R v Oac - [2024] QCA 52

SUPREME COURT OF QUEENSLAND

CITATION:

R v OAC [2024] QCA 52

PARTIES:

R
v
OAC
(applicant)

FILE NO/S:

CA No 40 of 2023
DC No 1509 of 2021
DC No 2375 of 2021
DC No 116 of 2023
DC No 199 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 15 February 2023 (Kent KC DCJ)

DELIVERED ON:

9 April 2024

DELIVERED AT:

Brisbane

HEARING DATE:

20 March 2024

JUDGES:

Mullins P, Morrison JA and Brown J

ORDERS:

1. Application for leave to appeal refused.

2. The Registrar of the Court of Appeal is directed to amend the District Court order sheet by adding in respect of Counts 19 and 20 the words “Serious Violent Offence Declaration s 161A, s 161B Penalties and Sentences Act 1992” and “Declare the conviction on each of counts 19 and 20 to be a conviction of a serious violent offence”: and this amendment is to be reflected in the verdict and judgment record issued consequent upon this appeal.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 32 counts on three separate indictments, and a summary charge sheet – where the bulk of the offences related to physical domestic violence perpetrated against the applicant’s partner, including rape, strangulation in a domestic setting and torture – where the applicant was sentenced to a head sentence of nine years imprisonment for the offence of rape, with lesser concurrent terms of imprisonment for the remaining counts – where serious violent offence declarations were made in respect of the rape and torture offences – whether the judge erred by impermissibly taking into account uncharged acts – whether the sentence was manifestly excessive

R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80; [2020] QCA 58, cited
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited
R v Neumann; Ex parte Attorney-General (Qld) [2007] 1 Qd R 53; [2005] QCA 362, cited
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited

COUNSEL:

M J Hynes for the applicant
C W Wallis for the respondent

SOLICITORS:

Gatenby Criminal Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P: I agree with Morrison JA.
MORRISON JA: The applicant pleaded guilty to 32 counts on three separate indictments, and a summary charge sheet. The bulk of the offences related to physical domestic violence perpetrated against the applicant’s partner between January and August 2019. The most serious counts, 13 in total, occurred within a window of 16 hours over two days. The applicant tortured his partner by assaulting, choking, and raping her.
The first indictment (1509/21) concerned 21 counts, all but two of which were charged as domestic violence offences. Those counts may be summarised as follows:[1]
[1]Those counts which were domestic violence offences are marked…

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 Oac

Details

AGLC: R v Oac [2024] QCA 52
Case: [2024] QCA 52
Decision Date: 9 April 2024

CaseChat Overview and Summary

The case of R v Oac involved an appeal against the sentence imposed on the applicant for multiple counts of domestic violence against his partner. The applicant pleaded guilty to 32 counts across three indictments and a summary charge sheet, with the majority of these offences involving physical abuse, including rape, strangulation, and torture. The applicant was sentenced to nine years imprisonment for the rape offence, with lesser concurrent terms for the other counts. The court was required to determine whether the judge had erred in considering uncharged acts and whether the sentence was manifestly excessive or inadequate.

The court held that the sentencing judge did not improperly consider uncharged acts. The facts in question were part of the background information provided to the court, and the sentencing judge had clearly distinguished between those facts and those relevant to the specific counts being sentenced. Furthermore, the court noted that the sentencing judge did not reference those facts when determining the sentences, suggesting they had no impact on the outcome. The court also found that the sentence was not manifestly excessive, as it reflected the severity of the applicant's crimes and was consistent with sentences imposed in similar cases.

The court refused the application for leave to appeal and directed the Registrar of the Court of Appeal to amend the District Court order sheet and the verdict and judgment record to correctly reflect that counts 19 and 20 were declared as serious violent offences. The court's decision was based on the reasoning that there was no realistic prospect that the sentencing judge had misapplied the principles of sentencing, and thus no grounds for appellate intervention existed.

Orders

Orders of the court

1. Application for leave to appeal refused.

2. The Registrar of the Court of Appeal is directed to amend the District Court order sheet by adding in respect of Counts 19 and 20 the words “Serious Violent Offence Declaration s 161A, s 161B Penalties and Sentences Act 1992” and “Declare the conviction on each of counts 19 and 20 to be a conviction of a serious violent offence”: and this amendment is to be reflected in the verdict and judgment record issued consequent upon this appeal.

Background

Background to the litigation

The applicant accepts that the head sentence (nine years on count 8) reflected the criminality of all offending, with lesser concurrent terms of imprisonment being imposed for the remaining counts, consistent with the approach set out in R v Nagy.[6][6][2004] 1 Qd R 63.Relevant facts The circumstances of the offending conduct were not in issue. What follows is taken from the schedules of facts.Indictment 1509/21 and summary offences – Exhibit 2 In 2019, the applicant had been mocking and slapping the complainant and threatening to contact her family to abuse and threaten them. The applicant handed the complainant his mobile phone so the complainant could call his father and asked him to pick the applicant up. Without warning, the applicant rushed at the complainant and punched her to the left side of her head, causing her to fall over sideways and black out for a few moments. The defendant picked up the dropped phone and struck the complainant on the head with the corner of it, before sitting down on a chair and watching the complainant as she cried on the floor.[7][7]Count 1: common assault. After a while, the complainant got up and went to her room and sat on her bed. The applicant came in afterwards and clamped his hand over the complainant’s nose and mouth. The complainant tried to push the applicant off, so he pushed her down and applied pressure to the side of her head and neck and clamped his hand over her mouth and nose again. When the complainant managed to pull away, the applicant pushed his fingers into the complainant’s face around her teeth and gums, causing the complainant significant pain until she relented, and the applicant was able to clamp his hand over her mouth and nose again. During this time, the complainant was unable to breathe at all. When the applicant finally took his hand away, the complainant was still struggling to breathe and was choking.[8][8]Count 2 – suffocation. The applicant picked the complainant up and put her in the shower and turned the cold water on. When the complainant still struggled to breathe the applicant retrieved the complainant’s asthma puffer and threw it on the floor in front of the complainant. The applicant said, “I have a son, I can’t be here”, and ran out of the apartment. The complainant passed out in the shower and woke up on the shower floor. She remained on the shower floor for some time before eventually getting up and changing into some dry clothes. When she looked outside, she noticed that the applicant’s car was gone. Hours later, the applicant returned to the unit with some KFC. The applicant said to the complainant, “I don’t have to touch a hair on your head, I’ll head fuck you, I’ll destroy you emotionally.”Theft of complainant’s jewellery in March 2019 On 23 March 2019, while at the complainant’s home, the applicant stole four pieces of her jewellery.[9][9]Summary offence 1: stealing. The same day, the applicant attended a Cash Converters store and obtained a loan for $130 for the four pieces of stolen jewellery. The applicant signed a form declaring that he was the owner of the stolen jewellery.[10][10]Summary offence 2: fraud.Theft of complainant’s sunglasses in April 2019

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As noted earlier, whilst the sentencing judge declared the offence on counts 19 and 20 to be serious violent offences that was not recorded in the Court Order Sheet or the Verdict and Judgment Record. That must be corrected.Conclusion The application for leave to appeal must be refused. I propose the following order:1.Application for leave to appeal refused.2.The Registrar of the Court of Appeal is directed to amend the District Court order sheet by adding in respect of Counts 19 and 20 the words “Serious Violent Offence Declaration s 161A, s 161B Penalties and Sentences Act1992” and “Declare the conviction on each of counts 19 and 20 to be a conviction of a serious violent offence”: and this amendment is to be reflected in the verdict and judgment record issued consequent upon this appeal. BROWN J: I agree with the orders proposed by Morrison JA and his reasons.

Ratio Decidendi

Legal Principle Established

Fourthly, when the sentencing judge then dealt with each count, the count number was used as a point of reference; as in “count 1”, “count 2” and so forth. Nothing more was said as to the period or conduct in the impugned passage.Consideration For several reasons I am unable to accept the applicant’s submissions on the ground. First, the impugned facts were simply part of the background, and expressly confined as such by the Crown. The statement that “that information is just by way of background” expresses the limitation. Then, the statement, “The offending for which he is to be sentenced is from paragraph 19 of the statement of facts”, makes it plain what facts are relevant, and what are not. They provided a context to the making of the temporary protection Orders, and the applicant’s convictions for contravention of those orders. At no time did the Crown suggest that they were relevant to the offending conduct on each count. Secondly, the defence did not object to the presence of those facts in the schedules, either at the point of tender, or later. Indeed, the defence provided the schedules to Dr Ellis-Smith for the purpose of compiling a pre-sentence report,[39] the report recorded the applicant’s agreement to the facts in the schedules,[40] and referred to some of the 2013/2014 history.[41] Thus the defence made use of the full schedules for their own forensic purposes.[39]AB 147, paragraph 2.3.[40]Paragraph 5.1.[41]Paragraphs 4.1 and 6.4-6.5. Thirdly, in my view, the sentencing judge indicated that he understood that the impugned passage was not part of the facts relevant to sentencing for the specific counts. His Honour referred to the applicant’s and complainant’s cohabitation in 2013 and noted that the description of the applicant’s controlling, abusive and violent behaviour, and use of drugs, in that period were what “the complainant says”. That marked a distinction between those matters and those relevant to the actual offending. Fourthly, after the impugned passage nothing more was said by the sentencing judge as to those facts when assessing the offending conduct and the appropriate sentences. If they had an impact at all one would have expected to see some reference to them. That, in my view, suggests that they had no impact on the sentences. Fifthly, the facts in the impugned passage provided context. These were domestic violence offences and that rendered the background relevant.[42] For the reasons expressed above there is no basis to think that the matters in that passage were taken into account in the sentencing.[43][42]R v CCU [2022] QCA 92, [47]-[49].[43]R v Tahir; Ex parte Attorney-General (Qld) [2013] QCA 294, [15]. I do not consider there is a realistic prospect that the impugned passage was taken into account, or that it may have led to the imposition of a higher sentence.[44][44]R v Stable (a pseudonym) (2020) 6 QR 617, [22]. This ground fails.Ground 2 - sentence manifestly excessive In R v Pham[45] French CJ, Keane and Nettle JJ said:“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”[45](2015) 256 CLR 550, at [28]. (Citations omitted).Approach of the learned sentencing judge

CITATION:	R v OAC [2024] QCA 52
PARTIES:	R v OAC (applicant)
FILE NO/S:	CA No 40 of 2023 DC No 1509 of 2021 DC No 2375 of 2021 DC No 116 of 2023 DC No 199 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 15 February 2023 (Kent KC DCJ)
DELIVERED ON:	9 April 2024
DELIVERED AT:	Brisbane
HEARING DATE:	20 March 2024
JUDGES:	Mullins P, Morrison JA and Brown J
ORDERS:	1. Application for leave to appeal refused. 2. The Registrar of the Court of Appeal is directed to amend the District Court order sheet by adding in respect of Counts 19 and 20 the words “Serious Violent Offence Declaration s 161A, s 161B Penalties and Sentences Act 1992” and “Declare the conviction on each of counts 19 and 20 to be a conviction of a serious violent offence”: and this amendment is to be reflected in the verdict and judgment record issued consequent upon this appeal.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 32 counts on three separate indictments, and a summary charge sheet – where the bulk of the offences related to physical domestic violence perpetrated against the applicant’s partner, including rape, strangulation in a domestic setting and torture – where the applicant was sentenced to a head sentence of nine years imprisonment for the offence of rape, with lesser concurrent terms of imprisonment for the remaining counts – where serious violent offence declarations were made in respect of the rape and torture offences – whether the judge erred by impermissibly taking into account uncharged acts – whether the sentence was manifestly excessive R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80; [2020] QCA 58, cited R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited R v Neumann; Ex parte Attorney-General (Qld) [2007] 1 Qd R 53; [2005] QCA 362, cited R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
COUNSEL:	M J Hynes for the applicant C W Wallis for the respondent
SOLICITORS:	Gatenby Criminal Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent