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R v LAO

 

[2019] QCA 222

[2019] QCA 222

COURT OF APPEAL

FRASER JA

MORRISON JA

DAVIS J

CA No 348 of 2018

DC No 180 of 2018

THE QUEEN

v

LAO Applicant

BRISBANE

FRIDAY, 18 OCTOBER 2019

JUDGMENT

DAVIS J:  On the 2nd of August 2018, the applicant pleaded guilty in the Childrens Court of Queensland sitting in Brisbane to one count of rape, two counts of burglary and stealing, two counts of breaking entering a premises and stealing, and one count of enter premises with intent to commit an indictable offence.

The applicant is an Indigenous boy.  At the time of his plea, the applicant, who was born on 17 March 2001, was 17 years and five months old.  He, therefore, fell to be dealt with under the provisions of the Youth Justice Act 1992.  Three months after entering his plea, he was, on 30 November 2018, sentenced to four and a-half years detention for the count of rape, and lesser concurrent sentences of detention for the other offences.

The learned sentencing Judge ordered that the applicant be released on a supervise release order after serving 50 per cent of the sentence.  A conviction was recorded in relation to the count of rape.  Convictions were not recorded on any of the other offences.  The applicant seeks leave to appeal against the sentence imposed on the charge of rape.  The application identified two grounds, namely:

  1. the sentence imposed on the rape charge was manifestly excessive; and
  1. a conviction for the rape charge ought not to have been recorded.

The applicant has abandoned the complaint about the recording of a conviction, and the only issue is whether the sentence imposed on the count of rape was manifestly excessive.

All offences charged on the indictment were committed either on the evening of 28 January 2018 or the early hours of 29 January in a residential street in Bundaberg.  The applicant was then 16 years and 10 months old.

The applicant broke into a house and stole some money, jewellery and a hoverboard.  He then left that house and went to one close by, but in the same street.  He broke into that house and stole various things before entering a bedroom occupied by two young Japanese women who were asleep on mattresses on the floor.  He raped one of them.  The statement of agreed facts tendered at the sentencing hearing records relevantly as follows:

“10. [The complainant] woke up to the defendant trying to remove her pants. She was lying on her right side, facing into the room and her back facing the wall. The defendant pulled [the complainant’s] pants down around her knees as he laid down between her and the wall. She felt his penis poke at her vagina through her underpants. The defendant then pulled her underpants down to her knees.

  1. [The complainant] tried to turn her head to look at the defendant. He grabbed the front of her throat with two hands. She told him to stop, in Japanese. He told her to shut up and she complied out of fear. She saw that he was wearing a dark coloured jacket and a cap, with the brim at the front.
  1. The defendant pushed her onto her stomach and lied on her back, removing his hands from her throat. He used one hand to push the back of her head down into the bed as he pushed his penis into her vagina. The defendant had intercourse with [the complainant] for about 5 minutes before ejaculating into her vagina. He did not use a condom.
  1. [The complainant] laid there as the defendant left the room, closing the door behind him. She heard the defendant walk through the gate and run down the street. [The complainant] looked at her phone and saw that the time was 12:03am. She laid awake until some of the other members of the house raised the alarm about the break in at about 12:30am. She then told some of her female housemates what had happened to her.”

After the rape, the applicant then broke into nearby vehicles and stole some things.  The applicant made some admissions to police about some of the property offences, but denied the rape.  He attempted to set up an alibi which police easily disproved.

The case against the applicant on the charge of rape became overwhelming once DNA testing identified the applicant’s semen on swabs taken from the complainant’s vagina.

The applicant has a lengthy criminal history commencing when he was 14.  That criminal history includes drug offences, offences of dishonesty and offences of violence, but no offences of a sexual nature.  He does, though, have prior convictions for burglary.  At the time of the commission of the offences the subject of this application, the applicant was subject both to a probation order and a conditional release order.

The applicant continued to deny the offending, and the indictment was listed for trial.  At a late stage, pleas of guilty were indicated.  The trial was delisted, and the sentence proceeded on a statement of agreed facts after pleas of guilty had been entered.

Before turning to the learned sentencing Judge’s sentencing remarks, there are two matters that are worthy of mention.  Firstly, both in argument and in the sentencing remarks, the Judge referred to the need to protect the community.  That is a relevant sentencing consideration under the Youth Justice principles defined by the Youth Justice Act 1992: see s 3, Schedule 1, item 1.  It was not suggested on appeal that the sentence reflected some form of impermissible preventative detention: Veen v The Queen [No 2] (1988) 164 CLR 465, Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at [20], and the decision of this Court in R v HBV [2019] QCA 21.

Secondly, as observed by this Court in R v SCU [2017] QCA 198, the Youth Justice Act prescribes various factors which must be considered by sentencing Judges, and it is necessary, therefore, that sentencing Judges articulate in the sentencing remarks how those considerations have been taken into account.

One such consideration is that if a period of detention is imposed, that period of detention must be for the shortest period that is appropriate.  See item 17 of the Charter of Youth Justice principles.  His Honour did not specifically refer to that principle in the sentencing remarks.  However, his Honour did refer to the principle during argument, and it is not suggested that his Honour failed to have regard to that consideration.

His Honour had before him a presentence report and, unsurprisingly, that was regarded as important by his Honour.  In his remarks, his Honour noted from the presentence report that:

  1. the applicant had been exposed to childhood trauma, drug abuse and violence in his family, which affected his own behaviour;
  2. previous orders providing supervision of the applicant in the community had failed;
  3. there is an absence of regret, remorse or insight into the offending.

More generally, his Honour:

  1. found that the applicant targeted the house in which the rape occurred because he knew there were occupants in it;
  2. found that the applicant spent about 20 minutes in the house before the act of rape occurred;
  3. concluded that the rape offence could, therefore, not be treated as opportunistic.  By that observation, his Honour meant clearly enough that the offence was planned to some degree, and not spontaneous;
  4. his Honour mentioned the violence that was used to overcome the complainant’s resistance.  This comprised of grabbing her by the throat.

There is nothing remarkable in the sentencing remarks and no obvious error, thus leaving the applicant only with an argument of manifest excessiveness, having regard to comparative sentences.

A number of comparative sentences were referred to both the sentencing Judge and to this Court.  Three of these require some analysis being: R v E; Ex parte Attorney-General (Qld) [2002] QCA 417, R v A; Ex parte Attorney-General Qld [2001] QCA 542, and R v KAL [2013] QCA 317.

In R v A, the child offender raped his grandmother.  There had been a family get-together, and the complainant decided she would lie down on a mattress in the lounge room.  The child, who was 14 at the time, positioned himself on top of her.  She resisted him, and he punched her and pushed a pillow in her face before placing his penis in her vagina.

On an Attorney-General’s appeal, he was ordered to serve four years detention to be released after serving 50 per cent of the term.  A conviction was recorded against him.

The offending there is less serious than in the present for a number of reasons:

  1. (i)
    the offending did not involve breaking into strangers’ houses and therefore did not involve the dangers inherent in that activity;
  2. (ii)
    the child had no criminal history;
  3. (iii)
    there was evidence that the child had consumed some alcohol before the offence occurred;
  4. (iv)
    he was only 14 years of age;
  5. (v)
    he admitted his guilt and showed remorse immediately; and
  6. (vi)
    despite breaching the terms of his bail there was evidence of good prospects of rehabilitation.

R v E; Ex parte Attorney-General involved very serious offending, being two counts of rape, four counts of attempted rape, and one of torture.  The offences occurred when the child was 16 years and four months old.  The complainant was a 30-year-old woman suffering from cerebral palsy who was confined to a wheelchair.  Over a period of a number of days, the child committed the offences against her.  There was no penile penetration of her vagina.  The two counts of rape involved digital penetration of the complainant’s vagina, and placing his penis in her mouth.

A presentence report suggested a lack of insight.  The offending was at least, in some way, explained by the child’s drug use and he had no prior convictions.

R v E may involve more serious offending than the present.  However, the function of this Court is not to reconcile all comparatives.  Comparatives are to be used as a benchmark against which the appropriateness of a particular sentence is gauged.  See Hili v The Queen (2010) 242 CLR 520, and Barbarbo and Zirilli v The Queen (2014) 253 CLR 58 at [41].

To that end, in R v E, Justice of Appeal Williams observed:

“There are a number of cases where juveniles have received sentences in a range of three to five years detention for a single episode of rape without any gratuitous violence being involved.”

In R v KAL [2013] QCA 317, the child offender was 14 years of age at the time of the commission of the offence.  He knew the complainant.  The complainant invited him into his home.  The applicant became enraged, grabbed the complainant by the hair and dragged him to a couch.  He told the complainant that he was going to rape him and did so by inserting his penis into the complainant’s anus.  In the course of the episode, the child threatened to stab the complainant.  The presentence report did not speak highly of the child and he was regarded as a high risk of recidivism as a sexual offender.

He was sentenced to four years detention with no order made under s 227 of the Youth Justice Act for early release.  The effect then of the Act was that he would serve 70 per cent of his sentence before being released.

I would not conclude that KAL is a worse case than the present.  While there was, perhaps, more violence used by KAL in his offending than by the present applicant, there are other features.  Firstly, here, the applicant broke into the home of a stranger at night-time.  Secondly, KAL was significantly younger than the present applicant.

Further, while KAL was sentenced to four years detention and the present applicant to four and a-half, KAL did not receive the benefit of an order for early release.

In the context of item 17 of the Charter of Youth Justice principles, namely, that any period of detention should be “For the least time that is justified in the circumstances” the question is whether it was within the sentencing discretion to determine that the shortest period of detention justified in the circumstances was four and a-half years.  In my view, it was.  In particular:

  1. (i)
    the offence of rape was accompanied with the aggravating factor that the offence was committed against a stranger who was, at least initially, asleep and vulnerable, in a house into which the applicant had unlawfully entered in the night time;
  1. (ii)
    some violence was used to overcome the will of the complainant;
  2. (iii)
    the applicant has a long criminal history;
  3. (iv)
    previous attempts to manage the applicant in the community have failed;
  4. (v)
    the applicant shows lack of remorse and insight and immediate prospects of rehabilitation seem slim;
  5. (vi)
    the protection of the community is a relevant consideration here.

Using the comparatives as a benchmark, the sentence imposed is not, in my view, manifestly excessive.  I would dismiss the application.

FRASER JA:  I agree.

MORRISON JA:  And I also agree.

FRASER JA:  The order of the court is that the application is dismissed.

Close

Editorial Notes

  • Published Case Name:

    R v LAO

  • Shortened Case Name:

    R v LAO

  • MNC:

    [2019] QCA 222

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Morrison JA, Davis J

  • Date:

    18 Oct 2019

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment DC No 180 of 2018 (No Citation) 02 Aug 2018 Date of Sentence.
Appeal Determined (QCA) [2019] QCA 222 18 Oct 2019 Application for leave to appeal against sentence refused: Fraser and Morrison JJA and Davis J.

Appeal Status

{solid} Appeal Determined (QCA)