R v FBC

Case [2023] QCA 74

SUPREME COURT OF QUEENSLAND

CITATION:

R v FBC [2023] QCA 74

PARTIES:

R
v
FBC
(applicant)

FILE NO/S:

CA No 142 of 2022
DC No 181 of 2021
DC No 224 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Toowoomba – Date of Sentence: 16 June 2022 (Byrne KC DCJ)

DELIVERED ON:

24 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2023

JUDGES:

Mullins P and Flanagan and Boddice JJA

ORDER:

Leave to appeal be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to three counts of common assault, two counts of wilful damage, one count of strangulation in a domestic setting, two counts of assault occasioning bodily harm, one count of rape, and three counts of dangerous conduct using a weapon – where all but one of the counts of assault occasioning bodily harm were domestic violence offences – where the applicant was sentenced to nine years imprisonment for the count of rape and lesser concurrent periods of imprisonment for the remaining counts – where a period of pre-sentence custody was declared and parole eligibility was set after having served six years of the period of imprisonment – where the sentencing judge observed that, inter alia, the applicant had engaged in serious and violent offending against the complainant over a two-and-a-half year period, with their children being present on occasion, and the subject of offending on the last of the occasions – whether the starting point for the rape offending of 10 years was not in accordance with the appropriate yardsticks – whether, by extension, there was a real reduction given for the mitigating factors in the applicant’s favour – whether the guilty pleas should have resulted in a parole eligibility date after serving no more than one half of the head sentence – whether the sentences imposed were manifestly excessive in all the circumstances

Penalties and Sentences Act 1992 (Qld), s 9(10A)

R v Chinfat[1995] QCA 508, cited
R v Heckendorf[2017] QCA 59, cited
R v NT (2018) 273 A Crim R 153; [2018] QCA 106, cited
R v TAQ[2020] QCA 200, distinguished

COUNSEL:

R W Haddrick and D M Caruana for the applicant (pro bono)
N E Friedewald for the respondent

SOLICITORS:

MacDonald Law for the applicant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

  1. MULLINS P:  I agree with Boddice JA.

  2. FLANAGAN JA:  I agree with Boddice JA.

  3. BODDICE JA:  On 15 November 2021, the applicant pleaded guilty to three counts of common assault, two counts of wilful damage, one count of strangulation in a domestic setting, one count of assault occasioning bodily harm, one count of rape, and three counts of dangerous conduct using a weapon.  All were domestic violence offences.  The applicant also pleaded guilty to one count of assault occasioning bodily harm, on a separate…

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Details
AGLC
R v FBC [2023] QCA 74
Case
[2023] QCA 74
Decision Date

CaseChat Overview and Summary

The applicant, who was born in 1988, pleaded guilty to a range of serious offences, including rape, domestic violence, and dangerous conduct using a weapon. He was sentenced to a total of nine years in prison, with parole eligibility set after serving six years. The applicant now seeks leave to appeal the sentence, arguing that it is manifestly excessive. The court must determine whether the sentence imposed was within a sound exercise of the sentencing discretion.

The legal issues in this case include whether the starting point for the rape offence was appropriate, whether the mitigating factors were adequately considered, and whether the parole eligibility date was correctly set. The court must consider the depravity and persistence of the applicant's offending, as well as the need for denunciation and deterrence.

The court found that the sentence imposed was not manifestly excessive. The sentencing judge carefully considered the appropriate weight to be afforded to matters in mitigation and imposed an overall head sentence of nine years imprisonment, with parole eligibility set after serving six years. The court found that this sentence fell within a sound exercise of the sentencing discretion, particularly given the seriousness of the applicant's offending and the need for denunciation and deterrence.

Order: Leave to appeal be refused.

Orders

Orders of the court

Leave to appeal be refused.

Background

Background to the litigation

The applicant seeks leave to appeal his sentences. Should leave be given, the applicant relies on one ground, that the sentences were manifestly excessive.Background The applicant was born in 1988. He was aged between 29 and 32 at the time of the offending and 33 at sentence. He had a limited criminal history and had not previously been sentenced to a period of imprisonment. The complainant in all the offences was the applicant’s former partner. They had been in a relationship since January 2017. All of the offences were committed between 31 January 2018 and 13 September 2020.Sentence hearing The sentence hearing proceeded on the basis of agreed statements of facts, in respect of each indictment. Relevantly, in relation to the domestic violence offending, those facts were:(a)The applicant became aggressive and controlling three months into the relationship;(b)In late October 2017, when the complainant was pregnant with the couple’s first child, an incident occurred which resulted in the making of a temporary protection order;(c)On 28 February 2018, after the birth of their first child in the previous month, a domestic violence order was made, naming the applicant as respondent and the complainant as aggrieved. It contained the mandatory condition that the applicant be of good behaviour towards the complainant and not commit domestic violence against her, and was to remain in force until 27 February 2023;(d)The applicant and the complainant married in August 2018, but separated in November 2019. Their second child was born in March 2020;(e)In February or March 2018, after the applicant had been drinking, a dispute arose between the applicant and the complainant, during which the applicant placed the complainant in a headlock, lifting her off the ground, saying, “pass out bitch”, before throwing her to the ground (count 1 – common assault). As the applicant left, he kicked the complainant’s car, causing damage (count 2 – wilful damage);(f)In approximately March or April 2018, after the applicant returned home drunk, the applicant grabbed the complainant by her hair, pulling her to the floor and slapping her in the face. He then put his hands around her neck and applied pressure, causing her to lose consciousness (count 3 – choking in a domestic setting). When the complainant regained consciousness, the applicant was on top of her and spat in her face (count 4 – common assault);(g)On 12 April 2019, the applicant unclipped the complainant’s seatbelt whilst he was driving and she was seated in the passenger seat. He tried to open her door and told her he was going to push her out of the car. The applicant then hit the complainant in the face approximately six times, before punching her in the face, causing her to hit the window. The applicant punched her again (count 5 – assault occasioning bodily harm). When the applicant saw swelling to the complainant’s eye, he told her, “You’re going to have a black eye. Why did you make me do that?”;(h)In November 2019, the complainant discovered the applicant had been unfaithful and she left the family home with their first child;(i)On 5 July 2020, the applicant entered the complainant’s home, drunk, despite having been told not to come to the home. The applicant hopped into the complainant’s bed and asked her, “aren’t you going to give me a cuddle?”. When the complainant ignored him, the applicant pushed her out of bed, before telling her he was sorry and that he loved her. The applicant then grabbed her by the wrist and pulled her onto the bed. He slapped her on the side of the head at least six times. The complainant begged for him to stop. The applicant replied, the more she begged the more he would hurt her. The applicant then headbutted the complainant, before sitting on her stomach, pinning her arms under his knees. The applicant told the complainant, “See these lips. I paid for these lips. They are mine”, before biting her lip, causing it to swell, and continuing to slap her. The applicant then pulled her underwear off, pushed her legs to the side, looked her in the eyes and said, “I’m going to fuck you in the arse”. Despite pleas not to do so, the applicant penetrated the complainant’s anus with his penis a couple of times, before withdrawing, moving the complainant’s knees up to her chest and penetrating her anus again. The complainant screamed for him to stop and apologised to him. The applicant told her she was pathetic. The complainant stopped fighting and the applicant rolled her on to her stomach and continued to penetrate her anus for approximately two minutes (count 8 – rape). As he did so, he hit her in the back of the head. When the applicant stopped, he went to the bathroom. He told the complainant to shower. As she tried to get into the shower, the applicant slapped her on the side of the face (count 9 – common assault). The complainant stood in the shower as the defendant showered. When he went to bed, he told the complainant to hurry up, as he was going to “do it again”. The complainant delayed returning to the bedroom, until the applicant had passed out;(j)The anal penetration caused injuries to the complainant, rupturing an internal haemorrhoid. She was bleeding and uncomfortable as a result. After becoming aware of that injury, the applicant told her she was not allowed to go to the doctor as they would know what had happened;(k)On 12 September 2020, the complainant contacted police requesting they perform a welfare check on the applicant. The applicant was found by police in his motor vehicle with a blood alcohol reading of 0.126 per cent. The applicant then called the complainant telling her, “You fucked my life, now I’m going to fuck yours”. When the applicant returned to the complainant’s home, he grabbed the complainant’s face and tried to kiss her. Thereafter, there was an exchange in the lounge room where when the complainant jumped over the couch after applicant stepped towards her, the applicant said, “don’t you dare run away from me, do you want to see how fast this rifle can shoot?”;(l)Later, after the complainant had telephoned police telling them the applicant had a gun, the complainant saw the applicant load bullets into a rifle in the hallway. He cocked the gun, before pointing the gun at their two-year-old child. The child asked, “Daddy, what are you doing?” to which the applicant replied, “This is mummy’s fault. You’re going to go to sleep now”. He pointed the gun at their child and put his eye to the scope (count 10 – dangerous conduct with a weapon). The child put a blanket over her head;(m)Following cocking the gun, the applicant told the complainant he was going to shoot all three of them and then himself. He walked to the bedroom of their six-month-old baby, before opening the door and pointing the gun directly at the baby as he looked through the scope (count 11 – dangerous conduct with a weapon). When the complainant continued to plead with him to leave the children out of it, the applicant told her, “If I just kill you, I don’t get the kids, so I must kill all of us”. He told her not to run because he would kill both of the children if she did, telling her he had six bullets. He pointed the gun at each of them as he counted a bullet each time. He then tilted the gun to his chin and counted, “four, five, six” (count 12 – dangerous conduct with a weapon);(n)Throughout this incident, police tried to call the complainant. When she answered, the applicant whispered to the complainant, instructing her to tell them everything was fine, before taking the telephone and speaking to police. When the applicant was advised to go outside as police were on the way, the applicant returned the phone to the complainant, hid the gun and ammunition, and left the house. Whilst outside, the applicant yelled and kicked the front door and the garage door, denting the garage door (count 13 – wilful damage);(o)Shortly after police arrived, they located the gun under the couch and a rifle magazine loaded with .22 ammunition behind the children’s kitchen play set. Further ammunition was found in the spare bedroom.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

An effective head sentence of nine years imprisonment, with parole eligibility after serving six years, was neither plainly unreasonable nor unjust, having regard to the depravity and persistence associated with the applicant’s offending in a domestic relationship over an extended period of time.Conclusion The sentence imposed was not manifestly excessive. It fell within a sound exercise of the sentencing discretion.Order I would order that: Leave to appeal be refused.

Ratio Decidendi

Legal Principle Established

The sentencing judge found that taking into account the appropriate weight to be afforded to matters in mitigation, and allowing for a reduction to the otherwise appropriate head sentence, the appropriate point of parole eligibility was more than the halfway point of the effective head sentence. The sentencing judge then imposed an overall head sentence of nine years imprisonment, fixing parole eligibility after having served six years of that period of imprisonment.Consideration The applicant submits that whilst the multiplicity of domestic violence offending was serious, occurred over an extended period of time, and was aggravated by exposing his young children to that violence, a starting point for the rape offending of 10 years was not in accordance with the appropriate yardsticks. That being so, the applicant submits that no real reduction was given for the mitigating factors, as moderating the sentence down to an effective head sentence of nine years was still too high. Further, the clear and accepted utility of the guilty pleas should have resulted in a parole eligibility date after serving no more than one half of the head sentence. There is no substance in these contentions. The applicant pleaded guilty to multiple domestic violence offences committed over a two-and-a-half-year period. Those offences included multiple occasions of violence, including a protracted episode of anal rape. The final occasion of domestic violence involved threats whilst aiming a loaded weapon, including aiming it at his very young children, with threats that he would kill them all. A consideration of the relevant yardsticks amply supports a conclusion that the sentencing judge’s observation that the protracted rape itself would, in the circumstances, attract a head sentence in the order of 10 years, was not erroneous. The sentencing judge correctly observed that R v TAQ[2] was the most helpful yardstick, but that there were distinguishing features, including that s 9(10A) did not apply to TAQ’s offences; that the head sentence of eight years with parole eligibility after five years was imposed, having regard to 752 days of non-declarable pre‑sentence custody; and that the rape offending in TAQ did not involve further violence other than that required to commit the offence.[2][2020] QCA 200. When regard is had to those matters, the sentence in TAQ was itself an effective sentence of slightly in excess of 10 years for offending without the circumstances of aggravation of being a domestic violence offence. Further, having correctly noted those distinctions, the sentencing judge carefully and appropriately gave due recognition to the mitigating factors and, in particular, the real utility of the pleas of guilty and the steps towards rehabilitation by reducing the overall head sentence to nine years imprisonment, whilst declining in the exercise of his discretion to make a serious violent offence declaration. Once that conclusion is reached, it cannot be said that a determination that the applicant be required to serve six years of that nine year sentence, prior to parole eligibility, fell outside a sound exercise of the sentencing discretion. Such a period of actual custody reflects the overall criminality of the applicant, particularly having regard to the need for denunciation and deterrence in relation to the last occasion when a loaded weapon was aimed at his very young children.