- Notable Unreported Decision
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
R v Smith  QCA 23
CA No 202 of 2019
DC No 229 of 2019
Court of Appeal
District Court at Townsville – Date of Sentence: 2 August 2019 (Clare SC DCJ)
Date of Orders: 19 February 2020
Date of Publication of Reasons: 21 February 2020
18 February 2020
Holmes CJ and Morrison and McMurdo JJA
Date of Orders: 19 February 2020
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to five counts of sexual assault and two counts of rape – where all counts arose from assaults carried out while the complainant, a friend of the applicant, was asleep – where the sentences imposed were as follows: (a) Count 1: one month imprisonment; (b) Counts 2, 3 and 6: six months’ imprisonment; (c) Counts 4 and 7 (rape): three years’ imprisonment; and (d) Count 5: eight months’ imprisonment – where a parole eligibility date was set after serving nine months in custody – where the applicant challenges the sentences on the basis that they are manifestly excessive – where the application concerned only the sentences for rape – whether the sentences for rape are manifestly excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was assessed by a psychologist – where the psychologist assessed the risk of reoffending as quite low – where a more protected environment than the general population would be appropriate given the applicant’s particular personality issues – where, in reliance upon R v Colless, the point was made that sentences in respect of digital rape may be expected to be less severe than other forms of rape – where, as was said in R v Wark, there is no rigid compartmentalisation of rape offences into two categories, firstly, digital rape and secondly, penile rape – where it is the particular circumstances which will determine the level of criminality and together with other facts the sentence to be imposed – where R v Keevers; R v Filewood is distinguished because the applicant pleaded guilty at an early time, expressed his remorse, apologised to the complainant in the days following the offence and the degree of premeditation was less – where R v Hennessy is of little utility as a yardstick because it involved two rapes, the second of which involved persistence in the face of objections, and use of strength to overcome physical attempts to make the offender desist – where the applicant made full admissions, had no previous criminal history, and signified his willingness to engage in treatment for his personality disorders – where the sentence is manifestly excessive
AB v The Queen (1999) 198 CLR 111;  HCA 46, applied
R v Colless  2 Qd R 421;  QCA 26, considered
R v Hennessy  QCA 523, distinguished
R v HX  QCA 91, distinguished
R v Keevers; R v Filewood  QCA 207, distinguished
R v Wark  QCA 172, applied
P Nolan for the applicant
D Balic for the respondent
ABF Legal for the applicant
Director of Public Prosecutions (Queensland) for the respondent
HOLMES CJ: I agree with the reasons of Morrison JA and with the orders his Honour proposes.
MORRISON JA: On 2 August 2019 the applicant pleaded guilty to five counts of sexual assault and two counts of rape. All counts arose from assaults carried out while the complainant, a friend of the applicant, was asleep on 2 June 2018.
The sentences imposed were as follows:
Count 1: one month imprisonment;
Counts 2, 3 and 6: six months’ imprisonment;
Counts 4 and 7 (rape): three years’ imprisonment; and
Count 5: eight months’ imprisonment.
A parole eligibility date was set at 1 May 2020, after serving nine months in custody.
The applicant challenges the sentences on the basis that they are manifestly excessive.
Agreed schedule of facts
The applicant was 23 years old at the time of the offence. He knew the complainant and they had a platonic relationship. The complainant had made it clear she did not want a relationship with him, and had no sexual interest in him.
The complainant had explained that she had “women’s issues” which was why she did not have a partner and could not hold a relationship. She had undergone surgery on a few occasions and would sometimes get sick. The applicant was aware that she had difficulties with her mental health. The applicant was unaware that the complainant had endometriosis, which made sex painful and traumatising, with the pain lasting for days into a week. The complainant would end any sexual intercourse because of the pain, and would be unable to attend school or work.
On Friday, 1 June 2018 the complainant contacted the applicant to have him get her some cannabis. This was the first occasion when the applicant had been to the complainant’s unit. They discussed how the complainant’s six year old niece had just died, and that her dog died a week before, so that the complainant was in a state of grief.
The applicant arrived about 10.00 pm and he and the complainant went to get some alcohol. When they returned to the complainant’s unit they each had some alcohol and smoked some cannabis. The cannabis looked strange and the complainant enquired whether it was laced. The applicant replied that, to his knowledge, it was not. Together they smoked a second joint. The complainant had half of another drink. The complainant said the applicant could stay over at her unit, as she did not want him getting into trouble with the police for driving under the influence.
The complainant took a Valium (a prescribed medication) and began to feel “zoned out”. She and the applicant were in the bed together watching TV, and the complainant went to sleep. The applicant was lying on her shoulder.
The complainant dimly recalled the applicant shaking her awake. She recalled “feeling like she was paralysed, unable to move her legs or body”. She became aware that the applicant was kissing her on the mouth, but did not wake up or respond to it. After that, the complainant had no recollection until waking up a bit before 4.20 am, in pain with the applicant’s fingers in her vagina.
The only source of information as to what occurred in the interval, beyond extrapolation, came from the applicant’s interview with police. His account continued the narrative from when the complainant was falling asleep. It was:
she was falling asleep and he put his head on her shoulder, and they were watching TV; “after a few episodes [of the TV show] I … tried to hold her hand. She accepted it … I’m not sure if it was because she was nearly tired and she didn’t know what she was doing”;
once the complainant was asleep the applicant pushed her over to try and retrieve the laptop power cord from under her body; she woke momentarily so he removed the cord and she went back to sleep;
once the complainant was asleep the applicant kissed her on the lips, but she did not respond;
the applicant then “went to feel her vagina … I gave myself access … by opening up her pants … I slipped my hand in”;
the applicant then pulled his pants down below his waist so that nothing was covering his penis and “I put her hand on my penis … I grabbed her hand and put it on there”; the applicant said that at some point he “probably had some premature ejaculation happening … it went on her hand”;
the applicant then inserted his finger into the complainant’s vagina, describing it sliding in and out; he had moved her legs apart on an angle to allow him to gain access;
while the complainant’s hand was on his penis the applicant pushed the front of the complainant’s bra over the top of her breasts, and he squeezed her breasts, albeit according to him, only softly;
the applicant then moved his hand back down, slid it underneath her clothing and rubbed her vagina in a circular motion around the clitoris area; and
the applicant then inserted his finger for a second time into the complainant’s vagina.
It was at this point that the complainant woke up with a fright, because she was in pain. She said that the applicant’s fingers were in her vagina and she described the situation in these terms:
“He was hammering them into me. His fingers must have been in a position where they were bent or something because it felt like they were digging into something inside me … As I started to wake up I tried to feel my hands and at first I couldn’t comprehend where they were … He quickly moved his hand out of my pants when I swore at him and said ‘what the fuck are you doing’. I think [he] said ‘I’m sorry’ I found that my hand were [sic] covered in … his ejaculation … I wiped [my] hands somewhere before getting off the bed …
When I woke up I could feel the cold. My long sleeved top was lifted up … he left my bra on but put my breasts out … there were no marks on them but my breasts were sore and tender. I’m not sure what he did to them.”
She told the applicant to get out, that she did not know what he had done to her, and she was very sore. He said “Sorry, I don’t know what I was thinking”. She repeated that he needed to leave. She did not know what to do as she was in shock and felt sick.
The complainant rang her friend and told her what had happened. She then went for a shower. She was in pain so she applied a heat pack and took some Panadol, but it was not dealing with the pain. The complainant ended up taking more Panadol than she should. Her mental health team arrived at about 11.00 am and she told them a “tiny bit” about what happened. She was taken to hospital and treated for an overdose.
By Facebook messages sent the next day the applicant apologised for what had occurred, saying that he did not know why he did it.
The applicant was interviewed on 26 June 2018. He made a full confession to the police which largely agreed with the complainant’s account. In particular, he made full admissions to all counts charged on the indictment. He commented that he found it embarrassing to discuss the offending and said “[putting my finger inside] was probably the part that I just should not have done at all; I shouldn’ta done any of this but probably the worst was putting my finger inside”.
The applicant said that he went to his car and “just thought about everything that happened. Um consequences … how like, I’m trying to pick my life back up and I’ve just messed it up again, sort of thing. So it’s like, massive regret … just going through me right now … I just went home and I thought … I just lost a really good friend. And then just cried over it, over stupid actions that I caused”. The applicant admitted that the complainant had not given him permission to do any of the sexual acts committed against her.
