R v BDS

[2022] QCA 144

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDS [2022] QCA 144

PARTIES:

R
v
BDS
(applicant)

FILE NO/S:

CA No 247 of 2021
DC No 205 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville – Date of Sentence: 10 September 2021 (Coker DCJ)

DELIVERED ON:

Date of Orders: 13 July 2022
Date of Further Order and Publication of Reasons: 12 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

13 July 2022

JUDGES:

Mullins P and Morrison JA and Boddice J

ORDERS:

Date of Orders: 13 July 2022

1.   Leave to appeal against sentence is granted.

2.   Appeal is dismissed.

Date of Further Order: 12 August 2022

1.   The Registrar procure the amendment of the endorsement of the indictment to add: It is declared that none of the time served in pre-sentence custody between 23 July 2021 and 9 September 2021 is time served in respect of the sentences.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – OTHER MATTERS – where the applicant pleaded guilty to three counts of contravening domestic violence orders, two counts of burglary by break in the night, one count of common assault, one count of suffocation in a domestic setting, two counts of rape, one count of sexual assault and one count of arson – where counts 2, 3, 5, 6, 7, 8, 9 and 10 were aggravated as domestic violence offences – where the applicant was sentenced to a total of 16 years imprisonment – where the applicant becomes eligible for parole after serving one half of the sentence – where the applicant has previously been convicted of two counts of rape and multiple counts of indecent treatment of a child under 12 against one of the complainant’s children – where in March 2020 the applicant attended the complainant’s address in breach of a protection order – where on 24 June 2022 the applicant turned off the power at the complainants address, entered the residence and forcefully grabbed the complainant – where on 4 July 2020 the applicant telephoned the complainant from a petrol station – where the applicant attended the complainant’s residence – where the applicant became angry and pushed the complainant as she retreated to a bedroom – where the complainant struggled to breathe – where the applicant placed a pillow over the complainant’s face – where the applicant raped the complainant multiple times – where the complainant locked herself and the children in a bedroom – where the applicant set fire to the residence – where the applicant gave false statements to the police – where the sentencing judge considered the offending incredibly serious – where the sentencing judge distinguished between the offences against the complainant and the offence of arson – where the sentencing judge found that the pleas of guilty had been entered at a very late stage – where the applicant submits that the sentence was manifestly excessive and that the sentencing judge erred in failing to reduce the applicant’s sentence having regard to the pleas of guilty – whether the sentence was manifestly excessive – whether the sentencing judge erred in respect of fixing the parole eligibility date – whether the sentencing judge erred in respect of declaring pre-sentence custody – whether the Court should amend the endorsement to the indictment to declare that time is not to be taken as time served in respect of the sentence

Penalties and Sentences Act1992 (Qld), s 159A

COUNSEL:

T A Ryan for the applicant
C W Wallis for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. MULLINS P:  For the reasons given by Boddice J, I joined in the making of the orders on 13 July 2022 and I agree with the making of the additional order set out in Boddice J’s reasons.

2. MORRISON JA:  I have had the considerable advantage of reading the draft reasons prepared by Boddice J.  They reflect my own reasons for joining in the orders made on 13 July 2022.  I agree with the further order proposed by Boddice J.

3. BODDICE J:  On 13 July 2022, the Court ordered that the applicant be granted leave to appeal against sentences imposed on 10 September 2021, but further ordered that the appeal against sentence be dismissed.

4. These are my reasons for joining in those orders.

   Notice of appeal

5. On 10 September 2021, the applicant pleaded guilty to contravention of a domestic violence order on 18 March 2020 (count 1), entering a dwelling with intent at night on 24 June 2020 (count 2), common assault on 24 June 2020 (count 3), contravention of a domestic violence order on 24 June 2020 (count 4), entering a dwelling with intent by break at night on 4 July 2020 (count 5), choking, suffocation, strangulation associated domestic violence on 4 July 2020 (count 6), rape on 4 July 2020 (count 7), sexual assaults on 4 July 2020 (count 8), rape on 4 July 2020 (count 9), arson - structure or building on 4 July 2020 (count 10) and contravention of a domestic violence order on 4 July 2020 (count 11).  Counts 2, 3, 5, 6, 7, 8, 9 and 10 were domestic violence offences.

6. On the same date, the applicant was sentenced to an effective head sentence of seven years imprisonment (imposed on count 9) with lesser concurrent periods of imprisonment imposed in respect of the remaining counts, other than count 10.  In respect of count 10, the applicant was sentenced to imprisonment for five years, to be served cumulatively on the sentence of seven years imprisonment imposed in respect of count 9.  It was further ordered that the sentences be served cumulatively on the four year sentence already being served by the applicant.

7. The consequence of the sentence was that the applicant was sentenced to a total of 16 years imprisonment.  No earlier parole eligibility date was fixed such that the applicant became eligible for parole after serving one half of the total sentence.

8. The applicant sought leave to appeal the sentences.  Should leave be granted, the applicant relied on two grounds of appeal.  First, that the sentence imposed was manifestly excessive.  Second, that the sentencing judge erred in failing to reduce the applicant’s sentences having regard to his pleas of guilty.

   Background

9. The applicant was born in 1988.  He was aged 31 at the time of commission of all of the offences and 32 at sentence.

10. The applicant had a limited, but relevant, criminal history.  On 23 July 2021, he was convicted, after a trial, of two counts of rape and multiple counts of indecent treatment of a child under 12 years being a lineal descendant, guardian or carer.  Those offences had been committed in 2018, against a female child under 12 years whilst that child was under his care.  That child was born in 2012.

11. The applicant was sentenced to an effective head sentence of four years imprisonment for those sexual offences.  Some 383 days served in pre-sentence custody was declared as time served in respect of that sentence.  His parole eligibility date was fixed at 5 July 2022.  The full time expiry of that sentence was 4 July 2024.

    Offences

12. The complainant was the applicant’s ex-partner.  She was also aged 31 years.  She was the mother of eight children, one of whom was the complainant in the sexual offences for which the applicant was convicted in July 2021.

13. The applicant and the complainant met through Facebook in 2014.  Their relationship commenced shortly thereafter.  Within approximately six months the applicant became verbally and physically abusive to the complainant.  The applicant was the father of three of the complainant’s children.  They were born in 2015, 2016 and 2017 respectively.

14. The relationship between the applicant and the complainant ceased on 27 July 2018.  On that date, the complainant was served with a notice from Child Safety in relation to alleged sexual offending by the applicant against her daughter.

15. On 14 August 2019, a protection order was made in the Magistrates Court at Townsville, naming the applicant as respondent and the complainant as the aggrieved.  Relevantly, that protection order required the respondent to be of good behaviour towards the complainant and not commit domestic violence against her.  It also prohibited the applicant from contacting or attempting to contact the complainant and from approaching the complainant at any place.  The applicant also had to be of good behaviour towards her children.

16. The protection order was served on the applicant on 2 October 2019.  It was that protection order which was the subject of the contravention offences.

17. Count 1 was committed on 18 March 2020.  The applicant attended the complainant’s address in breach of the protection order.  The complainant decamped from the home with her children upon seeing the applicant at the residence.

18. Counts 2, 3 and 4 were committed on 24 June 2020.  On that evening, the complainant was at home with her children when the power went off.  An investigation revealed that the power box was open and the power had been turned off at the switch.  After the complainant turned the power back on, she returned to the house where she observed the applicant at the end of the hallway.  The applicant grabbed the complainant forcefully with both hands.  He told her he loved her and she needed to choose him over the children.  The complainant pushed him away and went into the kitchen.

19. In the kitchen, the applicant grabbed the complainant from behind.  The complainant used a mug to strike the applicant on the hand which caused him to release his grip.  The complainant then told him to leave as the police were on their way.  The applicant threatened that she would regret it and left via the back door.

20. Following that offence, the complainant and her three children stayed at different houses before returning to their home on 4 July 2020.  The remaining offences were all committed on 4 July 2020, the day the complainant and her three children returned to their home.

21. That night the complainant received a telephone call from the applicant.  She immediately hung up the telephone.  The applicant called the complainant back.  He was angry.  The complainant made an excuse for ending the earlier call and then spoke to the applicant for about an hour.  She was trying to placate the applicant who stated that he was at a fuel station and wanted to come and apologise to the complainant’s child and “make all this mess go away”.

22. After that call concluded, the complainant, who had installed security cameras at the house, received a notification that a security camera had been activated.  That activation was as a consequence of the applicant having gained entry to the house via the rear door.  He pulled the screen door off the tracks (count 5).

