R v Luxford - [2020] QCA 272

SUPREME COURT OF QUEENSLAND

CITATION:

R v Luxford [2020] QCA 272

PARTIES:

R
v
LUXFORD, Steven Michael
(applicant)

FILE NO/S:

CA No 229 of 2020
DC No 102 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 7 October 2020 (Dann DCJ)

DELIVERED ON:

Date of Orders: 27 November 2020
Date of Publication of Reasons: 4 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2020

JUDGES:

Philippides and Mullins JJA and Williams J

ORDERS:

Orders delivered: 27 November 2020

1.   Application for leave to appeal against sentence granted.

2.   Appeal against sentence allowed.

3.   Sentence varied by setting aside the order fixing the date for eligibility for parole at 29 September 2021.

4.   In respect of count 12, the sentence is varied by substituting 2 years 6 months for three years and six months.

5.   The sentence for count 13 is varied by substituting four years for three years and six months and adding “that the term of imprisonment be suspended after serving a period of 60 days’ imprisonment and the offender must not commit another offence punishable by imprisonment within a period of four years to avoid being dealt with for the suspended term of imprisonment”.

6.   The other sentences and orders of the primary judge imposed on 7 October 2020 are confirmed.

7.   The date on which the offender is to be released on parole is 27 November 2020.

8.   The appellant’s lawyers must inform the appellant of the reporting requirements under the Corrective Services Act 2006.

9.   Direct that Registrar provide the reports of Mr Whittingham and Dr Beech to the parole authorities.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to numerous domestic violence offences, including two counts of choking, suffocation or strangulation in a domestic setting – where the effective sentence was three years and six months imprisonment with parole eligibility date set after 12 months in custody – where the sentencing judge accepted that the applicant suffered from PTSD from his military service which was an underlying cause of the offending – where the applicant had been seeking treatment for his condition – where there was evidence that imprisonment would be a harsher experience for the applicant than for someone without PTSD – whether the sentences involving actual custody made them manifestly excessive

R v MCW [2019] 2 Qd 344; [2018] QCA 241, cited
R v Rix[2014] QCA 278, cited
R v Sutton[2018] QCA 318, cited
R v Tsiaras [1996] 1 VR 398; [1996] VicRp 26, cited
R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, cited

COUNSEL:

S C Holt QC, with A R Hughes, for the applicant
D Nardone for the respondent

SOLICITORS:

Fisher Dore Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: Mr Luxford…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Luxford

Details

AGLC: R v Luxford [2020] QCA 272
Case: [2020] QCA 272
Decision Date: 4 December 2020

CaseChat Overview and Summary

In the matter of R v Luxford, the appellant sought leave to appeal against his sentence on the basis that it was manifestly excessive or inadequate. The respondent, the Crown, opposed the application. The appellant had pleaded guilty to multiple domestic violence offences, including choking, suffocation, and strangulation. The primary judge sentenced the appellant to an effective term of imprisonment of three years and six months with parole eligibility set after 12 months. The appellant argued that the sentences were manifestly excessive due to his post-traumatic stress disorder (PTSD), which stemmed from his military service and was an underlying cause of his offending behaviour.

The court had to determine whether the sentences involving actual custody were manifestly excessive. The court considered the appellant's efforts to address his PTSD through participation in a Men’s Behavioural Change program and his acceptance into a research trial for psychological treatment for PTSD. The court also took into account the appellant's remorse, his motivation to resolve the issues that had led to the charges, and the evidence that imprisonment would be a harsher experience for the appellant than for someone without PTSD. The court concluded that the sentences were indeed manifestly excessive and varied the sentences as per the orders.

The court granted the appellant leave to appeal against his sentence, allowed the appeal, and varied the sentences to reduce the overall term of imprisonment. The court also directed that the appellant's lawyers must inform him of the reporting requirements under the Corrective Services Act 2006 and that the Registrar provide the reports of Mr Whittingham and Dr Beech to the parole authorities. The date on which the offender was to be released on parole was set as 27 November 2020. The other sentences and orders of the primary judge were confirmed.

Orders

Orders of the court

Orders delivered: 27 November 2020

1. Application for leave to appeal against sentence granted.

2. Appeal against sentence allowed.

3. Sentence varied by setting aside the order fixing the date for eligibility for parole at 29 September 2021.

4. In respect of count 12, the sentence is varied by substituting 2 years 6 months for three years and six months.

5. The sentence for count 13 is varied by substituting four years for three years and six months and adding “that the term of imprisonment be suspended after serving a period of 60 days’ imprisonment and the offender must not commit another offence punishable by imprisonment within a period of four years to avoid being dealt with for the suspended term of imprisonment”.

6. The other sentences and orders of the primary judge imposed on 7 October 2020 are confirmed.

7. The date on which the offender is to be released on parole is 27 November 2020.

8. The appellant’s lawyers must inform the appellant of the reporting requirements under the Corrective Services Act 2006.

9. Direct that Registrar provide the reports of Mr Whittingham and Dr Beech to the parole authorities.

Background

Background to the litigation

Mr Luxford participated in an individual Men’s Behavioural Change program to assist him in not engaging in domestic violence. This program was provided by psychotherapist Mr Christopher Buckman who provided a report dated 26 January 2019 that confirmed that Mr Luxford was motivated to work upon and resolve the issues that had resulted in the charges and had developed positive insight and empathy. Mr Luxford was in the habit of contacting Mr Buckman for after hours care by way of telephone sessions, when he was experiencing “bad days”. In May 2020 Mr Luxford was accepted into the program being conducted by Phoenix Australia with support from the Australian Defence Force and the Department of Veterans’ Affairs that is a research trial to evaluate the effectiveness of psychological treatment for PTSD. The program is called RESTORE – Rapid Exposure Supporting Trauma Recovery.The facts of the offending Count 1 was an assault where Mr Luxford pushed the complainant onto the bed and when she tried to get up, he grabbed her by the hair and around the neck and slammed her head into the door. Mr Luxford and the complainant separated in December 2015, but they still had contact. The complainant went to Mr Luxford’s home before Christmas and they consumed alcohol. During the evening, the complainant received a text message which caused Mr Luxford to become abusive. He head-butted the complainant in her forehead and she fell unconscious. That was the subject of count 2. The complainant and Mr Luxford moved in together in April 2016. They had an argument on 2 May 2016 and then Mr Luxford grabbed the complainant by the throat with his right hand and straightened her up against the hallway wall and lifted her up off the ground while she was pinned to the wall, applying pressure to her throat and neck as he did so. Mr Luxford’s hand then slid up towards the complainant’s jawline which caused her tonsils to press up against her jaw and she suffered immediate and significant pain. This was the subject of count 3. The complainant called out for Mr Luxford’s children and that caused Mr Luxford to loosen his grip, so that the complainant’s feet were back on the floor. Mr Luxford kept his hand around the complainant’s neck, but used his left hand and pushed the complainant’s face into the wall. That was the subject of count 4. In the early hours of 21 May 2016, the police attended after Mr Luxford and the complainant had been arguing. Neither of them made a formal complaint to the police. After the police left, they had a further argument in the bedroom during which Mr Luxford threw the complainant into a set of drawers and attacked the complainant’s face with his hands, spitting in her face and then pushed her onto the bed and started to stretch the skin around her eyes with his thumbs. The complainant managed to get away from Mr Luxford. This incident was the subject of count 5. Mr Luxford and the complainant had another argument in the early hours of 1 June 2016. The complainant was in bed, when Mr Luxford grabbed the complainant’s phone and wanted her to give him her PIN. Mr Luxford grabbed the complainant’s left hand and held her fingers in a way that put her wrist and arm in a lock and forced the complainant’s body to contort with pain. Mr Luxford then flipped the complainant onto her back and grabbed her biceps with both hands and squeezed asking “why won’t you give me the code?”. Mr Luxford then threw the complainant into the timber bedhead which caused pain to her neck. In response to Mr Luxford’s threats, the complainant gave the code to her phone to Mr Luxford. After reading the messages, Mr Luxford then grabbed the complainant around her neck and head and sat on top of her legs. He squeezed, poked and applied pressure to her skull. She managed to get out of his grip and when she tried to get her phone, Mr Luxford pinned her down on the bed again and threatened her. This incident was the subject of count 6.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Luxford [2020] QCA 272
PARTIES:	R v LUXFORD, Steven Michael (applicant)
FILE NO/S:	CA No 229 of 2020 DC No 102 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 7 October 2020 (Dann DCJ)
DELIVERED ON:	Date of Orders: 27 November 2020 Date of Publication of Reasons: 4 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	27 November 2020
JUDGES:	Philippides and Mullins JJA and Williams J
ORDERS:	Orders delivered: 27 November 2020 1. Application for leave to appeal against sentence granted. 2. Appeal against sentence allowed. 3. Sentence varied by setting aside the order fixing the date for eligibility for parole at 29 September 2021. 4. In respect of count 12, the sentence is varied by substituting 2 years 6 months for three years and six months. 5. The sentence for count 13 is varied by substituting four years for three years and six months and adding “that the term of imprisonment be suspended after serving a period of 60 days’ imprisonment and the offender must not commit another offence punishable by imprisonment within a period of four years to avoid being dealt with for the suspended term of imprisonment”. 6. The other sentences and orders of the primary judge imposed on 7 October 2020 are confirmed. 7. The date on which the offender is to be released on parole is 27 November 2020. 8. The appellant’s lawyers must inform the appellant of the reporting requirements under the *Corrective Services Act* 2006. 9. Direct that Registrar provide the reports of Mr Whittingham and Dr Beech to the parole authorities.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to numerous domestic violence offences, including two counts of choking, suffocation or strangulation in a domestic setting – where the effective sentence was three years and six months imprisonment with parole eligibility date set after 12 months in custody – where the sentencing judge accepted that the applicant suffered from PTSD from his military service which was an underlying cause of the offending – where the applicant had been seeking treatment for his condition – where there was evidence that imprisonment would be a harsher experience for the applicant than for someone without PTSD – whether the sentences involving actual custody made them manifestly excessive R v MCW [2019] 2 Qd 344; [2018] QCA 241, cited R v Rix[2014] QCA 278, cited R v Sutton[2018] QCA 318, cited R v Tsiaras [1996] 1 VR 398; [1996] VicRp 26, cited R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, cited
COUNSEL:	S C Holt QC, with A R Hughes, for the applicant D Nardone for the respondent
SOLICITORS:	Fisher Dore Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent