threat’ – ‘Threats to children’ – ‘Threats to kill’ – ‘Weapons’

Charges: 3x common assault, 2x wilful damage, 1x strangulation in domestic setting, 2 x assault occasioning bodily harm, 1x rape, 3x dangerous conduct using a weapon (all domestic violence offences except 1 x assault occasioning bodily harm).

Proceedings: Appeal against sentence.

Grounds: The sentence was manifestly excessive.

Facts: The applicant was sentenced to nine years imprisonment for rape and lesser concurrent periods of imprisonment for the remaining charges, being eligible for parole after serving 6 years. The applicant contended that the sentence was manifestly excessive.

The majority of the offending was committed against the applicant’s former partner over a 2.5-year period. During the relationship, the complainant had taken out protection orders against the applicant and he had been physically abusive, including incidents where he placed her in a headlock, choked her and punched her in the face.

The complainant left the family home after discovering that the applicant had been unfaithful. Following this, there was an incident where the applicant came to the complainant’s home and violently anally raped her, causing injury. Several months later the complainant asked the police to conduct a welfare check on the applicant. He then came to her house with a gun, aiming it at their two young children and threatening to shoot her, the children and himself.

Reasoning and decision: Appeal dismissed.

Boddice JA (Mullins P and Flanagan JA agreeing) held that the sentence was not unreasonable or unjust given the ‘depravity and persistence’ of the offending [31], which occurred over a significant period and included serious violence, protracted rape and aiming a loaded weapon at very young children. The authorities supported the sentencing judge’s observation that protracted rape would in itself attract a 10-year head sentence, using the case of R v TAQ [2020] QCA 200 as the most helpful yardstick but noting its distinguishing features. Boddice JA concluded that the period of actual custody reflected the criminality of the applicant, particularly the need for deterrence and denunciation in relation to the threats to the children [30].

R v SDI [2023] QCA 67 (18 April 2023) – Queensland Court of Appeal

‘Attempt to pervert the course of justice’ – ‘Circumstantial evidence’ – ‘Evidence’ – ‘Evidence of monitoring’ – ‘Evidence of stalking’ – ‘Evidence of technology-facilitated abuse’ – ‘False complaints’ – ‘Following, harassing and monitoring’ – ‘Inference drawn from nature of searches’ – ‘Judicial notice’ – ‘Judicial notice that mobile phones and laptops are prima facie accurate’ – ‘Rebuttable presumption of the accuracy of 'notorious' technical instruments’ – ‘Stalking’ – ‘Technology facilitated abuse’

Proceedings: Application to adduce further evidence, appeal against conviction for stalking.

Charges: 1x stalking, 1x attempting to pervert the course of justice.

Grounds of appeal:

1.

Verdicts unreasonable or unsupported by evidence

2.

Error in law in admitting documents

3.

Error in law in directing that it was open to find that the appellant caused ‘detriment’

4.

Error in fact in finding without evidence that the appellant and complainant had been married, renewed their lease and other matters

5.

Error in law by failing to rule on admissibility of two exhibits

6.

Denial of fair trial in refusal to adduce evidence

Facts: The complainant woman and defendant man were married but after the relationship deteriorated the complainant left the family home with their son and her daughter from a previous relationship. The defendant was alleged to have made intimidating phone-calls to the complainant, followed her, made false complaints and accusations, and the complainant also alleged the defendant planted drugs in her car.

(The attempt to pervert the course of justice conviction was not in question on appeal. Whilst in custody the defendant had made a number of phone calls to his brother and a friend (“Arunta calls”) asking them to contact a number of people and request those people provide false statements/statutory declarations admitting responsibility for the Crime Stoppers and PoliceLink submissions in order to assist him get bail and to support his acquittal [5].)

The admissibility of Exhibits 5 and 42 were central to the appeal. Exhibit 5 was a screenshot of the daughter’s computer screen showing that the respondent’s iPhone was synched with her Gmail account. Exhibit 42 was a series of printouts from the search history on the daughter’s Gmail account, including ‘how to pay to find someone,’ ‘what will happen if I take my children against a court order?’ and ‘mobile phone locater.’

Decision: The application to adduce further evidence refused; appeal dismissed.

Morrison JA (Mullins P and Flanagan JA agreeing), held that while neither of exhibits 5 and 42 could establish that it was the appellant who synchronised the phone or conducted the searches, this did not make them inadmissible [43]. The exhibits were at least admissible as visual records of what the complainant said she saw on the screen (R v Sitek [1988] 2 Qd R 284) [44]. Additionally, Exhibit 5 was admissible for the purposes of showing that one device was synchronised with another [45].

The trial judge’s use of Exhibit 42 was restricted to the searches where the only reasonable inference was that the appellant had conducted them [62] and that even had it been wrongly admitted there was no basis for finding a miscarriage of justice as it only affected one act of stalking [63]. While the appellant submitted that the complainant had fabricated the screenshot, this was not put to the complainant during cross-examination and in the circumstances there was a strong inference to be drawn from the nature of the searches that they were conducted by the appellant [116].

Consideration was also given to the rebuttable presumption of the accuracy of ‘notorious’ technical instruments, amounting to judicial notice of the fact that a device that is generally used and known to be trustworthy is prima facie accurate (Bevan v the State of Western Australia [2010] WASCA 101) [30]. Mobile phones and laptops were said to fall into this category and there was no evidence suggesting the complainant’s computer or her daughter’s iPad were other than accurate and trustworthy. The exhibits were therefore admissible as circumstantial evidence going to the question of whether the appellant had synchronised the phone and Gmail, and whether the appellant had conducted the searches [48].

The submission that no ruling on Exhibit 5 was made was said to be a misstatement as the trial judge had proceeded on the basis that the exhibit was to be admitted as record of what the complainant had seen on the computer and noted a reservation that the defence might wish to argue what it proved [53]. The appellant was also found to be bound by the defence counsel’s agreement that the admissibility of Exhibit 42 be deferred to the end of trial.

The appellant’s attempts to adduce further evidence were refused as they could have sought to adduce the evidence at trial and the evidence amounted to no more than a general attack on the complainant’s credit and therefore would not have affected the outcome.

R v Robbins [2023] QCA 18 (17 February 2023) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Dated allegations of historical violence’ – ‘History of violence to third party’ – ‘Murder’ – ‘Partial defence of killing for preservation in an abusive domestic relationship’ – ‘S304b criminal code (qld)’ – ‘Siblings’ – ‘Verbal abuse’

Proceedings: Appeal against murder conviction.

Grounds: The trial judge erred in not directing the jury in relation to the partial defence of killing for preservation in an abusive domestic relationship (s304B Criminal Code (Qld)).

Facts: The male appellant and homicide victim were brothers. The victim, his partner and the appellant’s daughter had come to stay with the appellant and his fiancée prior to the appellant’s wedding. During the course of dinner at the appellant’s home, an aggressive verbal argument broke out between the appellant and victim. At one point, the victim asked the appellant’s fiancé if she was really marrying the appellant and she responded that she wouldn’t if he continued to behave this way.

The appellant told the victim and his partner to leave and made further abusive comments towards the victim, apparently angered by his comment to his fiancé. They broke into a physical confrontation and both parties threw punches. During the struggle, the appellant grabbed a knife and stabbed the victim seven times. He died of knife wounds the following day.

The appellant gave evidence that the victim had been an abusive family member, making allegations of witnessing 3 separate assaults against his father. He contended that the victim had been verbally abusive towards the appellant, his father and other brother throughout his life.

Reasoning and decision: The partial defence did not arise fairly on the evidence; appeal dismissed.

A history of domestic violence in the relationship was required, necessitating a previous tendency by either party to engage in acts of serious domestic violence repeatedly or habitually against the other ([30]). The appellant’s claims regarding the victim’s past behaviour lacked an evidentiary basis and any available evidence did not clarify the nature of his conduct.

The age of the alleged incidents involving violence towards their father (occurring over 40 years ago) and fact that the conduct was not targeted at the appellant meant they did not support a history of an abusive relationship between the brothers. While it was possible for actual or threatened violence to a third person to be domestic violence against the second person in certain narrow circumstances, these were clearly not made out.

A ‘bare statement’ that verbal abuse had occurred was not enough to find family violence [39]. Repeated, habitual oral statements in certain circumstances could constitute domestic violence but this would require detail and evidence of impact. Additionally, verbal abuse was not found meet the required threshold of ‘serious’ domestic violence.

R v KBB [2022] QCA 273 (23 December 2022) (23 December 2022) – Queensland Court of Appeal

‘Allegations of infidelity’ – ‘Appeal against conviction’ – ‘Evidence’ – ‘Jealous behaviours’ – ‘Non-fatal strangulation’ – ‘Past domestic violence’ – ‘Physical violence’ – ‘Propensity evidence’ – ‘S132b of the evidence act 1977 (qld)’ – ‘Similar fact evidence’

Proceeding: Appeal against conviction for 1x strangulation in domestic setting.

Facts: The male appellant was charged with 1x strangulation in domestic setting, 1x suffocation in a domestic setting and 1x assault occasioning bodily harm while armed against his female partner. He was convicted on the first charge and acquitted on charges 2 and 3.

The complainant gave evidence that the appellant accused the complainant of infidelity, and the complainant slapped the appellant. The appellant he grabbed the complainant by the hair and throat, threw her onto the bed and covered her nose and mouth. When the complainant tried to leave the house, the appellant grabbed her by the throat and hit her on the head with a glass, knocking her unconscious. Medical evidence of bruising around her neck and head was submitted and the complainant gave evidence of four previous instances of physical violence.

Grounds:

1.

The verdict of the jury was unreasonable in that it was inconsistent with the verdicts of acquittal.

2.

There was an error of law in the admission of evidence of prior acts of domestic violence to demonstrate his propensity to commit domestic violence (under s132B of the Evidence Act 1977 (Qld)).

Decision and reasoning: Appeal dismissed.

Ground 1: McMurdo JA held that it was open to the jury to accept the evidence supporting the complainant’s testimony for the first charge while determining that they required independent evidentiary support before being satisfied about her credibility in relation to counts 2 and 3.

Ground 2: McMurdo JA noted that s132B has a wide operation and that ‘[o]nce the evidence is relevant, it is admissible (under s132B) subject only to the discretion to exclude it on the ground of unfairness according to s130 (Qld).’ Propensity evidence was held to constitute a relevant use, there was no requirement to satisfy the Pfennig test (Roach v The Queen [2011] HCA 12 (4 May 2011)) and there was no argument as to unfairness under s 130 or a miscarriage of justice.

R v CCU [2022] QCA 92 (27 May 2022) – Queensland Court of Appeal

‘Absence of remorse’ – ‘Application for leave to appeal against sentence’ – ‘Attempt to pervert the course of justice’ – ‘Coercive control’ – ‘Manifest excess’ – ‘Physical violence and harm’ – ‘Stepchildren’ – ‘Strangulation’ – ‘Uncharged acts’

Charges: 5 x assault occasioning bodily harm; 1 x common assault; 1 x assault occasioning bodily harm, while armed; 7 x common assault (a domestic violence offence); 4 x assault occasioning bodily harm (a domestic violence offence); 1 x torture (a domestic violence offence); 2 x strangulation in a domestic setting; 1 x suffocation in a domestic setting; 1 x attempting to pervert justice (a domestic violence offence).

Case type: Application for leave to appeal sentence.

Facts: On the second day of trial, the applicant was sentenced after pleading guilty to 20 counts of violence perpetrated over eight years towards his then-partner, K, and her son. As a result of a plea bargain, three counts were withdrawn. The learned sentencing judge imposed a head sentence of six years imprisonment, declaring 53 days as pre-sentence custody, and set a parole eligibility date at two years and four months from the date of sentence. The applicant’s offending was described by the learned sentencing judge as “violent, demeaning and an appalling attempt to exercise power over K” ([34]).

Issue: Whether the learned sentencing judge erred in taking into account the applicant’s uncharged acts? Whether the sentence was manifestly excessive?

Held: In sentencing the applicant, the learned sentencing judge considered his late guilty pleas, his absence of remorse and lack of relevant criminal history, his age at the time of offending, the nature of the offending, the significant effect that the conduct had on K, her son and daughter, his background, the fact that the offences were domestic violence offences and the character references. His Honour also had regard to the fact that domestic violence crimes demean society and are to be condemned and denounced ([34]).

The Court of Appeal (Mullins, Morrison and Fraser JJA) refused leave to appeal. The applicant argued that the learned sentencing judge erred in taking into account the applicant’s uncharged acts, because, inter alia, the Crown’s statement of facts included uncharged acts that were serious and should not have been included. The first ground of appeal was rejected on the basis that:

•

The statement of facts tendered on the sentencing hearing was an agreed statement.

•

Reference to the transcript and sentencing remarks revealed that His Honour only sentenced the applicant for the offences charged.

The second ground of appeal was rejected on the basis that:

•

The offending was “protracted, violent, demeaning and controlling”. It extended beyond the complainant and some of the offending was committed in view of her children. Importantly, “it involved an ultimate degradation, the threat of elimination of life itself”, and was committed with a lack of insight and remorse ([58]).

•

The conduct can be considered worse, given that it was broken by periods of time, because the threat was “always there” ([59]).

•

The applicant attempted to pervert the course of justice to protect himself from exposure to criminal charges ([61]).

R v GBI [2022] QCA 28 (7 March 2022) – Queensland Court of Appeal

‘Accusations of infidelity’ – ‘Application for leave to appeal against sentence’ – ‘Jealousy’ – ‘Physical violence’ – ‘Sentencing’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Torture’ – ‘Weapon’

Charges: Assault occasioning bodily harm x 1 (count 1), torture x 1 (count 2).

Proceedings: Application for leave to appeal against sentence.

Issues: Whether the sentence was manifestly excessive.

Facts: The male applicant and female victim were in an intimate relationship. The charges arose out of two separate assaults. During the first, the applicant punched the victim in the face. During the second, the applicant subjected the victim to several violent assaults over a 48-hour period. The assaults included kicking and punching in the face and stomach, stabbing with scissors, verbal abuse that included threats against the victim’s life, and repeated strangulation. The victim sustained serious physical and psychological injuries. The assaults accompanied accusations of infidelity by the applicant, who expressed feelings of jealousy on both occasions. The applicant pleaded guilty to the charges and was sentenced to 18 months’ imprisonment on count 1 and six and a half years imprisonment on count 2. The applicant sought leave to appeal on the ground that his sentence was manifestly excessive.

Decision and reasoning: The appeal was rejected.

Justice Morrison found that the matters raised by the applicant as demonstrating manifest excess had been considered by the sentencing judge. These matters included the applicant’s ‘remorse’, ‘good custodial behaviour’, ‘father’s poor health’, child support obligations, debts owed to his employer, ‘limited use of weapons’, the fact that the victim’s injuries did not require ongoing treatment, and the reduction in risk by a DVO and because the relationship had ceased. His Honour affirmed the sentencing judge’s conclusion that these matters did not warrant a further reduction in the sentence to be imposed, nor justify a finding that the risk of reoffending was reduced.

R v Lewis; Ex parte Attorney-General (Qld) [2022] QCA 14 (15 February 2022) – Queensland Court of Appeal

‘Appeal against sentence’ – ‘Assault’ – ‘Burning threat’ – ‘Immolation’ – ‘People affected by substance misuse’ – ‘Victim impact statement’ – ‘Weapon’ – ‘Young people’

Charges: The domestic violence charges were:

1.

Common assault,

2.

unlawful assault occasioning bodily harm

3.

causing grievous bodily harm with intent (malicious act with intent) x 1 and

4.

Causing grievous bodily harm (in the alternative to count 3).

Proceedings: Appeal against sentence by Attorney-General.

Issues: Whether sentence manifestly inadequate.

Facts: The male respondent and female victim were in a two-year relationship that was characterised as ‘troubled’ and involving physical violence [2]-[4]. Both parties were users of methylamphetamine and were aged 17 at the time of the offences. On one occasion, the respondent threw petrol on the victim and threatened to set her on fire. On another occasion, the respondent threw a screwdriver at the victim, which was embedded in her hip [3]-[4]. In May 2016, during verbal argument, the respondent used petrol to set the victim on fire [5]. The respondent fled when confronted by a neighbour [14]. The victim required surgery and was hospitalised for four weeks. She was left with ongoing pain and nerve damage [22]. In January 2021, the respondent pleaded guilty to common assault (count 1) and assault occasioning bodily harm (count 2) and was found guilty in relation to causing grievous bodily harm with intent (count 3). He successfully appealed against conviction regarding count 3 but was later resentenced to nine years and six months’ imprisonment [30]. The Attorney General of Queensland appealed on the basis that that sentence was manifestly inadequate [57].

Decision and reasoning: Appeal dismissed.

Justices Sofronoff, Morrison and Flanagan affirmed the decision and reasoning of the sentencing Judge. Their Honours endorsed the sentencing Judge’s consideration of the appellant’s plea of guilty, expressions of remorse, insight, youth and disadvantaged upbringing [67]-[70]. Their Honours agreed with the sentencing Judge’s characterisation of the offending ‘horrendous and disgraceful offending’ and ‘abominable behaviour’ [39]-[40], with ‘devastating consequences’ for the victim that included ‘significant and life-long physical, mental and emotional difficulties’ [72]. Their Honours continued that the sentencing Judge had correctly stated that ‘the sentence had to be “just having regard to all of the circumstances”, but in particular to punish, express community denunciation, meet general and specific deterrence, provide community protection, but also, in light of the offender’s youth, have regard to his prospects of rehabilitation’ [73]. Their Honours concluded that there was ‘no demonstrated error of principle… the sentence imposed was one derived by a careful balancing of competing requirements in an overall integrated sentencing approach’ [75]. This approach ‘was in accordance with what this Court said in R v Free; Ex parte Attorney-General (Qld) [2020] QCA 58 was one of the available approaches, namely to sentence towards the top of the bounds of appropriate discretion and not reduce the parole eligibility date, rather than sentence towards the bottom and impose a serious violent offence declaration’ [75].

R v EQ [2021] QCA 257 (30 November 2021) – Queensland Court of Appeal

‘Appeal against sentence’ – ‘Bomb threat’ – ‘Breach of protection order’ – ‘Children’ – ‘Exposing children to domestic and family violence’ – ‘Following, harassing and monitoring’ – ‘Limited criminal history’ – ‘People affected by trauma’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Separation’ – ‘Technology-facilitated abuse’ – ‘Weapons’

Charges: Breach of protection order x 1, assault of police officer x 1, making a bomb hoax x 1, stalking x 1, common assault x 2.

Proceedings: Application for leave to appeal against sentence and resentence.

Facts: The male defendant and female victim were married for 17 years and had two school aged daughters. The family immigrated to Australia from Egypt in 2011. After the couple separated, a domestic violence order was served on the appellant that prevented him from contacting the victim. In February 2019, the appellant repeatedly texted the victim before confronting her and their daughters at an airport. The appellant argued with the victim, before threatening her and airport staff with a knife, fake bomb, and electric shock device [12]-[17]. The appellant later admitted to police that he had been tracking the victim’s movements [19]. The appellant pleaded guilty to the charges and received a sentence of 6 years' imprisonment, with a non-parole period of 2 years and 6 months.

Grounds:

1.

The sentencing Judge erred in law by wrongly limiting the use to be made of evidence of the applicant’s mental health;

2.

The sentence was manifestly excessive; and

3.

In sentencing the applicant for count 2, the learned sentencing Judge mistook the offence to which he had pleaded guilty.

Decision and Reasoning: Application for leave to appeal allowed, charge 3 dismissed, resentenced for charge 2.

Due to an administrative error the appellant was sentenced for an offence with which he had not been charged and to which he had not pleaded guilty [52]. Therefore, the proceedings had miscarried, and the appeal was allowed. As ground three was made out, the court allowed the appeal and proceeded to resentence the applicant for count 2 to 5 years imprisonment with and non-parole period of 2 years 6 months. Justices Sofronoff, Davis and Williams noted that the offending was serious, with significant impact on the commercial operations of the airport, the distress experienced by witnesses, and ongoing psychological suffering of the victim and her daughters [57]. Their Honours noted that there were mitigating circumstances, such as the appellant’s limited prior convictions, cooperation with police, early guilty plea, expression of remorse and low risk of reoffending [58]. Their Honours summarised the appellant’s psychological report, which included details of the applicant’s diminishing symptoms of anxiety and depression, and noted the relevance of mental impairment under s 16A(2)(n) of the Crimes Act 1914 (Cth) [59]-[61]. Their Honours found that there were no comparative sentences [64]. Their Honours considered the maximum sentence for the offence, the sentencing considerations in s 16A of the Crimes (Aviation) Act 1991.

R v Hartas [2021] QCA 178 (27 August 2021) – Queensland Court of Appeal

‘Appeal against sentence’ – ‘Arson’ – ‘Jealous behaviours’ – ‘People affected by substance misuse’ – ‘People with disability and impairment’ – ‘People with mental illness’

Charges: Arson x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The 27-year-old male applicant and female victim were in a 6-week relationship. Shortly after the relationship ended, the intoxicated applicant used a petrol bomb to set fire to cars owned by the victim and her partner. The cars were parked directly in front of the victim’s house, where the victim, her partner, and her 6-year-old daughter were sleeping. In February 2021, the applicant was found guilty of one count of arson, constituting a domestic violence offence, and sentenced to three years’ imprisonment with a non-parole period of 12 months [1]-[8]. The applicant’s psychological report detailed ‘a complex medical history’ and ‘significant psychological problems’, which included chronic pain due to a spinal condition, alcohol misuse and a ‘longstanding mood disorder’ [25].

Grounds:

1.

The sentencing Judge failed to give sufficient weight to the applicant’s personal circumstances, specifically those evidenced by his psychological report

2.

The sentence was manifestly excessive [9].

Decision and Reasoning: Application for leave to appeal dismissed.

Fraser, Morrison and Applegarth JJ held the sentence imposed was not manifestly excessive. The sentencing Judge had given appropriate weight to the applicant’s personal circumstances and mitigated the sentence accordingly [42]. The contents of the psychological report had not shown that the applicant’s mental state at the time of the offence or at the time of sentence warranted substantial weight according to R v Verdins [2007] VSCA 102 (23 May 2007).The applicant’s mental state did not reduce his moral culpability, nor make imprisonment more burdensome such that it ‘became an inappropriate vehicle for’ general deterrence and specific deterrence [40], and his physical condition did not make imprisonment ‘unduly onerous’ [41]. The offence was serious, as indicated by its maximum penalty of life imprisonment with the aggravating factor that it was a domestic violence offence [50]. The victim impact statement indicated serious psychological harm caused to the victim and her daughter [51]. Their Honours accepted the sentencing Judge’s characterisation as ‘an extremely serious act of domestic violence’ due to ‘its grave potential’ impact on ‘life and property’, and the psychological harm that it has caused the victim and her six-year-old daughter [51].

R v RBE [2021] QCA 146 (20 July 2021) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ – ‘Arson’ – ‘Arson threats’ – ‘Error of fact’ – ‘Inference as to motive’ – ‘Motive’ – ‘People affected by trauma’ – ‘People with mental illness’ – ‘Section 132c evidence act 1977’ – ‘Sentence’ – ‘Separation’ – ‘Suicide threats’

Charges: Arson of a dwelling x 1 (domestic violence offence).

Proceedings: Application for leave to appeal against sentence.

Facts: As the complainant woman and applicant man were separating the applicant threatened to burn down the former matrimonial home. A protection order was granted protecting the complainant. The applicant has a history of major depression and complex post-traumatic stress disorder. On the date of the offence the applicant sent text messages to his son saying “goodbye” and that the house was alight. He also attempted to call the complainant and sent messages to a friend who went to the house, observed smoke, spoke to the appellant who was inside and called emergency services, then unsuccessfully attempted entry. The appellant’s evidence was that his intention was to commit suicide, but he fled the burning home having changed his mind after an unsuccessful attempted suicide. The sentencing judge expressed the view that the appellant’s expressed motives of suicide were not credible, despite accepting evidence of ligature marks on his neck supporting the appellant’s evidence he had attempted to hang himself during the incident. The judge found the appellant was seeking attention and acted vindictively to hurt his wife. The prosecution made no positive submission on motive and had submitted that all three motivations were open on the facts, advancing suicide or attention-seeking but not vindictiveness.

Decision and Reasoning: Leave to appeal, appeal allowed, sentence varied by:

•

Substituting three (3) years imprisonment; and

•

Suspending the sentence forthwith for an operational period of three (3) years.

Burns J (Morrison and McMurdo JJA concurring):

[26] ….it was not for the sentencing judge to decide what inferences arose from the agreed facts and, having done so, her Honour erred (and in a critical way) by determining a fact that was not in issue between the parties. Indeed, the procedure for resolving disputed facts provided in s 132C of the Evidence Act was not even engaged, the prosecutor having made no positive allegation about motive.

R v FBA [2021] QCA 142 (16 July 2021) – Queensland Court of Appeal

‘Adequacy of jury directions’ – ‘Admissibility of evidence’ – ‘Allegations of infidelity’ – ‘Attempt to withdraw allegations’ – ‘Choking’ – ‘Evidence’ – ‘History of domestic and family violence’ – ‘Jury directions’ – ‘People affected by substance misuse’ – ‘Relationship evidence’ – ‘Robinson direction’ – ‘S132b(2) evidence act 1977 (qld)’ – ‘Strangulation’ – ‘Threats to kill’

Charges: Non-fatal Strangulation x 4.

Proceedings: Appeal against conviction.

Facts: The appellant and complainant were in a relationship but maintained separate residences. The complainant had been staying with the complainant for 3 days when the alleged incidents occurred. The appellant made allegations of infidelity against the complainant, and they argued about that and money, the appellant refusing to drive the complainant home despite her giving him money for fuel. The complainant gave evidence that the appellant accused the complainant of stealing from him and that in four discrete incidents of physical altercations he applied pressure to her throat so that she could not breathe. She also alleged he made multiple threats to kill her and members of her extended family, locked her in the house and that she escaped with assistance from others. She went to hospital and photographs were taken of marks on her neck which were not there prior to the incident. The complainant also gave evidence of two prior incidents of violence by the appellant towards her. The complainant admitted using methylamphetamine at the time of the incidents and to attempting to withdraw her complaints, stating the reasons given for the withdrawal were false.

Grounds:

1.

The learned trial judge erred, causing the trial to miscarry, in:

(a) failing to clearly direct the jury as to the identification, purpose, and use of relationship evidence;

(b) admitting the evidence of the complainant’s daughter that she had ‘seen bruises on mum’ (the year prior to the instant allegations) as relationship evidence.

2.

The complainant’s evidence required a ‘Robinson direction’ and the failure to direct in those terms caused a miscarriage of justice.

3.

The complainant’s evidence in chief was inaudible in parts, which in the circumstances of the trial, caused the trial to miscarry.

4.

When regard is had to all the evidence, the jury verdicts are unreasonable, unsafe and unsatisfactory.

Decision and Reasoning: Appeal dismissed.

Ground 1(a) – rejected - further direction on relationship evidence would not have assisted the defence case (Sofronoff P [11], McMurdo JA agreeing, Boddice JA dissenting – the second paragraph of directions on the use of relationship evidence gave rise to a real risk of impermissible propensity reasoning).

Ground 1(b) – dismissed –the evidence was plainly admissible and relevant (Sofronoff P [13], MdMurdo JA agreeing Boddice JA dissenting – the evidence was inconsistent with the complainant’s evidence the appellant was only violent towards her in 2019).

Ground 2 – dismissed – it was clear why a ‘Robinson direction’ (pursuant to Criminal Code, s632(3)) wasn’t given, firstly the defence did not request one, and secondly “There was nothing in the present case which would have suggested to the learned judge that the jury required specific assistance in order to assess the complainant’s credibility and/or to suggest that, in the absence of such assistance, there was a risk that the jury might be unable to appreciate some exculpatory factor.” (Sofronoff P [14], McMurdo JA agreeing).

Ground 3 – dismissed – in absence of complaint at the trial it is impossible to conclude based on the transcript that evidence was inaudible (Sofronoff P [16], McMurdo JA agreeing).

Ground 4 – dismissed – while there was good reason for the jury to carefully scrutinise the complainant’s evidence (her drug use and its affects on her mental health, inconsistencies in her evidence and her attempts to withdraw the charges) it does not follow that it was not open to the jury to find her evidence as to the allegations of choking to be credible and reliable, especially as it was supported by medical evidence of injuries consistent with the allegations and her timely complaint to police. (Boddice JA [89]-[91], Sofronoff P and McMurdo JA agreeing).

R v Blockey [2021] QCA 77 (21 April 2021) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ – ‘Manifest excess’ – ‘Manslaughter’ – ‘Parole eligibility’ – ‘Victims as (alleged) perpetrators’ – ‘Weapon’

Charges: Manslaughter (domestic violence offence) x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The male deceased had committed acts of domestic violence against the female applicant during their relationship. He was the subject of a domestic violence order. The applicant stabbed the deceased with a hunting knife. She pleaded guilty and was sentenced to 9 years imprisonment, with parole eligibility after 3 years and 9 months imprisonment.

Grounds of appeal: Whether refusal to give parole eligibility date at one third of the sentence rendered the sentence manifestly excessive.

Held: Leave to appeal against sentence granted. Appeal against sentence allowed. Parole eligibility date was set on 22 April 2021, rather than 22 January 2022.

The Court noted the sentencing judge’s remarks, including the relevance of the applicant’s history as a repeated victim of domestic violence in sentencing:

The sentencing Judge found that: “The fact that you were such a victim of domestic violence as well as a perpetrator of domestic violence is, to my mind, sufficient to enable me to reach the conclusion that it is not reasonable in the present circumstances to treat the fact that your offending was a domestic violence offence as an aggravating feature.

Nevertheless, the sentencing judge’s conclusion that “the applicant’s cooperation was tempered by her failure to provide any comprehensive, reliable detail concerning the stabbing” was inconsistent with the conclusion that there was insufficient evidence to find that “the applicant ‘engaged in consciously-informed obfuscation or denial’ designed to minimise culpability.” The applicant was under no obligation to provide a comprehensive, detailed account of the sequence of events concerning the stabbing. She accepted unlawfully causing the victim’s death by stabbing him when she pleaded guilty to his manslaughter.

In these circumstances, finding that the applicant’s cooperation in entering a timely plea of guilty was to be tempered by her failure to provide such an account of the stabbing was a misapplication of sentencing principles, particularly where there was an acceptance that the applicant was sincerely remorseful for her conduct. It was therefore necessary to re-sentence the applicant. Parole eligibility was fixed after having served 3 years of the sentence.

MS v Commissioner of Police [2021] QCA 31 (2 March 2021) – Queensland Court of Appeal

‘Application for leave to appeal against conviction’ – ‘Breach protection order’ – ‘Parenting orders’ – ‘People with mental illness’ – ‘Protection order’

Charges: Contravention of a domestic violence order (aggravated offence) x 1.

Proceedings: Application for leave to appeal against conviction.

Facts: A protection order prevented the male applicant from contacting, attempting to contact, or asking someone else to contact his female former partner except under strict circumstances. A Family Court order was also in place granting the mother sole parental responsibility for their child and restricting contact between the parties. The applicant breached the protection order by sending an email addressed to a number of people including his former partner and solicitor titled, “[The child] need to know about my mental health diagnosis.” The applicant was sentenced in the Magistrates Court to 6 months imprisonment, suspended after 2 years. The applicant’s appeal to the District Court was dismissed.

Grounds of appeal:

1.

The primary judge erred in not allowing the appeal based on the existence of parental responsibility in the applicant’s communications.

2.

The primary judge erred in not applying s 24 of the Criminal Code (Qld).

Held: Application for leave to appeal was refused. There was no inconsistency: condition 6 of the protection order did not preclude the application of the exception in paragraph 18 of the Family Court order. The email was appropriately characterised as not for the “sole purpose of communication regarding parental responsibility,” and did not fall within the condition/exception in the protection order and Family Court order. On that basis, there was no room for the operation of s 24 of the Code which could not apply to a mistake by the applicant in the interpretation of the Family Court order.

R v Luxford [2020] QCA 272 (4 December 2020) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ – ‘Choking’ – ‘Controlling, jealous, obsessive behaviours’ – ‘Damaging property’ – ‘Following, harassing and monitoring’ – ‘People affected by trauma’ – ‘People with disability and impairment’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Post-traumatic stress disorder’ – ‘Protection order’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Weapon’

Charges: Choking, suffocation or strangulation in a domestic setting x 2; Assault occasioning bodily harm (domestic violence offence) x 8; Threat of actual bodily harm (domestic violence offence) x 1; Common assault (domestic violence offence) x 2; Wilful damage (domestic violence offence) x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The applicant man spent 15 years in the army, with several overseas deployments. He left on medical grounds with a shoulder injury, chronic pain, tinnitus and post-traumatic stress disorder, and was awarded compensation. He had no prior criminal history (except for a failure to secure storage of weapons charge in 2017). He participated in a Men’s Behavioural Change Program, and was accepted into a program to treat PTSD. The applicant pleaded guilty and was sentenced to a period of three years and six months imprisonment for the most serious offences on the indictment (choking, suffocation or strangulation in a domestic setting x 2, Counts 12 and 13), to be served concurrently with the remaining sentences. The date for parole was fixed at 29 September 2021. The expiry date for a protection order granted to the complainant in 2017 was extended to 7 October 2025.

Grounds of appeal: The sentence was manifestly excessive as the applicant was required to serve actual time in custody.

Held: The sentencing judge erred in the imposition of a sentence that required actual custody, and the applicant was re-sentenced.

The court held that the applicant’s offending could not be separated from his PTSD and also his PTSD caused custody to be a greater burden on him. While the sentencing judge applied the principles in R v Rix [2014] QCA 278 where the reduction in moral culpability due to an offender’s PTSD was taken into account, the sentencing judge failed to recognise in the sentence that a custodial sentence would have a hasher effect on him than a person not suffering PTSD. The sentence did not give sufficient weight to both factors relevant in the applicant’s case due to his PTSD (at [38]).

To reflect the gravity of the offending, the most serious offence was choking causing the complainant to lose consciousness (see R v MCW [2018] QCA 241) (Count 13), a higher head sentence of 4 years imprisonment was imposed to accommodate a sentence structure that provided for the applicant’s immediate release from actual custody. This reflected the totality of the offending, but adjusted in recognition of the effect of the PTSD as a cause of the offending. For the choking that lasted three seconds, a sentence of 2 years and 6 months imprisonment was imposed (Count 12). The effect of the applicant’s PTSD was further accommodated by suspending the sentence on Count 13 after 60 days and releasing him at the same time on parole for other offences (parole for 2 years and 4 months to provide supervision in the community). Supervision on parole was to ensure the applicant continued to access counselling and other treatment for his PTSD (at [39]).

R v Thomas [2020] QCA 236 (30 October 2020) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Application to adduce further evidence’ – ‘Evidence’ – ‘Intent’ – ‘Murder’ – ‘Provocation’ – ‘Strangulation’

Charges: Murder x 1.

Proceedings: Appeal against conviction; application to adduce further evidence.

Facts: The appellant man was found guilty of the murder of his female partner following a trial confined to the issue of intent. On 24 October 2015, the victim was found with injuries to her neck consistent with strangulation and rib fractures consistent with resuscitation or blunt trauma. Evidence at trial included: evidence from several of the victim’s former partners and her aunt; records of text messages/phone calls between the appellant and the victim commencing on 9 May 2015 (showing a volatile relationship); the appellant arranging to purchase a flight ticket overseas after the victim’s death; the appellant’s confession he killed the victim to a friend (that he had been humiliated and had “grabbed her and…squeezed”, accompanied demonstrating use of two hands); and evidence from a forensic pathologist of the victim’s injuries.

Grounds of appeal:

1.

The trial judge erred in law by admitting exhibit 41, which contained six inadmissible photographs, causing a miscarriage of justice.

2.

The trial judge failed to direct the jury as to how exhibit 41 could be used, thus creating the danger of impermissible reasoning by the jury.

3.

The trial judge failed to direct in relation to motive.

4.

The verdict was unreasonable and cannot be supported by the evidence.

5.

The trial judge failed to leave the partial defence of provocation.

6.

The trial judge’s failure to direct the jury in relation to opinion evidence may have caused a miscarriage of justice.

7.

A collation of faults caused the trial to miscarry.

Held: The appeal was dismissed.

Grounds 1 and 2: Exhibit 41 (photographs of bruising suffered by the victim in November 2014, identified by a former partner of the victim) was tendered by the prosecutor at the request of the appellant’s trial counsel for a forensic purpose. The fact that the appellant’s counsel abandoned the forensic purpose he had in mind for exhibit 41 did not mean that the evidence became prejudicial ([32]-[38]).

Ground 3: The trial judge did not fail to give a direction concerning motive which was requested by the appellant’s counsel, stating in summing up: “Any positive evidence that the defendant lacked a motive to cause [Jane’s] death or to do her grievous bodily harm is also relevant. It would be another circumstance to be taken into account in his favour in a case based on circumstantial evidence” ([39]-[42]).

Ground 5: The trial judge did not err in failing to leave open to the jury the partial defence of provocation (where the act was caused “in the heat of passion caused by sudden provocation…before there is time for the person’s passion to cool”). First, the appellant’s trial counsel expressly disavowed reliance on provocation, making it clear that the only live issue was intention. Second, there was no evidence of acts of provocation which might have led to loss of self-control. The evidence did not show any particular link between the alleged humiliation and strangulation. Third, there was no evidence to suggest provocation would have caused a loss of control in a reasonable person ([43]-[48]).

Ground 6: There was no merit in the appellant’s contention that evidence from the victim’s aunt that “whether she was an alcoholic or not…she didn’t deserve…what she got” may have introduced factors of prejudice or emotion to the jury, or influenced their decision, and the trial judge should have directed the jury to disregard those claims. The jury would not have been concerned that the victim’s aunt made a personal comment, and no direction was sought by the appellant’s counsel ([49]-[53]).

Ground 7: None of the failures of defence counsel to object to the prosecution’s case demonstrated that defence counsel’s conduct denied the appellant a fair trial ([54]-[62]).

Ground 4: The principles relevant to the role of the appellate court, and pre-eminence of the jury were recently re-stated in Pell v The Queen and R v Baden-Clay. There was ample evidence (from the pathologist and the appellant’s friend) to support the jury’s conclusion that when the appellant squeezed the victim’s neck, he did so with the intent to kill or cause grievous bodily harm. He applied pressure to her neck, and with two hands. In particular, “[t]he level of force necessary, the length of time it was applied for, the fact that the fingers moved around and the fractures to the neck all provide a foundation to infer the requisite intent”. It was open to the jury to be satisfied beyond reasonable doubt of the defendant’s guilt of murder ([63]-[71]).

The appellant’s application to adduce fresh evidence was refused. The evidence requested to be adduced would have been in the hands of the defence counsel at the time of the trial, or it was irrelevant ([72]-[76]).

R v TAQ [2020] QCA 200 (15 September 2020) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Application for leave to appeal against sentence’ – ‘Miscarriage of justice’ – ‘Sexual abuse’ – ‘Tendency/relationship evidence’

Charges: Common assault x 9; Assault occasioning bodily harm x 1; Assault occasioning bodily harm while armed x 4; Rape x 1 (Charge 15).

Proceedings: Appeal against rape conviction (Charge 15); Application for leave to appeal against sentence.

Facts: The female complainant was the male appellant’s former de facto partner. From 2006 the appellant became increasingly violent and controlling and committed numerous charged and uncharged assaults between 2006 and 2011. In October 2011, the appellant said to the complainant, “If you love me, darling, you’ll do it [anal]. If you don’t do it, I am going to turn you over and rape you”. The appellant then anally raped the complainant, after which he demanded oral sex and then hit her in the head. In December 2012, the complainant left the appellant but did not report the rape and assault to police until December 2016. In 2012, the appellant said to Mr P (a witness) that “he’d raped [the complainant]” and “if he didn’t get what he wanted, he’d take it”.

Grounds: (1) Mr P’s evidence of the conversation with the appellant should not have been admitted.

Decision and reasoning: Appeal against conviction dismissed. Appeal against sentence allowed due to a calculation error.

The prosecutor at trial argued that Mr P’s evidence that the appellant had said he’d raped the complainant could amount to an admission. The trial judge expressed doubt as to whether the jury could infer that it was an admission to the specific incident (Charge 15). In the summing up, the trial judge explained to the jury that Mr P’s evidence related more generally to “other incidents in which the [appellant] has through his actions, demonstrated a sexual interest in the complainant even when she is not consenting and was prepared to act on that interest” [28]. The respondent relies on R v Sakail [1993] 1 Qd R 312 as making the evidence of Mr P admissible on the basis that an admission to a rape which is not charged can be used as evidence of the nature of the relationship relevant to the charged rape:

[32] Where the act in issue for [rape] count 15 was the act of anal intercourse without the consent of the complainant, evidence of other sexual acts between the appellant and the complainant as a result of the appellant’s threats or without the consent of the complainant was evidence that could rationally affect the assessment of the probability of the occurrence of the anal rape, as described by the complainant. The direction given by the trial judge focused on the nature of the conduct to which the appellant admitted in his conversation with Mr P which was a willingness to act on his sexual interest in the complainant in the absence of her consent. The evidence of Mr P was admissible as relationship evidence that revealed a tendency of the appellant to engage in sexual acts with the complainant without her consent.

[33] The appellant does not succeed on the ground of appeal that Mr P’s evidence was inadmissible.

R v SDJ [2020] QCA 157 (24 July 2020) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Child victim’ – ‘Section 93a evidence act statement’ – ‘Stepchild in the family’ – ‘Strangulation’ – ‘Unreasonable verdict’

Charges: Common assault x 1 (DFV offence); Choking in a domestic setting x 1 (DFV offence).

Proceedings: Appeal against conviction.

Facts: The complainant (10 years old) was the male appellant’s stepson. The appellant kicked the complainant and hit him on the side of the face two or three times with an open hand. The appellant then choked the complainant with ‘a neck lock’. The complainant’s mother and a friend of the family witnessed the assault. The appellant gave evidence that he did not assault the complainant.

Ground: Verdict was unreasonable.

Decision and reasoning: Appeal dismissed. There were inconsistencies between the child complainant’s s93A Evidence Act statement (taken in a timely way after the incident) and the cross-examination (conducted 16 months after the incident) as during the latter the ‘complainant had little recollection’ of the events. However, this did not preclude the jury from relying on the s 93A statement, especially considering that the complainant’s statement was supported by evidence given by his mother and the family friend, as well as consistent medical evidence. Therefore, it was not unreasonable for the jury to find the appellant guilty.

R v Young [2020] QCA 140 (26 June 2020) – Queensland Court of Appeal

‘Appeal against conviction’ – ‘Inconsistent verdicts’ – ‘Non-fatal strangulation’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Reliability’ – ‘Temporary protection order’

Charges: Assault occasioning bodily harm whilst armed x 1; common assault x 1; choking in a domestic setting x 1

Case type:Appeal against conviction, application to adduce evidence on appeal

Facts: The appellant man was charged on indictment with one count of assault occasioning bodily harm whilst armed (Count 1), one count of common assault (Count 2) and one count of choking in a domestic setting (Count 3). The Crown entered a nolle prosequi in respect of Count 1. All counts were domestic violence offences against the appellant’s female domestic partner. The complainant’s evidence at trial was that it was a mutually abusive relationship against a background of excessive drinking. A temporary protection order was made against the appellant in favour of the complainant in 2017. In relation to Count 2, it was alleged that the appellant kicked the complainant on the legs, causing her to fall. With respect to Count 3, it was argued that he grabbed the complainant around the throat. A jury found the appellant not guilty of Count 2, but guilty of Count 3. He was sentenced to 2 years’ imprisonment, with the conviction recorded as a domestic violence offence.

Issue: The appellant sought leave to adduce further evidence and appealed his conviction on the basis that the verdict was unreasonable or could not be supported having regard to the entirety of the evidence. He also submitted that the evidence against him was unreliable, inconsistent and not capable of supporting a verdict of guilty on Count 3, and that there was no corroborative evidence in relation to the complainant’s allegations as to how the strangulation occurred. The Crown argued that whilst there were weaknesses in the complainant’s evidence in terms of her reliability, those factors were fairly outlined by the trial judge in the summing up, and that the complainant’s evidence was able to be supported by other evidence.

Held: The application for leave to adduce further evidence was refused, and the appeal against conviction was dismissed. The Court found that the jury was undoubtedly fully aware of the inconsistencies in the evidence ([99]). Taking into account all of the appellant’s arguments, there was nothing which led the Court to doubt the appellant’s guilt. It was open to the jury, on the whole of the evidence, to be satisfied of his guilt beyond reasonable doubt. The complainant’s account of the choking after a sustained argument in the kitchen was compelling ([102]). That account of the attack and the pressure she felt was substantiated by the medical evidence, which also indicated that the injuries were consistent with choking ([103]). Further, the evidence of witnesses was substantially consistent with the complainant’s account. Whilst there is "no requirement that a complainant’s evidence be corroborated before a jury may return a verdict of guilty upon it" (Pell v The Queen [2020] HCA 12 (7 April 2020), there was in fact strong corroborative evidence here. Despite some inconsistencies, particularly in relation to the time of the choking, the Court was satisfied that the jury acting rationally would not have entertained a reasonable doubt as to proof of guilt. Given the complainant’s level of distress at the time and her acceptance during the course of her evidence that her memory of some events of that day were unclear, a mistake as to the time the choking event occurred was understandable ([104]-[105]).

R v Castel [2020] QCA 91 (6 May 2020) – Queensland Court of Appeal

‘Application for leave to appeal against sentence’ – ‘Female perpetrator’ – ‘Manifestly excessive’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Remorse’ – ‘Weapon’

Offences: Manslaughter (domestic violence offence)

Proceedings: Application for leave to appeal against sentence

Issue: Whether the sentence was manifestly excessive.

Facts: The woman applicant and her husband and victim had been married since 2010. Throughout this time, they argued occasionally, particularly about the husband arriving home from work after 6pm. On the day of the offending, the husband arrived home after 8pm and an argument developed while the couple were in the kitchen. The applicant threw the husband’s laptop at him, then picked up a 20.5cm long kitchen knife and threw it at him from 2-3m away. It landed in his chest region and either he pulled it out or it fell out. The applicant immediately said she was sorry, used a towel to cover the wound and called 000. Despite medical intervention, the husband died. The applicant was sentenced to nine years’ imprisonment, with no fixed date for parole eligibility. She appealed against her sentence.

Judgment: The majority (Sofronoff P and Mullins JA) held that the head sentence of nine years’ imprisonment was not inappropriate, but that failing to fix an eligibility date for parole was "unreasonable or plainly unjust" and was manifestly excessive [38]. They emphasised that the applicant had no criminal history, showed immediate remorse for her conduct, entered an early plea of guilty and was not at high risk of reoffending, and therefore ordered that her sentence be mitigated by including a date for eligibility for parole that was one-third of the sentence in custody [38].

Mullins JA (with whom Sofranoff P agreed) further provided that "section 9(10A) of the [Penalties and Sentences Act 1992 (Qld)] is a legislatively prescribed aggravating factor that must be taken into account in arriving at the appropriate sentence for the offence of manslaughter that is a domestic violence offence, unless the exception within the provision due to the exceptional circumstances of the case applies" [35]. Section 9(10A) refers to offenders convicted of domestic violence offences. In such cases, the fact that the offence is a domestic violence offence is an aggravating factor that is added to the other aggravating factors and balanced with any mitigating factors [35].

Boddice J (dissenting) dismissed the appeal, holding that the applicant’s offending was "an extraordinary act of violence" and was a "very dangerous action" [42] that occurred in circumstances where the applicant was sober, sane, not provoked and not acting in self-defence [43]. He considered the applicant’s offending to be a very serious example of a domestic violence offence, making the circumstance of aggravation a very relevant factor in sentencing [44]. He contended that the aggravating factors outweighed any mitigating features [45] and that the sentence "fell within a sound exercise of the sentencing discretion" [46].

R v HBZ [2020] QCA 73(17 April 2020) – Queensland Court of Appeal

‘Animal abuse’ – ‘Appeal against conviction’ – ‘Application for leave to appeal against sentence’ – ‘Choking’ – ‘Non-fatal strangulation’ – ‘Step-children’

Facts: The appellant man was convicted of choking the female complainant in a domestic setting (domestic violence offence) (count 1) and common assault (domestic violence offence) (count 2) after trial before a jury in the District Court. He was sentenced to imprisonment for two years and six months on count 1 to be suspended after serving 15 months’ imprisonment for an operational period of three years. He was sentenced to three months’ imprisonment for count 2.

The appellant often stayed at the complainant’s home where she lived with her five children; the appellant was the father of the youngest child. The appellant and his dog were staying at the complainant’s home when the appellant’s dog urinated on the floor and the complainant asked her son to tell the appellant.

The complainant’s evidence in chief was that:

•

The appellant hit the dog on the floor, rubbed it’s face in the urine and told the complainant his abuse of the dog was her fault. She asked him to leave, locked him out and went into a bedroom. He let himself back in with a spare key.

Re Count 1:

•

She dialled 000 and then: "[The appellant] moved the camp beds and he grabbed me, and he grabbed the phone, and then he put his hands around my neck – his right hand, and then he pushed on my shoulder at the same time to knock me onto the bed, and then he pinned me to the bed with his hand to stop me from speaking. So when I first started speaking, I could ask for help, but then the words wouldn’t come out, and I struggled to breathe."

•

The appellant grabbed the phone and smashed it. The appellant’s right hand was almost in a "V" around her throat and "instead of squeezing, he just was on top of me and used his body weight as the force to stop me from speaking". She couldn’t speak, felt pains in her chest and had black spots in her vision. She asked him to stop 3 or 4 times before she ran out of breath. She could not breathe for probably 70 seconds. She asked him to call an ambulance because she couldn’t breathe. [5]

Re Count 2:

•

"He grabbed my shoulders. When I was having difficulty breathing before he left, he grabbed my shoulders and shaked me and…. he shook me so hard that I was just flicking back and forth, and I could feel my neck – like, the back of my head hitting the back of my shoulders…."