23. The complainant saw the applicant at the end of the hallway.  He walked towards her saying he wanted to speak to her daughter.  The complainant repeatedly told the applicant to leave.  The applicant then began to ask the complainant whether she loved him.  When the complainant said she did but they should not be together, the applicant became angry and pushed the complainant as she retreated to her bedroom.

24. In the bedroom, the applicant took a pillow and placed it over the complainant’s face.  She struggled to breathe (count 6).  The applicant held the complainant down before pulling down her underwear.  He began playing with her clitoris before pushing his fingers inside her vagina causing pain (count 7).  The complainant did not say anything at that time as she did not want to aggravate the applicant any further.

25. The applicant then knelt on the mattress, grabbed the complainant’s right hand and placed it on his penis and testicles saying, “You should at least feel it.  I went to the effort of shaving” (count 8).  The applicant then removed the complainant’s underwear from around her feet and forced his penis inside her vagina causing her pain (count 9).  The applicant was not wearing any protection.

26. The applicant then lifted the pillow off the complainant’s face, kissed the complainant on the mouth and reapplied the pillow and kissed the complainant’s breasts while continuing to thrust his penis inside her vagina.  The complainant continued to have difficulty breathing.  During this assault, the complainant tried to push the applicant off, but he was too strong for her.

27. After the applicant ejaculated in her vagina, he wiped himself on a towel on the floor.  The complainant retrieved her underwear.  She noticed she was bleeding from her vagina.  When the applicant left the room and walked towards the kitchen, the complainant woke her daughter and took her into her son’s room, locking herself and her children in the bedroom.  She expected the applicant to leave.  The complainant also called her mother and asked her to telephone the police.

28. Whilst the complainant was locked in the bedroom, she heard a noise from outside.  She then heard the smoke alarms going off in the house.  The complainant opened the door and saw smoke filling the hallway.  The complainant took her three children from the bedroom to the back yard.  She called 000.  At that point, the complainant noticed a fuel container at the rear door.  The complainant did not own such a container.  The complainant then watched her house burn down (count 10).

29. Police, ambulance and firefighters arrived at the house at approximately 11.50 pm.  The house was well alight.  Police subsequently located the rear security screen at the rear of the property.  It had been removed and placed against a wall.  Police also located a green Woolworths bag and a red coloured jerry can.

30. The complainant did not make an immediate complaint to police of any sexual offending against her on the night of the fire.  On 5 July 2020, she made disclosures, first to a friend and then to her mother.  After doing so, the complainant contacted police.  She informed the police officer she did not feel comfortable talking to the police when they were there the previous night.  She then told police the applicant had wanted to get her daughter to get her to drop the charges.  When the complainant would not let him, he raped the complainant.

31. A medical examination conducted on the same date revealed swelling and bruising to the complainant’s right labia and a small amount of dark red blood in the posterior vault.  There was, however, no visible internal lacerations or other act of bleeding.  The complainant also had soreness to both nipples, pain on palpitation of the clitoral area and right side of the labia with bruising and fresh blood loss from the vaginal opening.  The complainant was admitted to hospital.

32. The applicant was arrested just prior to midnight on 5 July 2020.  On interview, he told police the complainant had requested he attend the house that night.  He falsely suggested the complainant had requested him to purchase a jerry can full of fuel so that her brother could do the mowing the following day.  The applicant further stated he had attended the complainant’s house twice that night and only saw her on the second occasion when they had a general chit-chat about the children.  Later he suggested he had consensual sex with the complainant on the second occasion and that he was unaware of the children being present at the house.  He said that upon leaving the address he did not notice any fire or anything suspicious at the house.

33. The police investigation revealed that the complainant’s security cameras showed the applicant entering the complainant’s property at 10.50 pm on 4 July 2020 and leaving at 11.25 pm that evening.  CCTV footage obtained from a neighbour also depicted the applicant leaving from the direction of the complainant’s residence at 11.54 pm that evening.

34. An examination conducted of the applicant on the afternoon of 5 July 2020 revealed the applicant had abrasions consistent with the complainant’s account of attempting to fend him off during the rapes.  DNA samples revealed the applicant’s DNA within the complainant’s genitalia and on both breasts.  The complainant’s DNA was also located on the applicant’s penis.

35. Finally, CCTV footage obtained from a local service station depicted the applicant attending the service station on the evening of 4 July 2020.  The applicant paid for some 5.9 litres of fuel as well as a jerry can and a drink.

    Sentencing remarks

36. The sentencing judge observed that the applicant’s offending occurred over three separate periods and was “incredibly serious”.  There was also a basis to draw a distinction between the offence of arson and the other offences.

37. The sentencing judge further observed that the applicant had entered pleas of guilty which had some benefits for the community at large.  Whilst such pleas would normally result in a reduction in the sentence, as it would be an indication of remorse and a clear appreciation of wrongness, the applicant’s pleas had been entered very late and in circumstances where the case against the applicant was overwhelmingly supported by other evidence.  The sentencing judge accepted that the lateness of the plea might, to some extent, relate back to the sexual offending for which he had been convicted in 2021 after a trial.

38. The sentencing judge observed that the consequence of a late plea was that the complainant and her older children were required to be ready to provide evidence.  However, the pleas came with the benefit of the complainant not being required to give evidence in respect of what would be the most harrowing circumstances.  It also meant that the people of Queensland had not been put to the extreme cost of a quite lengthy trial.  It was, therefore, appropriate that the applicant receive credit in relation to those particular aspects.  However, that benefit was certainly not as strong as might normally be the case in relation to offending of this nature.

39. After detailing the circumstances of the offences, the sentencing judge observed that the applicant had decamped after committing the offences “without any thought of the risks” to the complainant or her children.  Further, the applicant had falsely suggested to police that the complainant had requested he attend the house and had requested him to purchase a jerry can full of fuel.  He had then suggested there was consensual sexual relations with the complainant.  The applicant had also indicated he was unaware the children were present which was contrary to the fact he had attended the residence wishing to speak with the younger child.

40. The sentencing judge observed that the violence perpetrated on the complainant was horrendous, but perhaps more chilling was the possible consequences that arose as a result of the arson in circumstances where an accelerant had been used and there was knowledge that children and the complainant were in the residence.

41. The sentencing judge recorded the applicant’s personal circumstances, including his age and limited criminal history and that the applicant was the subject of a protection order at the time of the offences, which was very specific, and was subject to bail conditions which precluded him from attending any residence occupied by the child, the subject of the earlier offending.

42. The sentencing judge further recorded that the consequence of the applicant’s offending had been significant on both the complainant and the children.  Not only was the offending against the complainant of a most horrendous nature, it occurred with children present and in circumstances where they ultimately lost their physical possessions.  Such offending of such a significant nature called for a very significant penalty, to not only deter the applicant and others from committing similar offending in the future, but also to reflect the community’s denunciation for the applicant’s criminal conduct.

43. After referring to a number of comparable authorities, the sentencing judge recorded that there was a need to consider the nature and structure of the penalty to be imposed in the context of different offending on different occasions.  Regard also had to be had for the time that the applicant was already serving by way of imprisonment.

1. After considering whether it is appropriate to reflect the criminality by one head sentence, the sentencing judge concluded that the appropriate course was to impose cumulative periods of imprisonment to properly recognise the distinction to be drawn between the personal offending and the offence of arson which was entire distinguishable in form and was premeditated and not opportunistic.  The applicant had not only taken steps to purchase fuel, but had taken the fuel to the residence before, on his departure, spreading accelerant around the home and setting it on fire.

2. The sentencing judge found that as cumulative sentences were to be imposed, there was a need to moderate the sentences to ensure a crushing sentence was not imposed for the applicant’s offences.  The sentencing judge reduced what would have been a sentence of at least eight years in relation to the personal offending to a period of seven years imprisonment, imposed upon the second count of rape and reduced what would have been a sentence of seven years for the offence of arson to five years imprisonment, to be served cumulatively with the sentence for the count of rape.  Those sentences were to be served cumulatively on the current sentence.

3. The sentencing judge further found that whilst there were some benefits that flowed from the applicant’s pleas of guilty, there was to be balanced against that the fact that the pleas of guilty were not an indicator of any real remorse or insight, but rather, simply a reflection of the overwhelming character of the evidence.  The sentencing judge concluded it was appropriate not to make any recommendation for parole, leaving it for the applicant “to show that he has changed, to show that the dreadful and despicable character of the actions that bring him before the Court are no longer a part and parcel of his personality and character”.

   Applicant’s submissions

4. Whilst the applicant concedes that the structure of the sentences was reasonably open in the circumstances of the applicant’s offending, the applicant submits that the sentences imposed failed to reflect his pleas of guilty.  The moderation in the head sentences was to account for the imposition of cumulative sentences.  No further moderation was made, either in the head sentences or in the fixing of a parole eligibility date, to acknowledge the benefit of the pleas of guilty in facilitating the administration of justice.

5. The applicant further submits that the reasons given by the sentencing judge are indicative of error.  Whilst the sentencing judge, at one point, considered reflecting the applicant’s pleas of guilty by way of an earlier consideration of parole, the sentencing judge found it was ultimately for the applicant to satisfy the authorities that he was worthy of parole.  That obligation rested regardless of the date as any date was an eligibility date.

   Respondent’s submissions

6. The respondent submits there was no error in the exercise of the sentencing discretion.  Although there was an error in the failure of the sentencing judge to make any declaration in respect of the time served in pre-sentence custody, that error was not indicative of any miscarriage of the sentencing discretion.  A proper exercise of the sentencing discretion would result in a declaration that none of the pre‑sentence custody be served against the sentence as the applicant was serving an existing earlier sentence throughout that period.

7. The respondent submits that the applicant’s offending was wicked and brutal, involving degrading sexual offending against the complainant and the complete destruction of a family home, knowing that the complainant and at least one child was inside the residence.  The applicant showed no remorse, falsely suggesting that the complainant had consented to the sexual conduct and had instructed him to purchase a jerry can of fuel.

8. The respondent submits that whilst the applicant had no relevant criminal history, the protracted and premeditated nature of his offending, in circumstances of no obvious remorse, mitigated against any further reduction in the sentences in recognition of his pleas of guilty.  Although those pleas of guilty had utility, in that they saved the cost of a trial and relieved the complainant of the obligation to give evidence, they were not demonstrative of remorse or insight and came late.

9. Further, the respondent submits that the sentencing judge accepted a submission that whilst the offending was of a nature which would warrant a declaration that the applicant had been convicted of serious violent offences, no such declaration should be made.  The sentencing judge’s acceptance of that proposition properly reflected the mitigating factors, including the applicant’s pleas of guilty.

   Discussion

10. The applicant pleaded guilty to disgraceful offending committed on three separate occasions in what is properly to be described as an escalating disregard for the female complainant’s dignity and possessions.  The initial offending involved breaches of court orders.  Thereafter, it progressed to violating the sanctity of the complainant’s residence and assaulting her.  Ultimately, it ended in wicked offending undertaken with premeditation, again committed in the sanctity of the complainant’s own home.

11. The offending involved placing the complainant at risk by suffocation before raping her twice and committing other sexual assaults.  Not content with that despicable behaviour, the applicant then set fire to the female complainant’s residence, knowing she and at least one child were in the residence.  That act caused the home’s complete destruction and the loss of their possessions.  Again, those offences were committed in contravention of court orders.

12. A consideration of those circumstances amply supported a conclusion that the sentences imposed on the applicant were not manifestly excessive.

13. Those circumstances also supported a conclusion that there was no error in the exercise of the sentencing discretion in the sentencing judge’s failure to fix an earlier parole eligibility date.  The utility in the applicant’s pleas of guilty was limited.  Importantly, the pleas of guilty were not reflective of remorse or insight.  Against that background, there was no error in failing to further ameliorate the sentence to reflect those pleas of guilty.

14. There was, however, an obligation on the sentencing judge to address the period of time the applicant had served in pre-sentence custody since 23 July 2021. Section 159A of the Penalties and Sentences Act1992 requires the Court to make a declaration in respect of that time, either as time served in respect of the sentence or that, that time is not to be taken as time served in respect of the sentence.

15. Having regard to the fact that the applicant was, at the relevant time, serving an existing sentence for unrelated sexual offending against a child, there is no proper basis to conclude that the applicant ought to be the beneficiary of a declaration that pre-sentence custody was time served in respect of the sentences the subject of this application.  That is time the applicant was required to serve in custody irrespective of the current offending.

16. In coming to that conclusion, it is significant to note that the applicant had already benefited from a declaration in respect of 383 days served in pre-sentence custody between 5 July 2020 and 22 July 2021 when he was sentenced for the earlier sexual offending on 23 July 2021.

    Orders

17. In addition to the orders made on 13 July 2022, I would order that the Registrar procure the amendment of the endorsement of the indictment to add:

    It is declared that none of the time served in pre-sentence custody between 23 July 2021 and 9 September 2021 is time served in respect of the sentences.