SUPREME COURT OF QUEENSLAND

SUPREME COURT OF QUEENSLAND CITATION: R v Taylor [2010] QCA 205 PARTIES: R v TAYLOR, Gary Wayne George (appellant) FILE NO/S: CA No 288 of 2009 CA No 27 of 2010 DC No 3089 of 2009 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Appeal against Conviction & Sentence District Court at Brisbane DELIVERED ON: 6 August 2010 DELIVERED AT: Brisbane HEARING DATE: 20 July 2010 JUDGES: ORDERS: McMurdo P, Fraser JA and White JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made 1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence refused. CATCHWORDS: CRIMINAL LAW PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON SEXUAL OFFENCES ALTERNATIVE VERDICTS appellant charged with burglary, two counts of assault occasioning bodily harm, attempted rape, or, in alternative, sexual assault whilst armed, two counts of wilful damage and stealing appellant pleaded not guilty to all counts except wilful damage appellant discharged on rape count jury unable to reach verdict for sexual assault whilst armed jury unanimously agreed on verdict of sexual assault without circumstance of aggravation judge took verdict on lesser charge of sexual assault without circumstance of aggravation counsel did not object to manner of taking verdict whether trial judge erred in taking verdict in this manner whether miscarriage of justice occurred CRIMINAL LAW _ APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE GROUNDS FOR INTERFERENCE SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE appellant sentenced to a

2 COUNSEL: SOLICITORS: totality of three and a half years imprisonment with parole eligibility set at 27 February 2011 appellant behaved in irrational, violent way demonstrated absence of remorse or insight into his conduct previously had benefit of community based orders character references to appellant's advantage whether sentence was manifestly excessive CRIMINAL LAW SENTENCE SENTENCE PROCEDURE FACTUAL BASIS FOR SENTENCING GENERALLY appellant submits that trial judge wrongly found that victim's facial injuries caused by appellant throwing keys whether judge wrongly considered this fact as part of the sexual assault whether judge wrongly took into account extraneous matters when sentencing Criminal Code 1899 (Qld) (1899), s 2, s 16, s 17, s 325, s 564, s 575, s 585, s 598, s 602, s 604 Evidence Act 1997 (Qld), s 132C Jury Act 1995 (Qld), s 60 Black v The Queen (1993) 179 CLR 44; [1993] HCA 71, cited Herpich v Martin [1995] 1 Qd R 359; [1994] QCA 18, followed R v D [1996] 1 Qd R 363; [1995] QCA 329, considered R v McCready [1967] VR 325, cited R v Puchala [2003] QCA 560, considered R v Sambai [2003] QCA 142, considered R v Stallan [2010] QCA 68, considered Ross v The Queen (1979) 141 CLR 432; [1979] HCA 29, cited Stanton v The Queen (2003) 198 ALR 41; [2003] HCA 29, considered The Queen v de Simoni (1981) 147 CLR 383; [1981] HCA 31, cited D C Shepard for the appellant M B Lehane for the respondent Legal Aid Queensland for the appellant Director of Public Prosecutions for the respondent [1] McMURDO P: The appellant was charged in the Brisbane District Court with burglary by breaking in the night (count 1); two counts of assault occasioning bodily harm while armed (counts 2 and 3); attempted rape (count 4); sexual assault while armed (count 5, an alternative charge to count 4); two counts of wilful damage (counts 6 and 7); and stealing (count 8). He pleaded guilty to count 6 and not guilty to all other counts and his trial commenced on 27 October 2009. On 28 October 2009, the prosecutor entered a nolle prosequi on count 4 and the appellant was discharged on that count. [2] The jury, on 30 October 2009, found the appellant not guilty on count 1 (both burglary by breaking in the night and burglary in the night); not guilty on counts 7

3 and 8; and guilty on count 2. They were unable to reach a verdict in respect of count 3. In respect of count 5, the jury were unable to reach a verdict for the charged offence of sexual assault whilst armed, but found the appellant guilty of sexual assault without the circumstance of aggravation that he was armed. He was sentenced to three and a half years imprisonment for the assault occasioning bodily harm whilst armed (count 2); two years imprisonment for the sexual assault (count 5 without the circumstance of aggravation) and 12 months imprisonment for the wilful damage (count 6). Pre-sentence custody of 152 days was declared as time served under the sentence and parole eligibility was set at 27 February 2011. The prosecution subsequently entered a nolle prosequi in respect of count 3 but made no endorsement in respect of the circumstance of aggravation charged in count 5. [3] The appellant appeals against his conviction of sexual assault without the circumstance of aggravation that he was armed (count 5) contending that the judge erred in taking a verdict on that alternative, lesser charge when the jury could not agree on a verdict on the substantive, more serious charge of sexual assault whilst armed. He also applies for leave to appeal against his sentence contending that the judge erred in taking into account extraneous matters in sentencing and that, in any case, the sentence was manifestly excessive. [4] These are my reasons for dismissing the appeal against conviction and refusing the application for leave to appeal against sentence. The appeal against conviction [5] The appellant had been living at the complainant H's home for at least some days each week and they had been in a personal and sexual relationship. The judge accepted H's evidence that the appellant knew their relationship had ended at least by the time of the offending. H had been out for the evening and M, her platonic male friend, brought her home. She asked him to stay overnight as she had to rise early the next morning to collect her children and was concerned she might still be over the lawful blood alcohol limit and should not drive. M slept in her bed for convenience but they were not intimate. In the early hours of 4 October 2008, the appellant entered H's home to find H in bed with M. The appellant attacked M with a baseball bat and caused him severe bruising and broke his eye socket (count 2 on which the appellant was convicted). [6] H's evidence on count 5 (sexual assault whilst armed on which the jury convicted only of sexual assault) was as follows. H woke up to find the appellant beside the bed. He said, "You fucking slut, how could you do this?" He was hitting M with a bat. The appellant chased M out of the house and returned to assault her. He threw the bat down, climbed into her bed and grabbed her around the throat. He said, "If you want to act like a fucking slut I'll treat you like a fucking slut." He began to tear off her underpants, bra and t-shirt. She yelled out to a neighbour for help. The appellant stood up and went towards the door. He threw some keys at her, striking her in the mouth, injuring her lip and teeth. She ran naked from her house to her neighbour's. [7] The appellant gave competing evidence but it is unnecessary to refer to it in discussing the ground of appeal which concerns only the taking of the verdict on count 5. [8] Prior to the commencement of counsel's addresses and the judge's summing-up, counsel and the judge discussed matters of law in the absence of the jury. They did not discuss the manner of the taking of the verdict on count 5.

4 [9] As to count 5, the primary judge directed the jury that the issues were whether the appellant actually undressed H and, if so, whether it was indecent; without her consent; and provocation was excluded. The judge continued: "The circumstance of aggravation is that immediately before the offence the [appellant] was armed with an offensive weapon. If you're satisfied beyond reasonable doubt that the [appellant] had the bat as an offensive weapon immediately before the sexual assault on [H], that circumstance of aggravation would be satisfied. On her evidence he dropped the bat and then got on the bed and commenced the taking off of her clothes. He says the bat was left outside in the hallway somewhere before he went into the room after [M] left. So, you'll be asked, firstly, about the whole of that offence with the circumstance of aggravation when you're asked for a verdict. You'll be asked for a verdict in respect of sexual assault whilst armed. If your response to that is not guilty you'll then be asked for a verdict in respect of sexual assault. That doesn't have the circumstance of aggravation and, again, your verdict can be guilty or not guilty." [10] Counsel did not apply for any redirections in respect of count 5 or the proposed manner of the taking of the verdict on it. The jury ultimately retired to consider its verdict at 9.52 am on 30 October 2009. At 5.27 pm, the court reconvened in the absence of the jury and the judge stated: "We have a note that the jury is hung on count 3 and count 5, but only on the second - the circumstance of aggravation for count 5." The judge raised the possibility of informing the jury of the majority verdicts provisions of the Jury Act 1995 (Qld). Defence counsel instead asked that the judge discharge the jury in respect of counts 3 and 5. After hearing further submissions from both counsel, the judge accepted their contentions that it was premature to inform the jury of the possibility of majority verdicts. The judge added: "But I think that I should have them in and ask them whether they are indicating that they are completely deadlocked in respect of those counts and whether they're ready to deliver verdicts in respect of the others." Both counsel agreed with that course. [11] The jury returned to the court room and the following exchange occurred: "Ladies and gentlemen, I just wanted to clarify with you what your note meant. I know that it says that you're hung on count 3 and the circumstance of aggravation in count 5. Does that mean that you're - you feel that you're hopelessly deadlocked in respect of those counts, is that so? SPEAKER: Yes. HER HONOUR: All right. Does it also mean that you have verdicts in respect of the other counts on the indictment? JURY: Yes. HER HONOUR: All right. Are you ready now to deliver verdicts in respect of those other counts?

5 SPEAKER: Yes. HER HONOUR: All right. I'll take those verdicts that you have and discharge you in respect of the ones on which you cannot agree. Yes, take the verdict. If you cannot agree in response to the question about the verdict as saying - you'll be asked do you have a verdict in respect of that matter and if it's - if it is a charge on which you cannot agree, simply say that you don't have the verdict - you don't have a verdict in respect of that count, or that you cannot agree." [12] The judge did not give the jury a direction of the kind discussed in R v Black; 1 nor did she ask them to further consider their verdicts on counts 3 and 5. Again, neither counsel objected to the judge's proposal as to the manner of taking the verdict and the judge's associate proceeded to do so. The taking of the verdict on count 5 occurred in this way: "ASSOCIATE: Members of the jury, are you agreed upon your verdicts with respect to count 5 on the indictment, which is the sexual assault while armed? JURY: Yes. ASSOCIATE: Members of the jury, do you find the [appellant] guilty or not guilty of count 5, that being sexual assault while armed? SPEAKER: Guilty. ASSOCIATE: Guilty, your Honour. So says your speaker, so says you all? HER HONOUR: Sorry, just a minute, I just want to clarify. JURY: Sorry, five is A and B. HER HONOUR: Sorry, there is sexual assault whilst armed. If not guilty of being armed - if not guilty - if you're not agreed that he's guilty of being armed, you'd then be asked----- SPEAKER: Oh, sorry----- HER HONOUR: -----sexual assault----- SPEAKER: Okay, then, sorry. HER HONOUR: All right. No, that's all right. So, your response in relation - if you're not agreed in respect of sexual assault whilst armed, you can simply say that you do not have a verdict on that and then----- SPEAKER: We do not have a verdict - sorry. HER HONOUR: -----and then you'll be asked about the simpliciter, yes. If you could take that verdict again. 1 (1993) 179 CLR 44.

ASSOCIATE: We'll take that verdict again. SPEAKER: Okay. 6 ASSOCIATE: With respect to count 5 on the indictment, members of the jury, do you find the [appellant] guilty or not guilty of sexual assault while armed? SPEAKER: No verdict. HER HONOUR: The jury - yes, ask the alternative. ASSOCIATE: In the alternative, members of the jury, do you find the [appellant] guilty or not guilty of sexual assault? SPEAKER: Guilty. ASSOCIATE: Guilty, your Honour. So says your speaker, so say you all? JURY: Yes." The relevant legislative provisions [13] The term "circumstance of aggravation" is defined in s 1 Criminal Code as "any circumstance by reason whereof an offender is liable to a greater punishment than that to which the offender would be liable if the offence were committed without the existence of that circumstance". [14] The term "offence" is defined in s 2 Criminal Code: "2 Definition of offence An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence." [15] Sections 16 and 17 Criminal Code relevantly provide: "16 Person not to be twice punished for same offence A person can not be twice punished under the provisions of this Code for the same act or omission, 17 Former conviction or acquittal It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been acquitted upon indictment, or has already been convicted, of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged." [16] Count 5 was an offence against s 352 Criminal Code which relevantly provides:

7 "352 Sexual assaults (1) Any person who (a) unlawfully and indecently assaults another person; is guilty of a crime. Maximum penalty 10 years imprisonment. (3) Further, the offender is liable to a maximum penalty of life imprisonment if (a) immediately before, during, or immediately after, the offence, the offender is armed with a[n] offensive weapon." [17] Section 564 Criminal Code relevantly states: "564 Form of indictment (2) If any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment.." [18] Section 575 Criminal Code states: "575 Offences involving circumstances of aggravation Except as hereinafter stated, upon an indictment charging a person with an offence committed with circumstances of aggravation, the person may be convicted of any offence which is established by the evidence, and which is constituted by any act or omission which is an element of the offence charged, with or without any of the circumstances of aggravation charged in the indictment." [19] Section 585 Criminal Code relevantly provides: "585 Effect of conviction A person convicted under any of the provisions of sections 575 to 584 is liable to the same punishment as if the person had been convicted on an indictment charging the person with the offence of which the person is actually convicted." [20] Section 598 Criminal Code relevantly provides: "598 Pleas (1) If the accused person does not apply to quash the indictment or move for a separate trial of any count or counts of the indictment, the person must plead to it.

8 (2) If the accused person pleads, the person may plead either (a) that the person is guilty of the offence charged in the indictment, or, with the consent of the Crown, of any other offence of which the person might be convicted upon the indictment; or (b) that the person is not guilty; or (c) that the person has already been convicted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been convicted of an offence of which the person might be convicted upon the indictment; or (d) that the person has already been acquitted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been acquitted upon indictment of an offence of which the person might be convicted upon the indictment; or (e) that the person has already been tried and convicted or acquitted of an offence committed or alleged to be committed under such circumstances that the person can not under the provisions of this Code be tried for the offence charged in the indictment;." [21] Section 602 Criminal Code provides: "602 Plea of autrefois convict or autrefois acquit In a plea that the accused person has already been convicted or acquitted, it is sufficient to state that the accused person has been lawfully convicted or acquitted, as the case may be, of the offence charged in the indictment, or of the other offence of which the person alleges that the person has been convicted or acquitted, and, in the latter case, to describe the offence by any term by which it is commonly known." [22] Section 604 Criminal Code relevantly provides: "604 Trial by jury (1) if the accused person pleads any plea or pleas other than the plea of guilty, a plea of autrefois acquit or autrefois convict, the person is by such plea, without any further form, deemed to have demanded that the issues raised by such plea or pleas shall be tried by a jury, and is entitled to have them tried accordingly. (2) Issues raised by a plea of autrefois acquit or autrefois convict must be tried by the court." [23] Jury Act s 60 provides: "60 Jury may be discharged from giving verdict (1) If a jury cannot agree on a verdict, the judge may discharge the jury without giving a verdict.."

Conclusion on the appeal against conviction 9 [24] Counsel for the appellant contends that, as the jury were unable to agree on the charge contained in count 5 of the indictment, namely, sexual assault whilst armed with an offensive weapon, the trial judge was required to discharge the jury from delivering a verdict on count 5, even though the jury had reached a unanimous verdict on sexual assault without the circumstance of aggravation. [25] Counsel for the appellant argues that his contention is supported by, and follows from, the High Court's decision in Stanton v The Queen. 2 Stanton had pleaded not guilty to the wilful murder of his estranged wife. It was uncontentious that he fired the fatal shot. He claimed he did not intend to kill or harm her, but went to her house armed with a shotgun intending only to frighten her and to make her negotiate. Although he could not recall pulling the trigger, he said he "must have" done so as she came towards him. After the jury had been deliberating on their verdict for about four hours, they asked the judge: "If the jury is in conflict, do those who believe he is guilty of wilful murder have to move down to the charge of manslaughter? Do 12 people have to agree to move down to manslaughter?" The judge responded: "Yes, the law is quite clear. You can't come to consider the alternative verdicts of murder or manslaughter unless you are unanimously of the view that he is not guilty of wilful murder. So, whatever your verdict is on the first charge of wilful murder, it must be unanimous." After further deliberating for just over an hour, the jury returned a unanimous verdict of guilty of wilful murder. [26] Stanton appealed against his conviction to the Western Australian Court of Criminal Appeal. Owen J considered the judge's italicised direction above was correct but would have allowed the appeal on another ground. Malcolm CJ and Murray J concluded that the direction was erroneous, but as it did not result in a miscarriage of justice, dismissed the appeal. [27] Stanton was granted special leave to appeal to the High Court of Australia where the majority (Gleeson CJ, McHugh and Hayne JJ) noted: " the prosecution was entitled to have the trial judge seek a verdict on the charge in the indictment, and if the jury were unable to agree, either on a verdict of guilty of wilful murder or a verdict of not guilty of wilful murder, then the proper course was to discharge the jury. As [the trial judge] told the jury immediately before they retired, the first question they would be asked when they returned was whether they found the appellant guilty or not guilty of wilful murder. It would not have been a permissible response to that question for the jury to announce that they were unable to agree on that, but were all agreed that, if the appellant was not guilty of wilful murder, he was 2 (2003) 198 ALR 41; [2003] HCA 29.

10 at least guilty of manslaughter. If they were unable to agree on whether the appellant was guilty or not guilty of wilful murder, then they would be unable to agree on their verdict in relation to the charge in the indictment. They would then be discharged. [23] The corollary of that proposition is that, as [the trial judge] told the jury, they would only be asked whether they found the appellant guilty or not guilty of murder if they had already found him not guilty of wilful murder; and they would only be asked whether they found the appellant guilty or not guilty of manslaughter if they had already found him not guilty of wilful murder and not guilty of murder. In Gammage v R [(1996) 122 CLR 444 at 453] Kitto J said: 'The common law, authorizing as it did a verdict of guilty of manslaughter on an indictment for murder, always made it a condition of the validity of that verdict that the jury should first have returned a verdict of not guilty of murder.' [24] In R v McCready [(1967) VR 325 at 329], the Full Court of the Supreme Court of Victoria, speaking of a case where the indictment charged rape and where there was, by statute, a possible alternative verdict of assault with intent to commit rape, said: 'The terms of [the statute], in our view, make a verdict of assault with intent to commit rape dependent upon the jury being not satisfied that the accused is guilty of the crime of rape. The question of his guilt of the alternative charge does not arise unless and until the jury is not satisfied of his guilt of rape, and whilst the jury is in a state of disagreement upon the latter, the accused's guilt of the alternative crime remains irrelevant.' [25] There is nothing in the Criminal Code that warrants a different conclusion in a case such as the present. [39] the question asked by the jury concerned the consequences of disagreement. It postulated that the jurors were 'in conflict', that some 'believed' the appellant was guilty of wilful murder and, by implication, that others believed he was guilty of manslaughter. It asked whether, in that event, those who were in the former group 'have to move down to the charge of manslaughter'. This was clearly a reference back to the judge's direction in which he said: 'If you are unanimously of the view that he's not guilty of wilful murder, then you will consider murder... If you are unanimously of the view that he's not guilty of murder, then you will consider manslaughter'. The jurors were responding to that by asking a question as to their responsibilities if some of them were of the view that he was guilty of murder and others were not. They asked whether the former group would then be obliged to 'move down'. That must have been a reference to the point of final decision; the finding of a verdict. Since the choice between wilful murder and manslaughter turned upon the resolution of the one issue, intent, the question cannot have been

11 directed to a sequence of reasoning, as distinct from the formal act of finding a verdict. It was clearly understood, by the judge and by trial counsel (who agreed with the judge's response), as a question about the formal act of finding a verdict. That was the sense in which he used the word 'consider' in the first sentence of his answer, as is further indicated by the terms of the second sentence of the answer. So understood, the answer was consistent with what the judge had earlier told the jury, and it involved no error." [28] Stanton is, of course, binding on this Court, but there are significant distinctions between it and the present case. First, Stanton concerned the returning of verdicts for the offences of murder (see Criminal Code s 302 and s 305) and manslaughter (see Criminal Code s 303 and s 310) which, though both offences of unlawful homicide (see Criminal Code s 300), are distinct offences. By contrast, the offence charged in count 5 was brought under s 352(1) Criminal Code, 3 sexual assault. It was the sexual assault which was the act rendering the appellant liable to punishment and which therefore constituted the offence under s 2 Criminal Code. 4 Under s 352(3) Criminal Code, it is a circumstance of aggravation as defined in s 1 Criminal Code 5 making the appellant liable to a greater penalty, namely, life imprisonment, if he is armed with an offensive weapon whilst he commits the sexual assault. Sexual assault and sexual assault whilst armed, unlike murder and manslaughter, are not separate offences. They are the same offence but the circumstance of aggravation, if established, makes the offender liable to a heavier penalty, provided that it is charged in the indictment: see s 564(2) Criminal Code. 6 If the jury convicts on the offence of sexual assault without the circumstance of aggravation, the offender will be sentenced accordingly: s 585 Criminal Code. 7 [29] The same distinction can be made between this case and R v McCready 8 cited by the High Court in Stanton. McCready concerned the separate offences of rape and assault with intent to rape. [30] My view is consistent with the observations of McPherson and Davies JJA, Fitzgerald P agreeing, in Herpich v Martin: 9 "Contrary to the submission advanced before us on appeal, the addition to a charge of assault occasioning bodily harm under s 339 of a circumstance of aggravation mentioned in the third paragraph of that section does not alter the nature of the offence or turn it into a different or distinct offence. A comparable argument has been rejected in the case of aggravated assault under s 344 : see Cronin v. Hamilton-Smith, Ex parte Hamilton-Smith [1958] Qd.R. 24, approved in Ross v. The Queen (1979) 141 C.L.R. 432, 437. The same conclusion follows perhaps with even greater force in the case of an assault occasioning bodily harm under s 339 : cf. Ross v. The Queen (1979) 141 C.L.R. 432, 438-439." 10 3 4 5 6 7 8 9 10 Set out in [16] of these reasons. Set out in [14] of these reasons. Set out in [13] of these reasons. Set out in [17] of these reasons. Set out in [19] of these reasons. [1967] VR 325. [1995] 1 Qd R 359. At 361.

12 [31] Gibbs CJ's observations in Ross v The Queen, 11 cited by their Honours in Herpich, also supports my view that sexual assault and the same sexual assault with a circumstance of aggravation are not separate offences. " Neither the words of s 2 of the Criminal Code, nor those of the definition of 'circumstance of aggravation' in s 1, appear to me to support the view that an offence committed with circumstances of aggravation is necessarily a different offence from the offence without those circumstances, although s 575 contemplates that an element of an offence committed with circumstances of aggravation may itself constitute a different offence." 12 [32] But even if that is not sufficient to distinguish Stanton, there is a second distinguishing feature between Stanton and the present case. Stanton's trial ended in a verdict of guilty to wilful murder, which was the verdict sought throughout the trial by the prosecution. At no time during Stanton's trial did the jury indicate that they had a unanimous verdict on manslaughter. And nor did the prosecution indicate it would have accepted such a verdict in full satisfaction of the indicted charge. By contrast, in the present case, the transcript indicates that although the jury could not decide whether the appellant was guilty or not guilty of sexual assault whilst armed, they had unanimously agreed on their verdict of simple sexual assault. The judge foreshadowed that, if the jury confirmed they were unable to reach a verdict on sexual assault whilst armed but had reached a unanimous verdict on sexual assault without the circumstance of aggravation, the judge would discharge them from returning a verdict on the former and take their verdict on the latter. Both prosecutor and defence counsel acceded to this course. [33] Although the prosecution did not ultimately endorse the indictment that it accepted the verdict on count 5 in full discharge of that count, that is the only reasonable inference of prosecutorial intention from the circumstances. It must have been clear to defence counsel from the jury's questions to the judge about count 5 that, as some members apparently wanted to convict on the aggravated sexual assault, it was likely that their unanimous verdict on sexual assault without the circumstance of aggravation was guilty. It was nevertheless in the interests of the appellant to accept that verdict (which made him liable to a maximum penalty of 10 years imprisonment) rather than to risk a Black direction, followed by more time for the jury to deliberate, and the possibility of a jury conviction on the aggravated offence (which made him liable to a maximum penalty of life imprisonment). [34] As the appellant's counsel points out, s 604 Criminal Code gives an accused person who has pleaded not guilty the right to have the issues raised by his plea tried by a jury. But s 604 does not oblige him to exercise that right. Accused people often plead guilty, either to the offence charged or, with the concurrence of the prosecutor, to a lesser offence, during the trial. Nothing in the terms of s 604 precluded the appellant, through his counsel and with the prosecutor's concurrence, from agreeing to accept the jury verdict on the offence of sexual assault without the circumstance of aggravation in full discharge of count 5 on the indictment. That, in my view, is what happened in the present case. The judge did not in terms discharge the jury from returning a verdict on the charged offence in count 5 containing the circumstance of aggravation, but she foreshadowed that this was her 11 12 (1979) 141 CLR 432. At 439.

13 intention. 13 As I have noted, the prosecution at no time endorsed the indictment that it accepted the jury verdict on count 5 in full satisfaction of it, but there can be no doubt that that was the prosecutorial intention. As the appellant was originally charged with rape (count 4), alternatively sexual assault whilst armed (count 5), both of which carried maximum penalties of life imprisonment, his conviction for sexual assault without the circumstance of aggravation, which carried a maximum penalty of 10 years imprisonment, was a favourable outcome for him. Apart from the significantly lower maximum penalty, it effectively meant that he could not be charged again with rape or sexual assault with the circumstance of aggravation as charged in count 5: see s 16, s 17, s 585, s 598(2)(c) and (e) and s 602 Criminal Code. 14 [35] These important distinctions between Stanton and the present case have the result that the taking of the unanimous verdict for simple sexual assault on count 5 was not an error on the part of the trial judge and nor could it be said to have resulted in any miscarriage of justice: s 668E(1) Criminal Code. It follows that the appeal against conviction must be refused. The application for leave to appeal against sentence The appellant's contentions [36] Counsel for the appellant contends that the judge, contrary to the principles outlined by this Court in R v D 15 erred when sentencing the appellant, who was convicted only of sexual assault, in taking into account matters which established a circumstance of aggravation to the sexual assault, namely, that the appellant threw a set of keys at H injuring her lip and teeth. He also contends that the judge erred in concluding in the factual findings upon which she relied when sentencing, that the appellant "threw the keys at [H] with such force that he damaged her teeth and cut her lip" when H's evidence was that these injuries were also caused by being punched. He contends that, as a result, the sentencing discretion miscarried and this Court should now resentence the appellant. Alternatively, he contends that the sentence was manifestly excessive, relying principally on R v Puchala. 16 He urges this Court to substitute an effective, global sentence of two and a half years imprisonment, with parole eligibility or suspension at the half way point. If a suspended sentence were imposed, he suggests an operational period of between three and five years. The sentencing proceedings [37] The prosecutor provided the following antecedents. The appellant was 41 at the time of the offences and 42 at sentence. He had some relatively minor criminal history commencing in 1984, all of which was dealt with in the Magistrates Court by community based orders. There were two entries of direct relevance. The first was an offence of wilful damage committed on 5 March 1990 for which he was placed on 18 months probation with $15 restitution. The second was his conviction for assault occasioning bodily harm committed on New Year's Eve 2003 for which 13 14 15 16 See these reasons at [10]. The court order sheet attached to the indictment is relevantly endorsed: "Count 5 Sexual assault while armed Without verdict. (Discharged) Sexual assault simplicita (sic) GUILTY." Set out in [15], [19], [20] and [21] of these reasons. [1996] 1 Qd R 363, 403-404; [1995] QCA 329. [2003] QCA 560.

14 he was sentenced to 100 hours community service. He kicked and bruised his 12 year old niece when she pushed away a dog with her foot. [38] The prosecutor and defence counsel encouraged the primary judge to take very different views of the facts. The judge resolved their disputes by finding the following facts before hearing counsel's submissions as to sentence. 17 The jury verdicts did not reflect an adverse assessment of H who impressed as a credible witness, although her ability to recall was compromised by being woken from sleep and the trauma she then experienced. H believed her relationship with the appellant was ended and the appellant knew it had ended. H did not think the appellant was still living in her house. At least by the day before the offending, the appellant knew their relationship was over but had difficulty accepting this. The disintegration of their relationship was in part attributable to the appellant's possessive and controlling traits. He went to H's home unarmed. He became upset to learn that H had gone out that night and grew angrier when he found she had gone to an hotel. Fortified by alcohol, he returned to H's home in the dead of night. When he saw M, the appellant's level of possessive rage was frightening. He knew where the baseball bat was kept, retrieved it and assaulted M whilst M was sleeping. This was an outrageously cowardly and violent assault, a completely disproportionate reaction to seeing M in H's bed. The appellant continued to assault M with full force, even as M promised to leave and tried to dress and flee. After M left, the appellant then assaulted H in a way designed to degrade, humiliate and hurt her. He ripped clothes from her body and gripped her neck so tightly that the marks were clearly visible in photographs. When she was naked, he threw the keys at her with such force that he damaged her teeth and cut her lip. Those circumstances formed part and parcel of the indecent assault without the circumstance of aggravation (count 5) and could properly be taken into account on sentence. After H fled, the appellant wreaked havoc inside the house, putting a knife through the television remote control, slashing couches and walls, destroying telephones and smearing sauce over furniture and other places. [39] The prosecutor emphasised the following matters. The appellant pleaded guilty to count 6 about a week before the trial. His offending was fuelled by a high level of intoxication which explained but did not excuse his behaviour. He had shown no remorse nor insight in the way he conducted the trial. The offending involved an episode of domestic violence and controlling behaviour. It warranted condign punishment. The cowardly appellant, whilst armed, had attacked the sleeping M and caused him very significant injuries. He perpetrated sexual assault on H to degrade and humiliate her. He ripped off her clothes, grabbed her around the throat and threw keys at her, hitting her in the face. He then severely damaged the interior of her house and much of its contents. M suffered a displaced fracture of the eye socket which still troubled him at trial. He had multiple deep bruises all over his back, on his arm, swelling to the back of his head and an injury to his leg. The assaults were committed in H's home where she was entitled to feel safe. The appellant had a prior conviction for an offence of violence. Relying on cases including R v Sambai, 18 he submitted that the appellant should be sentenced to four years imprisonment. [40] Defence counsel at sentence made the following submissions. The appropriate penalties were, for the sexual assault, between 12 and 18 months imprisonment; and for the assault occasioning bodily harm whilst armed, two years imprisonment. The 17 18 See s 132C Evidence Act 1977 (Qld). [2003] QCA 142.

15 appellant had an 18 year old son with whom he had a good relationship. In 1997, he was the victim of an assault resulting in physical injuries, post-traumatic stress disorder and depression. He was unable to work because of his psychological problems until 2007 when he found full-time employment as a concrete line pumper. More recently, he was involved in a car accident in which he suffered serious injuries, including internal bleeding, broken ribs, broken collar bones and a burst spleen. As a result, he took prescribed pain killers and valium for anxiety. He tendered a number of references which suggested that the present offences were out of character. [41] In sentencing the appellant, the judge made the following observations. She was sentencing him on the basis of the facts she had found earlier. 19 The appellant had committed vicious and cruel assaults on two victims in the context of a jealous rage. The worst offence was the attack on M which commenced when M was sleeping and involved a baseball bat. M suffered a displaced fracture of the cheek and eye socket, bruises to the back of the head, terrible deep tissue welts across his back, arms and leg and it was remarkable that he did not suffer permanent injury. He was clearly terrified of the appellant and the injuries inflicted upon him placed this offence towards the upper level of seriousness. The indecent assault on H was intended to humiliate and hurt her. H did not seem to have long lasting physical injuries although she had problems with her teeth. She was still traumatised by the offending which was aggravated because she was attacked in her own home in the middle of the night. The property damage the appellant caused must have been substantial. [42] The judge noted that the appellant was a mature man with a prior conviction for assault occasioning bodily harm in 2006 and for wilful damage in 1990. He pleaded guilty to wilfully damaging H's house. As to his other offending against H and M, he showed no remorse. He had a good work history, interrupted by health issues following a car accident and post-traumatic stress. References had been provided from people who cared about the appellant, but they described an entirely different person from the one who committed the present offences. The offending occurred during the disintegration of the appellant's relatively short term relationship with H, during which they had been expecting a baby. Their relationship was dysfunctional and this was aggravated by the appellant's heavy drinking on the night of the offence. [43] The judge considered that a substantial punishment had to be imposed for the two quite separate assaults, one involving the brutal use of a bat and the other involving a menacing sexual attack. Such offences have lasting emotional consequences for the victims. The maximum penalty for each offence was 10 years imprisonment. The offences were not premeditated. [44] As I have noted, the judge sentenced the appellant to three and a half years imprisonment for assault occasioning bodily harm whilst armed on M (count 2); two years imprisonment for the sexual assault simpliciter upon H (count 5) and 12 months imprisonment for the wilful damage (count 6), setting parole eligibility effectively at the half way point. Conclusion on the application for leave against sentence [45] The appellant's first contention is that the judge wrongly considered the appellant's throwing of the keys at H and her resulting injuries to the lip and teeth as part of the offence of sexual assault. 19 See these reasons [37].

16 [46] The prosecutor included those details in the particulars relating to count 5 provided prior to trial. (The particularised aggravating circumstance of sexual assault on which the jury could not agree was that the appellant was armed with a baseball bat.) In her evidence at trial, H said that after the appellant ripped off her clothes "he stood up and then he was about to walk out the door and then he stopped and he threw keys at me which hit me in the mouth breaking my teeth and my lips, and then I ran out the door". The judge was clearly entitled to accept that aspect of H's evidence. [47] But the appellant contends these facts were not part of the sexual assault on which the jury convicted. It is true that the appellant's key-throwing and resulting injury to H could have been charged as a separate offence of assault occasioning bodily harm whilst armed, or even of doing grievous bodily harm. It could also have been charged as a separate circumstance of aggravation of count 5. Equally, it could also have been placed before the jury as a detail, so close in time to the charged sexual assault, that it formed part of it, consistent with being part of the legal Latin evidentiary term, res gestae. The prosecutor elected to take the last mentioned course. This had the result that in not charging the act of the throwing of the keys and the resulting injury to H as a separate offence or as a separate circumstance of aggravation of count 5, the judge could not punish the appellant for it as part of count 5: R v De Simoni; 20 R v D. 21 [48] The prosecutor referred to the key-throwing but did not actively submit that it amounted to a circumstance of aggravation or that it was a factor specifically warranting a heavier penalty. [49] The judge noted that she was sentencing the appellant on the facts she found. These included that, after ripping the clothes from H's body and gripping her neck tightly, he threw the keys at her when she was still naked with such force that he damaged her teeth and cut her lip, and that those circumstances formed part of the sexual assault. The judge, however, made clear in her sentencing remarks that she appreciated that she was sentencing the appellant only for the assault occasioning bodily harm whilst armed on M, the sexual assault upon H without any aggravating circumstance, and the wilful damage. Her Honour specifically noted that the maximum penalty for the sexual assault offence was 10 years imprisonment. 22 This does not suggest that her Honour was sentencing the appellant on the basis that the sexual assault on H was committed whilst he was armed with an offensive weapon, namely, the keys, as the maximum penalty would then have been life imprisonment. 23 Although the key-throwing and its results could have been charged either as a separate count of assault or as an additional aggravating circumstance in count 5, I consider the judge was entitled in the circumstances of this case to treat it as part of the sexual assault on which the jury convicted in count 5. [50] The appellant's next contention is that the judge should not have found H's injuries to her teeth and lip were caused by the keys being thrown in her face; on her evidence, they could have been caused by a punch which was not part of the particularised count 5. During H's evidence at trial, the prosecutor showed her 20 21 22 23 (1981) 147 CLR 383, Gibbs CJ at 389, Mason J at 392, Murphy J at 395. [1996] 1 Qd R 363, 403-404. Criminal Code, s 352(1) set out at [16] of these reasons. Criminal Code, s 352(3) set out at [16] of these reasons.

17 photographs of her lip and teeth and asked her how her teeth came to be in that state. She responded: "From being punched and the keys being thrown in my face. HER HONOUR: Sorry, so what is wrong with your teeth? How did they change? What was the injury? My teeth ----- The two front teeth are chipped on either side. The teeth next to it, both of them had been broken off completely. They were all the same size teeth around. PROSECUTOR: Is this prior to the injury? Yes." [51] The judge's relevant fact-finding on this issue prior to sentencing the appellant was that the appellant's forceful throwing of the keys at H had damaged her teeth and cut her lip. 24 In her sentencing remarks, her Honour's only relevant observation was that H did not seem to have long lasting physical injuries although she had problems with her teeth. 25 The judge's factual conclusions were consistent with H's evidence and the photograph of her teeth. This evidence supported the judge's finding that the appellant's forceful throwing of the keys was a cause of the injuries to H's teeth and lip. This was so, even if a punch, unparticularised by the Crown as part of count 5, was also a cause of some of those injuries. Her Honour in terms sentenced the appellant on the basis that H did not seem to have long-lasting physical injuries, making only fleeting reference to "problems with her teeth". Those observations were consistent both with the evidence at trial and with the jury verdict on count 5. They do not suggest the judge sentenced the appellant on the basis that he caused significant injuries to H's teeth. [52] In my view, the appellant has not made out any of his contentions that the judge wrongly took into account extraneous matters when sentencing the appellant. [53] The real question in this appeal is whether the sentence imposed was manifestly excessive. Counsel referred this Court to a number of cases which they contended were comparable. Of these, R v Puchala, R v Sambai 26 and R v Stallan 27 were perhaps the most helpful, although none are closely comparable. [54] In Puchala, Paul Puchala was convicted after a trial of two counts of assault occasioning bodily harm with the circumstance of aggravation that he was armed with a baseball bat, and one count of wilful damage. The maximum penalty for the assault offences was, as in the present case, 10 years imprisonment. He was sentenced to two and a half years imprisonment on each count of assault and six months imprisonment on the wilful damage count. [55] The married complainants came to Paul Puchala's home where he was present with his young adult son, Matthew. They discussed Paul Puchala's matrimonial problems and the custody of his 12 year old son. Fighting broke out during which Matthew, and then Paul, attacked the male complainant. During the fracas, Paul injured both complainants with a baseball bat. 24 25 26 27 See these reasons [37]. See these reasons [41]. [2003] QCA 142. [2010] QCA 68.

18 [56] This Court noted that the head sentence of two and a half years imprisonment was "well within the range" but considered that special personal circumstances, to which the sentencing judge gave insufficient weight, warranted Paul's release on parole after nine months. Those circumstances were as follows. He had no significant criminal history. He received serious orthopaedic injuries in a motor vehicle accident in 1979 but was eventually able to return to work as a building supervisor. In 1993, he injured his hip badly and was again unable to work. He then undertook community work, including six years as community service supervisor for the Noosa Community Corrections manager, providing 30 to 50 hours per week, free of charge, supervising those on community service orders. He had also undertaken fund-raising for sporting organisations. He had hip replacements in 2000 and 2002, ongoing problems with his legs and hips, and had recently spent several months bedridden and connected to drips after contracting golden staph infection related to his hip surgery. He had lost bone in the area and his hip was susceptible to regular dislocation. Whilst in prison prior to the appeal, his hip had dislocated five times. This meant that serving his sentence would be more difficult than otherwise. Whilst his son, Matthew, was also in prison, he would assist Paul, but Matthew was to be discharged after six months. [57] For these special reasons, this Court ordered that Paul's sentence be suspended after serving nine months with an operational period of four years. [58] In Sambai, Sambai pleaded guilty to two counts of assault occasioning bodily harm whilst armed. The maximum penalty for those offences was again 10 years imprisonment, as in the present case. He was sentenced to three years imprisonment, suspended after 12 months, with an operational period of four years. In his application to this Court, he was unrepresented and sought not only to appeal against his sentence but to have his conviction set aside. He was unsuccessful in both applications. [59] He assaulted two young backpackers who were involved in "some sort of amorous activity" in a laneway. Sambai had been sleeping in the early hours of the morning in the laneway. He had been drinking earlier and missed his train home. The complainants annoyed him and so he picked up a rock larger than a man's hand and hit the male at least twice on the head, knocking him unconscious. He fractured the male complainant's right occipital bone causing a slight depression; inflicted 5 cm lacerations to different parts of his head; and caused swelling, abrasions and a small laceration near his left ear. The male complainant was left with a permanent scar on his forehead, was depressed for about a month and could not undertake his planned travels. The female complainant fell to the ground in the struggle with Sambai who hit her seven or eight times to the head, ignoring her screams. She suffered bruising to her head and multiple lacerations which required stitches: 38 to her skull, seven to her forehead, and three to her finger. The resulting severe swelling to her face left her almost blind for about a week. She was left with some permanent scarring. Her screams attracted help from men nearby who apprehended Sambai after a scuffle in which Sambai suffered minor injuries. He was treated at hospital and "made a full, but not a frank, confession" to police. [60] Sambai was born in a fairly remote village in Papua New Guinea, was 33 years old at the time of the offences and was married with two young children. He had worked hard to better himself and, a year or two before offending, took up an opportunity to study in Australia where he commenced drinking alcohol to excess.