SUPREME COURT OF QUEENSLAND

CITATION:	R v BEA [2023] QCA 78	
PARTIES:	R
v
BEA
(appellant/applicant)	
FILE NO/S:	CA No 138 of 2021
CA No 159 of 2021
DC No 217 of 2021	
DIVISION:	Court of Appeal	
PROCEEDING:	Appeal against Conviction & Sentence	
ORIGINATING COURT:	District Court at Townsville – Date of Conviction: 20 May 2021; Date of Sentence: 14 June 2021 (Lynham DCJ)	
DELIVERED ON:	26 April 2023	
DELIVERED AT:	Brisbane	
HEARING DATE:	13 March 2023	
JUDGES:	Dalton JA and Gotterson AJA and Bradley J	
ORDERS:	1.	The appeal against conviction is dismissed.
2.	The application for leave to appeal against sentence is refused.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant was convicted after trial of two counts of assault occasioning bodily harm, three counts of common assault, and 13 counts of rape against a single complainant – where the prosecution case rested on the uncorroborated evidence of the complainant – where there were inconsistencies between the complainant’s evidence at trial and the preliminary complaint evidence of other witnesses – where there were inconsistencies between the complainant’s evidence at trial and admissions made by the Crown – where there was a delay of nearly three years between the last of the offending and the complainant’s first complaint to police – where the appellant alleges that the complainant had been diagnosed with borderline personality disorder and bipolar disorder – where the appellant alleges that it was never proved that the complainant did not suffer delusions as a result – whether the primary judge should have warned the jury that it was dangerous to convict on the uncorroborated evidence of the complainant – whether the primary judge should have warned the jury that the appellant had suffered a significant forensic disadvantage due to delay
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the prosecution case rested on the uncorroborated evidence of the complainant – where there were inconsistencies between the complainant’s evidence at trial and the preliminary complaint evidence of other witnesses – where the appellant alleges that the complainant was delusional due to mental health issues – whether the jury’s verdict was unsafe and unsatisfactory
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where, in the course of being cross-examined, the complainant gave evidence that the appellant had been to prison – where defence counsel used this evidence for forensic purposes – where the primary judge directed the jury as to the purposes for which it could use this evidence – whether the admission of the evidence occasioned a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – where the appellant’s counsel at trial referred to him as a “disgusting individual”, “pathetic”, and an “oxygen thief” – where this was done for forensic purposes – whether counsel’s conduct occasioned a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant contends that there are other, comparable offenders who received more lenient sentences – whether the sentence imposed was manifestly excessive
Criminal Code (Qld), s 632
Evidence Act 1977 (Qld), s 132BA
Penalties and Sentences Act 1992 (Qld), s 9(10), s 9(10A)
Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59, cited
PT v The Queen [2011] VSCA 43, cited
Robbins (a Pseudonym) v The Queen (2017) 269 A Crim R 244; [2017] VSCA 288, cited
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited
R v Benjamin (2012) 224 A Crim R 40; [2012] QCA 188, cited
R v Buchanan [2016] QCA 33, cited
R v Carter [2003] 2 Qd R 402; [2002] QCA 431, cited
R v Chinfat [1995] QCA 508, considered
R v DBZ [2022] QCA 200, cited
R v M [1995] 1 Qd R 213; [1994] QCA 7, considered
R v Mason and Saunders [1998] 2 Qd R 186; [1997] QCA 421, considered
R v Mitchell [1998] QCA 31, considered
R v NT (2018) 273 A Crim R 153; [2018] QCA 106, considered
R v Paddon [1999] 2 Qd R 387; [1998] QCA 248, cited
R v Pollard [2020] QCA 188, cited
R v VM [2022] QCA 88, cited
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited	
COUNSEL:	The appellant/applicant appeared on his own behalf
E L Kelso for the respondent	
SOLICITORS:	The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent	
[1]	DALTON JA:  I agree with the orders proposed by Bradley J and with his reasons.
[2]	GOTTERSON AJA:  I agree with the orders proposed by Bradley J and with his Honour’s reasons for them.
[3]	BRADLEY J:  BEA appeals against his convictions on 13 counts of rape, two counts of assault occasioning bodily harm, and three counts of common assault.  The offences were committed between 1 January 2013 and 24 November 2015.  Each involved the aggravating circumstance that it was a domestic violence offence.  The convictions followed a trial by jury before the learned trial judge from 17 to 20 May 2021.
[4]	On 14 June 2021, the appellant was sentenced for each offence.  The highest or head sentence of 11 years’ imprisonment was imposed for two of the rapes.  He seeks leave to appeal against the sentences imposed for these offences.
Appeal against convictions
[5]	The appellant raises several grounds of appeal against his convictions.
The complainant’s evidence at the trial
[6]	The appellant says the jury verdicts are unsafe and unsatisfactory because it is unlikely the jury could have found him guilty of many of the offences beyond a reasonable doubt on the complainant’s evidence, which, he says, was uncorroborated and “inconsistent, improbable, incredible, even sometimes farcical”.
[7]	The appellant submits that the trial judge should have given the jury a direction about “the hazards involved when deciding to convict a person” on the uncorroborated evidence of a complainant.  The appellant cited the decision in R v M.  That decision was made before the amendments of s 632 of the Criminal Code (Qld).  The amendments substantially abrogated the former common law rule of practice that required a trial judge to warn the jury that it is dangerous to convict on the uncorroborated testimony of the complainant in the case of rape and other sexual offences.
[8]	The common law now requires a judge to warn the jury “whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.”  In R v VM, Sofronoff P summarised the rule of practice in these words:
“[T]he principle that underlies a requirement to give a warning about the dangers inherent in particular evidence at a trial is not just that the evidence might possibly be unreliable but that, without a warning, a jury might not appreciate that it might be so.”
[9]	All of the offences were committed against the same complainant.  The complainant gave evidence of each of the offences.
[10]	The evidence given by the complainant at the trial was not improbable or incredible.  It was not farcical.  No warning was required on any such basis.
[11]	There were inconsistencies between the complainant’s evidence in respect of some of the counts and the evidence of two other witnesses (Ms HR and Mr WA) who each recalled what the complainant had told them of those matters on an earlier occasion.  There were also inconsistences between some of the complainant’s evidence about conduct that was not the subject of any count and the admissions made by the Crown at the trial.  Discerning the impact of these inconsistencies requires some consideration of their treatment at the trial.
[12]	The trial judge summed up the case and gave the jury directions over two days.  On the first day, his Honour told the jury that the complainant’s credibility and reliability were “central to your deliberations and your determinations”.  The trial judge then directed the jury to consider:
“[H]as the witness said something different at an earlier time? A matter to be considered in assessing testimony is whether it differs from what has been said by the witness on another occasion. Obviously, the reliability of a witness who says one thing at one time and something different on another occasion about the same matter is called into question.
In weighing the effect of such an inconsistency or discrepancy, consider whether there is a satisfactory explanation for it, for example, might it result from an innocent error, such as faulty recollection, or else could there be an intentional falsehood? Be aware of such discrepancies or inconsistencies and, where you find them, carefully evaluate the testimony in light of other evidence.”
[13]	A little later, the trial judge directed the jury:
“Likewise, any inconsistencies between the account of Ms HR or Mr WA of the complainant’s complaint to them and the complainant’s evidence may cause you to have doubt about the complainant’s credibility or reliability. … Inconsistencies in describing events are relevant to whether or not evidence about them is truthful and reliable, and the inconsistencies are a matter for you to consider in the course of your deliberations. But the mere existence of inconsistencies does not mean that, of necessity, you must reject the complainant’s evidence. Some inconsistency is to be expected because it is natural enough for people who are asked on a number of different occasions to repeat what happened at an earlier time to tell a slightly different version each time.”
[14]	The following day, as the summing up continued, the trial judge directed the jury in respect of evidence given by the complainant about violent conduct of the defendant that was not the subject of charges before the Court.  His Honour identified inconsistencies between the complainant’s evidence about some of that conduct and the admissions made by the Crown.  His Honour then directed the jury:
“If you are not so satisfied beyond a reasonable doubt that the defendant did the other acts of violence alleged by the complainant, then that may affect your assessment of the complainant’s evidence about the acts the subject of the offences with which the defendant is charged.”
[15]	The trial judge also brought to the jury’s attention the failure of the complainant to allege this conduct at an earlier time and advised the jury to consider it in their deliberations.
[16]	By these directions, the trial judge identified for the jury the factors in the case that affected the reliability of the complainant’s evidence and gave the jury “the necessary mental equipment with which to deal rationally with the evidence.”  There was no other aspect of the complainant’s evidence that called for his Honour to instruct the jury about any other risk.
[17]	The credit of the complainant was a matter for the jury.  The appellant’s criticisms of the evidence were raised by defence counsel in address and identified by the trial judge in the summing up and the directions for the jury.  The jury was directed to consider the complainant’s evidence carefully.  There is no reason to be concerned that the jury did otherwise than it was directed.
[18]	The jury must have accepted the complainant as a credible and reliable witness in her evidence about counts 1, 2, 5, 11, and 13 to 26 on which guilty verdicts were returned.  Her evidence about these offences was detailed and clear.  Her credit was supported by the evidence of her earlier complaints to Mr WA and Ms HR about counts 5, 14, 15, 17, 21, 22, and 25.  To a lesser extent, the admissions of violence in the relationship between the appellant and the complainant in April, May, and July 2014 supported the complainant’s evidence about counts 11 and 13 to 23.
[19]	The jury was unable to reach a verdict on seven other counts on the indictment.
[20]	I am not persuaded that the jury’s guilty verdicts were unsafe or unsatisfactory on the basis advanced by the appellant.
The complainant’s mental health
[21]	The appellant says the verdicts were unsafe and unsatisfactory because the complainant “had been diagnosed with borderline personality disorder and bipolar disorder” during the relevant period.  The latter, the appellant says, “can manifest in delusion and false beliefs or impression.”  The appellant also submits that “it was never proven that the complainant did not suffer delusions”.
[22]	In support of these submissions, the appellant submitted annotated documents that appear to be extracts of the complainant’s medical records.  On reviewing the documents and the evidence at the trial, I reached the following conclusions:
(a)	The health service notes from 2012 do not include a diagnosis of borderline personality disorder or bipolar disorder.
(b)	The general practitioners’ notes from 2013 include queries about whether the complainant may have bipolar disorder, but the practitioners do not purport to make any diagnosis.  The complainant was cross-examined about these notes.  She rejected the suggestion that she believed she had bipolar affective disorder.
(c)	The 2014 adult mental health assessment does not refer to either disorder.
(d)	A 2014 note by a psychiatric registrar refers to the complainant indicating to the registrar that “she had BPD”, i.e. borderline personality disorder.  It also records impressions of the complainant.  These refer to borderline personality disorder with dysthymia (persistent depression).  However, the registrar’s entry for past psychiatric history entry does not refer to such a diagnosis.  The complainant was cross-examined about this consultation.  She agreed that the registrar had told her she might have borderline personality and that it was a “potential diagnosis”.
[23]	None of the entries in these documents is a diagnosis of either condition.
[24]	The complainant gave evidence she was treated with a medication for depression.
[25]	There was no evidence before the jury that the complainant had been diagnosed with bipolar disorder.  There was no evidence about how that condition can manifest.  There was no evidence that it causes delusions.  At the trial, defence counsel put to the complainant that her memory of a matter (unrelated to the charged acts) was “a delusion”.  The complainant denied it.  The topic was not further explored.
[26]	Of itself, the complainant’s history of mental illness does not raise a reasonable doubt about her credit or the reliability of her evidence.  It did not call for a warning to the jury.  It does not render the jury’s verdicts unsafe or unsatisfactory.
Timeliness of the complaint
[27]	The appellant says if the complainant had made her complaint at the times the incidents allegedly took place, then medical tests and photographs could have been used to substantiate her claims or to prove his innocence.  The appellant says, “The fact the complainant did not have tests done or photos taken means the Appellant was at a significant forensic disadvantage.”
[28]	The appellant was convicted of offences committed in six incidents over a period just short of three years, between about 1 January 2013 and 24 November 2015.  The appellant and the complainant were in a de facto relationship for this period, save for the period from 19 August 2014 to 6 May 2015, when the two had no contact with each other.  The relationship ended in November 2015.
[29]	The complainant first went to the police with allegations of the offending conduct against the appellant in about August 2018.  She said she did not go to the police while their relationship continued because, at that time: she loved the complainant; she was estranged from her children and her mother; she had no one else; and he was the only person she could rely on.  She explained the delay between November 2015 and August 2018, saying that when the relationship ended, she thought the prosecution of the appellant for domestic violence order breaches would be sufficient to protect her from him, without pursuing these more serious allegations.  He had been convicted and served nine months in custody for three earlier breaches.
[30]	In about mid-2015, the complainant disclosed some of the rape allegations to her husband, Mr WA.  On 17 July 2018, in the presence of her mother’s counsellor, Ms HR, the complainant made allegations that the appellant had committed some of the relevant offences.  Ms HR suggested she make a complaint to the police.
[31]	The trial judge asked if a Longman direction was sought about the effect of delay on the defence.  Defence counsel told his Honour such a direction would not assist the jury and he did not seek it.
[32]	The trial judge also raised the topic of a forensic disadvantage direction under s 132BA of the Evidence Act 1977 (Qld).  Neither counsel sought a direction.
[33]	As this court identified in R v DBZ:
“The threshold for the giving of a direction about significant forensic disadvantage to an accused person due to the delay in prosecuting the offences is that the accused must suffer a significant forensic disadvantage and not merely a forensic disadvantage as a result: see Anderson v Tasmania [2020] TASCCA 11 at [71] and Gahani v The Queen [2022] NTCCA 13 at [155]-[168].”
[34]	The statute excludes the mere fact of delay as sufficient to show such a disadvantage and requires the nature of the disadvantage to be identified.  The accused bears the onus of establishing there is a significant forensic disadvantage and that it is a consequence of the delay.  The disadvantage must be forensic, so it must be a disadvantage in challenging, producing, or giving evidence in the conduct of the case.  A party seeking such a warning must specify the nature of the significant forensic disadvantage to the accused and the particular consequences of the delay that give rise to that precisely identified disadvantage.
[35]	In the present case, no evidence likely to assist the appellant, which earlier existed, had been lost, gone missing, or become unavailable to him.  No witness had died or become unlocatable.  No one’s memory had been lost.  The medical tests and photographs adverted to by the appellant were never within his power to obtain without the complainant’s consent.  There was no evidence before the trial judge that the appellant had suffered a significant forensic disadvantage because of the delay in reporting the offences.
[36]	I am unpersuaded that the trial judge should have been satisfied the appellant had suffered a significant forensic disadvantage because of delay.  No direction was required.
Offences involving others
[37]	The appellant says the jury could not have been satisfied beyond reasonable doubt that he committed the seven rapes (counts 11 to 17) at which a man called “Dave” was present and involved, the four rapes (counts 19 to 22) at which a man called “Graham” was present and involved, and the two rapes (counts 24 and 25) where an unnamed man was present and involved.  The appellant says, “These men have never even been proved to have existed”.
[38]	He is wrong.
[39]	The complainant gave evidence of these offences.  The jury was directed about how it should carefully consider that evidence. The jury accepted the complainant’s evidence about these offences as proving beyond reasonable doubt that the appellant committed them, including with the presence of the unidentified men.  The verdicts of the jury, properly directed, are not unsafe or unsatisfactory on this account.
Disclosure of the appellant’s imprisonment
[40]	At the trial, defence counsel cross-examined the complainant about violence in her relationship with the appellant and about her conviction for a stealing offence.  While answering questions about her criminal record, the complainant mentioned that the appellant had been in prison.  No such evidence was led by the Crown.
[41]	The trial judge asked counsel about the matter in the absence of the jury.  The Crown prosecutor raised the possibility of a mistrial.  Defence counsel did not seek any order.  Both counsel accepted his Honour’s conclusion that the relevance of this evidence was limited to providing an explanation for the nine months between August 2014 and May 2015 when the appellant and the complainant had no contact with each other.  As the trial judge noted, it called for a warning to the jury about using it as propensity evidence.  His Honour proposed to include in the direction the evidence adduced in cross-examination about domestic violence orders and the appellant’s use of drugs.
[42]	In summing up, the trial judge gave the following instruction to the jury about the use to be made of the evidence of imprisonment:
“You will also recall, members of the jury, that in the course of the evidence, there was evidence of the defendant having been in jail during his relationship with the complainant, to the defendant having had a domestic violence order made against him and there was some evidence as to the defendant also using drugs during the relationship. That evidence is being led in this trial for a very limited purpose, that purpose being to explain the nature of the relationship which existed between the complainant and defendant and why it was that for, at least, a certain period of time, there was no contact between the complainant and the defendant. That was the specific purpose for which the evidence has been adduced in this trial.
Now, I warn you that you must not use this evidence for any other purpose. Most importantly, you may not seek to draw some inference from it that, because the defendant has, for example, been to jail or because he has had a domestic violence order made against him or because he was using drugs during his relationship with the complainant, as the case may be, that he is therefore more likely to have committed any of the offences you are considering. In other words, it would be quite wrong for you to say, having heard that evidence that the defendant is the sort of person likely to have committed the offences. If you accept this evidence, you may only use it … to consider whether it assists you in understanding the nature of the relationship that existed between the complainant and defendant and why it was that there was a period during which there was no contact between the defendant and the complainant. It cannot be used by you for any other purpose.”
[43]	Defence counsel referred to the appellant’s imprisonment in his address, telling the jury:
“And you’ve heard through her evidence that, yes, he has been to jail for the things he’s done to her. He’s been held accountable.
… [S]he’s complained over the years about his violence. He’s been dealt with for that.”
[44]	After mentioning the appellant’s imprisonment, defence counsel used it to attack the credit of the complainant in this way:
“But members of the jury, what you would not be satisfied is of this: she had many opportunities to speak to the police and, in fact, she said ‘I gave many statements to the police’. Did she once mention being pushed in the spa? Don’t worry about the sex stuff. Did she mention that at all? No.”
[45]	Defence counsel told the jury that the complainant made no complaint to the police about the offences the subject of the trial while the appellant was in jail in 2014 and 2015, but made the complaint in about August 2018, which coincided with her learning that the appellant had a new car:
“A toxic, dysfunctional, on-again-off-again relationship which had a link for her: financial motive. That is, benefit as a carer. … But the gravamen of her complaint does not arrive until 2018, which coincides with him making contact with her about a yellow Corvette. That’s what it comes down to …”
[46]	I respectfully agree with the trial judge that this evidence, adduced by the defence and then used for forensic purposes, was of limited relevance. I am satisfied that any prejudice to the appellant arising from the evidence was appropriately dealt with by his Honour’s direction and warning to the jury.
Conduct of defence counsel in his address
[47]	The appellant says that, in address, defence counsel made references to him that prejudiced his defence and resulted in a miscarriage of justice.  This submission concerns two passages.
[48]	The first followed defence counsel addressing on a possible discrepancy between the complainant’s evidence about an uncharged act.  Counsel told the jury:
“These people are pathetic. He’s pathetic. She’s pathetic. … They’re both pathetic people.”
[49]	The second is in the peroration:
“But members of the jury, can I make this submission to you: you would go into the jury room and say this: Mr BEA is a disgusting individual. He is a person – and I think I’ve used this term before – he’s an oxygen thief. But you don’t rationally then say, we’re going to find him guilty because we don’t like him. The only time that you would return a verdict of guilty is if you’re satisfied the learned Crown prosecutor has presented sufficient evidence for you to be satisfied beyond a reasonable doubt. … [B]ut as awful as it is, you have to return a verdict in accordance with your oath. And the only verdict you can return in this trial, based on the evidence, is the Crown has not satisfied you beyond a reasonable doubt.”
[50]	To succeed in this appeal, the appellant must establish the conduct of his defence was so flagrantly incompetent that it caused a miscarriage of justice.  As McMurdo P observed in R v Carter:
“There are often many different ways and styles of conducting a defence case. A tactical decision taken by one barrister which would not have been made by another is not necessarily incompetence. Incompetence must go beyond an error of judgment made under the significant pressures of litigation.”
[51]	Where counsel’s conduct has contributed to a defect or irregularity in the trial:
“the tendency is not to inquire into counsel’s conduct, as such, but, rather, to inquire whether there has been a miscarriage of justice, or, if the proviso to the criminal appeal provisions is engaged, whether ‘no substantial miscarriage of justice has actually occurred’. In that exercise, the question whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration.
“The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question ‘deprived the accused of a chance of acquittal that was fairly open.’”
[52]	Objectively considered, defence counsel’s references to the appellant in each passage may be explained as taken for the purpose of obtaining a forensic advantage.  First, they could disarm the jury of any prejudice that might arise from the evidence about the appellant’s character – in the admissions, the hospital records, and some police reports that were before the jury.  Second, they gave an equivalence to the appellant and the complainant as “both pathetic people” so as to attack the credibility of the complainant.  Third, they directed the jury’s attention to the prosecution’s obligation to prove the elements of each offence beyond reasonable doubt, relying only on the complainant’s evidence.
[53]	Other defence counsel may have acted differently.  This does not prove flagrant incompetence.  It can go no further than an error of judgment made under the pressures of the trial.  Defence counsel’s conduct did not cause or contribute to a defect or irregularity in the trial.  Counsel’s decision to take this particular course did not deprive the appellant of a chance of acquittal that was otherwise fairly open.
Application for leave to appeal against sentence
[54]	At the sentencing hearing, the Crown prosecutor submitted a head sentence of the order of 10 to 14 years be imposed for the most serious offences, namely counts 15 and 25, to appropriately reflect the criminality of the appellant’s offending across all 19 counts.  Defence counsel submitted a head sentence of up to nine years would be appropriate.
[55]	The table below sets out each count on which the appellant was convicted, and the sentence imposed for it.
Count(s)	Offence	Sentence	
1 & 18	Assault occasioning bodily harm	2 years	
2	Common assault	2 years	
5	Rape	6 years	
11, 13, 14, 16, 17, 19-22, & 24	Rape	8 years	
15 & 25	Rape	11 years	
23 & 26	Common assault 	12 months	
[56]	All sentences were to be served concurrently.
[57]	The appellant says the head sentence imposed by the trial judge, for each of counts 15 and 25, is manifestly excessive.
Decisions referred to at the sentencing hearing
[58]	At the sentencing hearing, the Crown prosecutor took the trial judge to seven decisions.
[59]	In R v Chinfat, a sentence of 12 years for two rapes in a domestic setting, was reduced on appeal to nine years.  In R v Mason and Saunders and R v Mitchell, the sentences were imposed on three offenders for rapes of a woman known to them on a single night.  Violence was used to restrain her resistance.  Sentences of 12, 14, and 15 years were not disturbed.
[60]	In R v Buchanan, after undertaking a review of other decisions, this Court adopted the conclusion of Henry J in R v Benjamin, saying that “where rape is accompanied by serious violence or prolonged criminality, or both, sentences at the upper end of the 10 to 14 year range may be warranted.”
[61]	R v Heckendorf, this Court did not disturb a sentence of 10 years’ imprisonment imposed, following a guilty plea, on a young offender with no prior criminal history, for one count of assault with intent to rape, involving significant violence.
[62]	In R v NT, the head sentence of nine years was not found to be manifestly excessive, even though the offender had spent about 17 months in pre-sentence custody, which could not be declared to be time already served.  The offending against a single complainant was degrading, lasted for three months, and included one rape, which attracted the nine-year sentence, two counts of torture, two of deprivation of liberty, one assault occasioning bodily harm while armed, and one common assault.  Atkinson J described the single rape as particularly brutal physically and psychologically, and intended not only to harm and humiliate the complainant, but also to subjugate her.  As her Honour put it:
“This might be considered an almost textbook case of the fear and helplessness experienced by a victim of vile domestic violence when the offender inflicts violence upon the victim interspersed with protestations of love and affection. This case falls into a particularly serious category given the number of occasions on which the offending took place and the public humiliation and degradation visited upon the complainant by the applicant.”
[63]	In R v TAQ, a head sentence of eight years was not manifestly excessive for a single rape in the context of other offences over a five-year relationship.  The offender had spent two years in pre-sentence custody, which was not declared.
[64]	At the sentencing hearing, defence counsel referred his Honour to R v Pryor and R v Sollitt.  In each, seven years’ imprisonment was imposed for a single violent rape in the context of a domestic relationship.
Decisions referenced in the appellant’s outlines
[65]	In his written outline for this appeal, the appellant identifies three single judge decisions where the sentences imposed for the offending was less than the head sentence imposed on the appellant for his offending.
[66]	In R v Davidson, a massage therapist was sentenced to four years’ imprisonment for each of seven digital rapes and three years for each of 31 sexual assaults, in all instances against patients during treatment.  These sentences were to be served concurrently with each other, but cumulatively on an earlier sentence of five and a half years’ imprisonment imposed after a separate trial for similar offending against nine complainants.  No other prior offences were noted.  Dick DCJ remarked that the head sentence would have been about five years, but it was reduced to four years due to the effect of COVID on the offender during the time he had spent in custody.
[67]	In R v Martin, a 22-year-old offender pleaded guilty to more than 20 offences against his 22-year-old girlfriend over a 30-day period.  These included three counts of rape, eleven counts of assault occasioning bodily harm (three while armed), two counts of choking in a domestic setting, one count of strangulation in a domestic setting, and one count of deprivation of liberty.  There were also drug supply and possession counts, and three counts of wilful damage.  Morzone DCJ imposed a head sentence of 10 years’ imprisonment for one of the rape counts.  His Honour remarked that the sentence ought to be of the order of 12 years’ imprisonment but was reduced to ameliorate the effect of the serious violent offence declaration that was made.
[68]	The appellant also referred to R v Cregan.  There, North J sentenced the 47-year-old offender to eight years’ imprisonment for a malicious act with intent to cause grievous bodily harm.  His Honour imposed lesser sentences for other associated offending.  The offender pleaded guilty to all counts and charges.  He had no prior criminal record.  The principal offence involved him discharging a gun when the homeowner opened the door of the garage in which he was hiding.  She suffered a minimal displaced fracture and multiple small bullet fragments in her right cheekbone.  The offender continued to attack the homeowner, kicking her, and trying to pull her out from under a car, where she had gone for protection.  The other serious offences included using a hammer to strike a person who came to help the homeowner, causing bodily harm.
[69]	In R v Riggall, to which the appellant also referred, a “very immature” 23-year-old, with no criminal record, pleaded guilty and was sentenced to five years’ imprisonment for the rape of an 18-year-old work colleague, who was intoxicated following after-work drinks.
[70]	The appellant also referred to the sentence of 10 years and nine months’ imprisonment imposed in New South Wales on the actor Robert Hughes.  After a trial, he was convicted of 10 sexual and indecent acts in relation to four young girls committed in the 1980s and 1990s.  It is also of no assistance in considering whether the appellant’s sentence is manifestly excessive.
[71]	It is unsurprising that none of the decisions cited by the appellant in his outline was raised at the appellant’s sentencing hearing.  In none of them could the offending be considered comparable to the appellant’s offending.  As well, none of them involved an offender with a 40-year criminal record, including relevant convictions for indecent assault, aggravated indecent assault, assault occasioning bodily harm, two for common assault, and 12 for contravention of domestic violence orders (including two as aggravated offences).
Consideration of the referenced decisions
[72]	Comparing the criminality of different sexual offenders is an odious, if sometimes necessary, exercise.
[73]	As the trial judge noted at the sentencing hearing, the decisions in Chinfat, Mason and Saunders, and Mitchell are to be treated with some caution.  They predate extensive amendments to s 9 of the Penalties and Sentences Act 1992 (Qld).  Since the amendments, s 9(10) requires the court to treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such given the nature of the precious conviction, its relevance to the present offence, and the time that has elapsed.  Section 9(10A) requires the court to treat the fact that a conviction is for a domestic violence offence as an aggravating factor unless the court considers it is not reasonable because of the exceptional circumstances of the case.  Dated as they are, the sentences in these decisions (of 9, 12, 13, and 15 years’ imprisonment) do not indicate an error in the trial judge’s sentence of 11 years’ imprisonment for the appellant.
[74]	The appellant was sentenced for offences that were quite different in nature to the single opportunistic offences in Mason and Saunders, Mitchell, Pryor, Sollit, and TAQ.  The appellant committed his offences over a three-year domestic relationship.  It was protracted offending against a single complainant.  I respectfully adopt the trial judge’s view that the concerning overall feature of the appellant’s offending is “the controlling, violent and manipulative way” he dealt with the complainant.  The appellant’s sentence called for a different consideration of deterrence than the sentences in Mason and Saunders, Mitchell, Pryor, Sollit, and TAQ.  The appellant was undeterred by serving nine months’ imprisonment for three contraventions of a domestic violence protection order committed in April, May, and July 2014.  Between his release from custody in May 2015 and the end of the relationship in November 2015, he committed further serious offences, including two rapes.
[75]	The appellant was not a young offender with no relevant criminal history, like the offender in Heckendorf.
[76]	The circumstances in NT are perhaps closer to the appellant’s offending.  In NT, the defendant committed seven offences over three months, being one rape, two counts of torture, two of deprivation of liberty, one assault occasioning bodily harm while armed, and one common assault.  The appellant here committed 18 offences over about three years, including 13 rapes, two counts of assault occasioning bodily harm, and three counts of common assault.  In NT, the effective sentence was about 10 years and five months’ imprisonment, considering the 17 months spent in presentence custody.  The comparison does not indicate the trial judge erred in sentencing the appellant.
[77]	When assessed against the various comparable elements of the relevant authorities and the broader assessment by Henry J in Benjamin and adopted in Buchanan, the sentence imposed by the trial judge is not manifestly excessive.
Letter of regret
[78]	The appellant prepared a handwritten letter and gave it to his defence counsel for the sentence hearing.  It was not tendered.  In it the appellant expresses his regret that much of the relationship between him and the complainant was “unhealthy”.  He says he is sorry the complainant “feels the way she does about our time together and that she felt she had to make the allegations that she did against me.”  He writes that it was his “understanding” that “any sexual relations” with the complainant were “consensual and in the context of a relationship”.
[79]	The appellant did not write he was sorry for his conduct.  The letter expresses no remorse for the offending or for its effect on the complainant.  He expresses no resolve not to commit such offences in the future.  Had the letter been tendered at the sentence hearing, it would not have assisted the appellant.  There was good reason for defence counsel to decline to tender it.
Conclusion on sentence
[80]	The appellant has identified no specific error in his Honour’s formulation of the sentence.  The sentence imposed was not unreasonable or plainly unjust, given the nature and circumstances of the offending.  In the circumstances, the sentence does not warrant appellate intervention.
Disposition
[81]	For these reasons, I would dismiss the appeal against conviction, and refuse leave to appeal against sentence.