R v McGuire
[2017] QCA 250
•27 October 2017
SUPREME COURT OF QUEENSLAND
CITATION:
R v McGuire [2017] QCA 250
PARTIES:
R
v
McGUIRE, Sheridan Louise
(applicant)FILE NO/S:
CA No of 268 of 2016
DC No 427 of 2015DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Ipswich – Date of Sentence: 9 September 2016 (Horneman-Wren SC DCJ)
DELIVERED ON:
27 October 2017
DELIVERED AT:
Brisbane
HEARING DATE:
5 June 2017
JUDGES:
Morrison and Philippides JJA and Boddice J
ORDER:
The application for leave to appeal be refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – where on 8 September 2016 a jury found the applicant guilty of one count of robbery in company, one count of threatening violence, one count of assault occasioning bodily harm in company, two counts of common assault, one count of deprivation of liberty, one count of rape and one count of torture – where the applicant was sentenced to eight years imprisonment on the court of torture, with that offence being declared a serious violent offence – where the co-offender pleaded guilty to similar offences with a lesser degree of offending – where the co-offender was sentenced to six years imprisonment on the count of torture, with no serious violent offence declaration – where the applicant seeks leave to appeal her sentence – where the applicant contends the sentencing Judge erred in proceeding to incorporate the rape as a particular of the torture offence – where it is submitted that co-offenders cannot have different acts forming a similar offence – where the applicant contends the sentence imposed on the co-offender was a proper exercise of the sentencing Judge’s discretion – where the applicant submits the declaration of a serious violent offence in relation to her offending, but not that of the co-offender violates the principle of parity – where the applicant contends the sentence imposed was manifestly excessive as a result of the serious violent offence declaration – whether the sentencing Judge erred in regarding the count of rape as a particular of the count of torture – whether issues of parity arose in the circumstances – whether the sentence imposed was manifestly excessive
Green v The Queen (2011) 244 CLR 462, [2011] HCA 49, cited
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, citedCOUNSEL:
A M Hoare for the applicant
J A Wooldridge for the respondentSOLICITORS:
Kilroy & Callaghan Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
MORRISON JA: I have had the considerable advantage of reading the draft reasons of Boddice J. That permits me to express my own in short form.
I agree with the reasons of Boddice J except for the resolution of ground 2, where I differ as to whether the parity principle is invoked in this case.
The applicant and Hayman were charged with counts 1-3, 6 and 9 below. The applicant alone was charged on counts 4, 5 and 8:[1]
(a)count 1: robbery in company;
(b)count 2: threatening violence with a weapon;
(c)count 3: assault occasioning bodily harm, in company;
(d)count 4: common assault;
(e)count 5: common assault;
(f)count 6: deprivation of liberty;
(g)count 8: rape; and
(h)count 9: torture.
[1]The Crown ultimately did not proceed with original count 7 against the applicant or Hayman, and counts 4 and 5 against Hayman: Appeal Book (AB) 3.
Hayman entered an early guilty plea to his charges, whereas the applicant went to trial on all of them.
Circumstances of the offending
It is helpful to review the circumstances in which the offences occurred and those with which each of the applicant and Hayman were charged. What is said below is by way of amplification of the careful account by Boddice J in paragraphs [61] to [75] of his reasons.
The complainant (X) knew each of the applicant and Hayman. They were all users of methylamphetamine, the drug known as ice. She had known the applicant for about two years at the time of the offences, and Hayman for about eight months during which time they had a short relationship. She had lived with the applicant for about 18 months, but moved out because the applicant’s drug use was worsening and she came around on pay day to try to get the complainant’s money.
Having met the applicant and Hayman one day, X went back to their house to buy drugs. All three injected ice. She stayed there that night. The following night a dispute arose as to where Hayman’s drugs were, with his asking X what she had done with them. X and the applicant searched for them, unsuccessfully.
Count 1
The applicant and Hayman insisted that X go to an ATM and take out money for the drugs she had stolen. X was intimidated by them and did so. It was the applicant who demanded X’s key card when they arrived at the ATM,[2] and it was the applicant who threatened X with a “boot ride” if she did not produce the key card.[3] The applicant took the key card. Money was taken from X’s account (count 1).
[2]Appeal Book (AB) 33 line 5.
[3]AB 33 line 22.
On the drive back from the ATM the applicant questioned X about the location of the drugs.[4] Hayman stayed quiet.
[4]AB 34 line 42, AB 39 line 13.
Count 2
Once back at the house both questioned X as to where the drugs were. The applicant had duct tape and tied X tightly to a chair. When X complained about being unable to breathe the applicant said “I don’t give a fuck”. Hayman had a machete and threatened to cut off her fingers, one for every wrong answer. The applicant held X’s hands on the table. As Hayman questioned her X looked him in the eye and said she would never take his drugs. Hayman immediately stopped and sliced the duct tape off, telling her to get out of his sight.
When the duct tape was cut off X went to a room by herself and slept a while. She could not leave as the applicant had said no-one could leave until the drugs were found.[5]
[5]AB 43 lines 10-16.
Count 3
When X woke she was called into the kitchen by the applicant.[6] The applicant and another woman (Collins) were there, and they questioned X about the missing drugs. In the presence of the applicant Collins threatened X and questioned her repeatedly. Hayman was not there at this time.[7] After a time the applicant punched X three times in the face, causing a swollen black eye.
[6]AB 44 lines 29, 45.
[7]AB 45 line 19, AB 46 line 10.
Conduct between counts 3 and 4
The applicant made X get under the kitchen table “to act and be like the dog I was”. The applicant put a pillowcase over X’s head and fixed it with a zip tie. X was also prodded with a baseball bat and a cattle prod, and a taser was used on her. X could not see who used the baseball bat, cattle prod or taser, but the applicant “had always had weapons”.[8]
[8]AB 47 line 25.
X needed to go to the toilet, at which point the applicant told her that she had to “walk on all fours out the back and pee like the dog that I was”.[9] Hayman was present at that point.[10]
[9]AB 48 lines 1-4.
[10]AB 48 line 6.
It was the applicant that walked beside her while she went out on all fours to urinate in the back yard. Hayman was not there at that point.[11]
[11]AB 48 lines 13-34.
Count 4
When X came back inside the applicant smashed a photo frame over her head. The applicant then made her sit on the glass and not move. Hayman was present in the kitchen when these two things occurred, injecting ice,[12] but X did not suggest that he participated in these two events.
[12]AB 66 lines 42-47.
Conduct between counts 4 and 5
While the applicant and Hayman (and Collins and a man, Dunne) were taking drugs in the kitchen, and X was sitting on the glass, the applicant told Hayman that there was a shot of vinegar for X. Hayman said there was no point giving it to X as it would simply cleanse her system. No shot was administered.
Following that Hayman went to another room with Dunne. The applicant and Collins remained in the kitchen with X. X could hear the sound of drilling and saw that Hayman and Dunne were drilling a hole in the floor. The applicant closed the door, and X could hear a chain. When the applicant opened the door X could see the chain on the floor.
Count 5
The applicant told X to get up and go into the other room. Hayman was not there. X sat on the lounge. The applicant got a pair of scissors and hacked X’s ponytail off. As she was doing that Hayman walked back into the room and said she needed to stop and she had gone too far.[13] He then walked out again, and the applicant continued cutting the hair.
[13]AB 69 lines 44-46.
Conduct between counts 5 and 6
After her hair was cut off X was told by the applicant to strip all clothes off, and put on thin leggings with no underwear. Hayman was not in the room at the time.[14] The applicant watched X changing the clothes, from the lounge room.
[14]AB 71 line 9.
Count 6
The applicant then took her into the lounge, and chained and padlocked her wrists. Hayman was there when that happened,[15] and when the applicant told X that she “was going for a boot ride and that [she] would never be coming back”. By then it was night. They put X in a car, lying down on the back seat. The applicant put a blindfold on X. The applicant drove and Hayman was in the passenger seat.
[15]AB 72 line 15.
After a period of driving Hayman and the applicant got X out of the car, and led her through an area to a creek. The applicant was screaming at X, and Hayman was telling X to answer the applicant’s questions. They arrived at a tree next to a creek, where Hayman and the applicant directed X down an embankment. The applicant then chained her to the tree. Hayman was standing there. The applicant told X that she (the applicant) hoped X liked the view because it was the last view she would get before she died. They left her there.
Hayman returned alone after several hours and sawed off the branch to which X was chained, freeing X. He helped her up the embankment and back to the car, where the applicant was sitting in the passenger seat. They drove back and on the way the applicant removed the chains because of a concern that police may stop them and see X.
Conduct between counts 6 and 8
When they got back to the house the applicant exhibited a complete change of attitude towards X, suggesting she shower and the applicant would get her some clothes. The applicant watched her while she was in the shower. The applicant told her to go to the kitchen where she would try to fix X’s hair. Hayman was not around much of this time.
X was sent into the lounge where Hayman chained her ankle. The chain was fixed to the floor. The chain was long enough to let X get to the bathroom and toilet.
Count 8
While X was on the lounge she heard the applicant say to Hayman, in the bedroom, that she “was going to fuck me the way that I had fucked her life up, and that she was going to use a vibrator covered in Dencorub to fuck me”.[16]
[16]AB 96 lines 28-30.
The applicant came out of the bedroom, forced X’s legs open and put a vibrator in her vagina, forcibly penetrating X. The vibrator had Dencorub on it and that burned. The applicant forced the vibrator very hard into the vagina and it hurt a lot. She did that about four times, during which the applicant said that “she was going to fuck me the way that I’d fucked her family up”.[17] Then X, who had given up thought of resisting, started to cry, and the applicant stopped and walked away.
[17]AB 98 line 27.
Hayman was not in the lounge room at any time during this episode, remaining in the bedroom.[18]
[18]AB 97 line 12, AB 98 line 34.
The defence case
The defence case was that all events with the exception of X being chained to the tree were fabrications by X,[19] and none of them occurred. The rape allegation was put to X as being a “complete fantasy”,[20] and that no rape occurred.[21] It was also put to X that she was trying to lay all the blame on the applicant rather than on Hayman.[22]
[19]AB 178 line 25, AB 182 line 41.
[20]AB 168 line 41.
[21]AB 169, AB 180 line 12.
[22]AB 173 line 44.
As to the chaining to the tree, the defence case was that Hayman and X had left the applicant in the car and walked off, that it was Hayman who had chained her to the tree and the applicant had no part of it at all.[23]
[23]AB 152-153, 181.
Sentencing of Hayman
It is apparent from the sentencing remarks for Hayman that there were differences between his case and that of the applicant:
(a)Hayman pleaded guilty in a timely way; the applicant proceeded to trial with a defence that the allegations against her were wholly fabricated, and that it was Hayman who carried out the deprivation of liberty;
(b)Hayman’s guilty plea was to: one count of robbery in company (count 1 above); one count of threatening violence (count 2 above); one count of deprivation of liberty (count 6 above); and one count of torture (count 9 above);
(c)the rape (count 8 above) was “not a matter which you were involved in”, and did not form part of the torture count for the purposes of his sentencing; his Honour described that in this way:
“Quite obviously, the rape which formed part of the torture charge against [the applicant] – which I described in sentencing her as being a particularly degrading event carried out with a vengeful motive on her part and with an intention of inflicting both humiliation and pain – was a significant aggravating feature of her offending”;
(d)Hayman was not involved in the assault counts upon which the applicant was convicted (counts 3, 4 and 5 above); and
(e)Hayman had some “redeeming features”, which included that he returned to cut X free from the tree.
The learned sentencing judge considered that Hayman and the applicant were equally responsible for the conduct in counts 1 and 2 (robbery and threats of violence) and count 6 (the deprivation of liberty by taking X, bound, to the creek).
The sentencing judge regarded the most serious count as the torture count, and it “takes into account the circumstances which constitute the other offences on the indictment to which you have pleaded guilty”.
The learned sentencing judge expressly considered the issue of parity, saying:
“The exercise that I have to perform is one whereby I must take into account issues of parity between you and [the applicant], and that that exercise itself involves considering the fact that the rape formed part of the torture for which she was convicted, and that she did not have the benefit of the plea of guilty. Also, as part of that integrated process is a consideration of whether a serious violent offender declaration should be made in respect of your offending, as it was for hers. A serious violent offender declaration should not be made in in respect of you simply because it was made in respect of [the applicant]. Your sentence must be imposed on the circumstances which apply to you. But the fact of parity between the sentencing, insofar as those parts of the torture for which you are both responsible, means that I need to take into account that that was what occurred in her case. In forming in respect of you a sentence which overall reflects your level of criminality and takes into account the fact that you have taken steps in your favour, and particularly your plea of guilty, and you’ve now taken steps in the prison of which I have been informed today which speak reasonably well of your prospects for rehabilitation. That said, it was the case in respect of [the applicant] that I considered her prospects of rehabilitation also to be quite good.
Obviously, the sentence I impose must be one which acts as a general deterrent to others from committing such offences, which are offences which, quite obviously, the community quite rightly denounces. Taking all those matters into consideration, the appropriate sentence in my view is to impose a head sentence of six years imprisonment, but without a declaration that this was a serious violence offence as committed by you. And that particularly takes into account the fact that the rape was not a feature of the torture of which you have been convicted. A lower head sentence may have been also within sentencing discretion in the order of about five years, but with a serious violent offender declaration. These exercises are far from precise, but in in my yiew a six year head sentence with parole eligibility fixed at the one-third mark to reflect your plea of guilty and co-operation with the administration of justice is appropriate.”
Plainly the learned sentencing judge considered that the distinguishing features between Hayman’s case and that of the applicant were: (i) the rape formed part of the torture for which the applicant was convicted, but did not form part of Hayman’s consideration; and (ii) the applicant did not have the benefit of the plea of guilty.
The fact that the rape did not form part of the torture in Hayman’s case was the determining feature in the learned sentencing judge’s consideration of whether to impose a serious violent offence declaration.
Discussion
As can be seen above, there were some counts where both the applicant and Hayman were jointly charged, but in respect of which the applicant played a far greater active role than Hayman. In that category are: count 1, count 3; the conduct between counts 3 and 4; count 4; and count 5.
On others, the conduct of the applicant compared to that of Hayman is relevantly indistinguishable. In that category are: count 2 (threats of violence); the conduct between counts 4 and 5; and count 6 (deprivation of liberty).
The rape, count 8, was a count solely charged against the applicant. The only connection with Hayman was X’s evidence that the applicant’s threat (to use a vibrator covered in Dencorub) was made to Hayman in the bedroom. However, X did not say, and could not have known, whether Hayman understood what was said or realised it would actually be carried out.
The applicant was sentenced on 9 September 2016 and Hayman on 31 October 2016. The same sentencing judge dealt with each case. In my view, it is impossible to conclude that at the time Hayman was sentenced his Honour had forgotten the circumstances established by the trial evidence, however the factual basis upon which Hayman was sentenced was reduced to an agreed schedule.[24]
[24]Exhibit 3 on that sentence.
The sentence in each case was imposed on the torture count. However, there was, in my respectful view, a marked difference in the circumstances of each.
First, the applicant’s torture included the assaults in counts 3, 4 and 5, none of which were considerations in Hayman’s sentence because the sentencing remarks confined the torture circumstances to those “which constitute the other offences on the indictment to which you have pleaded guilty”: see paragraph [33] above. The applicant’s circumstances included assaults designed to humiliate and degrade, not just by punching to the face, but: (i) using a baseball bat, cattle prod and taser on X; (ii) forcing X to crawl on all fours, hooded, and publicly urinate like a dog; (iii) smashing her head with a photo which had been designed to showcase the friendship between X and the applicant; and (iv) hacking her hair off.
Secondly, the applicant’s torture include the rape in count 8. That was rightly characterised as a vengeful act, particularly degrading, and intended to inflict humiliation and pain. It was carried out as a form of revenge for what the applicant perceived X had done to the applicant’s family. Thus it had no connection to Hayman at all. The rape was not part of the torture for which Hayman was sentenced.
Thirdly, the circumstances of the rape were such that they rightly had an influence on the question of making a serious violent offence declaration. The rape was violent, and the use of the Dencorub, intended to inflict greater pain, took it out of the ordinary for that kind of offence.
One must add to those considerations the stark difference between the applicant’s case and that of Hayman, in that the applicant went to trial on all charges, running a defence that meant there could be no suggestion of any remorse or even insight into the offending. By contrast Hayman pleaded guilty in a timely way.
In Postiglione v The Queen[25] Dawson and Gaudron JJ set out the oft repeated statement on the parity principle:
“The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to “a justifiable sense of grievance”. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.”
[25](1997) 189 CLR 295; [1997] HCA 26, at 301-302; internal citations omitted.
The principle was again referred to in Green v The Queen,[26] where French CJ, Crennan and Kiefel JJ said:
“[30]In Lowe v The Queen and in Postiglione v The Queen, this court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged.”
[26](2011) 244 CLR 462; [2011] HCA 49, at [30].
In my respectful view, there are relevant differences, and due allowance was made for them. The applicant and Hayman were co-offenders on some of the counts on which the applicant was sentenced, but they were not on the critical count of the rape. Nor did Hayman’s torture charge comprehend the breadth of assaults that the applicant’s torture did. Different sentences were imposed because there were different degrees of culpability and different circumstances.
In my respectful view, the different circumstances of the applicant and Hayman and their different degrees of criminality justified the different sentences, which in the circumstances were in due proportion.
Ground 3
Having reviewed the comparable cases relied upon below and in this Court, I agree with Boddice J’s reasons and conclusion that there is no basis to find that the sentence was manifestly excessive.
Disposition
I would refuse the application for leave to appeal.
PHILIPPIDES JA: For the reasons given by Morrison JA, I agree that the application for leave to appeal should be refused.
BODDICE J: On 8 September 2016, a jury found Sheridan Louise McGuire (the applicant) guilty of one count of robbery in company, one count of threatening violence, one count of assault occasioning bodily harm in company, two counts of common assault, one count of deprivation of liberty, one count of rape and one count of torture.
Some of the offences were committed with a co-accused, Trevor Hayman. He pleaded guilty to offences of robbery in company, threatening violence, assault occasioning bodily harm in company, deprivation of liberty and torture at the commencement of the trial.
On 9 September 2016, the applicant was sentenced to eight years imprisonment on the count of torture. That offence was declared a serious violent offence. The applicant was convicted in respect of the remaining counts but not further punished. Both the Crown and the defence contended the acts the subject of the remaining counts, including that of rape, were particulars of the torture offence.
Hayman was sentenced, on 31 October 2016, by the same sentencing Judge. Hayman was sentenced to six years imprisonment on the offence of torture. He was convicted of the other counts but not further punished. The sentencing Judge declined to declare the torture offence a serious violent offence. Having regard to the fact that he had pleaded guilty to those offences, Hayman’s parole eligibility date was set at two years.
By notice of appeal, filed 5 October 2016, the applicant appealed against her conviction and sought leave to appeal against her sentence. The applicant has abandoned the appeal against conviction. She seeks leave to appeal against her sentence on three grounds. First, that the sentencing Judge erred in considering the rape offence a particular of the torture offence. Second, that the sentencing Judge erred by imposing a sentence that had a marked disparity to that imposed on her co-accused for the torture offence. Third, that the sentence imposed was manifestly excessive by reason of the declaration that the offence was a serious violent offence.
Background
The applicant was born on 26 April 1978. She was aged 37 years at the time of the offences and 38 at sentence. The applicant had a limited and dated criminal history. She has not previously been sentenced to any periods of imprisonment.
Hayman was aged 27 at the time of the offences and 29 at sentence. He had a more extensive criminal history with previous offences of violence. He had previously been sentenced to imprisonment.
The complainant was born on 25 June 1977. She knew both the applicant and Hayman. She had resided in a house with the applicant until a few months before these events. The complainant had also been “sex buddies” with Hayman before he commenced a relationship with the applicant.[27] All were users of methylamphetamine.
[27]AB 114/5.
Offences
The offences were committed between 29 April 2015 and 5 May 2015. They involved one extended episode. However, the offences themselves were confined to two discrete occasions, one on 29 April 2015 and one on 3 May 2015.
On 28 April 2105, the complainant travelled to the applicant’s residence for the purposes of buying drugs. She met with Hayman and the applicant. Each injected drugs. The applicant remained at that residence overnight.
On the following day, a dispute arose between the complainant and Hayman. Hayman accused the complainant of having taken his drugs. The applicant, who had been asleep, awoke at that point. The applicant also accused the complainant of having taken Hayman’s drugs.
The applicant and Hayman demanded the complainant pay them. They threatened the complainant that if she did not hand her keycard to the applicant she would be taken for a “boot ride”. The complainant understood this to mean she would be taken out to the bush and killed. All three travelled to a service station when money was withdrawn from the complainant’s account. These events constituted the offence of robbery in company.
After the complainant returned to the house with the applicant and Hayman, the complainant was made to sit on a chair in the kitchen. She was questioned by both the applicant and Hayman about the missing drugs. The complainant was duct-taped to a chair by the applicant. The taping was so tight the complainant had difficulty breathing. Whilst in this position, Hayman threatened the complainant with a machete. The complainant was told that every question she got wrong would cost her a finger. The applicant held the complainant’s hands on the table. Those events represented the count of threatening violence.
At one point, Hayman used the machete to cut the duct tape. The complainant went to a bedroom. She slept for a short time. She was awoken by voices. The applicant told her to come into the kitchen. When the complainant went into the kitchen, Hayman and the applicant continued to question her about the missing drugs. Whilst in the kitchen, the applicant punched the complainant in the face three times causing pain and a swollen black eye. Those events represented the count of assault occasioning bodily harm whilst in company.
After the complainant was punched by the applicant, she was made to get under the kitchen table. The applicant put a pillow case over her head. It was affixed by what felt like a zip-tie. The complainant was ordered to go on all fours and act like “the dog that I was”.[28] She was prodded with a baseball bat and a cattle prod or taser. The complainant felt a lot of pain when the taser was applied to her. She estimated the pillow case remained on her head for about two hours.
[28]AB 45/45.
The complainant said the pillow case was removed when she said she needed to go to the toilet. The applicant told the complainant she was to walk “on all fours out the back and pee like the dog that I was”.[29] The complainant did what they said as she was “just too scared”.[30] She felt totally humiliated having them watch her “pee like a dog”.[31] The complainant said she was just helpless and had given up.
[29]AB 48/1.
[30]AB 48/10.
[31]AB 48/25.
At some point, the complainant returned to the inside of the house. When back inside the kitchen, the applicant smashed a photo frame over the complainant’s head. The complainant was made to sit on the floor on the broken glass. She was told not to move from the area. The applicant later cut off the complainant’s ponytail. These events represented the two counts of common assault.
After having her hair cut, the complainant was told to go into a bedroom and strip totally down. The applicant gave her a pair of thin leggings and thin jumpers. She told the complainant not to wear underwear. The complainant was then taken back to the loungeroom where the applicant produced a chain and padlock. The complainant was chained around both wrists and padlocked and told if she made a noise it would make things worse. The applicant told the complainant she was going for a “boot ride and that I would never be coming back”.[32]
[32]AB 72/22.
The complainant was made to lie on the back seat of a motor vehicle. Her hands were bound by the chain. The applicant covered her eyes with a blindfold. She was taken to a remote location. She was forced to climb a barbed wire fence without shoes. She was chained to the base of a tree by a river bank. Her arms were outstretched and another chain was used by the applicant to tie her arms to a tree branch.
The applicant told the complainant she hoped she liked the view as it was the last “before I died”.[33] The complainant was left chained in that position whilst the applicant and Hayman left the scene. The complainant feared she would drown. She said goodbye to her loved ones. She suffered pain and cramping whilst chained to the tree. The applicant and Hayman returned some time later, released her and took her back to the house. Those events represented the count of deprivation of liberty.
[33]AB 77/7.
The complainant said when they first returned to the house, the applicant was nice to her. She allowed the complainant to shower. The applicant also gave her clean clothes and tried to fix up her hair. The complainant was then told to go into the loungeroom. She was told to sit on the lounge. A chain was attached to her right ankle. The chain was affixed to the floor. It was long enough to allow the complainant to move from the lounge area into the bathroom.
Whilst the complainant was sitting on the lounge she heard the applicant tell Hayman she was going to “fuck me the way I had fucked her life up”. The applicant said she was going to use a vibrator covered in Dencorub to “fuck” the complainant. The applicant forced the complainant’s legs open, pulled down her pants and forcibly penetrated the complainant’s vagina about four times with a vibrator. The complainant could smell Dencorub. It was done in a very forceful manner. It hurt a lot. The complainant felt burning in her vagina. The complainant started to cry. Those events constituted the count of rape.
When the applicant finished penetrating the complainant, the applicant walked away. The complainant went to the bathroom and tried to clean off the Dencorub. The complainant then went back and lay down on the lounge. She fell asleep. The next day she heard noises consistent with school children. The complainant manipulated her foot and was able to remove the chain. She ran into the street and to a local hotel. The owner called police.
Trial
The trial of the applicant was conducted on the basis that the Crown relied upon each of the offences, including the rape, as particulars of the torture count. The Crown also relied on other events such as the complainant being tethered to the loungeroom floor, having her head encased by a pillow case, being poked with a baseball bat, being threatened with injection of a syringe of vinegar, being made to go outside and urinate like a dog and having a taser or cattle prod used on her body.
Consistent with the conduct of the trial, both the prosecutor and defence counsel submitted on sentence that the sentencing Judge ought to impose one sentence of imprisonment reflective of the applicant’s overall criminality. Both submitted that sentence should be imposed on the torture count. Each expressly agreed there was no need for the sentencing Judge to impose separate sentences for those other counts.
Sentencing hearing
The sentencing Judge was not provided with a victim impact statement on sentence. However, the complainant had given evidence at trial of the effects of the episode upon her including that she had at times feared for her life and thought she was going to die. She spoke of the pain and distress suffered by her as a consequence of those events. She spoke particularly of her humiliation as a consequence of being made to urinate like a dog and at being sexually penetrated by the applicant.
The sentencing Judge was provided with material indicating that the applicant had suffered violence as a child and in adult relationships. She had also suffered chronic nightmares consequent upon witnessing her son being involved in a serious accident in 2013. The applicant developed post-traumatic stress with significant consequences to her mental health. She had thereafter declined into the use of illicit drugs.
Sentencing remarks
The sentencing Judge observed that the circumstances of the offending were serious. The complainant had been subject to frightening, degrading, humiliating and in some instances, violent acts. She had been threatened with death and with having her fingers cut off if she answered questions incorrectly. The rape by the applicant was particularly degrading, being carried out with a vengeful motive and with the intention of inflicting both humiliation and pain.
The sentencing Judge observed that whilst the complainant did not suffer any lasting injuries and her physical injuries were limited to bruising and tenderness, the events occurred over a number of days and only ended when the complainant managed to release herself and escape the scene. The trial process itself was distressing to the complainant.
After referring to comparable authorities, the sentencing Judge found the appropriate sentence for the offence of torture was between eight to 10 years imprisonment. As a serious violence offence declaration was going to be made, the sentence imposed was eight years imprisonment. The time served in custody to date was declared as time served under the sentence.
Hayman’s sentence
The sentencing Judge observed that Hayman had threatened to cut off the complainant’s fingers if she answered questions incorrectly and that he had done so whilst armed with a machete. Hayman had also accompanied the applicant and the complainant to the service station for the purposes of taking money from the complainant’s bank account.
The sentencing Judge saw no distinction to be drawn between Hayman’s involvement and that of the applicant in either the robbery or the threatening of violence offences. However, Hayman was not involved in the further offences of unlawful assault occasioning bodily harm in company, common assault and rape.
The sentencing Judge further observed that in respect of the offence of deprivation of liberty, Hayman was present throughout what would have been a frightening, degrading and humiliating event. Again, he was equally responsible for that offending. However, Hayman had some redeeming features. He ultimately released the complainant from her detention on the river bank.
The sentencing Judge observed that whilst Hayman had a poor criminal history, he had had a prejudicial upbringing including being subjected to violence at a young age and becoming a user of illicit substances at a very young age. He had previous diagnoses of ADHD and schizophrenia and was suffering from depression and anxiety when assessed by a psychologist. He was receiving medication for his psychiatric conditions. Hayman had also pleaded guilty at an early stage.
The sentencing Judge noted that the applicant was sentenced to eight years imprisonment with a serious violent offence declaration. The applicant had a similar criminal history. The applicant was also on bail at the time of the offences. However, Hayman breached a suspended sentence and a probation order by committing the offences. The rape by the applicant was a significant aggravating feature of the applicant’s offending.
The sentencing Judge said after taking into account the differing criminality and the benefit of Hayman’s pleas of guilty, a serious violent offence declaration ought not to be made in respect of Hayman. The sentence which reflected Hayman’s overall level of criminality and took into account the steps in his favour, including the plea of guilty and his prospects of rehabilitation, was a sentence of six years imprisonment with parole eligibility fixed at two years. That sentence was imposed on the count of torture.
Applicant’s submissions
The applicant submits the sentencing Judge erred in proceeding to incorporate the rape as a particular of the torture offence. Whilst the applicant and Hayman were charged as co-offenders on the torture count, Hayman was not charged with the rape. The applicant submits co-offenders cannot have different acts forming the offence of torture.
The applicant further submits the sentence imposed on Hayman was consistent with authority and in accordance with a proper exercise of the discretion. The sentence imposed on the applicant, as a consequence of the effect of the serious violent offence declaration, violated the principle of parity. The sentencing Judge properly noted there was no significant distinction between the applicant and Hayman’s antecedents and that their conduct was generally comparable.
The only point of difference, the rape, was not itself within the category of offence deserving of a declaration of a serious violent offence. The rape did not involve penile penetration and any additional risk of unwanted pregnancy or sexually transmitted disease. It was committed over a short period of time. The applicant desisted when the complainant started to cry. The use of Dencorub, whilst causing significant temporary pain, was alleviated by allowing the complainant to wash herself after the act. There was no other act of violence committed upon the complainant in order to effect the rape.
Finally, the applicant submits the sentence imposed was manifestly excessive as a consequence of the declaration of a serious violent offence. A consideration of comparable authorities supported the conclusion that a sentence of eight years imprisonment would only have been appropriate had the torture been for a longer period, with consequences far more severe and where the rape was accompanied by other acts of violence or gratuitous sadism.
Respondent’s submissions
The respondent submits the sentencing Judge properly considered the rape offence to be a particular of the torture offence. The trial of the applicant had been conducted on that basis and its inclusion was consistent with the submissions of both the prosecutor and the applicant’s legal representatives. The approach adopted by the sentencing Judge was also consistent with the approach to be undertaken when sentencing for a course of conduct reflected by an overarching offence of torture.
The respondent submits there is no error in principle by reason of the fact that the applicant and her co-offender, whilst charged with the one offence of torture, had engaged in differing acts said to constitute the conduct the subject of that torture offence. The acts alleged against each supported an offence of torture. A court, in sentencing an offender, is required to consider the individual conduct of each co-offender. The sentencing remarks properly reflected those differing acts.
The respondent further submits that the sentence imposed on the applicant did not breach the principle of parity. Difference sentences properly reflect different degrees of criminality. There were significant features of distinction between the applicant and Hayman, justifying different head sentences, even allowing for the declaration of a serious violent offence. The applicant had committed the offence of rape and had been convicted after a trial. The declaration of a serious violent offence properly reflected the inclusion of the particularly humiliating conduct of rape, motivated by vengeance and with the intention of inflicting humiliation and pain.
Finally, the respondent submits the sentence imposed was not manifestly excessive. The sentencing Judge properly considered what would otherwise be an appropriate sentence and militated against the effect of the declaration by fixing that sentence at the lower end of that appropriate sentence.
Discussion
Ground 1
The approach adopted by the sentencing Judge in affixing one sentence on the torture count to reflect the overall criminality of the applicant’s conduct was appropriate having regard to the manner in which the trial was conducted and the submissions of counsel. The conduct the subject of the individual charges was relied upon at trial as particulars of the offence of torture. That offence was charged to have occurred over a number of days. There is no error in principle in those circumstances in the sentencing Judge relying upon that conduct in affixing the sentence for the offence of torture.
Further, there is no merit in the applicant’s submission that the sentencing Judge erred in relying upon the offence of rape as a particular of the torture in respect of the applicant whilst both the applicant and Hayman were charged with an offence of torture. That offence properly can involve a variety of differing conduct by co-offenders over a period of time. Each is properly guilty of the offence despite the fact that one may have engaged in more serious conduct than the other.
Ground 1 is not made out.
Ground 2
Disparity between sentences imposed on co-offenders will not of itself establish an error in the exercise of the sentencing discretion. Such an error is only demonstrated where it is established that an applicant is left with a justifiable sense of grievance due to that disparity. In Postiglione v The Queen[34], Dawson and Gauldron JJ observed:
“… Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowances should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. … Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.”
[34](1997) 189 CLR 295.
In the present case, a proper exercise of the sentencing discretion did involve the imposition of a different sentence on the applicant to that of Hayman. The applicant had been additionally convicted of an offence of rape and two offences of common assault. The infliction of these acts of violence was a significant aggravating feature, particularly having regard to the finding that the rape was a vengeful act intended to inflict humiliation and pain. That conclusion was not affected by the distinction between the applicant’s personal circumstances and her more limited criminal history. That conduct was properly reflected in the making of the declaration of a serious violent offence in respect of the offence of torture when sentencing the applicant. At that time, Hayman had not been sentenced for the offences.
When Hayman was sentenced subsequently, the sentencing Judge imposed not only a lesser head sentence of six years but declined to make a declaration that the offence of torture was a serious violent offence. The consequence of this sentence was that Hayman, who had engaged in much of the conduct the subject of the offence of torture, including having threatened to cut off the complainant’s fingers with a machete, received the benefit of both a significantly reduced head sentence on that offence and not having to serve 80 per cent of the sentence imposed upon him for the offence of torture.
Such a sentence involved such a marked disparity between the treatment of the applicant and Hayman as to leave the applicant with a justifiable sense of grievance. Whilst the applicant inflicted the more serious aspect of the torture, namely, the rape of the complainant, and the offence of common assault, those features were not of a magnitude to justify both a higher head sentence and the requirement to serve 80 per cent of that higher head sentence. The sentence imposed on the applicant was “a badge of unfairness” sufficient to justify the intervention of this Court.[35]
[35]Lowe v The Queen (1984) 154 CLR 606 at 610.
As a consequence of this conclusion, it is necessary to re-exercise the sentencing discretion in respect of the applicant. As that re-exercise is occurring in the context of a finding of disparity sufficient to constitute an error in the proper exercise in sentencing discretion, any re-exercise of the sentencing discretion must have regard to the sentence imposed on Hayman.
Having regard to Hayman’s sentence and the respective conduct of the applicant and Hayman, the appropriate sentence to reflect their differing degrees of culpability is a sentence of six years imprisonment for the offence of torture with a declaration that offence is a serious violent offence.
The consequence of such a sentence is that the applicant will serve significantly more actual time in custody than Hayman. However, that discrepancy properly reflects the differing culpability and, in particular, the heinous act of rape committed by the applicant on the female complainant.
Ground 3
Having regard to the conclusion in respect of Ground 2, it is unnecessary to consider this ground. Had it been necessary to do so, I would have declined to re-exercise the sentencing discretion on this basis.
The comparable authorities referred to by both the prosecution and the defence on sentence, and on appeal amply supported the sentencing Judge’s conclusion that the applicant’s sustained conduct over an extended period which was designed to inflict pain and humiliation justified a sentence of between eight and 10 years imprisonment. The imposition of a declaration that the offence was a serious violent offence justified the imposition of a sentence to the lesser end of that range.
Conclusion
The applicant has established that as a consequence of the sentence imposed on Hayman subsequent to her sentence, there is such a marked disparity between her sentence and that imposed on Hayman so as to justify a conclusion that the sentencing discretion miscarried in the applicant’s case.
But for that marked disparity, the applicant would not have succeeded in establishing that the sentence imposed was manifestly excessive in all the circumstances. The sentence imposed on appeal is not to be seen as indicative of the sentence to be imposed in similar circumstances of sustained torture over an extended period of time involving an act of sexual assault undertaken in order to inflict pain and humiliation.
Orders
I would order:
1.Leave to appeal against sentence be granted.
2.The appeal against sentence be allowed.
3.The sentence imposed for the offence of torture be set aside.
4.The applicant be sentenced to six years imprisonment for the offence of torture with a declaration that the offence was a serious violent offence.
5.The orders otherwise made at sentence remain.
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