•

He gave her "a really, really tight hug" and grabbed her by the shoulders. She told him to leave and he left.

•

She made a video diary of the incident and her injuries.

In cross-examination:

•

"The complainant denied, when it was put to her, that after the incident she was having trouble breathing due to a panic attack."

•

When it was put to the complainant that the appellant did not have his hand on her neck or throat "that much" she disagreed; "He pushed the air out of me and I thought I was going to die." [10]

•

She recorded in her video diary: "I’m finding it hard to breathe. I think it’s just a panic attack. Because he didn’t have his hand around my neck and throat that much." [11]

•

She did not call the ambulance immediately: "I was still having trouble breathing, which is why, on the video, I said I felt like I was having a panic attack during the video. Because I couldn’t understand, after his hand had been removed, why I was still having difficulty breathing.""[11]

•

She denied moving the camp beds into the bedroom after he left. [12]

Medical records included a note: "the patient states her partner pushed her onto the bed and strangled her with both hand pushing downwards then made multiple blows with fists to the shoulder and head. Patient unsure if knocked out."

In the complainant’s video record of interview he said there was a struggle for the phone. "He then sat down, gave her a big hug and got her to calm down. He denied choking her or trying to do that. He thought his thumb may have made contact with her during the struggle for the phone."[20]

Against the objection of defence counsel [21] the jury were given both a handout and direction in the terms: "‘Choked’ is an English word that bears its ordinary, everyday meaning – that is – ‘to hinder or stop the breathing of a person’."[20] Defence counsel argued there was only one definition given to the jury whereas dictionaries gave various definitions. [23]

Grounds: The grounds of appeal against conviction were:

1.

the learned trial judge erred in the direction given to the jury on the definition of choking;

2.

the appellant was deprived of a fair trial, because of the manner in which the allegations of fact in count 1 were particularised;

3.

the verdicts on counts 1 and 2 were unreasonable and cannot be supported, having regarded to the evidence.

The sole ground of the application for leave to appeal against sentence was that the sentences were manifestly excessive.

Held:

1. Appeal against conviction dismissed.

Ground 1: Mullins JA considered the construction of s 315A Criminal Code (Qld) in light of s14A Acts Interpretation Act 1954 (Qld) and the purpose given for the introduction of the offence in the relevant Bill Explanatory Notes referring to recommendation 120 of the Special Taskforce on Domestic and Family Violence (Queensland) in its Report Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland.

"In order to amount to choking, there must be some pressure that results at least in the restriction of the victim’s breathing. As the evidence in this trial illustrated, there were overt signs in the consequences the complainant described of her struggle to breathe, her inability to speak, the black dots in her vision, the pain in her chest, and her feeling disoriented from which it could be inferred there was some restriction of her breathing, as a result of the appellant’s hand around her neck. The consequence of the restriction of the complainant’s breathing was not a separate element of the offence, but the evidence required to prove the act of choking."

The direction given by the trial judge on the meaning of "choked" was correct. It was a direction on the law. The meaning of the word "choked" for the purpose of count 1 was a matter of legal interpretation and it was appropriate that the judge directed the jury to apply the meaning "to hinder or stop the breathing of a person"." [58]-[59]

Ground 2: The appellant’s argument was that as the particulars specified alternative conduct for each count they failed to sufficiently inform him of the case against him (Count 1: "stopped and/or hindered [the complainant’s] breathing and, in doing so, choked her"; Count 2: "shook and/or applied force to [the complainant’s] shoulders and, in doing so, he unlawfully assaulted her" [60]). The complaint re Count 1 was resolved by the conclusion as to meaning of "choke" re ground 1; it was sufficient that the jury be satisfied the complainant putting his hand around her neck hindered her breathing [62]. There was no substance to the complaint re Count 2 [63].

Ground 3: The jury were given extensive and appropriate directions that they could not convict unless satisfied beyond reasonable doubt that the complainant was "a reliable and truthful witness"… "that she was choked by the [appellant] by him placing his right hand around her throat and squeezed in the way that she described" and similar directions were given re Count 2 [65]. The jury’s verdicts were not unreasonable [66].

2. Application for leave to appeal against sentence granted.

3. Appeal against sentence allowed.

The trial judge considered the sentencing decisions in R v MCW [2018] QCA 241 and R v MDB [2018] QCA 283. Mullins JA said: "Objectively, the appellant’s offending was less serious than the offending in MCW and MDB. The appellant also was younger than those offenders and without the relevant prior criminal history. It was therefore surprising that the prosecutor at the trial submitted to the trial judge that a sentence in the order of three years and six months or four years’ imprisonment was appropriate. It does not assist a sentencing judge, when the prosecutor’s submissions propose a sentence that is outside the proper exercise of the sentencing discretion for the offending committed by the particular offender." [71]

4. Set aside the sentence imposed at first instance for count 1 and, in lieu, the appellant is sentenced to imprisonment for a period of two years with the parole release date fixed at 5 June 2020.

5. The declaration as to pre-sentence custody and other orders made at first instance are confirmed.

R v Ridgeway [2020] QCA 38 (10 March 2020) – Queensland Court of Appeal

‘Alternative hypothesis’ – ‘Attempted murder’ – ‘Children’ – ‘Evidence’ – ‘History of abuse’ – ‘Jury directions’ – ‘Miscarriage of justice’ – ‘Misdirection or non-direction’ – ‘Motive’ – ‘Post-offence conduct as evidence of consciousness of guilt’ – ‘Separation’ – ‘Verdict unreasonable or insupportable having regard to evidence’

Charges: Attempted murder x 1 (aggravating circumstance of being a domestic violence offence).

Case type: Appeal against conviction

Facts: The appellant man was convicted of one count of attempted murder (domestic violence offence) and was sentenced to 10 years’ imprisonment with a non-parole period of 8 years. The appellant, an electronics engineer, was alleged to have attempted to murder his wife (the victim) by connecting a garden hose to a nitrogen gas cylinder which was then attached to the inside of the caravan where the victim slept. There was evidence that the appellant had motive to kill the victim because she was taking preliminary steps to divorce him and had demanded that he leave the matrimonial home. She had also left a will making him her beneficiary. In his police interview, the appellant denied knowledge of the contraption. At trial, however, he admitted that he constructed the contraption as a drainage system ([74]). Further, the appellant acknowledged his relationship difficulties with the victim and told police that they had an argument concerning their daughter. According to the victim, that argument led to the appellant pushing her against a wall while threatening to punch her. As a result, she called the Domestic Violence Hotline.

In summary, the appellant’s case was that the Crown had failed to exclude the hypothesis that the victim had constructed the apparatus, because there was evidence that:

•

She had a motive to implicate her husband falsely in a murder attempt.

•

The appellant must have appreciated that the apparatus could not have killed his wife.

•

The contraption was ineffective to kill.

Issue: The appellant appealed against conviction. He submitted that the guilty verdict could not be supported by the evidence or was unreasonable ([52]) (Ground 1). He also claimed that the trial judge failed to direct the jury that an essential step in the chain of reasoning was that the appellant believed that introducing nitrogen into the caravan would kill his wife ([97]) (Ground 2), and complained about the trial judge directions as to the use of post-offence conduct as proof of his intention ([107]) (Ground 3). His appeal also included the claim that there was a failure to distinguish attempted murder from other offending based on the same physical acts, but with different mental elements, which might have explained the post-offence conduct ([114]) (Ground 4).

Held: All four grounds of appeal were dismissed. Sofronoff P (with Philippides JA and Flanagan J agreeing) noted that it was open to the jury to reject the appellant’s explanation for constructing the contraption. His credit was impaired by his failure to offer this explanation when first interviewed by police. Further, the verisimilitude of his explanation was reduced by the uselessness of the contraption as a drainage system, and the inconsistencies in his reasons for erecting the drainage system. The jury was therefore entitled to accept the victim’s evidence and be satisfied beyond reasonable doubt that the appellant constructed the apparatus to deliver gas into the caravan in which his wife was sleeping ([81]-[82]). The evidence that the victim had informed the appellant that she wanted a divorce, together with the evidence of lies to police, supported a conclusion that the appellant believed that he had built a system that would be effective to kill ([88]). His Honour therefore held that the jury could be satisfied beyond reasonable doubt of the appellant’s guilt.

As to the second ground of appeal, the appellant was unable to establish a miscarriage of justice by merely asserting that the trial judge miscarried through a lack of proper directions about proof of the appellant’s intention ([106]). A redirection was not sought ([101]). Whilst the trial judge did not identify the series of evidentiary steps that the jury could take to find guilty intent, doing so would have assisted the prosecution, not the defence ([106]).

Further, the appellant submitted that there was an alternative hypothesis that he had set up the apparatus to harass his wife, and therefore, his post-offence conduct was indicative of his sense of guilt for trying to harass her ([109]). This submission failed because harassment by the use of nitrogen, as an alternative hypothesis, did not arise as an issue in the case ([110]).

Ground 4 was also rejected. Citing R v Baden-Clay, the Court stated that "it is not necessary for a jury to consider a hypothesis which was not put to it for tactical reasons, which is directly contrary to the evidence that the accused gave at the trial and which is directly contrary to the way in which the accused’s counsel conducted the defence". Any intention on the appellant’s part to do anything other than kill his wife or drain water did not arise on the evidence and did not have to be considered ([120]).

R v Toweel [2019] QCA 303 (20 December 2019) – Queensland Court of Appeal

‘Children’ – ‘Evidence issues’ – ‘Jury directions’ – ‘Physical violence and harm’ – ‘Prior acts of domestic violence’ – ‘Propensity evidence’ – ‘Strangulation’

Charges: 1 x unlawful strangulation; 1 x unlawful assault

Case type: Appeal against conviction

Facts: The appellant was charged with 2 offences, committed on the same day against a woman (the complainant) with whom he was in a domestic relationship and had a child. Count 1 involved the appellant strangling the complainant ‘really tight’ for a period of about 15 seconds, stopping only when their son fell from a couch. Count 2 occurred shortly afterwards. The appellant grabbed the complainant’s hair and repeatedly said ‘bitch’ while she held their son. The appellant then destroyed her phone ([4]-[5]). The complainant also gave evidence of 5 previous incidents of domestic violence ([11]-[17]); however, the appellant did not give or call evidence ([18]). The jury convicted the appellant on both counts.

Issue: The issue for the Court was whether the appeal against the convictions should be allowed. The appellant appealed against each conviction on the ground that the trial judge wrongly admitted evidence of prior acts of domestic violence by him against the complainant. He also appealed against the conviction on the strangulation charge on the ground that the verdict was unreasonable.

Held: The Court dismissed the appeal. The evidence summarised at [4]-[18] was admitted under s 132B(2) of the Evidence Act 1977 (Qld). The question for the Court was whether the admission of the evidence resulted in a miscarriage of justice ([34]). The Court held that the evidence of prior events was relevant to establish that the alleged offending did not occur randomly and to demonstrate the nature of the relationship between the appellant and complainant. To minimise any risk of the jury engaging in propensity reasoning, the trial judge warned them that they were not to use the evidence as demonstrating the appellant’s propensity to commit similar offences ([37]-[38]). Overall, the jury directions avoided the misuse of the evidence, and no miscarriage of justice was caused by its admission ([40]).

Vital v DPP (Qld) [2019] QCA 290 (6 December 2019) – Queensland Court of Appeal

‘Appeal’ – ‘Assault’ – ‘Bail’ – ‘Physical harm and violence’ – ‘Separation’ – ‘Weapon’

Charges: Murder x 1; assault occasioning bodily harm while armed and in company x 1; burglary at night x 1; common assault x 1; and robbery with personal violence as a domestic violence offence x 1.

Proceedings: Appeal against refusal to grant bail.

Facts: The accused was a 19-year-old male with no prior criminal history. He was in an abusive relationship with the daughter of a man he was charged with murdering at the time of offending.

On the day of the offending, the daughter told the accused their relationship was over. That night, the appellant was in the daughter’s bedroom when she came home but was asked to leave by her flatmate. After leaving the apartment he began to make a nuisance of himself, causing the flatmate to call the daughter’s father (the victim) who soon arrived with another man. The appellant fled by car with his companion and was followed by the victim and the other man. The appellant eventually stopped the car and his companion went onto the road and took out a pistol which he pointed at the victim’s car. The victim’s companion approached the appellant, who was still in the car, and began to punch the window.

The appellant’s companion hit the victim with his pistol and knocked him unconscious. This blow ultimately killed the victim. The appellant and his companion then took off, briefly returning to the daughter’s home and punching her two or three times in the face before fleeing again.

The appellant submitted that the judge who refused his bail application ‘must not have given consideration to the appellant’s youth, his lack of criminal history and, as the appellant asserts, the weakness of the Crown case against him, the weight that these matters deserved’. He submits that it should be inferred that Justice Davis made an error, and in oral argument, he has also submitted, that Justice Davis must have overlooked the extraordinary delay of about 18 months until there can be a trial in this matter. (per Soffronoff P at [7-8]).

Issue: Whether to grant leave to appeal.

Decision and reasoning: Sofronoff P stated that ‘in an appeal against a discretionary decision, it is not a valid ground of appeal to contend that the judge did not give sufficient weight to a relevant factor or gave too much weight to a factor. Weight is a matter for the decision-maker alone’ [7]. His Honour thus dismissed the appellant’s related claims.

The submission that the judge must have overlooked the delay was not accepted as a delay of that order was to be expected [12]. Furthermore, regarding the appellant’s claim of error, Sofronoff P concluded that ‘[i]n an application for bail, the appellant’s actions after he returned to Jane’s house could, on their own, justify a refusal of bail. When they are taken into account in a case in which the applicant is also awaiting trial for murder, refusal of bail can hardly be regarded as so unreasonable that an error of some kind in the judge’s reasoning has to be inferred. Yet that is what the appellant must show in order to persuade this Curt to disturb the decision of Justice Davis. In my view, he has failed to do so, and the appeal should be dismissed’ [13].

R v O'Malley [2019] QCA 130 (28 June 2019) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Domestic violence offence’ – ‘Dysfunctional upbringing’ – ‘People with disability and impairment’ – ‘Physical violence and harm’

Charges: 1 x manslaughter

Case type: Appeal against sentence

Facts: The applicant pleaded guilty to manslaughter by unlawfully killing the deceased, with whom he was in a domestic relationship for some 18 months. The applicant was sentenced to 11 years’ imprisonment. The conviction was declared to be a domestic violence offence and a serious violent offence.

The applicant told ambulance offices that the deceased fell off the toilet shortly before he had called them, and that she had also fallen in the shower the night before ([11]). However, a post-mortem of the deceased’s body revealed that the most likely cause of death was multiple injuries, including multiple rib fractures and liver lacerations. Such injuries were inconsistent with a fall in a shower, and were most likely to have resulted from a ‘focused and severe force, such as kicking or stomping’ ([14]). Although the applicant disagreed with the pathology report ([21]), his mobile phone records demonstrated that he knew the deceased had broken ribs ([22]). The agreed statement of facts recorded that the applicant was to be sentenced on the basis that he (1) unlawfully assaulted the deceased causing the injuries which led to her death; (2) kneed her to the stomach and to the back; (3) caused head and facial injuries; and (4) assaulted her in the past as evidenced by the facial bruising previously observed by witnesses and the healing fractures, which demonstrate that this was not an isolated violent incident ([24]).

Issue: The applicant filed an application for leave to appeal against his sentence on the ground that it was manifestly excessive, and wished to add an additional ground of appeal, namely, ‘that the learned sentencing judge erred in finding that his post-offence conduct demonstrated a complete disregard for the deceased and did not demonstrate remorse or concern for the deceased’ ([48]).

Held: The applicant’s antecedents and criminal history is discussed at [25]-[36]). The applicant has Aboriginal heritage. He also had a history of criminal offending, including convictions for breaking and entering, and property damage, and, most importantly, for offences against his former partner for property damage, common assault, contravention of a prohibition or restriction in an apprehended violence order, and use of a carriage service to menace, harass or offend. He claimed to have had a ‘socially deprived upbringing’ - his father was a ‘professional and serial criminal’ and his step-mother was emotionally abusive. His biological mother was not involved in his care due to very heavy alcohol dependency and abuse. He also claimed to have been sexually abused when he was 11 years old. Psychological testing suggested that the applicant’s intellectual level likely fell in the intellectually disabled range. A psychologist observed that his dysfunctional and abusive upbringing likely significantly influenced his offending behaviour.

The Court distinguished the present case from DeSalvo, Murray, West and Heazlewood where the courts did not consider a domestic violence offence ([89]). The applicant had a relevant prior criminal history, including convictions for prior domestic violence episodes, which distinguished him from the offenders in Sebo, Baggott, Pringle and Hutchinson ([91]). Given the ‘seriousness of the offending manifested by the brutality of the applicant’s assault and the relative defencelessness of the deceased, the applicant’s remorse after the assault, his timely plea of guilty, his antecedents, his deprived social upbringing, his intellectual disability and the state of his mental health, and bearing in mind the need for some personal deterrence due to his past domestic violence offences and his moderate risk of reoffending, the related need for community protection, and the importance of denunciation of domestic violence offences causing death’, the sentence imposed by the trial judge was just in all the circumstances, and thus stood as ‘the appropriate sentence for the offender and the offence’ ([95]-[96]). Consequently, leave to appeal against sentence was dismissed on both grounds.

R v Sprott; Ex parte Attorney-General (Qld) [2019] QCA 116 (14 June 2019) – Queensland Court of Appeal

‘Attempted murder’ – ‘Leniency’ – ‘Mitigating factors’ – ‘Sentencing’

Charges: Attempted murder x 2.

Case type: Appeal against sentence.

Facts: The respondent and his partner had an argument after the respondent came home from the pub. The respondent later walked to his mother’s house, where his mother lived with her partner, and violently assaulted them. The respondent’s mother suffered multiple injuries, including a fracture to her eye socket, while her partner suffered fractures, 2 broken ribs and an injured liver. The respondent pleaded guilty to 2 counts of attempted murder. Crow J, the sentencing judge, sentenced the respondent to 2 concurrent sentences of 9 and a half years imprisonment.

Issue: The Attorney-General appealed against the 2 sentences on the ground of manifest inadequacy. Key questions included whether Crow J gave appropriate weight to the mitigating and aggravating factors of the offence and the respondent’s personal circumstances, and whether a sentence below 10 years imprisonment for 2 counts of attempted murder was manifestly inadequate.

Held: The Court dismissed the appeal. Appellate intervention is not justified simply because the result is markedly different from other sentences that have been imposed in other cases ([15]). Rather, the Attorney-General was required to demonstrate actual error with Crow J’s reasoning.

The Attorney-General’s submissions included that the attacks were premeditated, that the respondent lacked remorse, that his guilty pleas were late, and that he carried out the offending while he was subject to a Domestic Violence Order ([20]). The respondent had previously assaulted his mother. It was submitted that the Crow J did not give these matters appropriate weight ([21]).

The Court noted that the case involved substantial mitigating factors that were personal to the respondent ([23]). The respondent’s current state of health was partly caused by his mother’s lifelong neglect of him, and was significantly exacerbated by both of his victims’ irresponsibility over the respondent’s son’s death, and by their callousness afterwards ([40]).

It was in these circumstances that Crow J viewed the respondent’s case as ‘far from general.’ The most relevant circumstance was the killing of the respondent’s son by the victims’ dog ([37]). The offending was motivated by the son’s death ‘in a most violent fashion’ ([35]). The Court held that it was open for Crow J to give substantial weight to the mitigating factors and, subsequently, impose a somewhat ‘lenient’ sentence. It was not for the Court of Appeal to substitute its own views about these matters ([41]).

R v Black [2019] QCA 114 (11 June 2019)– Queensland Court of Appeal

‘Children’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Rape’

Charges: Assaults occasioning bodily harm x 3; Rape x 1.

Case type: Appeal against conviction.

Facts: The appellant was found guilty of 2 counts of assault occasioning bodily harm and one count of rape. He was acquitted of another charge of assault. For the offence of rape, the appellant was sentenced to 5 years’ imprisonment, suspended after 27 months with an operational period of 5 years. He was sentenced to concurrent terms of 12 months’ imprisonment on the other counts.

The appellant and complainant were married and had 2 children when the offending allegedly occurred. They separated around one year later. The first count of assault occasioning bodily harm involved allegations that the appellant pushed the complainant against a staircase, verbally abused her, ripped off her clothes and grabbed her breasts. The complainant said that she suffered bruising as a result of this event. The second count involved allegations that the appellant unlawfully assaulted and caused bodily harm to the complainant by slamming a door closed, hitting her fingers. The appellant also allegedly raped the complainant. It was alleged that the appellant and complainant were on good terms for many years after the couple had divorced. The complaint was made to the police over 8 years after the alleged events occurred and at a time when the complainant and the appellant were in litigation about their children.

Issue: The appellant appealed against the convictions on the ground that the jury’s verdict was unreasonable having regard to the evidence.

Held: The appellant submitted that the complainant’s attitude towards the appellant after separation was not that which would be expected of someone who had suffered the conduct alleged ([24]). The Court held that the cordial relationship between the parties provided a substantial basis for challenging her testimony, and may have justified a reasonable doubt in the minds of the jury in relation to the count of rape ([35]).

However the question for the Court was whether it was open, on the whole of the evidence, for the jury to be satisfied of the appellant’s guilt, having regard to the advantage enjoyed by the jury over the Court, which had not seen or heard the complainant’s evidence being given ([36]).

Their Honours noted the importance of the timing of the complaint to police. While it strongly indicated that it was affected by the litigation between the couple about their children, it did not require the jury to have a doubt about the credibility of the complainant’s complaints. It was open to the jury to accept the complainant’s evidence, and the Court ordered the appeals against conviction to be dismissed ([37]-[38]).

R v ABE [2019] QCA 83 (14 May 2019) – Queensland Court of Appeal

‘Children’ – ‘History of abuse of accused’ – ‘People with disability and impairment’ – ‘Physical violence and harm’ – ‘Primary carer’ – ‘Stalking’

Charges: Stalking x 1 (Count 1); malicious act with intent x 1 (Count 2); grievous bodily harm x 1 (Count 3).

Case type: Sentence application and appeal.

Facts: The applicant experienced domestic violence from her husband (the complainant) from 2005. Cross-protection orders prohibited them from living together. The applicant arrived at the matrimonial residence with two children of the marriage. Her husband was residing at that residence. That night, the complainant sustained 4 stab wounds at the hands of the applicant. He also suffered 2 lacerations to the right hand that caused tendon and nerve damage. These events constituted Counts 2 and 3. The applicant and complainant were separated, and their severely disabled daughter, AA, was in hospital at the time of the offending. The applicant is her primary carer. The complainant for Count 1 was a family friend who was having an affair with the complainant.

The applicant pleaded guilty to the charges. She was sentenced to four months’ imprisonment for Count 1, and six years’ imprisonment with a parole eligibility date fixed after serving 15 months in custody for each of the other counts.

As the sentence for the stalking was already served, the purpose of the application was to review the sentence imposed for the other counts. The applicant applied for leave to appeal against her sentence on the basis that it was manifestly excessive and that the sentencing judge erred in failing to find that the circumstances of AA were exceptional and therefore justified a non-custodial sentence. The applicant also applied for leave to adduce further evidence, namely an affidavit from her adult daughter which detailed the care arrangements for AA since the applicant went into custody.

Issue: Whether the sentence was manifestly excessive; Whether the sentencing judge erred in failing to take into account the applicant’s disabled daughter’s needs.

Held: The appeal against the sentence was allowed, and the sentence was varied. Mullins J noted that the offences were committed in circumstances where the applicant was AA’s primary carer. When imposing an appropriate sentence, a balancing exercise needs to be undertaken which fulfils the purposes of ‘sentencing for serious offending involving premeditated use of a weapon to inflict injury in a domestic setting, but also [to] allow for the mitigating circumstances and particularly the applicant’s role in relation to the special needs of AA’. The period served in custody should be sufficiently long to reflect appropriate punishment for the crime, without separating the applicant from AA for any longer than is necessary ([47]). Her Honour held that, in light of AA’s needs, the custodial component of the sentence should have been reduced by a further period of 6 months. Therefore, the sentence was manifestly excessive to the extent of fixing the parole eligibility date after 15 months in custody rather than after a period of 9 months ([48]). Davis J and Sofronoff P agreed with the reasons of Mullins J. Citing R v Chong; ex parte Attorney-General (Qld) [2008] QCA 22, Davis J noted that although hardship to an offender’s family resulting from the offender’s imprisonment cannot override all other sentencing considerations, there will be some cases where family hardship results in a substantial reduction either in the sentence, or the period to be served before parole eligibility even where the offending is serious ([52]).

The Court also refused the application for leave to adduce further evidence because it was neither necessary nor expedient, in the interests of justice, to receive further affidavits of the adult daughter ([37]).

R v Lan [2019] QCA 76 (7 May 2019) – Queensland Court of Appeal

‘Attempted murder’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Self-serving statements’ – ‘Strangulation’

Charges: 1 x attempted murder

Case type: Appeal against sentence

Facts: The applicant was convicted on his plea of guilty of attempted murder (domestic violence offence) and sentenced to 9 years’ imprisonment with no further order ([1]). The applicant and complainant were involved in a relationship for approximately one year prior to separating, but remained friends. The offending conduct took place when the applicant attended the complainant’s unit. He made unwanted advances towards her, punched her and threatened to kill her. The complainant lost consciousness for a period and, upon regaining consciousness, saw the applicant standing over her with his pants and underwear down. He also strangled the complainant. The applicant later provided self-serving statements to the police which sought to blame the complainant for violent behaviour towards him ([3]-[13]).

Issue: The applicant sought leave to appeal against his sentence on the basis that it was manifestly excessive.

Held: The applicant made a number of written submissions in support of his application ([22]). He maintained that she had burned his face with a lighter ([23]), which was not part of the agreed statement of facts. He also asserted that the complainant suffered from a mental illness ([24]), and sought to minimise the seriousness of his conduct, which demonstrated a lack of remorse or insight ([25]).

The application for leave to appeal against the sentence for attempted murder was refused. Philippides and McMurdo JJA and Mullins J found that the applicant’s assertions conflicted with the agreed facts and partly reiterated the self-serving statements he made to police ([26]). Their Honours agreed with the respondent’s submissions that the sentence imposed was within the sentencing discretion and supported by authorities such as R v Sauvao, R v Ali, R v Seijbel-Chocmingkwan and R v Kerwin. After analysing these authorities at [28]-[31], their Honours found that they demonstrated that the 9 year sentence was within the sound exercise of the sentencing discretion ([32]).

R v Kau [2019] QCA 73 (3 May 2019) – Queensland Court of Appeal

‘Corroborative evidence’ – ‘Domestic violence offence’ – ‘Mistake direction’ – ‘Rape -sexual and reproductive abuse’

Charges: 2 x rape (domestic violence offence)

Case type: Appeal against conviction

Facts: The appellant was charged with 4 counts of rape, and convicted on 2 counts as a domestic violence offence. He was sentenced to 5 years’ imprisonment, suspended after 2 and a half years in custody. The complainant was the appellant’s wife. Counts 1 and 3 (subjects of the guilty verdicts) were particularised as vaginal rapes, while Counts 2 and 4 (subjects of the not guilty verdicts) were alleged anal rapes ([4]).

Issue: The appellant appealed against his conviction on 2 grounds ([5]):

•

‘The convictions should be set aside as unreasonable because the guilty verdicts were inconsistent with the not guilty verdicts on the other counts’;

•

‘There was a miscarriage of justice because the…trial judge ought to have directed the jury to consider whether they were satisfied beyond reasonable doubt that the appellant did not act under a mistake of fact as to the complainant’s consent on the two counts the subject of the guilty verdicts’.

Held: To succeed on the first appeal ground, the appellant must prove the verdicts were inconsistent as a matter of logic and reasonableness. The test is that ‘no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion’ ([6]). There were 3 differences in the quality of the evidence considered by the jury ([9]), namely, the difference in what the complainant told her confidantes before she reported to the police ([10]), the difference in her report to the police ([11]), and a recording of a conversation between the complainant and appellant in which she made no mention to anal penetration ([12]). There was also evidence that might have corroborated Counts 1 and 3 ([15]), but there was no such evidence about Count 2 or 4 ([20]). The Court held that it was open for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on Counts 1 and 3. The differences in the quality of the complainant’s evidence and appellant’s corroborative evidence provided a logical and reasonable basis for the jury to arrive at different conclusions and return different verdicts for Counts 1 and 3 and Counts 2 and 4 ([23]).

The second appeal ground argued that the jury ought to have been directed to consider whether the Crown had satisfied them beyond reasonable doubt that the appellant had not acted under an honest and reasonable, but mistaken, belief that the complainant had consented to the vaginal penetrations. To succeed on this proposed ground, the appellant must demonstrate that the trial judge should have given a mistake direction and that it is reasonably possible that the failure to do so may have affected the verdict ([24]). In light of the evidence, there was a negligible prospect of the jury, having accepted the occurrence of the vaginal penetrations, having a reasonable doubt whether the appellant acted under an honest and reasonable, but mistaken, belief as to the complainant’s consent. In the circumstances, the trial judge was under no duty to give such a direction ([39]). The appellant was therefore not deprived of a real chance of an acquittal by the failure of the trial judge to give a mistake direction to the jury.

Consequently, the appeal was dismissed.

R v Sollitt [2019] QCA 44 (19 February 2019) – Queensland Court of Appeal

‘Breach protection order’ – ‘Children’ – ‘Evidence’ – ‘Evidence issues’ – ‘Factors affecting risk’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sexual and reproductive abuse’

Charges: Assault occasioning bodily harm x 2; contravention of a domestic violence order; rape.

Case type: Appeal against conviction. Application for an extension of time.

Facts: The appellant was charged with a number of offences against the complainant, his then de facto partner. The complainant’s daughter and son gave evidence of the events ([33]-[40]). The complainant herself gave evidence asserting that she was in a ‘domestic violence cycle’ ([23]). After a trial, the appellant was convicted of two counts of assault occasioning bodily harm (domestic violence offence) and contravention of a domestic violence order. The jury acquitted the appellant of a charge of torture and was unable to reach a verdict in relation to a charge of rape. After a retrial on the charge of rape, the appellant was convicted and sentenced to seven years’ imprisonment ([1]-[4]). The appellant submitted that consent was given by the complainant and that sexual intercourse in the context of the violent circumstances was not a departure from the usual dynamics of the relationship. The Crown contended that if there was any ostensible consent by the complainant, it was induced by force and invalid at law, and that the appellant could not have held a mistake of fact as to consent ([46]). The appellant appealed against his conviction of rape on the grounds that the jury’s verdict was unreasonable and unsafe, and there was a miscarriage of justice, resulting from the trial judge’s misdirection of the jury on the defence of mistake of fact ([5]).

Further, the appellant sought an extension of time in which to appeal his sentence ([6]). The applicant’s explanation for delay in filing the application for leave to appeal against sentence was that his lawyer did not provide him with any information about appealing his sentence and that he thought he would be able to get more time ([69]).

Issues: Whether the verdict was unreasonable or insupportable. Whether the appeal should be allowed. The predominant issue at trial was the issue of consent, including a mistake of fact as to the complainant’s consent.

Decision and reasoning: The appeal against conviction was dismissed and the application for an extension of time was refused.

Appeal against conviction:

In relation to the appellant’s contention that the jury’s verdict was unreasonable or cannot be supported by the evidence, the Court considered whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty based on the whole of the evidence. In determining this question, the Court undertook its own independent assessment of the evidence, assessing its sufficiency and quality ([45]). As to the issue of consent, the Court held that it was entirely open to a jury to find that the complainant gave an honest and reliable account, and it was not surprising that the jury were satisfied that the prosecution had negatived any mistake of fact as to consent on the part of the appellant. There was no evidence from the appellant that he held an honest but mistaken belief as to voluntary consent. Moreover, the appellant’s conduct immediately following the offence and his admission to the complainant’s daughter undermined any assertion that the appellant honestly and reasonably believed that the complainant consented ([51]-[52]). It was also appropriate for the jury to have regard to the ‘ongoing domestic violence in the relationship’ and the complainant’s continuation of the relationship in considering the issues raised by the case ([53]).

The appellant also made a number of complaints about the trial judge’s directions, such as the fact that his Honour used a number of terms interchangeably regarding consent ([58]) and, in giving his final direction on mistake of fact, failed to give a repeat direction on the standard of proof required of the prosecution to negate the defence of mistake of fact beyond reasonable doubt ([64]). The trial judge’s use of the words other than ‘consent’ was not found to constitute a miscarriage of justice ([60]). Further, there was no error in failing to specifically mention the standard of proof in the final redirection, as it was given in conjunction with the aide memoire, which itself identified the requisite standard of proof ([66]).

Extension of time:

In considering whether an extension of time should be granted, the court examined whether there was any good reason to account for the delay and considered whether it was in the interests of justice to grant the extension ([68]). The Court was not persuaded that there was any good reason for the delay to grant an extension ([69]). Moreover, the applicant was 43 years old at the time of the sentence and had repeatedly been convicted of offences of violence, particularly in a domestic setting. These factors supported the sentence imposed and indicated that the sentence was not manifestly excessive ([70]).

R v ABB [2019] QCA 22 (19 February 2019) – Queensland Court of Appeal

‘Evidence’ – ‘Evidence issues’ – ‘Expert or opinion evidence’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Self-represented litigants’

Charges: Assault, constituting a domestic offence x 4.

Case type: Appeal against conviction. Application for extension of time.

Facts: The applicant was convicted on four counts of assault, each of which constituted a domestic offence. All four counts were committed against the applicant’s wife on the same day. The applicant grabbed the complainant’s hair and pulled her to the ground, put his hands around her throat and choked her, and punched her on the jaw with both fists, which resulted in a fracture and required her teeth to be wired together and the fracture closed with a plate and screws ([4]). At the trial, Dr Webster gave evidence, based on the complainant’s medical records, that the injury had been caused by a blunt force trauma to a significant extent ([30]). The applicant lodged a notice of appeal against his conviction when the time for lodging an appeal had expired over three weeks prior. As a result, the applicant also filed an application for extension of time within which to appeal.

The applicant appealed on the ground that the verdicts were unsafe and unsatisfactory ([32]). He also raised a number of specific grounds, including that

•

The prosecution led propensity evidence, the prejudicial effect of which outweighed any probative force, and created an unfair trial ([33]-[36]);

•

The evidence of Dr Webster was fabricated, causing a miscarriage of justice ([37]-[43]);

•

The complainant at trial had previously practiced her evidence and amended the part of the evidence that would have been harmful to the prosecution case ([44]-[45]);

•

A prejudicial answer was given by the complainant during the trial and there was no direction given to the jury to disregard it ([46]-[51]);

•

There was discrepancy in the complainant’s evidence as to how she was punched;

•

Dr Webster was not qualified to give an opinion that the injury constituted grievous bodily harm as he was merely a trainee as an oral and maxillofacial surgeon ([54]).

Issues: Whether the grounds of the applicant’s proposed appeal had reasonable prospects of success to justify granting an extension of time.

Decision and reasoning: When considering an application for extension of time, the court will examine whether there is good reason for the delay and whether it is in the interests of justice to grant the extension. Length of delay is also a relevant consideration ([7]). Although the length of the delay was not significant, the applicant was well aware of the time limit for filing and allowed the time to pass without taking steps to file a notice of appeal. The Court was inclined to grant the extension of time if the matter had been confined to these considerations; however as the merits of the proposed appeal could not be substantiated, the court refused the application ([22]-[23]).

The applicant’s grounds of appeal failed for several reasons. First, the jury was expressly directed that the evidence was not led as propensity evidence and therefore the trial did not miscarry on the basis that the prosecution led such evidence ([36]). Second, the applicant’s contention that Dr Webster’s alteration of his opinion constituted some sort of fabrication of his evidence, causing a miscarriage of justice, was misconceived ([37]). Third, any suggestion that the complainant was able to rehearse or practice her evidence at the first trial was simply the result of the fact that the first trial was aborted. Whatever benefit she got from giving evidence on that occasion was balanced by the fact that the defence counsel had the opportunity to cross-examine her more than once, and so no prejudice was caused ([45]). Fourth, the Court found that an answer by the complainant, which the applicant argued caused him prejudice as it revealed his infidelity, was unlikely to have carried much weight with the jury and did not deprive the applicant of a fair chance of acquittal ([51]). Fifth, the applicant contended that there were discrepancies in the complainant’s evidence because in her evidence in chief, she said that she was punched after she fell; however in cross-examination, she said she did not scream when she was punched, but when she fell. The Court held that there was no real inconsistency as the first piece of evidence related to when she was punched and the second to when she screamed ([52])-([53]). Sixth, it was admitted at the trial that the injury constituted grievous bodily harm. The fact that Dr Webster was a trainee did not mean that he was not a relevant expert ([54]-[58]).

In reviewing the evidence ([94]-[107]), the Court held that it was open to the jury to be satisfied of the applicant’s guilt. As all the grounds of the applicant’s appeal lacked merit, the appeal had no reasonable prospect of succeeding and the application for an extension of time was refused ([108]). The Court also took into account the fact that the applicant was self-represented ([59]).

R v MDB [2018] QCA 283 (19 October 2018) – Queensland Court of Appeal

‘Aggravating feature’ – ‘Appeal against sentence’ – ‘Breach protection order’ – ‘Domestic violence offences’ – ‘Strangulation’

Charges: 1x common assault, 1x threatening violence, 1x assault occasioning bodily harm, 1x choking in a domestic setting, and 1x wilful damage.

Appeal type: application for leave to appeal against sentence.

Facts: The applicant was in a relationship with the complainant from August 2016. On 22 December 2016, a protection order requiring that the applicant be of good behaviour and not commit acts of domestic violence against the complainant was issued pursuant to the Domestic and Family Protection Act 2012 (Qld) (DFVPA). On 17 February 2017, the applicant attacked the complainant. Consequently, the applicant was charged with five offences (common assault, threatening violence, assault occasioning actual bodily harm, choking in a domestic setting, wilful damage) and three summary offences (deprivation of liberty, breach protection order, unlawful possession of a weapon). On 15 February 2018, the applicant was convicted and sentenced on the five indicted offences and convicted of the three summary offences without any further punishment.

Issues: there were four grounds of the applicant’s appeal:

•

Four-year sentence imposed for the offence of choking was manifestly excessive

•

The sentencing judge erred by relying upon the protection order as evidence that the offending was not isolated.

•

The sentencing judge erred by finding that the applicant had made a threat to kill.

•

The sentencing judge erred by finding that the applicant was generally not credible because he told police it wasn’t illegal to possess a “flick knife” in a private place in circumstances where he was previously convicted of possessing a knife in a public place.

Decision and reasoning: application for leave to appeal against the sentence refused.

Whether the sentence was manifestly excessive was determined by Gotterson JA through a consideration of relevant authority, the nature and purpose of the offence of choking, and the circumstances of the case at hand. Both R v MCW [2018] QCA 241 and Bennet were referred to by his Honour to illustrate the seriousness of the offence and the factors relevant to sentencing offenders under the offence (see [44]-[50]). His Honour then noted there were five material facts that warranted the severity of the punishment; these factors included, among others, the disturbing circumstances of the offending, the physical, emotional and financial impact it had on the complainant, and the applicant’s concerning criminal history (see [52]).

As to the second ground of appeal, his Honour initially notes that the order was part of the agreed facts which formed the basis of the sentence proceedings. Gotterson JA then refers to s 9(3)(g) and s 9(10A) of the Penalties and Sentences Act 1992 in asserting that the existence and contravention of an order is a key consideration for the sentencing judge and forms an aggravating feature respectively. In doing so, his Honour dismisses the foundation of this contention that the order cannot be referred to as evidence. In addressing the applicant’s specific contention, his Honour observes that orders are only made on the basis of evidence of previous difficulties in a relationship and that accordingly, the sentencing judge’s inference that the order was a result of previous relationship difficulties was a reasonable one. Taking this into account, his Honour then affirms that it was correct for the sentencing judge to state that the offences committed on 17 February 2017 were not “an isolated and exceptional incident” (see [26]).

Gotterson JA rejected the third ground of appeal on the basis that the applicant’s contention mis-interpreted the sentencing judge’s remarks in coming to the finding that the applicant threatened to kill her (see [27]). Having regard to the seriousness and criminality of the applicant’s conduct, his Honour perceives the sentencing judge’s finding as reflecting no error at all (see [28]).

Similarly, his Honour also rejected the fourth ground of appeal on the basis that it was a misconstruction of the sentencing judge’s comments. Gotterson JA was of the view the judge made no error in his assessment of the reliability of the matters at hand on the basis of the applicant’s instructions (see [33]).

R v MCW [2018] QCA 241 (28 September 2018) – Queensland Court of Appeal

‘Breach of protection orders’ – ‘Fair hearing and safety’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’ – ‘Sentencing considerations’ – ‘Strangulation’

Charges: Assault occasioning bodily harm x 2; Choking, suffocation or strangulation in a domestic setting x 1; Contravention of domestic violence order x 1

Appeal type: Appeal against sentence

Facts: The applicant pleaded guilty to two counts of assault occasioning bodily harm, one count of choking, suffocation or strangulation in a domestic setting and one summary charge of contravention of domestic violence order ([4]). The prosecutor, relying on R v West [2006] QCA 252, R v King [2006] QCA 466 and R v RAP [2014] QCA 228, submitted to the sentencing judge that three years’ imprisonment was appropriate. A variation of the protection order was also sought so as to extend its operation and add a further ‘no contact’ condition.

The sentencing judge held that the offences were ‘cowardly, prolonged and particularly violent’ ([23]) and that the offender posed a genuine threat to the community and particularly, to the complainant ([25]). In respect of each of the assault occasioning bodily harm counts, the applicant was sentenced to imprisonment for two years and six months. Sentences of imprisonment for three years and six months was imposed for the offence of choking, suffocation or strangulation in a domestic setting, and three months for the summary charge. All sentences were concurrent. No date for eligibility for parole was specified. The applicant was therefore ineligible to apply for parole prior to having served half of the effective sentence of imprisonment of three and a half years ([4]).

The applicant appealed on the basis that the sentencing judge had denied him procedural fairness by failing to forewarn the parties of his intention to reduce the head sentence slightly to reflect the guilty plea, and to provide him with an opportunity for a parole at earlier than half the sentence. He also appealed on the basis that the sentence was manifestly excessive.

Issues: Whether the sentence was manifestly excessive; Whether there was a denial of procedural fairness.

Decision and reasoning: Application was refused on the basis that no procedural unfairness arose on the facts and the sentence was not manifestly excessive.

•

Manifestly excessive sentence

The applicant submitted that the sentence imposed was manifestly excessive and that the notional starting point of four years’ imprisonment for the offence against s 315A of the Criminal Code 1899 (Qld) (the ‘Code’) was too high ([33]). Conversely, the respondent contended that consideration must not only be given to the particular circumstances of the applicant’s case, but also to the legislative intention for enacting s 315A to provide for specific liability, and a potentially increased maximum penalty, for offences involving choking (and similar conduct) committed in a domestic setting ([34]). Prior to the sentencing, the Code was amended to create a specific offence of strangulation in a domestic setting (see s 315A). That section prescribes a maximum penalty of seven years to deter the increasing frequency of such behaviour. The Court referred to the Explanatory Notes for the Criminal Law (Domestic Violence) Amendment Bill (No 2) 2015 at [39] –

‘The new strangulation offence and the significant penalty attached, reflect that this behaviour is not only inherently dangerous, but is a predictive indicator of escalation in domestic violence offending, including homicide…’

The Court was cautious to apply authorities for sentences for offences constituted by conduct comparable to choking, suffocation or strangulation in a domestic setting, prior to the enactment of s 315A. R v West [2006] QCA 252, R v King [2006] QCA 466 and R v RAP [2014] QCA 228 involved assaults occasioning bodily harm, the maximum penalty for which was seven years’ imprisonment. The Court found that it was not useful to consider the sentences in those cases as comparable authorities for an offence of strangulation in a domestic setting, having regard to the legislature’s intention for enacting s 315A and the seriousness of that offence.

The test of manifest excessiveness depends on whether the sentence is unreasonable or unjust, in light of all the factors relevant to the sentence (see Hili v The Queen [2010] HCA 45). The fact that the complainant lost consciousness, and that the offending occurred only 18 days after his release from custody for breach of a previous domestic violence order, increased the severity of the offence. The applicant’s criminality was also increased by the fact that the choking incident was preceded, and then followed, by an assault occasioning bodily harm. Further, the applicant showed no remorse for the offending and refused to undergo counselling. Boddice J concluded that the circumstances indicated that the applicant’s offending amounted to ‘an episode of sustained violence undertaken by a recidivist who expressed no remorse’ ([47]). Therefore, the Court found that the sentencing judge did not err in sentencing the offender to three years and six months without any further mitigation, and that the sentence was not manifestly excessive in the circumstances ([44]).

R v Ellis [2018] QCA 70 (17 April 2018) – Queensland Court of Appeal

‘Appeal against sentence’ – ‘Emotional and psychological abuse’ – ‘Physical violence and harm’ – ‘Post-separation violence’ – ‘Risk factors - controlling, jealous, obsessive behaviours’ – ‘Self-represented litigant’ – ‘Women’

Charges: Torture x 1; Assault occasioning bodily harm x 1; Malicious act with intent x 1.

Appeal type: Appeal against sentence.

Facts: The complainant and the applicant had been in a relationship for two months ([4]). The complainant ended the relationship. The next day, the applicant attended at her home and she let him inside. He accused her of being unfaithful to him ([4]). Over the next four hours, the applicant did the following acts to the complainant: slapped her; ripped an earring from her ear; punched her; struck her with a garden trowel; locked her in a cupboard; heated the trowel and a butter knife over the flame of a gas stove and struck her on the legs and near her vulva, causing burns; and forced her to shower, exacerbating the burns ([5]).

The applicant was sentenced to six and a half years’ imprisonment for the torture charge, 18 months’ imprisonment for the assault occasioning bodily harm charge, and 6 years’ imprisonment for the malicious act with intent charge. A serious violent offence declaration was made in respect of the torture charge.

Issues: Whether the sentence of six and a half years’ imprisonment for the torture charge was manifestly excessive.

Decision and Reasoning: The application for leave to appeal against the sentence was refused. It was within the trial judge’s discretion to sentence the applicant and also make a serious violent offence declaration ([19]). The trial judge appropriately balanced the applicant’s personal circumstances, including the fact that he was subject to domestic violence as a child, with the fact that he had a criminal history including domestic violence ([12]).

Harvey v Queensland Police Service [2018] QCA 64 (6 April 2018) – Queensland Court of Appeal

‘Protection orders’ – ‘Related family law proceedings’ – ‘Self-represented litigants’ – ‘Systems abuse’

Charges: Contravention of temporary protection order x 9; Public nuisance x 1; Using a carriage service to menace, harass or cause offence x 1; Failure to surrender into custody in accordance with an undertaking x 1.

Appeal type: Application for leave to appeal against refusal to grant extension of time to appeal against conviction.

Facts: The applicant had been in a parenting dispute with the mother of his son. There were 5 proceedings in which the applicant sought extensions of time to appeal against his conviction:

1.

Six contraventions of temporary protection orders, involving sending threatening emails to the aggrieved.

2.

Public nuisance, involving swearing at police officers outside a police station.

3.

Two contraventions of domestic violence order, involving emailing the aggrieved.

4.

One contravention of domestic violence order and one charge of using a carriage service to menace, harass or cause offence, involving emailing and telephoning the aggrieved.

5.

Failure to surrender into custody in accordance with an undertaking.

The applicant sought to justify the breaches of domestic violence orders on the basis that they were justified under an order of the Family Court (which allowed the applicant to contact the aggrieved for the purpose of communicating in relation to contact with the child of the relationship) ([11]).

Issues: Whether the appeal should be allowed. The applicant sought leave to appeal on the basis that the District Court Judge erred in:

•

not having regard to exculpatory evidence of the applicant’s mental health issues;

•

not allowing exculpatory new evidence;

•

stating that the emails were not relevant to s 286 Criminal Code Act 1899 (Qld);

•

not following Supreme Court authority ([25]).

Decision and Reasoning: The application for leave was dismissed. Sofronoff JA held that none of the grounds were supported by evidence or could justify granted leave to appeal ([26]-[29]).

R v Hutchinson [2018] QCA 29 (9 March 2018) – Queensland Court of Appeal

‘Domestic violence as an aggravating factor’ – ‘Imprisonment’ – ‘Murder’ – ‘Retrospective operation of sentencing considerations’ – ‘Sentencing’

Charges: Murder x 1; Fraud x 1;

Appeal type: Appeal against sentence.

Facts: The deceased and the appellant had been married for a lengthy period. The fraud charge occurred when the appellant mortgaged the family home by using a third party to pretend to be the deceased ([5]). The deceased disappeared, and the appellant was charged with her murder. The appellant deceived the deceased’s family and friends in the days after she disappeared and never revealed how she died or the whereabouts of her body ([6]-[12]). At trial, the appellant was acquitted of murder, but convicted of manslaughter. He pleaded guilty to the fraud charge on the first day of the trial ([3]). The appellant was sentenced to 15 years and six months, and the manslaughter offence was declared a serious violence offence and a domestic violence offence under s 9(10A) of the Penalties and Sentences Act 1992 (Qld) (‘the Act’).

Issues: Whether the sentencing judge erred in retrospectively applying s 9(10A) of the Act or whether the sentence was otherwise manifestly excessive.

Decision and Reasoning: The appellant argued that s 9(10A) of the Act, which has the effect that a context of domestic violence is an aggravating factor in sentencing, should not apply because it should not have retrospective operation ([24]). The Court held that the section is a procedural provision and does not attract the common law presumption against retrospectivity. Therefore, the section applies to all sentencing from its commencement ([43]).

Justice Mullins, Fraser and Morrison JJA agreeing, stated that the sentence was not manifestly excessive, taking into account the context of domestic violence, the appellant’s deceit in impersonating the deceased and failing to disclose the whereabouts of the deceased’s body, his lack of plea of guilty, his lack of remorse and the unchallenged finding that the deceased died a violent death ([53]).

R v Maxwell [2018] QCA 17 (27 February 2018) – Queensland Court of Appeal

‘Following, harassing and monitoring’ – ‘Post-separation violence’ – ‘Revenge porn’ – ‘Sexual and reproductive abuse’ – ‘Systems abuse’

Charges: Stalking x 1; Attempting to pervert the course of justice x 1.

Appeal type: Appeal against conviction and sentence.

Facts: The applicant and the complainant had been in a relationship for 18 months. There were 2 instances of violence ([2]). After the relationship ended, the applicant followed the complainant and sent her a total of 77 text messages, 5 emails and phone calls by which the complainant felt threatened and harassed ([7]). After the complainant made a complaint to the police, the applicant sent further emails to her threatening to release recordings and videos of them having sex if she did not withdraw the charge ([9]).

The appellant was sentenced to a head sentence of 18 months’ imprisonment, with a parole release date after 3 months ([12]).

Issues: Whether the conviction should be set aside and whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed.

In relation to the appeal against conviction, the appellant had argued that he was not provided with proper legal advice ([30]). Justice Morrison (Sofronoff P and Phillip McMurdo JA agreeing) dismissed this argument as having ‘no merit’ ([44]).

In relation to the appeal against sentence, the appellant relied on the impact of the sentence on his ability to obtain licences to work in the financial services industry ([45]). Justice Morrison dismissed this argument because it could only be relevant to whether a conviction is recorded ([48]).

R v Stephens [2017] QCA 173 (15 August 2017) – Queensland Court of Appeal

‘Attempted murder’ – ‘Children present’ – ‘Deterrence’ – ‘Domestic violence order’ – ‘Firearms’ – ‘Moral culpability’ – ‘People with mental illness’ – ‘Post-separation violence’ – ‘Stalking’ – ‘Strangulation’

Charges: Attempted murder x 1.

Appeal type: Application for leave to appeal against sentence.

Facts: The applicant and complainant were separated ([6]). After they separated, the complainant obtained a domestic violence order against the applicant because he had sent her text messages threatening to kill her. On the date of the offence, the applicant followed the complainant and her children to a shopping centre, armed with a rifle and 13 rounds of ammunition ([7]). He shot her in the temple at close range, then attempted to strangle her. The four children in the car saw every detail of what had occurred ([8]-[9]). He was sentenced to 15 years’ imprisonment.

Issues: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed.

Justice Douglas, Holmes CJ and Gotterson J agreeing, found that the sentencing judge properly weighed the relevant factors. The applicant’s mental health disorders did not bear on his moral culpability ([43]). This was a ‘horrific example of the crime of attempted murder’. The victim continues to suffer severely. There was a strong need for protection and general and specific deterrence. The appropriate range would have been 13 to 17 years ([44]).

SCT v Director of Public Prosecutions (Qld) [2017] QCA 31 (13 June 2017) – Queensland Court of Appeal

‘Bail’ – ‘Choke hold’ – ‘Contravention of domestic violence order’ – ‘Strangulation’

Charges: Contravening domestic violence order x 2; Choking, suffocation or strangulation in a domestic relationship x 1.

Case type: Renewed application for bail.

Facts: The applicant and complainant had been in a domestic relationship. A domestic violence order had been granted ([7]). The complainant made the following allegations: the applicant went to the complainant’s house and punched her in the leg ([7]); he threw a pillow at the complainant; and put her in a choke hold ([8]). Bail was originally refused ([9]). Since then, new evidence of a demonstrated that a trial in the District Court would be more than a year away ([10]).

Issues: Whether the evidence of a new trial date justified a grant of bail.

Decision and Reasoning: Bail was granted with conditions that he not have contact with the complainant, that he reside at a specified address, and that he report to the police daily.

Under s 16(3)(g) Bail Act 1980 (Qld), for which the new offence of strangulation is a ‘relevant offence’, the onus was on the applicant to show cause why bail should be granted ([13]). The Court explained that on one hand, there was a real risk that he would reoffend because the applicant and complainant lived in the same town, and they may contact each other ([14]). On the other hand, he had accommodation with family members available, an offer of employment ([15]), and there was a real prospect that he would spend longer on remand than he would serve in custody ([16]). On balance, the risk of reoffending was not unacceptable (s 16).

Ackland v Director of Public Prosecutions (Qld) [2017] QCA 75 (28 April 2017) – Queensland Court of Appeal

‘Assault’ – ‘Bail’ – ‘Risk of re-offending’

Charges: 1 x Assault occasioning bodily harm; 1 x Choking.

Appeal type: Defendant’s appeal against denial of bail application.

Facts: The victim alleged that, during an argument, the appellant: threatened to knock her out; grabbed her by the throat; punched her in the face; and, when she indicated that she was going to call the police, destroyed photographs in the house (see [8]-[10]).

The trial judge refused bail on the basis that:

•

12 months earlier, the appellant had committed a breach of a domestic violence order against a former girlfriend (see [12]);

•

the Crown case appeared to be strong, by evidence of photographs of cuts and abrasions (see [14]); and

•

there was a danger to female victims in such domestic violence situations (see [18]).

His Honour referred to, but did not place weight on, a handwritten note from the victim indicating that she wanted to withdraw the charges (see [15]-[16]).

Issues: Whether the trial judge erred in denying bail to the defendant.

Decision and Reasoning: The appeal was dismissed.

Atkinson J, with whom Morrison JA and Douglas J agreed, considered that the trial judge’s discretion had not been improperly exercised (see [27]). The appellant had submitted that the trial judge based the risk of re-offending on an irrelevant ground, namely a generalised risk to victims of repeated offences. However, Atkinson J considered that the trial judge properly considered the particular risk to the victim, evidenced by two assaults being committed 10 hours apart, the victim’s concern, and the previous breach of domestic violence order (see [28]-[29])

At the time of the bail application, amendments to the Bail Act which reversed the presumption of bail for domestic violence offences had not come into effect (see [30]). By the time of the appeal against bail, the amendments had come into effect. Giving effect to the reversed onus, Atkinson J considered that the appellant had not satisfied the court that he did not represent an unacceptable risk of re-offending (particularly against the victim) while on bail (see [35]).

R v KAP [2016] QCA 349 (23 December 2016) – Queensland Court of Appeal

‘Expert evidence’ – ‘Rape’ – ‘Visible injury’

Charges: Rape x 1.

Appeal type: Appeal against conviction.

Facts: The accused and the complainant were married, but separated. The accused went to the home of the deceased, and sexual intercourse took place. The complainant said that the accused had held her down and threatened her, but the accused said that the intercourse was consensual ([1]).

Issues: Whether the conviction should be overturned on the grounds that expert evidence about the frequency of visible injury in sexual assault cases should not have been adduced, and the jury should have been given directions as to how to use that evidence ([2]-[3]).

Decision and Reasoning: The expert witness gave evidence that, according to cohort studies and his own personal experience, the absence of visible injury to genitalia is not determinative of whether sexual assault has occurred ([22]-[29]). Morrison JA (with whom Philip McMurdo JA and Mullins J agreed) held that the evidence:

•

was relevant ([31]-[32]);

•

was based on admissible data ([33]-[34]);

•

fell within the scope of expert evidence because injury arising out of sexual assault is accepted as being part “of a body of knowledge or experience” which ordinary lay people would not have (citing Osland v The Queen (1998) 197 CLR 316 ([35]-[37]);

•

was necessary to dispel a common fallacy that physical injury normally follows rape ([41]).

ZXA v Commissioner of Police [2016] QCA 295 (15 November 2016) – Queensland Court of Appeal

‘Domestic violence protection order’ – ‘Rights of appeal’

Appeal Type: Appeal against domestic violence protection order.

Facts: The applicant was named as the respondent in a domestic violence protection order under s 37 of the Domestic and Family Violence Protection Act 2012 (Qld). He filed an appeal to the District Court under s 164 of the Act. The appeal was dismissed. The applicant then attended the Supreme Court registry to file an application for leave to appeal under s 118 of the District Court of Queensland Act 1967 (Qld). Despite being told that there was no right of appeal, the applicant persisted until the registry acceded to his demands.

Issue/s: Whether the Court of Appeal had jurisdiction under s 169(2) of the Domestic and Family Violence Protection Act 2012 (Qld) to hear the appeal?

Decision and Reasoning: The appeal was dismissed. Under s 169(2) of the Act, the decision from which the applicant seeks leave to appeal ‘shall be final and conclusive’. While s 118(3) of the District Court of Queensland Act allows a party to appeal, it does not apply to a decision of the District Court in its appellate jurisdiction under s 169(1): see CAO v HAT & Ors [2014] QCA 61 [25] – [27]. The President concluded:

‘The scheme under the Act contemplates that domestic violence protection orders can be made by a wide variety of courts with a right of appeal from such orders…The scheme does, however, clearly contemplate only one level of appeal. The plain words of s 169(2) that such an appeal is “final and conclusive” indicate that the legislature intended that there be no further appeal. The applicant has exhausted his single right of appeal from the Magistrates Court to the District Court. He can, of course, apply to vary the domestic violence protection order under s 86 of the Act, including to vary the duration of the order: see s 86(3)(b) of the Act’.

R v Williams [2015] QCA 276 (18 December 2015) – Queensland Court of Appeal

‘Aggravating factor’ – ‘Attempted murder’ – ‘Breach of domestic violence order’ – ‘Burglary’ – ‘Impact on children’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Separation’

Charge/s: Attempted murder, burglary.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant had separated from his wife, and had recently found out that she was in a new relationship. He broke into her home, stabbed her while she was sleeping on her back next to her two year old daughter and then ran off. She immediately awoke to find a knife sticking out of her chest, which she removed, at which point she collapsed. He was sentenced to 15 years imprisonment and declared to be a serious violent offender.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave to appeal was refused. The applicant submitted that the trend of sentences for attempted murder cases shows that the appropriate range is 10 to 17 years, and that 15 years is excessive compared with analogous cases. This argument was rejected. Bond J (with whom Jackson J and Philip McMurdo JA agreed) at [17]-[30] provided a useful summary of previous attempted murder cases involving domestic violence. The Court acknowledged that the offence of attempted murder attracts a wide variety of punishments. However, consistent with the approach articulated by the High Court in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2, where comparable sentences can provide assistance, but do not set a range of permissible sentences, the Court held that the original sentence was within the discretion open to the trial judge.

R v Johnson [2015] QCA 270 (11 December 2015) – Queensland Court of Appeal

‘Consent’ – ‘Rape’ – ‘Sexual and reproductive abuse’

Charge/s: Rape.

Appeal Type: Appeal against conviction.

Facts: The appellant met the complainant on Facebook and was in a relationship with her for seven weeks. During sexual intercourse, the complainant withdrew her consent and alleged she was then raped by the appellant. The appellant was convicted of rape following a trial.

Issue/s: One issue concerned whether the verdict was unreasonable and unsupportable having regard to the evidence.

Decision and Reasoning: The appeal was dismissed. Morrison JA (with whom Gotterson JA and Philippides JA agreed) held that it was open to the jury to be satisfied beyond reasonable doubt that by the complainant saying ‘no’ and ‘stop’ multiple times, he was not under any mistake as to whether she had consented to sex.

R v Leedie [2015] QCA 216 (6 November 2015) – Queensland Court of Appeal

‘Deprivation of liberty’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Pre-recorded evidence’ – ‘Rape’ – ‘Sexual and reproductive abuse’ – ‘Support person’ – ‘Torture’

Charge/s: Rape, deprivation of liberty, torture.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted of eight offences including rape, deprivation of liberty and torture. The appellant had been in an ‘off and on’ romantic relationship with the complainant. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the appellant in favour of the complainant or other parties. There was no history of violence in the relationship. The offending arose after the appellant asked the complainant to visit his house to have sex. Consensual sex then occurred. However, following the appellant seeing a message from his brother on the complainant’s phone, he became angry, proceeded to become extremely violent, and raped the complainant multiple times across the night. He did not let her out of the house, and tortured her. The complainant was deemed a ‘special witness’, and gave pre-recorded evidence two days before trial, with her mother present as a support person (pursuant to s 21AK of the Evidence Act 1977). Her mother was made aware by the judge during the recording that she was not to have any participation in the proceedings other than as a support person. The mother then made comments to the complainant which reminded her about the details of one of the rape offences. It was accepted at [55] that her mother’s conduct was ‘inappropriate’. However, the trial judge, in response to defence counsel’s application for a mistrial, made detailed warnings to the jury about the caution they needed to apply when considering the complainant’s evidence.

Issue/s: One ground of appeal concerned whether the trial judge erred by failing to discharge the jury after the complainant’s mother suggested to the complainant what she might say in her evidence.

Decision and Reasoning: The appeal was dismissed. The Court held that these directions were sufficient to warn the jury that the reliability of the complainant’s evidence may have been undermined by her mother’s reminder of the details of the appellant’s offending. Furthermore, at trial, the judge offered to order a further pre-recording of the complainant’s evidence, which was declined by the appellant.

R v Andres [2015] QCA 167 (11 September 2015) – Queensland Court of Appeal

‘Circumstantial evidence’ – ‘Intent’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Self-defence’ – ‘Whether guilty verdict unreasonable’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted by a jury of the murder of his wife. His version of events included, (among other things) the contention that the deceased had injured him with a fork and he was placed in fear of his life. (See at [4]-[113]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of his wife.

Issue/s: The appellant admitted that he had caused his wife’s death, but maintained that he did not have the requisite intention to prove murder. As such, the question for the Court was whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. More specifically, the issue was whether the accused had the requisite intention to prove murder. Also at issue was whether he had killed his wife by accident or in self-defence.

Decision and Reasoning:

The appeal was dismissed, with the Court finding that a guilty verdict was open to the jury on the evidence. Boddice J, (with whom Morrison JA and Carmody J agreed), found that the only evidence to support the conclusion that the death occurred by accident or in self-defence was the appellant’s own evidence, which lacked probative force. This was because, among other things, the appellant admitted he had deliberately lied and changed his story, and he had dissolved the deceased’s body in acid, which made it difficult to determine the cause of death. While the case was wholly circumstantial, it was noted that intent can be proved by inference, by considering the probative value of the evidence as a whole.

R v Jones [2015] QCA 161 (1 September 2015) – Queensland Court of Appeal

‘Evidence’ – ‘Expert testimony’ – ‘Killing for preservation in an abusive relationship’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relationship evidence’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted for the murder of his mother. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of the victim or other parties. The issues at trial related substantially to self-defence and provocation. Evidence of the history of the relationship was admitted in the context of the defence under s 304B of the Queensland Criminal Code of killing in an abusive domestic relationship (See further at [3]-[13]).

Issue/s: Whether the trial judge erred by not admitting expert psychiatric evidence.

Decision and Reasoning: The appeal was dismissed. North J (with whom Holmes JA and Henry J agreed) held firstly that this evidence was not admissible under s 132B of the Evidence Act 1977. It was not relationship evidence. The Court also held that the matters that the psychiatrist spoke of were not complex in a scientific sense, and the jury, properly instructed, were able to understand them without needing to hear the expert evidence itself. The psychiatrist did not identify that the appellant was suffering from any recognised psychiatric illness. Rather, he only spoke generally that the appellant had developed coping strategies in response to his mother’s violent and difficult behaviour. The jury, in applying common sense, would have been able to reach this conclusion themselves. North J, comparing the ‘battered wife defence’, noted that there is no ‘battered child defence’ in law. That is, there is no defence where, ‘insults and abuse may be relied upon by a child by way of excuse for a fatal attack upon an abusive parent’ (See at [19]).

R v Pearson [2015] QCA 157 (28 August 2015) – Queensland Court of Appeal

‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Intent’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Relationship evidence’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted of the murder of his wife (See further at [2]-[5]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of his wife. The issues at trial concerned whether he had the requisite intent to kill or do grievous bodily harm, and whether the defence of provocation arose.

Issue/s: One issue on appeal was whether the trial judge misdirected the jury in regards to the relevance of evidence of prior acts of domestic violence and discreditable conduct. In particular, the appellant submitted that the jury were misdirected about how they could use the evidence when deciding whether the appellant had the requisite intent for murder.

Decision and Reasoning: The appeal was dismissed. At trial, the jury was directed to the effect that the evidence was relevant to explain the nature and animosity of the relationship between the appellant and the deceased. They were specifically directed that if they were to use that evidence to assist in determining the appellant’s state of mind at the time of the offence, they must be satisfied beyond reasonable doubt that the past acts occurred. Holmes JA (Morrison JA and Henry J agreeing) held that s 132B of the Evidence Act 1977 can be used to show a particular propensity of the accused to commit acts of a similar nature, as well for specific issues like intent. Her Honour, applying the approach of the High Court in Roach v The Queen [2011] HCA 12, noted that these two uses are distinct. In this case, the domestic violence evidence was only relevant as relationship evidence to prove intent. Propensity was not relevant because it was not in dispute that the appellant had caused the death of his wife. The jury were directed to this effect. A general propensity warning was not needed for the same reasons.

R v Piper [2015] QCA 129 (17 July 2015) – Queensland Court of Appeal

‘Aggravating factor’ – ‘Breach of domestic violence order’ – ‘Grievous bodily harm with intent’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Grievous bodily harm with intent, breach of domestic violence order.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant’s wife attended a hotel with a male friend. He falsely believed his wife to be in a romantic relationship with the friend. In an unprovoked attack, he stabbed the friend forcefully multiple times. The victim sustained six stab wounds, including one to his neck. The victim suffers lasting psychological difficulties as a result of the attack. There was a domestic violence order in place which prevented the applicant from coming within five metres of his wife. The attack breached this order, which became an aggravating feature in sentencing. He had no criminal history. He was sentenced to seven years’ imprisonment, becoming eligible for parole after three years.

Issue/s: One issue concerned whether the sentence was manifestly excessive.

Decision and Reasoning: Leave to appeal was granted. The offending was very serious. It was ‘a sustained, severe and premeditated attack, whilst armed with a knife, on a victim who had done nothing by way of provocation’ (See at [36]). It was committed in the context of a domestic violence order being in place. As such, the head sentence, whilst at the upper end of the scale, was within range, taking into account his lack of criminal history and plea of guilty. However, the Court concluded that the parole eligibility date should be brought forward. The applicant’s guilty plea, while late, ensured that witnesses did not have to give evidence, which was particularly important for the victim. The parole eligibility date was close to the ‘half-way mark’ in the sentence. This did not reflect the significance of his guilty plea, remorse and cooperation and lack of criminal history. As such, the parole eligibility date was changed and set at the one-third mark in the sentence.

R v Wallace [2015] QCA 62 (21 April 2015) – Queensland Court of Appeal

‘Emotional abuse’ – ‘Following harassing, monitoring’ – ‘Fraud’ – ‘Fresh evidence’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Verbal abuse’ – ‘Where the offender is also a victim’

Charge/s: Six counts of fraud.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant pleaded guilty at trial to six counts of fraud. See at [3]-[11]. It is unclear whether at the time of the offences, there was a current or lapsed protection order in place against the applicant’s ex-husband in favour of the applicant or other parties.

Issue/s: Whether the applicant could adduce fresh evidence not led at the original sentencing hearing.

Decision and Reasoning: The fresh evidence involved long term domestic violence that the applicant suffered from her ex-husband, including controlling behaviour such as taking the applicant’s phone and keys to prevent her from seeking help, threatening her children, stealing money from her business, and severe physical violence. It also included evidence from a psychiatrist detailing the effect of the abuse on her, to the extent that she did not fully understand the repercussions of her offending. This was found to be consistent with what has come to be known as the ‘battered person’s syndrome’. The appeal was allowed and the evidence was admitted. The head sentence was reduced by one year.

McMurdo P, (with whom Gotterson JA and Douglas J agreed) noted that lawyers acting for clients charged with criminal offences who claim to be the victim of domestic violence should take such claims very seriously to determine the relevance to their client’s alleged offending. They should then put such evidence before the primary court either as a defence, or in sentence mitigation.

See in particular the following remarks of McMurdo P at [37] -

'… The further evidence led in this application established that at the time of the offending the applicant was in an abusive, exploitive relationship which impaired her capacity to realise the full repercussions of her fraudulent behaviour and her ability to formulate a mature response to her financial and personal difficulties as she continued to take more and more money from the nursing home in the impossible hope that she would eventually repay it. As Dr Schramm (a psychiatrist) explained, she was not acting completely rationally. She was exhibiting behavioural disturbances following her prolonged and significant physical and emotional abuse, commonly known as “battered persons syndrome.” This took her offending behaviour out of the worst category of fraudulent offending in which the sentencing judge placed it. The further evidence raises the possibility that some other sentence than that imposed may be warranted; if so, its exclusion would result in a miscarriage of justice. '

R v Davidson [2014] QCA 348 (19 December 2014) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Grievous bodily harm’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victim credibility’

Charge/s: Assault occasioning bodily harm, grievous bodily harm.

Appeal Type: Appeal against conviction and sentence.

Facts: The offending involved an incident where the appellant asked the complainant to perform a sexual act on his male friend. The appellant also engaged in sexual activity with the friend. The case at trial was based on the complainant’s version of events, which included that the appellant kicked and punched the complainant (the appellant’s partner) for a long period. There was a history of domestic violence in the relationship. A domestic violence order was made some six years prior. The appellant had a long criminal history of similar offences, including a breach of a domestic violence order. However, there was no associated breach of a domestic violence order in this matter. The appellant was sentenced to five years imprisonment with parole eligibility set at 2.5 years.

Issue/s: Whether the failure to call new evidence from witnesses who challenged the complainant’s credibility established a miscarriage of justice.

Decision and Reasoning: The appeal was dismissed. The appellant contended specifically that the failure to call a particular witness established a miscarriage of justice and noted that his defence counsel did not explore the detail of the evidence in cross-examination. The Court rejected that argument – the failure of counsel to adduce this new evidence was justifiable as a strategic decision in the trial context to not risk other unfavourable evidence being admitted. The appeal against sentence was also dismissed.

R v Aplin [2014] QCA 332 (16 December 2014) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Community protection’ – ‘General deterrence’ – ‘Grievous bodily harm’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Serious violent offence declaration’

Charge/s: Grievous Bodily Harm.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant, an Aboriginal and Torres Strait Islander man, caused catastrophic harm to the 21 year old complainant, with whom he had recently commenced a relationship. She was in a ‘vegetative state’ at the time of trial. He made full admissions to police. He sought to have evidence of these admissions excluded, which was refused. He then pleaded guilty. The applicant had a long history of domestic violence including multiple breaches of domestic violence orders. The sentencing judge mentioned the need to have regard to this history, as well as the extent of the injuries and the need for deterrence (see at [12]). He was sentenced to 9 years’ imprisonment and a ‘serious violent offence’ declaration was made.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The applicant submitted that various mitigating factors applied including that no weapon was involved, there was no premeditation, he attempted to administer aid, requested that an ambulance be called and there was a degree of provocation. He also submitted that the sentencing judge was in error in using a 10 year head sentence as a starting point. Fraser JA (with whom McMurdo P and Morrison JA agreed) held that there was nothing to indicate the primary judge overlooked these factors or the applicant’s disadvantaged background. Indeed, given the ‘seriousness of the offence, the catastrophic consequences for the complainant, and the applicant’s bad history of violent offending in broadly similar circumstances’ (See at [16]), it was open to the primary judge to attach relatively light weight to the mitigating factors. Furthermore, the trial judge was correct in using a previous decision with a head sentence of 10 years for ‘guidance’. While the Court acknowledged that this sentence was severe given the maximum penalty, the guilty plea, the offender’s age and other mitigating circumstances, it was justified for this ‘extreme example of domestic violence by a repeat offender’,([26]) where general deterrence and community protection were very relevant.

R v Warradoo [2014] QCA 299 (25 November 2014) – Queensland Court of Appeal

‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Hearsay’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relationship evidence’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted of the murder of his girlfriend. (See further at [3]-[7]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of the victim. At trial, evidence relating to conversations with the deceased’s niece and mother which detailed instances of prior violence committed by the appellant was admitted. No warning was given by the trial judge as to the potential unreliability of this evidence as hearsay.

Issue/s: Whether the trial judge erred by not giving adequate warnings with respect to evidence admitted under section 93B of the Evidence Act 1977.

Decision and Reasoning: The appeal was dismissed. Holmes JA stated (at [8]) that section 93B operates to, ‘(render) the hearsay rule inapplicable to evidence of a representation of fact made by a person who is dead, if the representation was made shortly after the asserted fact happened and in circumstances making it unlikely to be a fabrication, or was made in circumstances making it highly probable it was reliable.’ It was held that a direction from the trial judge about the unreliability of the evidence as hearsay would not have been particularly helpful, and may have even been disadvantageous to the appellant. Also, the evidence was admissible under s 132B of the Evidence Act 1977 as evidence of the history of a domestic relationship.

R v RAP [2014] QCA 228 (11 September 2014) – Queensland Court of Appeal

‘Damaging property’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful assault causing bodily harm’

Charge/s: Unlawful assault causing bodily harm, unlawfully damaging property.

Appeal Type: Appeal against sentence.

Facts: The appellant pleaded guilty to unlawfully assaulting his wife, causing her bodily harm and unlawfully damaging property. The appellant had a relevant criminal history involving a breach of a domestic violence order. However, this was effectively ignored by the sentencing judge. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the appellant in favour of his wife. In mitigation, the sentencing judge considered a psychiatrist’s report indicating that at the time of the incident, the appellant was likely suffering from, ‘a major depressive episode and, probably, a form of alcohol dependence’. There was also a report from a psychologist who had treated the appellant before the offences and diagnosed him with, ‘an acute, moderate to severe adjustment disorder with mixed anxiety depressed moods at that time.’ A later review by that psychologist indicated he suffered a ‘chronic and mild adjustment disorder with anxiety’ and a year later ‘a mild borderline adjustment disorder’ was diagnosed. He was sentenced for the assault charge to two years imprisonment, suspended after eight months with an operational period of 2.5 years. He was sentenced to two months imprisonment for the property damage charge to be served concurrently.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The couple had previously separated, and the incident arose when the appellant returned to the matrimonial home. The complainant’s injuries were significant and she was in fear of her life during the attack. Wilson J (with whom McMurdo P and Fraser JA agreed) at [39] – [46] provided a useful summary of comparable cases. The Court held that a serious assault in the domestic context warrants imprisonment for two years or more. The suspension imposed was a correct application of the mitigating factors, and the serious nature of the violence.

R v Foster [2014] QCA 226 (9 September 2014) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Deprivation of liberty’ – ‘Following, harassing, monitoring’ – ‘Preliminary complaint’ – ‘Rape’ – ‘Sexual and reproductive abuse’ – ‘Victim disclosure and consent’

Charge/s: Rape, Assault occasioning bodily harm, deprivation of liberty.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted at trial of two counts of the rape of his partner, after he was found to have penetrated the complainant with a hairbrush, an aerosol can and a water bottle. He pleaded guilty to other charges including assault occasioning bodily harm and deprivation of liberty. There was no domestic violence order in place.

Issue/s: Whether evidence of the complainant’s response in a state of distress, to the question of ‘Had you been raped?’ amounted to an admissible preliminary complaint of rape. The complainant had not directly answered the question but ‘looked sad’ and ‘slumped her shoulders, to look as if she was about to burst into tears and to look beaten’. (See at [33]).

Decision and Reasoning: The Court found that this amounted to a complaint, within the meaning of Section 4A of the Criminal Law (Sexual Offences) Act 1978. Importantly, Gotterson JA (with whom McMurdo P Morrison JA agreed) noted that an admissible complaint need not require a verbal response. In particular, ‘A meaningful response may be signalled by conduct other than speech. That conduct may include the absence of a verbal rejection of the proposition’. However, Gotterson JA noted that the acceptance could have been clearer, and this was a ‘borderline’ example of a complaint. Furthermore, it is not necessary for a preliminary complaint of rape to refer to any specific incidence of penetration. Simply stating, ‘I was raped’ is sufficient to amount to a preliminary complaint.

R v Reed [2014] QCA 207 (26 August 2014) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Purpose of evidence’ – ‘Relationship evidence’

Charges: Assault occasioning bodily harm, murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted of the assault occasioning bodily harm and murder of his partner’s 16 month old child. See further at [6]-[17].

Issue: Whether the trial judge erred in admitting evidence of prior facial grazing injuries suffered by the child.

Decision and Reasoning: Henry J (with whom Gotterson JA and McMurdo P agreed) firstly held that this evidence was not inadmissible purely because of a possible innocent explanation for the injuries. His Honour considered all the non-fatal injuries on the child in their totality, and found that the probability that they occurred accidentally became too remote. The evidence was capable of supporting an inference (in combination with the other evidence) that the non-fatal injuries were the result of deliberate violence by the appellant. This evidence, of itself, was not indispensable to a finding of guilt – it assisted as ‘strands of a cable rather than as indispensable links in a chain’ (See at [39]). The evidence was also relevant to the proof of the charges as relationship evidence pursuant to 132B of the Evidence Act 1977. The trial judge correctly found that injuries can be probative of the history of a domestic relationship. It also potentially showed a propensity of the appellant to commit similar violence. However, the trial judge did not rule on this and in fact gave a warning against propensity reasoning. Notwithstanding, the trial judge did make an error of law in failing to sufficiently instruct the jury about the purpose of the evidence of the uncharged injuries, applying the High Court decision in Roach v The Queen [2011] HCA 12. The trial judge did tell the jury that the evidence could be used to show that the nature of the relationship was violent, but he did not go further to explain that the purpose of putting this history of violence before the jury was to provide an ‘informed context’ (See at [69] – [70]) for the jury’s consideration of the charges. Notwithstanding, the appeal was dismissed pursuant to the proviso.

R v HBL [2014] QCA 270 (24 October 2014) – Queensland Court of Appeal

‘Abduction’ – ‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Domestic violence order’ – ‘Family law orders’ – ‘Mitigating factors’ – ‘Sentencing’

Charge/s: Abduction, breach of domestic violence order.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant was in a long-term, intermittent relationship and had one child. His partner sought and obtained a domestic violence order (DVO) in 2011. In 2012, an order in the Federal Magistrates’ Court was made that the child was to live with the mother. Limited contact was allowed with the mother’s consent. The mother left the child at a friend’s house, whereupon the applicant arrived unannounced and took the child, drove away, and held the child for a period of time, in breach of the DVO. He made repeated calls stating he would not return the child if the child was to be handed back to the mother or her friend. The applicant had a long criminal history of over fourteen court appearances, including a previous breach of a child protection order (albeit towards the lower end of seriousness). The applicant pleaded guilty to the abduction and breach offences and was sentenced in the District Court to 4 years’ imprisonment for abduction. He was convicted but not further punished for the breach. The primary judge implicitly accepted the Crown’s submission that this conduct was in the worst category of offending.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was allowed. While the applicant had a long criminal history, Fraser JA (with whom Mullins J and Gotterson JA agreed), compared analogous decisions and highlighted factors which made them distinguishable. His Honour noted that the child was not unrelated or unknown, there was no sexual motivation and the taking was non-violent. As such, the Court held that this was not within the worst category of offending. Notwithstanding, the Court noted that such conduct (including the fact that the appellant was motivated to be with his son and breaching court orders) cannot be condoned and deterrence is important. As such, a custodial sentence was imposed but was reduced to 18 months’ imprisonment with immediate parole eligibility.

R v Francis [2014] QCA 258 (14 October 2014) – Queensland Court of Appeal

‘Arson’ – ‘Breach of domestic violence order’ – ‘Damaging property’ – ‘Deterrence’ – ‘Fresh evidence’ – ‘Mitigating factors’ – ‘Sentencing’ – ‘Separation’

Charge/s: Arson.

Appeal Type: Appeal against conviction and sentence.

Facts: The arson was targeted at the appellant’s ex-wife’s new partner’s mother’s car. The offence constituted a breach of a domestic violence order (See further at [3]-[18]).

Issue/s: Appeal against conviction: Whether the verdict was unreasonable and not supported by the evidence, and whether the appellant could adduce further evidence not led at trial.

Appeal against sentence: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal against conviction was dismissed. McMurdo P noted that while the case was circumstantial, it was strong, and a guilty verdict was open to the jury. The application to adduce further evidence was also dismissed. The court held that while an affidavit from the appellant’s former partner was somewhat inconsistent with her evidence at trial, there was no significant possibility that the jury would have acquitted him on this basis. However, the appeal against sentence was allowed, reducing the head sentence from 4.5 to 4 years. Defence counsel submitted that the sentence was excessive for arson of a car rather than a house, while the prosecution submitted that it was a flagrant breach of a domestic violence order and general deterrence was necessary for an arson committed as a jealous rage due to a relationship breakdown. McMurdo P held that the sentence was manifestly excessive. The trial judge did not take into account pre-sentence custody, and the appellant only had a minor criminal history prior to this offending.

R v Murray [2014] QCA 160 (18 July 2014) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Community protection’ – ‘Damaging property’ – ‘Deterrence’ – ‘Grievous bodily harm’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Recidivism’ – ‘Sentencing’ – ‘Victim’ – ‘Weapons’

Charge/s: Grievous bodily harm.

Appeal Type: Application for an extension of time to appeal against conviction.

Facts: The applicant, an aboriginal man with a dysfunctional background, pleaded guilty to the grievous bodily harm of his girlfriend. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the applicant in favour of the victim. He ripped off a door handle with which he struck her on the head, then punched her and struck her with a frying pan, causing severe injuries.

Issue/s: Whether an extension of time should be granted on the basis that the applicant only pleaded guilty due to the strong urging of his lawyers, and that he was denied the right to present his defence.

Decision and Reasoning: The application was refused - the applicant was an adult, of sound mind who understood the charge and entered a guilty plea after obtaining legal advice. An application for leave to appeal against sentence was also refused. McMurdo P (Fraser JA and Morrison JA agreeing) held that notwithstanding that he told the complainant to go to hospital, he had failed to demonstrate compassion or insight into the injury that he had caused. He had a substantial history of domestic violence and this recidivism made the protection of future intimate partners important. This was a serious example of grievous bodily harm in the context of domestic violence. General deterrence and denunciation were key considerations. McMurdo P described his girlfriend as a ‘reluctant complainant’. However, this was not a mitigating factor. The only mitigating factors were his guilty plea and dysfunctional background.

R v Seijbel-Chocmingkwan [2014] QCA 119 (27 May 2014) – Queensland Court of Appeal

‘Attempted murder’ – ‘Attempted strangulation’ – ‘Dangerous operation of motor vehicle’ – ‘Denunciation’ – ‘General deterrence’ – ‘Impact of offence on victim’ – ‘Mitigating factors’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Serious violent offender’

Charge/s: Attempted murder, dangerous operation of a motor vehicle.

Appeal Type: Appeal against sentence.

Facts: While on parole for assault offences committed against her daughter, the applicant drove into her former husband’s car twice. She then stabbed her husband’s new partner in the shoulder and attempted to strangle her. There was no domestic violence order in place. She pleaded guilty to attempted murder and dangerous operation of a motor vehicle, for which she was sentenced to ten years’ and 12 months’ imprisonment respectively.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. Morrison JA (with whom Gotterson JA and Martin J agreed) at [41] – [79] provided a useful summary of past Court of Appeal authority regarding sentencing of attempted murder offences which have an element of domestic violence. The Court considered factors such as premeditation, cooperation with authorities, remorse, the gravity of the attack and prior convictions. (See full list at [79]). The applicant was also suffering from a mental disorder, namely an ‘adjustment disorder with anxious and depressed mood’. While this was a mitigating factor, the Court held that the original sentence did adequately recognise this and other mitigating features such as her efforts at rehabilitation by enrolling in study and other courses, which were correctly balanced with the need for denunciation and general deterrence.

R v Martin [2014] QCA 80 (14 April 2014) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Consistency of sentence with other orders’ – ‘Costs’ – ‘Following, harassing, monitoring’ – ‘Stalking’ – ‘Systems abuse’ – ‘Using carriage service’

Charge/s: 41 offences, including stalking, 26 counts of breaches of domestic violence orders, two counts of assault occasioning bodily harm, five counts of using a carriage service to make a threat to kill and six counts of using a carriage service to menace or harass.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant pleaded guilty in the Magistrates’ Court to all offences. The stalking was committed against the applicant’s ex-partner. A head sentence of two years imprisonment was imposed in the Magistrates’ Court, with all sentences to be served concurrently. The applicant was also placed on a domestic violence order in favour of his ex-partner for 5 years. The Magistrate made adverse findings in relation to the applicant’s offending, his lack of remorse and the real risk of him re-offending. Mitigating factors included pleas of guilty and completion of a domestic abuse program while in custody. His parole release date was set after he had served one third of the head sentence, taking into account pre-sentence custody.

Issue/s: Whether the remaining period on parole should be substituted with a suspended sentence, due to the comparative administrative ease of a suspended sentence in obtaining permission to leave the state.

Decision and Reasoning: Leave to appeal was refused. A previous appeal to the District Court was struck out due to the applicant’s uncooperative nature, and the many opportunities that were given to him through adjournments to allow him to appear personally in Court, as well as the primary judge’s finding of fact that he had misled the Court. The Court found that the primary judge acted appropriately.

R v MBY [2014] QCA 17 (18 February 2014) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Mitigating factors’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Rape, maintaining a sexual relationship with a child under 16.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant, an Aboriginal man committed the offences against his daughter. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the applicant in favour of the victim or other parties. (See further at [6]-[20]).

Issue/s: Whether the primary judge failed to give appropriate weight to circumstances of deprivation in his upbringing, including the social and economic disadvantage associated with his Aboriginality and the physical, sexual and emotional abuse that he had suffered as a child. Another issue was whether the primary judge failed to have regard to the applicant’s rehabilitative prospects.

Decision and Reasoning: In dismissing the appeal, Morrison JA (Muir JA and Daubney J agreeing) discussed the relevance of the applicant’s Aboriginality in sentencing. See in particular at [60]-[73] where his Honour provides a detailed summary of relevant authority including the High Court decision of Munda v Western Australia [2013] HCA 38. Essentially, his Honour accepted that social, economic and other disadvantages (including alcohol and drug abuse) which may be related to an offender’s Aboriginality, should be taken into account as a mitigating factor in sentencing. Indeed, there is authority to suggest that when an Aboriginal offender is being sentenced, the Court should, ‘sentence (the offender) as leniently as the circumstances of his offence admitted’. (See R v Bell [1994] QCA 220). However, this cannot undermine individualised justice. That is, the deprived background of an Aboriginal and Torres Strait Islander offender may be given appropriate weight in sentence mitigation, but it cannot be given undue primacy. It cannot result in a punishment being imposed that does not reflect the gravity of the offending, or which does not pay sufficient regard to considerations such as specific and general deterrence, which are particularly important in domestic violence cases. The second ground of appeal, that the applicant’s rehabilitative prospects were not given enough weight was also dismissed.

R v Dibble; ex parte Attorney-General (Qld) [2014] QCA 8 (11 February 2014) – Queensland Court of Appeal

‘Abuse of process’ – ‘Breach of domestic violence order’ – ‘Concurrent criminal proceeding’ – ‘Double punishment’ – ‘Grievous bodily harm’ – ‘Permanent stay’

Charge/s: Grievous bodily harm.

Appeal Type: Appeal against a permanent stay of proceedings.

Facts: This decision was not directly related to domestic violence. However, it is relevant to situations where the Court is dealing with a breach of a domestic violence order and another criminal offence concurrently. The respondent was originally charged with public nuisance, which was dealt with summarily. However, following a formal statement made by the complainant to police and a medical opinion received, he was charged with grievous bodily harm (GBH). At trial, an application was made for a permanent stay on the basis of Section 16 of the Queensland Criminal Code, which provides that a person cannot be punished twice for the same act or omission. The application was granted, with the primary judge holding that the act which formed the basis of the GBH charge was the same act which formed the basis of the public nuisance charge.

Issue/s: Whether the trial judge was correct in granting the permanent stay based on the rule against double punishment.

Decision and Reasoning: The appeal was dismissed, with the Court applying the approach previously articulated in R v Gordon where Hanger CJ stated - “Section 16, in saying that a person cannot be twice punished for the same act or omission, must be referring to punishable acts or omissions; and the prohibition applies though the acts or omission would constitute two different offences. It is to these cases that the section is directed.” Hanger CJ held that a punishable act of being in charge of a motor vehicle while under the influence of a substance was not the same as the punishable act of dangerous driving causing GBH with which the offender in that case was subsequently charged. In the present matter, the Court held that the punishable acts for which the respondent was convicted in the Magistrates Court included punches which landed on the complainant, causing harm. It therefore followed that s 16 would be violated if the respondent was to be punished a second time for those acts.

Prima facie, the same test would apply when considering whether a breach of a DVO constitutes the same act for which another criminal charge is based. However, it should be noted that there is uncertainty about the application of Section 138 of the Domestic and Family Violence Protection Act 2012 (Qld) in this context, particularly as to whether Section 138 allows double punishment. For further information, see pages 111-113 of the Queensland Domestic and Family Violence Protection Act (2012) Bench Book, which considers various District and Magistrates’ Court decisions and the summary of R v MKW [2014] QDC 300 (18 June 2014).

R v Bartram [2013] QCA 361 (6 December 2013) – Queensland Court of Appeal

‘Defence of dwelling’ – ‘Physical violence and harm’ – ‘Self-defence’ – ‘Unlawful wounding’ – ‘Where the offender is also a victim’

Charge/s: Unlawful wounding.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted for unlawful wounding. The offence was committed in the following circumstances: the appellant had obtained a domestic violence order against the complainant; the complainant had previously been convicted for breaches of that order; according to evidence at trial, the complainant kicked down a door in breach of the DVO and, on the appellant’s evidence, the complainant had threatened violence towards her on the previous evening. The jury was directed about self-defence, but was not directed about the possibility of the ‘defence of a dwelling defence’ under s 267 of the Queensland Criminal Code.

Issue/s: Whether the appellant was denied the possibility of an acquittal under 267 of the Queensland Criminal Code.

Decision and Reasoning: The appeal was upheld – Muir JA (with whom Gotterson JA and Daubney J agreed) held that there was ‘ample evidence’ that the complainant unlawfully entered and remained in the dwelling, which could support the elements of the defence. The offending occurred under the house, but his Honour held that the definition of ‘dwelling’ in s 1 of the Code was broad enough to encompass underneath the house. As such, a retrial was ordered.

R v Brennan [2013] QCA 316 (25 October 2013) – Queensland Court of Appeal

‘Breach of domestic violence order’ – ‘Denunciation’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Murder (two counts).

Appeal Type: Application for leave to appeal against sentence and appeal against conviction.

Facts: The appellant was convicted of murdering his estranged wife and her daughter in their home. Prior to the killings, the appellant made threats to his wife and to witnesses. These threats occurred in person and over the phone, resulting in a domestic violence order being served and two charges of using a carriage service to make threats. Several witnesses testified that the appellant made threatening remarks to his wife at the hearing for these charges. He was sentenced to life imprisonment on both counts of murder, with a 22 year non-parole period ordered, which was two years above the statutory minimum. The crime was also in breach of a domestic violence order in place to safeguard his wife.

Issue/s: Whether the circumstances of the killings warranted the non-parole period to be extended beyond the 20 year statutory minimum, so as to make the sentence manifestly excessive.

Decision and Reasoning: Leave to appeal was refused. In the appellant’s favour, the killing was not drawn out, there was no prolonged suffering and there was minimal planning involved. On the other hand, he killed not only his estranged wife, but a defenceless 14 year old girl in defiance of a domestic violence order which was intended for his wife’s protection. Also, the appellant displayed no remorse and pleaded not guilty which had made the process agonising for those affected. These factors warranted a strong element of denunciation and vindication for the victims in the sentence. The appeal against conviction was also dismissed.

R v Postchild [2013] QCA 227 (20 August 2013) – Queensland Court of Appeal

‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Rape

Appeal Type: Appeal against sentence.

Facts: The applicant was convicted of the rape of his girlfriend and was sentenced to six years’ imprisonment. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the applicant in favour of the victim. The applicant had an extensive criminal history, consisting of street and property offences, as well as a previous conviction for carnal knowledge of a 13 year old girl. He had previously breached a reporting condition associated with this conviction. He committed the rape while on parole for unrelated offending. The primary judge described the rape as a ‘brutal act’, and that the applicant had treated his girlfriend as, ‘an object for his own sexual gratification and had had no regard for her feelings’ (See at [15]).

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed by majority. The Chief Justice, (with whom Gotterson JA agreed) held that the sentence was appropriate, and upheld the trial judge’s findings in relation to the brutality of the act.

However, Holmes JA dissented and was of the view that the sentence should be reduced to 5 years with the non-parole period shortened. Her Honour’s judgment contains very useful summaries of all comparable cases, (see [17]-[32]). Holmes JA noted factors including that this was a single incident of a short duration, and was not a ‘protracted exercise in humiliation’ (at [33]). There was no forced entry or weapons used. Her Honour also noted that the, ‘offence did not occur in a context of fear or intimidation’, as the relationship was still on foot. Holmes JA was of the view that the nature of the relationship made these circumstances distinguishable from rapes performed by strangers (See at [34]). It was also noted that the victim was, ‘a strong minded young woman who was left humiliated and angry by what occurred, but not terrified’ and, ‘There was no evidence of lasting psychological harm’.

R v Susec [2013] QCA 77 (12 April 2013) – Queensland Court of Appeal

‘Evidence’ – ‘Hearsay evidence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Post-offence conduct’ – ‘Probative value’ – ‘Relationship evidence’ – ‘Separation’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted by a jury for the murder of his wife, and sentenced to life imprisonment (see further at [5]-[25]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of his wife.

Issue/s:

1.

Whether the trial judge should have admitted evidence of a previous incident of the appellant sharpening a knife in the presence of the deceased and two witnesses.

2.

Whether evidence of the victim’s statement that she believed her husband was going to kill her was admissible.

3.

Whether evidence of a conversation between the deceased and a co-worker, which was initially held to be hearsay evidence because it was too vague and unreliable but later inadvertently admitted during the questioning of the co-worker at trial resulted in a miscarriage of justice.

4.

Whether a conclusion that the appellant’s post-offence conduct involved inflicting wounds on himself, putting pepper in his own eyes and exaggerating the seriousness of his condition was open on the evidence.

Decision and Reasoning:

1.

Gotterson JA (with whom McMurdo P and Muir JA agreed) held that such evidence was admissible under s 132B of the Evidence Act 1977. Its probative force was not outweighed by its potential prejudice to the accused. It was relevant to the state of the relationship, as well as to self-defence and provocation. It did have subjective elements, (such as the witnesses’ descriptions of their emotions during the incident), but this was not such as to enliven the s 130 discretion to exclude it, and the trial judge gave a sufficiently clear warning against its use as propensity evidence.

2.

The Court held that this evidence was admissible. The deceased’s fear of the appellant was relevant to the jury’s consideration of whether the deceased initiated an assault or provoked the attack.

3.

While the Court held that this evidence should not have been admitted, it did not amount to a miscarriage of justice so this ground was dismissed.

4.

The Court held that this conclusion was clearly open on the evidence (see at [70]).

R v James [2012] QCA 256 (24 September2012) – Queensland Court of Appeal

‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Plea of guilty’ – ‘Sentencing’

Charge/s: Breach of domestic violence order.

Appeal Type: Application for leave to appeal against sentence.

Facts: The complainant (the appellant’s de facto partner) was receiving treatment at a hospital necessitated by an earlier assault by the appellant. The appellant then waited outside a toilet door at the hospital and punched her in the face which caused pain, discomfort and swelling. He was sentenced to 9 months imprisonment for contravening a domestic violence order. He had a long criminal history including six prior breaches of domestic violence orders and convictions for other offences.

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: Leave to appeal was refused, with the Court upholding the 9 month sentence. The maximum penalty for breaching a domestic violence order applicable at the time was 12 months imprisonment. This was later increased to two years (three years if the accused has prior convictions). Also, Henry J observed that there ought not exist an expectation that a one third discount to the head sentence will be applied where there is a plea of guilty, although such an outcome may be common (Holmes JA and McMurdo P agreed). McMurdo P (Holmes JA agreed) found that a further exacerbating feature was that the offence occurred in a hospital where the victim and other patients should be entitled to freedom from exposure to such violence.

R v Murgha [2012] QCA 255 (24 September 2012) – Queensland Court of Appeal

*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Grievous bodily harm’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victim’

Charge/s: Grievous bodily harm, breach of domestic violence order.

Appeal Type: Appeal against sentence.

Facts: The applicant pleaded guilty to doing grievous bodily harm (GBH) to his de facto partner and breaching a domestic violence order. The offending was committed during the operational period of six suspended sentences. It involved the applicant throwing a knife at his partner who was pregnant. The knife became embedded in her skull. He was sentenced to three years’ imprisonment for the GBH offence and was convicted but not further punished for the breach offence.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: McMurdo P (Holmes JA and Henry J agreeing) dismissed the appeal and held that the sentence was appropriate. Mitigating factors included his remorse and corporation with police, his lack of similar criminal history, good rehabilitation prospects and his good standing in the community. The complainant also tendered a letter stating that: she wanted their child to grow up knowing their father; they planned to reconcile and that she found it hard to cope as a single parent. Notwithstanding, the sentencing judge correctly imposed a deterrent sentence. The primary judge noted that ‘the use of knives in domestic disputes on Palm Island was all too common’, which required a deterrent sentence. Other relevant factors included the fact the offence constituted a breach of a DVO and occurred while the applicant was subject to suspended prison sentences.

R v Pringle; ex parte Attorney-General (Qld) [2012] QCA 223 (24 August 2012) – Queensland Court of Appeal

‘Exposing a child’ – ‘Manslaughter’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Serious violent offence declaration’

Charge/s: Manslaughter.

Appeal type: Appeal against sentence.

Facts: The respondent pleaded guilty to the manslaughter of his partner. He was in a long term relationship with the deceased, with whom he had three young children. He was a heavy cannabis user. In the weeks leading up to the killing, the deceased had confided to others about problems in the relationship. The respondent believed the deceased was having an affair and was upset as the deceased’s sister owed him $15 000. He was concerned the deceased was preparing to leave him and take his children – he claimed that she was ‘messing with my head’ (See at [10]). On the day of the killing, the respondent spoke to his parents who both encouraged him to seek help from a counsellor or psychiatrist. He then strangled the deceased until she was unconscious in the presence of the children. After moving the children to another room, he stabbed the deceased twice in the chest, killing her. He also stabbed himself but the injuries were not life threatening. After being declared fit to stand trial, but of diminished responsibility (under section 304A of the Queensland Criminal Code) by the Mental Health Court, he pleaded guilty to manslaughter. The psychiatrist stated that the respondent, ‘suffered from a personality disorder with paranoid traits.’ This, as well as his drug abuse and the viciousness of the killing suggested that his condition was likely to endure after being released from custody (see at [29]). However, gradual improvement may be expected with regular treatment (See at [15]). He had no relevant criminal history. He was sentenced to nine years’ imprisonment. Parole release would depend on his illness and progress of rehabilitation while in prison.

Issue/s: Whether the sentence was manifestly inadequate and whether the sentencing judge should have made a ‘serious violent offence’ declaration.

Decision and Reasoning: The appeal was dismissed. McMurdo P (with whom Muir JA and Gotterson JA agreed) held that as deterrence and denunciation were of less importance in this case due to the limited moral culpability of the respondent (because of his mental illness), the primary purposes of sentencing were the protection of the Queensland community and punishment of the offender. However, the Court found that a nine year sentence with no serious violent offence declaration and no parole eligibility date was within range for a spousal manslaughter based on diminished responsibility. There was a plea of guilty, no evidence of further danger to the community and evidence of remorse. A recovery was not certain, but the respondent was responding positively to medication and treatment. Also, the fact that he strangled the deceased in front of the children was an aggravating feature, but this had to be considered in the context of diminished responsibility which reduced his moral culpability for the crime.

R v Hughes [2012] QCA 208 (14 August 2012) – Queensland Court of Appeal

‘Evidence’ – ‘Hearsay evidence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relationship evidence’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: The appellant was convicted by a jury of murdering her de facto partner. There was a history of domestic violence between the appellant and the deceased and multiple domestic violence orders were taken out against each other on separate occasions. (See further at [5]-[49]).

Issue/s: Whether the primary judge erred by admitting evidence of statements made by the deceased to various witnesses that he suspected the appellant had drugged him and whether the verdict was unreasonable having regard to the evidence.

Decision and Reasoning: Both grounds of appeal were dismissed. The appellant submitted that the statements made by the deceased were not admissible because no relevant inference could be drawn from them, so they were hearsay statements and therefore inadmissible. This submission was rejected – the Court held that unlike in R v Lester [2008] QCA 354, the statements were not ‘reports of statements made to (the deceased) by others’. Instead, they were statements about the deceased’s own physical sensations after falling asleep in an unusual manner, and came after an episode of domestic violence between the appellant and the deceased. Such evidence was relevant to the ‘deceased’s relationship with the appellant, their mutual dealings and their attitudes for each other’, and to whether the appellant drugged the deceased (See at [64]). As such, it was admissible under section 93B of the Evidence Act 1977 as an exception to the hearsay rule. The other ground of appeal that the verdict was unreasonable having regard to the evidence was also dismissed.

R v Amery [2011] QCA 383 (23 December 2011) – Queensland Court of Appeal

‘Malicious act with intent’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Pre-sentence custody’ – ‘Sentencing’

Charge/s: Malicious act with intent.

Appeal Type: Appeal against sentence.

Facts: In breach of a domestic violence order made that morning, the appellant returned to his de facto partner’s house and hit her head twice with a sledgehammer while she was sleeping, causing substantial injuries. The applicant pleaded guilty to a malicious act with intent and was sentenced to 8 years’ imprisonment, with no parole eligibility date set. No adjustment of the sentence was made for time already served in pre-sentence custody.

Issue: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld. The Court noted that the head sentence was not outside the permissible range. The offending was very serious, was not a spontaneous response, and was committed in breach of the DVO. Also, he had a serious criminal history, including a similar breach of a domestic violence order. However, the trial judge erred in not adjusting the sentence for pre-sentence custody and not imposing a parole eligibility date. As such, also taking into account the (albeit late) plea of guilty, the sentence was reduced to seven years, seven months’ imprisonment, with the appellant becoming eligible for parole after three years.

R v Rowe [2011] QCA 372 (16 December 2011) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Burglary with violence’ – ‘Common assault’ – ‘Damaging property’ – ‘Exposing a child’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Stalking’ – ‘Wilful damage’

Charge/s: Stalking with violence, burglary with violence, assault occasioning bodily harm, common assault and wilful damage.

Appeal Type: Application for leave to appeal against sentence.

Facts: The appellant had been in a relationship with the complainant for 6 years and had one child. The relationship ended, at which point the stalking began via telephone and text messages. There had been some conflict in the relationship about the care of the child. He broke into her home, demanded to see her phone and punched her on the head multiple times. He pushed a lighted cigarette on her leg, causing burns. He threatened to kill her. He tackled her to the ground to prevent her from seeking help and punched her again multiple times. He drove her to the hospital after she had cleaned up at his request. He yelled and threatened her while in the car, drove dangerously, and backhanded her to the side of her face. All of this occurred in front of their two year old child. Once the complainant was released from hospital he attended her workplace and caused significant damage to her car. He had a criminal history, including previous break and enter and assault occasioning bodily harm offences. The sentencing judge noted that the stalking was not prolonged, but it was very intense and violent. It was also noted that the child and the complainant must have been terrified.

The applicant pleaded guilty to the above offences, and was sentenced to three years’ imprisonment for stalking with violence, two years’ imprisonment for burglary with violence and assault occasioning bodily harm and 12 months’ imprisonment for common assault and wilful damage. The sentences were to be served concurrently. He was on parole at the time for a prior violent offence. This resulted in a head sentence of three years which was cumulative on an existing term of three years imprisonment, with parole eligibility set at one year after the cumulative term had been served.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave to appeal was refused. The applicant submitted that as the head sentence was reduced for the totality principle, the sentencing judge must have used a starting point of over three years which was not consistent with the comparable authorities. This was rejected. While the offending was short, it was intense, and was accompanied by actual and threatened violence, in the presence of a terrified child. The applicant’s stalking was more serious than in any of the relevant comparable authorities, and a head sentence of three years was appropriate given the circumstances of the offending and the appellant’s history, including that he was on parole for prior offences. The parole eligibility date was also found to be appropriate, given the offender was already subject to an existing term of imprisonment.

R v. Major; ex parte Attorney-General (Qld) [2011] QCA 210 (30 August 2011) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Denunciation’ – ‘Deterrence’ – ‘Impact on children’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Social abuse’ – ‘Verbal abuse’ – ‘Wounding’

Charge/s: Seven counts of assault occasioning bodily harm, threatening violence at night, wounding, assault occasioning bodily harm while armed and various summary offences.

Appeal Type: Appeal against sentence.

Facts: The respondent pleaded guilty to the above charges. The offending included 8 episodes of domestic violence over a three year period, involving severe physical abuse such as punching, cutting off the tip of the victim’s finger, choking, wrestling, smashing objects on the victim’s head and verbal abuse. There were lasting physical impacts on the victim including nerve injuries, loss of sensation to her finger-tip and depression and anxiety. He was sentenced for the unlawful wounding offence to 3 years’ imprisonment, suspended after 741 days (the period already served) with an operational period of 5 years. He was sentenced to 2 years imprisonment for the remaining counts.

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The appeal was upheld, with the Court holding that the original sentence was manifestly inadequate. The Court noted that when concurrent sentences are imposed, it is important to ensure that the primary term adequately reflects the nature of each individual feature of the offending. This was not reflected in the trial judge’s sentence. The mitigating factors were not particularly powerful. For example, the absence of any prior history of violence was outweighed by the prolonged duration of the offences. The fact that the respondent was not subject to a domestic violence order was not a mitigating factor but merely a distinguishing feature from analogous cases. The Court noted that the original sentence should have been in the range of six to eight years. However, given that the defendant had commenced rehabilitation, it was deemed that imposing such a sentence on appeal would be inappropriate. Also, the respondent had no prior history of violence, and was not subject to any court order at the time of the offending. Nevertheless, the sentence was increased to 5 years with the same suspension period. Probation was added for another count.

See in particular the useful remarks of McMurdo P at [53], regarding the considerations the courts should take into account for sentencing domestic violence offences – ‘The dreadful effects of prolonged episodes of domestic violence are notorious…Deterrence, both personal and general, is an important factor in sentencing in domestic violence cases. So too is denunciation. The community through the courts seeks sentences which show the public disapprobation of such conduct. The effects of domestic violence go beyond the trauma suffered by victims, survivors and their children to their extended families, and friends. Domestic violence also detrimentally affects the wider community, causing lost economic productivity and added financial strain to community funded social security and health systems.’

R v McMullen [2011] QCA 153 (1 July 2011) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Deprivation of liberty’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Rape’ – ‘Relationship evidence’ – ‘Threatening violence’

Charge/s: Assault occasioning bodily harm, deprivation of liberty, rape and threatening violence.

Appeal Type: Appeal against conviction.

Facts: The offences were committed against the appellant’s de facto partner. There was a current domestic violence order in place. The complainant alleged the appellant breached that order the night before he raped her.

Issue/s: Whether the primary judge erred in admitting evidence of the appellant’s previous history of domestic violence and drug use, as well as other discreditable conduct.

Decision and Reasoning: McMurdo P (with whom Cullinane J and Jones J agreed) held that the evidence of prior domestic violence was admissible to assist the jury in understanding the nature of their relationship, and was particularly relevant to the rape charges, where the lack of consent was the critical issue. However, her Honour noted that its admissibility remained ‘extraordinary and exceptional’ (at [83]) and warranted careful directions from the trial judge to warn the jury against propensity reasoning, applying the High Court decision of Roach v The Queen [2011] HCA 12. See in particular at [84], where her Honour referenced a model direction from the Queensland Supreme and District Court Bench Book. In this case, while the trial judge went ‘part way’ in warning the jury about the limits of the use of the evidence, he did not specifically give a warning against propensity reasoning. This amounted to an error of law. However, the appeal was dismissed pursuant to the proviso, with McMurdo P taking into account the ‘discerning’ verdicts of the jury on each count and the fact that defence counsel did not ask for a redirection during the trial.

R v Harold [2011] QCA 99 (17 May 2011) – Queensland Court of Appeal

‘Character’ – ‘Criminal history’ – ‘Cumulation of sentence’ – ‘Manslaughter’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Manslaughter, assault occasioning bodily harm, various summary offences.

Appeal Type: Application for leave to appeal against sentence.

Facts: The circumstances of the offending included the applicant stabbing his de facto partner multiple times and striking her with a cricket bat (See further at [3]-[9]). The applicant had a substantial and relevant criminal history of violence against the deceased committed over a 10 year period. He was convicted a number of times for severe assaults (both common assaults and assaults occasioning bodily harm) on the deceased, including punching her and hitting her over the head with an iron bar. He had previously been the subject of multiple domestic violence orders in her favour, which he had often breached. The applicant was convicted for the manslaughter of the deceased and was sentenced to 14 years’ imprisonment, including 12 years for manslaughter. The extra two years took into account 9 summary offences and two counts of assault occasioning bodily harm to which he had pleaded guilty.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. Martin J (with whom Chesterman JA and White JA agreed) held that the sentencing judge correctly made the 2 year sentence for the two charges of assault occasioning bodily harm cumulative because they were separate offences committed at different times, even though they were committed in a 10 year course of conduct. The total effective sentence was appropriate and within range. The sentencing judge observed this was a repetitive and prolonged attack with a knife making it a serious case of manslaughter.

R v Murray [2010] QCA 266 (8 October 2010) – Queensland Court of Appeal

*Note this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Aggravated stalking’ – ‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Following, harassing, monitoring’ – ‘Grievous bodily harm with intent’ – ‘Physical violence and harm’ – ‘Serious violent offence declaration’ – ‘Stealing’ – ‘Threatening to enter premises with intent to intimidate’

Charge/s: Aggravated stalking (two counts), assault occasioning bodily harm, stealing, grievous bodily harm with intent, breach of domestic violence order (two counts).

Appeal Type: Application for leave to appeal against sentence.

Facts: The offending involved continued harassment of the complainant (the former partner of the applicant), culminating in the charge of grievous bodily harm with intent. The applicant broke into the complainant’s home which she shared with her new partner and children. He hit her on the head with a frying pan, causing her to fall to the ground. He held a knife against her throat, tied her wrists and ankles and dragged her into the car. She then threw herself out of the car, at which point the applicant stabbed her in the left side then on her right side. He had a relevant criminal history, including prior offences of violence as well as a breach of a domestic violence order. Two of these offences involved violence against his mother as well as a former partner. Two psychiatric reports detailing the mental issues suffered by the applicant were put before the sentencing judge. The total effective sentence imposed at trial was 8 years’ imprisonment. A ‘serious violent offence’ declaration was made.

Issue/s:

1.

Whether the sentencing judge erred in not giving reasons for making a ‘serious violent offence’ declaration.

2.

Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave to appeal was refused.

1.

In relation to the serious violence offence declaration, the applicant’s counsel at trial conceded that it would be impossible to submit that the declaration should not be made. The sentencing judge referred to this concession, in applying the ‘integrated approach to sentencing’ which is required in cases where a serious violent offence declaration is appropriate (See at [22]-[23]).

2.

Counsel for the applicant contended that 8 years’ imprisonment was manifestly excessive, as it was outside of the range established by comparable authorities and it did not have regard to the psychiatric problems suffered by the applicant. This argument was dismissed, with Cullinane J (Fraser JA and Chesterman JA agreeing) finding that eight years was not outside the permissible range. The mental health issues were considered at trial, as the sentencing judge expressly referred to them.

R v Clark [2009] QCA 2 (6 February 2009) – Queensland Court of Appeal

‘Attempted murder’ – ‘Circumstantial evidence’ – ‘Damaging property’ – ‘Directions and warnings for/to jury’ – ‘Impact on children’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Relationship evidence’ – ‘Separation’

Charge/s: Attempted Murder.

Appeal Type: Appeal against conviction and sentence.

Facts: The appellant was convicted for the attempted murder of his former wife. There were cross domestic violence orders in place against each other. He was sentenced at trial to 16 years’ imprisonment. The case turned on purely circumstantial evidence. See further at [3]-[38].

Issue/s: Whether the trial judge made errors by -

1.

Not issuing a Shepherd v R [1990] HCA 56 direction which deals with the how the jury must use pieces of evidence individually.

2.

Allowing the jury to consider evidence of the history of the relationship between the parties.

The other issue was whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal against conviction was dismissed. The Court noted that in a case turning on circumstantial evidence alone, it is not necessary that every intermediate conclusion of fact made by the jury be proven beyond reasonable doubt. There may be some instances, as McMurdo P observed (at [40]) if it is necessary to ‘reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, that conclusion must be established beyond reasonable doubt’. However, generally, only the offence as a whole needs to be proven beyond reasonable doubt. In regards to the relationship evidence, the primary judge directed the jury to the effect that such evidence was not directly relevant to the alleged offence, but only to put the relationship between the parties in context. The Court held that this direction was adequate. The Court also refused leave to appeal against sentence, finding that the premediated nature of the offending and the lack of mitigating factors meant that this was at the highest end of the scale of attempted murders.

R v Chong; ex parte Attorney-General of Queensland [2008] QCA 22 (22 February 2008) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Breastfeeding mother’ – ‘Exceptional circumstances’ – ‘Hardship on children’ – ‘Mitigating factors’ – ‘Orders affecting children’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Unlawful wounding’

Charge/s: Unlawful wounding, breach of intensive correction order.

Appeal Type: Appeal against sentence.

Facts: The complainant was the respondent’s mother. They lived on the Aboriginal and Torres Strait Islander community of Mornington Island. Following an argument, the respondent stabbed the complainant three times, causing no lasting injuries. The respondent was sentenced to two and a half years’ imprisonment with immediate court ordered parole for the wounding offence.

Issue/s: Whether the sentence was manifestly inadequate, particularly in relation to the order of immediate parole.

Decision and Reasoning: The appeal was dismissed. The respondent had a substantial and relevant criminal history. In mitigation, the respondent had performed well on the intensive correction order, had pleaded guilty and was committed to looking after her seven children, including breastfeeding a baby and ensuring that those of school age attend school. She was an Aboriginal and Torres Strait Islander woman who had suffered abuse as a child. Atkinson J (with whom Keane JA and Fraser JA agreed) held that the head sentence was not manifestly inadequate. In considering whether the immediate parole order was appropriate, her Honour considered various factors, including the respondent’s disadvantage associated with her Aboriginality. Her Honour observed that, ‘The fact that the respondent is an Aboriginal and Torres Strait Islander woman living on Mornington Island is relevant to the question of the effect on her family’. (See at [36]). While the Court noted that the effect on an offender’s children can only be one relevant circumstance in determining sentence, the Court considered that exceptional circumstances were present. The respondent was a breastfeeding mother. Imprisonment would necessitate moving to the mainland, which would remove any practical means of maintaining the breastfeeding of the baby and personal contact with her other children. Her Honour quoted various secondary sources which discuss the substantial effect of incarceration on families, particularly on Aboriginal and Torres Strait Islander families. (See at [37] – [42]). The original sentence sufficiently incorporated deterrent and punitive elements, while the immediate parole allowed for rehabilitation.

R v Sauvao [2006] QCA 331 (1 September 2006) – Queensland Court of Appeal

*Note this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Attempted murder’ – ‘Breach of domestic violence order’ – ‘Community protection’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Serious violent offence declaration’

Charge/s: Attempted murder, breach of domestic violence order.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant pleaded guilty to the attempted murder of his de facto wife and to a breach of a domestic violence order. The couple had separated. The complainant initially obtained an apprehended violence order in 2003 in New South Wales, which was then registered in Queensland upon moving to that state. In May 2005, at a railway station, the applicant attempted to stab the complainant with a small knife. The knife snapped on the complainant’s jacket, causing her no harm. He continued to punch and kick her, and hit her head into a chair and a pole. He was then stopped by bystanders. He admitted that if they had not intervened he would have persevered. He surrendered to police and made full admissions. He gave a full account and added details to his disadvantage. It is unlikely without his interview that anyone would have known about the use of the knife (the complainant herself was not aware of it), or about the applicant’s intention to kill as opposed to assault the complainant. The applicant’s only relevant criminal history was a breach of the domestic violence order in the preceding year, when he attended the house of the complainant. The applicant was sentenced to nine years’ imprisonment. A ‘serious violent offence’ (SVO) declaration was made.

Issue/s: Whether the ‘serious violent offence’ declaration should have been made.

Decision and Reasoning: Firstly, the Court held that the head sentence was ‘unremarkable’. However, Holmes JA (with whom McPherson JA and Douglas J agreed) upheld the appeal. The applicant showed profound and sincere remorse and the case involved ‘unusual’ mitigating factors. The Court found the SVO declaration should not have been made for two reasons. Firstly, there was nothing in the offence itself in terms of, ‘duration, its force or its consequences which took it out of the ordinary run of cases’. The offender had almost no criminal history. There was no element of community protection as the likelihood of repetition was remote. Secondly, he had cooperated utterly. However, the only sentence reduction he received for this cooperation and remorse was 9 and a half months (the difference between the nine year sentence with an SVO declaration, and a 10 year sentence). This was a minor reduction in the circumstances and made the SVO declaration manifestly excessive.

R v HAC [2006] QCA 291 (11 August 2006) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Emotional and psychological abuse’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sexual and reproductive abuse’ – ‘Torture’ – ‘Verbal abuse’

Charge/s: Torture, assault occasioning bodily harm, rape.

Appeal Type: Appeal against conviction.

Facts: The appellant held a longstanding belief in his wife’s infidelity. The acts relied on to constitute the offence of torture included abusive and humiliating acts such as: insisting that the children refer to the complainant as a slut or a whore rather than Mum, not allowing the children to show physical or verbal affection to her; forcing her to chew and swallow chillies in the appellant’s presence and forcing her to lick her vomit up; insisting that she perform sexual acts on his friends for money; insisting that she sleep outside the house without amenities; demanding that she drink his urine and attempting to persuade her to engage in a sexual act with a dog. The assault occasioning bodily harm conviction occurred when the appellant broke the complainant’s arm after she denied having sexual dealings with a neighbour. The rape conviction involved the appellant inserting the wooden handle of a ‘gaff hook’ into the complainant’s vagina. He was sentenced to 10 years’ imprisonment for torture, two years’ imprisonment for assault occasioning bodily harm and five years’ imprisonment for rape. A ‘serious violent offence’ declaration was made.

Issue/s:

1.

Whether the directions given by the trial judge in respect of torture were inadequate.

2.

Whether the proviso should be applied.

Decision and Reasoning: The appeal was dismissed in respect of issue 2.

1.

It was accepted that the directions given by the trial judge were not consistent with McMurdo P’s judgment in R v LM [2004] QCA 192 which requires that when more than one act in a series is relied upon to prove the elements of torture, the jury must be unanimously satisfied beyond reasonable doubt that the appellant committed at least one of the particularised acts. In this case, the trial judge’s directions, ‘effectively permitted the jury to convict of torture even though the jury might not have been unanimously satisfied as to which act or series of acts were intentionally inflicted to cause severe pain or suffering’ (see at [2]).

2.

The Court held that notwithstanding this error, no substantial miscarriage of justice occurred and the proviso should be applied. Jerrard JA (Holmes JA agreeing) held that it was clear which acts amounted to torture and this evidence was substantiated by unchallenged evidence from the complainant’s daughters. Williams JA (Holmes JA agreeing) held (despite some initial concerns with applying the proviso) – ‘The offence of torture was clearly established beyond reasonable doubt by the evidence; the relevant particulars being the conduct sworn to by the complainant, supported by the evidence of her daughters, and admitted by the appellant’ (see at [11]).

R v Friday [2005] QCA 440 (30 November 2005) – Queensland Court of Appeal

‘Physical violence and harm’ – ‘Sentencing’ – ‘Wounding’

Charge/s: Wounding.

Appeal Type: Appeal against sentence.

Facts: The applicant and the complainant were in a de facto relationship. While intoxicated early in the morning, an argument started after the applicant alleged that she was seeing other men. The applicant got off the bed then stabbed her through the upper arm and side of the chest. The wound did not damage internal organs, but required deep and superficial stiches. He had a criminal history, consisting of various violent offences, and one offence of breaking and entering and committing an indictable offence. He pleaded guilty to wounding and was sentenced to three years’ imprisonment with no recommendation for post-prison community based released. This sentence was made cumulative upon an existing six month sentence that he was already serving. The sentencing judge referred to the need to deter others from obtaining a knife and stabbing someone just because of an argument. This conduct was prevalent on Palm Island, where the offence occurred. He was also sentenced for breaches of an intensive correction order and a domestic violence order.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was upheld. The applicant submitted that if the sentencing judge had moderated the sentence for the mitigating factors (such as the guilty plea, the applicant’s age and an apology made to the complainant), then the starting point must have been four years, which is outside the permissible range of sentences for this type of offence. The Court agreed and suspended the three year sentence after nine months, with an operational period of three years.

R v Collins [2005] QCA 172 (27 May 2005) – Queensland Court of Appeal

‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Grievous bodily harm’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Grievous bodily harm.

Appeal type: Application for leave to appeal against sentence and appeal against conviction.

Facts: The applicant was convicted by a jury for the grievous bodily harm of his then partner. The applicant beat his then partner so severely that she suffered a ‘life-threatening subdural haematoma’ (See further at [2]). He was severely intoxicated at the time of the offence. The offence was committed in breach of a domestic violence order. The appellant also pleaded guilty to several other violent offences. These offences demonstrated a history of domestic violence committed against his then partner. He was sentenced to four years’ imprisonment, suspended after two years with an operational period of five years. This sentence for grievous bodily harm was ‘intended to reflect the applicant's criminality for all the offences to which he had pleaded guilty’ (See at [27]).

Issue/s:

1.

Whether the guilty verdict was unreasonable.

2.

Whether the sentence was manifestly excessive.

Decision and reasoning:

1.

The appeal against conviction was dismissed – see at [21]-[25].

Leave to appeal was refused. The applicant did not take his partner to hospital for treatment until one day after the injuries were sustained, which showed a complete disregard for her welfare. The fact that the offence was committed in breach of a domestic violence order was described as a ‘matter of concern’ (see at [31]). The applicant showed no remorse for the life-threatening injuries he inflicted on his partner, who is the mother of at least one of his children. Even though he had no memory of inflicting the injuries as a result of his intoxication, the Court stated that with ‘sober hindsight’ he ought to have been shocked at the injuries he caused (See at [31]). Deterrence was an important factor for the safety of the complainant as well as the interests of the community. The Court held at [37] that the applicant’s small prospects of rehabilitation were not such as to warrant a more lenient approach. The sentence for grievous bodily harm, when considered in isolation was not excessive. Therefore, considering the fact that it was a sentence intended to take into account all of the offending behaviour, it was actually at the lower end of the range of appropriate sentences.

R v Fairbrother; ex parte AG (Qld) [2005] QCA 105 (15 April 2005) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Denunciation’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Assault occasioning bodily harm.

Appeal Type: Appeal against sentence.

Facts: Following being released from police custody subject to conditions imposed under the then Domestic Violence (Family Protection) Act 1989 that the respondent not have contact with the complainant (his domestic partner) and that he not go to her residence, the respondent returned to her home and threw boiling water onto her twice. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the respondent in favour of the complainant. He pleaded guilty on the second day of trial and was sentenced to 2.5 years imprisonment for assault occasioning bodily harm, wholly suspended with an operational period of four years.

Issue/s: Whether the full suspension of the sentence made it manifestly inadequate.

Decision and Reasoning: The appeal was dismissed. The injuries caused the complainant severe pain over a long period and also caused some mental health issues. The respondent had some history of domestic violence. This was a ‘reasonably bad’ (at [21]) example of the offence which occurred hours after the appellant had been removed from the complainant’s home by police. However, mitigating factors included his guilty plea, his good work history and his efforts at rehabilitation. Furthermore, the respondent was not sentenced at trial for deliberately pouring boiling water on the complainant. If it had been deliberate, he would have been sentenced to actual imprisonment of at least 12 months before suspension. This was nevertheless a ‘serious example of domestic violence’ with the sentence imposed at trial being a correspondingly ‘substantial penalty’ (See at [24]).

See in particular McMurdo P’s (Jerrard JA and Cullinane J agreeing) comments on the impacts of domestic violence and the approach to sentencing at [23] –

‘Domestic violence is an insidious, prevalent and serious problem in our society. Victims are often too ashamed to publicly complain, partly because of misguided feelings of guilt and responsibility for the perpetrator's actions. Members of the community are often reluctant to become involved in the personal relationships of others where domestic violence is concerned. Perpetrators of domestic violence often fail to have insight into the seriousness of their offending, claiming an entitlement to behave in that way or at least to be forgiven by the victim and to evade punishment by society. Domestic violence has a deleterious on-going impact not only on the immediate victim but on the victim's wider family and ultimately on the whole of society. It is not solely a domestic issue; it is a crime against the State warranting salutary punishment. The cost to the community in terms of lost income and productivity, medical and psychological treatment and on-going social problems is immense. Perpetrators of serious acts of domestic violence must know that society will not tolerate such behaviour. They can expect the courts to impose significant sentences of imprisonment involving actual custody to deter not only individual offenders but also others who might otherwise think they can commit such acts with near impunity.’

R v Gill; ex parte Attorney-General of Queensland [2004] QCA 139 (30 April 2004) – Queensland Court of Appeal

‘Attempted rape’ – ‘Following, harassing, monitoring’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Stalking’

Charge/s: Aggravated stalking, attempted rape.

Appeal Type: Appeal against sentence.

Facts: The respondent pleaded guilty to aggravated stalking and attempted rape and was sentenced to two years and three years’ imprisonment respectively, to be served concurrently. There was no domestic violence order in place at the time of the offence. The Court recommended consideration of post-prison community based release after 12 months (See further at [2]-[3]).

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The appeal was dismissed by majority. Holmes J (with whom Davies JA agreed) discussed R v Stephens [1994] QCA 507 and noted that it is not correct to approach rapes occurring in an existing relationship more leniently. However, this is not to say that that in the circumstances of a particular case, a sexual assault committed by a current or former partner will necessarily be equivalent to a sexual assault committed by a stranger. In comparing this case to R v McNamara, her Honour stated at [16], ‘I do not think that the traumatic effect of sexual assault in a case such as this, where the complainant had, albeit without enthusiasm, admitted the respondent to the house and gone to sleep with him present, is readily equated with the likely shock and fear of a woman sleeping in her home who without warning is assaulted by an intruder; as happened in McNamara.’ As such, also taking into account the respondent’s plea of guilty and comparable cases, her Honour held that the sentence, while ‘lenient’ ([21]), was adequate. However, de Jersey CJ dissented. His Honour also discussed Stephens. His view was that the statement in Stephens about an ‘honest but unreasonable’ mistake as to consent in the relationship context as a mitigating factor did not apply. The complainant had made her lack of consent clearly known and had previously shown reluctance to let the respondent into the house. His Honour stated, ‘This is a case where the circumstance of the prior relationship should in no degree have led to more lenient treatment than would otherwise be accorded’ (See at [5]). His Honour then went onto consider the respondent’s serious and relevant criminal history, including stalking offences as well as breaches of domestic violence orders (on four occasions over an eight year period with other partners). As such, having regard to this context, his view was that the sentence for attempted rape should be increased to four and a half years and that the order for community release should be removed. Nevertheless, he was in dissent and the appeal was dismissed.

R v AN [2003] QCA 349 (11 August 2003) – Queensland Court of Appeal

‘Cumulative sentencing’ – ‘Following, harassing, monitoring’ – ‘Sentencing’ – ‘Stalking’ – ‘Totality’

Charge/s: Stalking with circumstances of aggravation.

Appeal Type: Appeal against sentence.

Facts: The applicant met the complainant while on remand and they lived together for a short period until the relationship broke down. The stalking occurred over the phone and included death threats and threats to the complainant’s children. There was a psychologist’s report before the trial judge, indicating that the applicant presented with a borderline personality disorder and would not be able to alter his behaviour without counselling. The applicant had a long criminal history of stalking, stealing, breaches of domestic violence orders and other offences. The applicant pleaded guilty to the stalking of the complainant with circumstances of aggravation and was sentenced to three years’ imprisonment.

Issue/s: Whether the three year sentence offended the totality principle and was therefore manifestly excessive.

Decision and Reasoning: The Court allowed the appeal, reducing the sentence to two years. The effect of the conviction was that an existing suspended sentence for other offences was activated. The applicant had also been sentenced previously for common assault and wilful damage charges. The effect of this was that the applicant was liable to four years and two months imprisonment, becoming eligible for parole at eighteen months. There was no error in the cumulative term being imposed. However, the Court did conclude that the three year term offended the totality principle. In citing comparable cases, the Court found that a three year sentence is at the top of the range for offending of this nature. Lesser sentences were imposed in comparable cases which involved more serious stalking in the domestic context, such as surveillance, letters and attempts to run the victim off the road. Such conduct was not present in this case.

R v Foodey [2003] QCA 310 (25 July 2003) – Queensland Court of Appeal

‘Aggravated stalking’ – ‘Damaging property’ – ‘Deterrence’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Wilful damage’

Charge/s: Stalking with circumstance of aggravation (violence), wilful damage.

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant separated from his wife after an eight year marriage and fourteen year relationship. Temporary protection orders were in place against the applicant in favour of his ex-wife. In breach of those orders, he stalked her on a number of separate occasions by assaulting her, driving his car at her, making threats against her and their children and following her car. His criminal history involved drug offences committed a considerable time ago. He pleaded guilty. The sentencing judge noted that the applicant showed no remorse and his conduct was of such seriousness that a deterrent sentence was more important than is normally the case. He was sentenced to 12 and a half months imprisonment, suspended for five years.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave was refused. Jerrard JA (with whom Davies JA and Helman J agreed) stated at [11] that, ‘The applicant's behaviour towards Jennifer Foodey in the two and a half months between their separation and his incarceration was persistently cruel and aggressive. At different times he insulted, degraded, and terrified her. His conduct throughout was in breach of court orders intended to give her protection. Considered in isolation, the sentence imposed by the learned judge does not appear manifestly excessive, and indeed far from it. The same result occurs if regard is had to other sentences for unlawful stalking imposed or approved by this court.’ The sentence was upheld.

R v Layfield [2003] QCA 3 (29 January 2003) – Queensland Court of Appeal

‘Following, harassing, monitoring’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Stalking’

Charge/s: Stalking with a circumstance of aggravation (threats of violence).

Appeal Type: Application for leave to appeal against sentence.

Facts: The applicant was convicted of stalking his former fiancee with the aggravating circumstance that he threatened to use violence against her. A previous domestic violence order was obtained by the complainant and the relationship deteriorated about a year after this. The stalking occurred over a period of less than one year. It occurred over the telephone, as well as by following and loitering outside of her place of employment. He was sentenced to two years imprisonment.

Issue/s: Whether the trial judge should have exercised the option of suspending the sentence after twelve months, on the basis of several factors including the applicant’s youth, lack of criminal history and a strong support network.

Decision and Reasoning: Davies JA (with whom McPherson JA and Mullins J agreed), refused the application, holding that while the trial judge could have imposed the lesser sentence, it was not argued for at trial, and the sentence that was imposed did not demonstrate any error. Davies JA also noted the applicant’s lack of remorse as a relevant factor.

R v Millar [2002] QCA 382 (25 September 2002) – Queensland Court of Appeal

‘Following, harassing, monitoring’ – ‘Irrelevant considerations’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Stalking’ – ‘Verbal abuse’

Charge/s: Stalking with circumstances of aggravation, common assault, and dangerous operation of a motor vehicle.

Appeal type: Application for leave to appeal against sentence.

Facts: The applicant was in a relationship with the complainant for nine months. They then lived together as a married couple for two weeks until the complainant moved out due to physical and verbal abuse by the applicant. The complainant indicated that she wished to cease all contact with the applicant. There was a domestic violence order in place, which was subsequently breached by the applicant. The stalking (committed when the order was in place) ‘involved menacing telephone calls, banging on her door, threats and letters and other items left at her residence culminating in the applicant's attempting to run the complainant off the road during the day’. This caused the complainant to veer to the wrong side of a busy rode. He then drove his car into hers and assaulted an off duty police officer who was trying to help the complainant. The applicant’s criminal history was comprised of dishonesty offences which had resulted in prison terms. Concurrent sentences of two years imprisonment (with the full activation of an unrelated nine month suspended sentence) were imposed. The complainant indicated that she was still in fear for her safety.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: Leave was refused. The applicant submitted, inter alia that his criminal history was confined to dishonesty offences, he was young and a psychological report indicated he was remorseful. He stressed that the comparable decisions before the Court concerned situations where there was no emotional relationship between the complainant and the offender, so that in his case, a more lenient penalty should have been imposed. This argument was rejected. de Jersey CJ (with whom Helman J and Jones J agreed) held – ‘I would say for my part that that (the presence of an emotional relationship between the offender and the victim) is not a feature which should necessarily lead to a lower penalty being imposed, where the stalking follows the break-up of an emotional relationship.’

R v M [2001] QCA 166 (1 May 2001) – Queensland Court of Appeal

‘Assault’ – ‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Burglary’ – ‘Circumstantial evidence’ – ‘Deprivation of liberty’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Indecent assault’ – ‘Intent’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Separation’ – ‘Sexual and reproductive abuse’

Charge/s: Burglary, rape, assault occasioning bodily harm, deprivation of liberty, two counts of aggravated indecent assault and assault.

Appeal Type: Appeal against conviction and sentence.

Facts: One week prior to the offences the victim had removed her former partner’s name from their joint lease, terminating his right to enter. He (the appellant) then broke into the victim’s house, after cutting the telephone wires. He then pulled her into the bedroom, punched her, tied her up and forced her to perform oral sex on him at knife point on two separate occasions. He waved his knife at her and said that if the police were called, he would cut off her breasts and have anal sex with her. He then raped her. The appellant was the subject of a domestic violence order obtained by the complainant a month before the offences were committed. He was sentenced to 9 years’ imprisonment.

Issue/s:

1.

Whether the sentence was manifestly excessive.

2.

Whether the trial judge erred in allowing the jury to infer that it was the appellant who cut the telephone lines.

3.

Whether the trial judge erred by failing to direct the jury that they needed to be satisfied that the appellant cut the phone lines beyond reasonable doubt.

4.

Whether evidence of a domestic violence order being in place could be a relevant factor in determining whether the appellant had the requisite intent to commit an offence when he entered the house.

5.

Whether the appellant could rely on the defence of an honest and mistaken belief for the purposes of consent.

Decision and Reasoning:

1.

McPherson JA noted that a sentence of less than seven years could not have been expected – the appellant had a substantial history of domestic violence (including against the complainant’s mother) and breaches of these orders.

2.

McPherson JA held that the judge was correct in allowing the jury to infer that the appellant had caused the damage. There was uncontradicted circumstantial evidence to this effect.

3.

This argument was dismissed. Only each element of the offence needs to be proven beyond reasonable doubt, not every piece of circumstantial evidence.

4.

The Court held that evidence of a domestic violence order being in place could be a relevant factor for the jury to determine intent for the purposes of the burglary charge.

5.

This argument was dismissed. In fact, the trial judge had omitted the requirement of a ‘reasonable’ belief, which was favourable to the appellant.

R v Matamua; ex parte Attorney-General (Qld) [2000] QCA 400 (28 September 2000) – Queensland Court of Appeal

‘Assault’ – ‘Deterrence’ – ‘Going armed in public in such a manner as to cause fear’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful assault causing bodily harm while armed’

Charge/s: Unlawful assault, unlawful assault causing bodily harm while armed, going armed in public in such a manner as to cause fear.

Appeal Type: Appeal against sentence.

Facts: The respondent became involved in an argument with the complainant, with whom he was in a de facto relationship. The respondent smashed a stubby of beer on his forehead which broke. He then pushed the complainant onto the bonnet of a car and held the broken bottle on her throat and threatened to slice her with it. Another argument ensued, at which point the respondent swung an axe at the complainant. He hit her on the back of the head with the handle while yelling abuse at her. She was knocked to the ground. Then, he swung the axe to the ground so that the axe head became stuck in the ground next to the complainant’s head. After a struggle, he winded the complainant and held the axe to her throat, while threatening to kill her. He was severely intoxicated. The relationship ended after the offences. The complainant experienced severe pain, but suffered no permanent physical injury. However, she suffered lasting psychological injuries. The respondent’s criminal history consisted of drug and traffic offences, as well as one offence of behaving in a threatening manner. He was sentenced to a total effective sentence of 18 months’ imprisonment, wholly suspended with an operational period of two and a half years. A $1000 fine and $1000 compensation was also ordered.

Issue/s: Whether the sentence was manifestly inadequate. In particular, whether a custodial sentence was required.

Decision and Reasoning: The appeal was upheld. Pincus JA (with whom Thomas JA and de Jersey CJ agreed) held that the degree of violence was such as to warrant a term of actual imprisonment. A deterrent sentence was needed. His conduct was prolonged. The axe could quite easily have gone through someone’s head. It involved other people as well as his partner. The sentence was increased on the principal charge of assault occasioning bodily harm to 18 months’ imprisonment with a recommendation for parole after six months. It was recommended that the respondent receive counselling for his alcohol problems.

R v MacKenzie [2000] QCA 324 (11 August 2000) – Queensland Court of Appeal

‘Battered wife syndrome’ – ‘Manslaughter’ – ‘Negligent manslaughter’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Where the offender is also a victim’

Charge/s: Manslaughter.

Appeal Type: Appeal against conviction and sentence.

Facts: The applicant was married to her husband for 39 years and was subjected to severe domestic violence during that time. She pleaded guilty to the manslaughter of her husband. She was sentenced to 8 years imprisonment with a non-parole period of 3 years. (See further at [26]-[30]).

Issue/s:

1.

Whether a miscarriage of justice occurred because of advice the appellant was given to plead guilty to manslaughter, instead of pleading not guilty to murder and seeking an acquittal on the basis of self-defence.

2.

Whether the sentence was manifestly excessive.

Decision and Reasoning:

1.

This argument was dismissed – the applicant never claimed she was acting in self-defence, and there was minimal evidence to that effect. However, McPherson JA did note that evidence of ‘battered wife’s syndrome’, can be relevant as expert evidence for the purposes of self-defence (or provocation), as demonstrating the heightened awareness and arousal which may be experienced by ‘battered women’, which would be relevant to whether they had reasonable grounds to use the level of force they did.

2.

The appeal against sentence was upheld. McMurdo P (Dutney J concurring as to the orders made) held that notwithstanding that the applicant’s conduct was negligent and not a willed act, a substantial period of imprisonment was required to deter people from handling guns negligently, particularly in the context of domestic violence. Such conduct was not excused by the ‘grim history’ of domestic violence the appellant suffered. Nevertheless, this history did impact upon the appellant in that it contributed to (as a psychologist who interviewed her put it at [21]), ‘ineffective problem solving behaviour and a perception by [the applicant] of the narrowing of her options over time. A perception of narrowed options can often result in decisions made by the abused woman that from the outside look like poor judgment.’ This grave history of abuse was therefore an additional mitigating factor which partly explains how her behaviour came about. As such, taking into account all of the unusual circumstances, the sentence was reduced to 5 years, with a non-parole period of 1 year. McPherson JA agreed that the sentence should be reduced but proposed a slightly longer term.

R v Lane [1998] QCA 167 (8 May 1998) – Queensland Court of Appeal

‘Assault occasioning bodily harm’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Good behaviour bond’ – ‘Physical violence and harm’ – ‘Recording a conviction’ – ‘Self-defence’ – ‘Where the offender is also a victim’

Charge/s: Assault occasioning bodily harm.

Appeal Type: Appeal against the recording of a conviction.

Facts: The applicant was convicted of assault occasioning bodily harm. She was released and placed on a good behaviour bond for two years. For a number of years, the applicant had been the subject of severe physical and emotional abuse by her de facto partner. It is unclear whether at the time of the offence, there was a current or lapsed protection order in place between the applicant and her de facto partner. The incident involved the applicant hitting her de facto partner on the head with a heavy mortar bowl when he was sleeping. She later shot him, after a struggle for the gun. She was acquitted of the shooting charges on the basis that the jury found there was a reasonable doubt as to whether self-defence was available due to a reasonable fear of serious attack. However, she was convicted for the striking incident, with self-defence being excluded beyond reasonable doubt. The sentencing judge commented on the need for a ‘deterrent aspect in the element of sentencing in a case such as this’ (and noted) ‘Little point…would be served at this stage by not recording a conviction’ (See at page 6).

Issue/s: Whether the conviction should have been recorded.

Decision and Reasoning: The application was refused. Derrington J noted at [4] that the ‘(trial judge) made full allowance for the applicant's suffering at the hands of the complainant and for all other features favourable to her. With this approach I agree unreservedly.’

R v Stephens & Attorney-General of Queensland [1994] QCA 507 (28 November 1994) – Queensland Court of Appeal

‘Consent’ – ‘Indecent assault’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Rape, indecent assault.

Appeal Type: Appeal against sentence.

Facts: The respondent was convicted of two counts of rape and one count of indecent assault of his de facto partner. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the respondent in favour of the victim. He was sentenced to three years imprisonment with a recommendation for parole eligibility after six months. The context of the relationship was one of intimidation and fear.

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The Court upheld the appeal, holding that while the trial judge was correct to take into account the respondent’s youth, irrelevant considerations were taken into account. The sentence was increased to five years imprisonment with a recommendation for parole eligibility after two years. The Court found that the primary judge erred by approaching rapes occurring within an existing relationship in a more lenient way. The Court stated that generally, it is not correct to approach rapes occurring in existing relationships more leniently. There may be circumstances where the existence of such a relationship may be relevant to the sentence imposed due to the offender’s state of mind, in that, ‘there may be greater scope for a genuine belief on the part of the man that the woman has or is likely to consent to sexual intercourse. And where that mistake is honest but unreasonable, it may be relevant to take it into account in sentencing the offender.’ (Note: This statement has been both distinguished and applied in subsequent Court of Appeal decisions - In R v Conway [2012] QCA 142, Henry J (with whom Muir JA and McMurdo P agreed) stated in obiter that Stephens is ‘of limited utility given its age'. However, the case has been discussed after Conway such as in R v Postchild [2013] QCA 227.) In Stephens itself, the Court of Appeal found that the circumstances of the relationship in that case did not give reason to distinguish it from a rape between strangers. There was a high degree of violence and the complainant made it clear through her protests and tears that she was not consenting.

R v Bell & Anor; ex parte Attorney-General (Qld) [1994] QCA 220 (20 June 1994) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Mitigating factors’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful wounding’ – ‘Victim’

Charge/s: Unlawful Wounding.

Appeal Type: Appeal against sentence.

Facts: The respondent, an Aboriginal man, was intoxicated and following an argument with the complainant (his de facto partner), stabbed her in the thigh, punched her in the mouth twice and continued to shout and threaten her. He pleaded guilty to unlawful wounding and was sentenced to two years’ probation and ordered to perform 120 hours of community service, with no conviction recorded. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the respondent in favour of the complainant. The complainant was supportive of the respondent, but did not wish to see him in prison.

Issue/s: Whether the sentence was manifestly inadequate.

Decision and Reasoning: The appeal was upheld. The respondent was re-sentenced to a suspended period of imprisonment for one year, with an operational period of two years. A conviction was recorded. The Court of Appeal imposed a sentence of imprisonment of 1 year despite the wishes of the complainant, the fact that the relationship had resumed and the fact the respondent had returned to his community and returned to work. However, the operational period of the sentence was suspended. Fitzgerald P (at 6) made the following comments relating to how social and economic disadvantage (both generally and in remote Aboriginal and Torres Strait Islander communities) is relevant when sentencing domestic violence offenders –

“It was right for (the trial judge) to have regard to the respondent’s disadvantages and open to him, as a result, to sentence the respondent as leniently as the circumstances of his offence admitted. However, such disadvantages do not justify or excuse violence against women or, to take another example, abuse of children. Women and children who live in deprived communities or circumstances should not also be deprived of the law’s protection. A proposition that such offences should not be adequately penalised because of disadvantages experienced by a group of which the offender is a member is not one which is acceptable to the general community or one which we would expect to be accepted by the particular community of which an offender and complainant are members.”

R v Kina [1993] QCA 480 (29 November 1993) – Queensland Court of Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Battered woman syndrome’ – ‘Expert evidence - social worker’ – ‘Fresh evidence’ – ‘Murder’ – ‘Physical violence and harm’

Charge/s: Murder.

Appeal Type: Appeal against conviction.

Facts: In September 1988, after a trial which lasted less than a day, the female appellant, an Aboriginal woman, was convicted of murder for killing her abusive male partner of three years and was sentenced to life imprisonment. The appellant did not give or call evidence at her trial. It was only five years later, after the appellant had spent years speaking to a particular social worker (Mr Berry) in prison, that evidence of the abuse she suffered emerged. Kina applied to the Governor in Council for the exercise in her favour of the royal prerogative of mercy. Section 672A of the Criminal Code preserves the pardoning power of the Governor, adding in para. (a) ‘that the Crown Law Officer may refer the whole case to the Court of Appeal, to be heard and determined as in the case of an appeal by a person convicted.’ Under this provision on 24 May 1993 the Attorney General referred to the Court of Appeal ‘the whole case with respect to the conviction of … Robyn Bella Kina on the charge of murder …’ of Anthony David Black.

Issue/s:

1.

The appellant did not receive a fair trial and a miscarriage of justice occurred because of problems of communication between the appellant and her lawyers which led to fundamental errors at trial.

2.

There was fresh evidence of such a nature that, had it been placed before the jury who decided the case, there was a substantial possibility of acquittal.

3.

The fresh evidence was of such a nature that refusal of it would lead to a miscarriage of justice.

Decision and Reasoning: The appeal was allowed, the conviction and verdict set aside and a new trial ordered. Evidence of Mr Berry, the social worker, was important in this case. Mr Berry first saw the appellant before her trial in April 1988. Over the following months, the appellant slowly disclosed her story to Mr Berry – that the deceased had continually beaten her up, forced her to have anal sex with him and that he tied her up. Mr Berry tried to communicate with the appellant’s lawyers before the trial but was advised that her legal representatives wished that he ‘would not interfere with proceedings’. After the trial, the social worker saw the appellant in a counselling capacity. The appellant’s self-esteem improved and in 1991 she was able to give evidence about the deceased’s threat to anally rape her 14 year old niece.

In finding there was a miscarriage of justice, Fitzgerald P and Davis JA held that:

“In this matter, there were, insufficiently recognised, a number of complex factors interacting which presented exceptional difficulties of communication between her legal representatives and the appellant because of: (i) her aboriginality; (ii) the battered woman syndrome; and (iii) the shameful (to her) nature of the events which characterised her relationship with the deceased. These cultural, psychological and personal factors bore upon the adequacy of the advice and legal representation which the appellant received and effectively denied her satisfactory representation or the capacity to make informed decisions on the basis of proper advice”.

Last updated: July 2024