The complainant’s victim impact statement
The learned sentencing judge had the benefit of a victim impact statement from the complainant. In it she described her shock, confusion and anger over what had occurred. After the applicant had gone she felt “sick and disgusted because I was in pain and didn’t like what had happened to me”. She described the aggravation of her abdominal condition, causing her severe pain after the incident. She experienced abdominal and pelvic pain for quite some time after the incident, and her mental health deteriorated so she became depressed. The statement also described the impact upon her ability to work, the extent of the medication she had to take, her change in habits because of the fear that someone might come to her unit, the impact on her ability to socialise and the destruction of her trust in men.
The applicant was assessed by a psychologist, whose report was made available at the sentencing hearing. It described the applicant’s background. He was 24 years old at the time of the assessment and lived with his father. His parents had separated when he was about 14. He had two brothers and three sisters, only one of which was a full sibling. The applicant was not married, but in a relationship which had commenced prior to the offending against the complainant.
The applicant had been educated to grade 12, but described himself as being quite introverted while at school and in social circumstances. After leaving school he had been employed in various positions including as a cashier and storeman, and a barman.
The applicant told the psychologist that he had felt very depressed and anxious after the offending, and had experienced a significant amount of suicidal thinking. However, he made no specific plans and was uncertain as to what level of risk he posed to himself.
He told the psychologist that he intended, on the night of the offending, to “try to get her in [the] mood” so that hopefully “they would have sex”. However, he agreed that he did not ask for her consent. He “just gave in to the temptation”. He said that if his girlfriend and himself had “done it (sex) more often”, and “my sex needs were met”, that “this would probably never of happened”.
The psychologist did not perform a formal evaluation of the applicant’s intellect, but offered the view that he was of average intelligence, albeit at the lower half of the classification. He was not sophisticated or abstract thinking, but thought in concrete, real and inflexible terms. He presented with marked disruptions to his sense of self, low self-esteem and self-worth.
On the basis of his clinical examination the psychologist formed the view that the applicant presented a depressive disorder and a Schizotypal Personality Disorder. The depressive illness likely had a few etiological origins including his dysfunctional family dynamics, a strong sense of betrayal and alienation, gross disturbances to sense of self and his present legal predicament. The Schizotypal Personality Disorder had a large genetic component, according to the psychologist, and typically developed in early adulthood.
The applicant’s temperament, coupled with his unique reactions to events and relationships in his life, and the resulting coping strategies he developed, were all likely to have contributed to the formation of those traits. He experienced excessive social anxiety that did not diminish with familiarity, preferring to be alone rather than with others, avoiding social activity, with little self-initiation of social contact, and a likelihood to respond inappropriately to social cues.
The Schizotypal Personality Disorder was one usually diagnosed in early adulthood and likely to endure, but treatment could improve the symptoms.
The psychologist expressed the view that the applicant was a person with significant personality disorder issues that directly impacted upon social relationships and situations. In social contexts he was a restricted and limited individual with an enormously naïve understanding of what are rather complex issues.
The psychologist recommended psychotherapy and other forms of treatment by mental health professionals. If such a plan was put in place he assessed the risk of reoffending as quite low. The view was expressed that the applicant’s particular personality issues would make his experience in prison one that was fraught with risks and dangers, stemming from his poor social skills, his propensity to misread and misinterpret social cues and motivations within an inherently hostile and potentially dangerous prison environment. It was suggested that a more protected environment than the general population would be appropriate.
The approach of the sentencing judge
The learned sentencing judge commenced with a characterisation of the offending. Having described the essential features of the offending, her Honour found that the applicant was, at the time he was allowed to stay over, “looking for sex”, and after the complainant went to sleep he “raped her while she was unconscious”. That finding was consistent with what the applicant told the psychologist, namely that “he had an intention” and it was on his mind that he would “try to get her in the mood” and hopefully, “they would have sex”, and that “he felt by using substances … things would work well and they would engage in sex”. From this evidence her Honour apparently inferred that this was an opportunistic offence, but one with a degree of premeditation.
After referring to the substantial impact upon the complainant, her Honour then turned to the applicant’s position. Her Honour noted that he appeared “genuinely stricken by guilt” and had entered an early guilty plea. Her Honour also noted the applicant’s age (23) at the time, and the absence of any relevant criminal history. Her Honour then turned to the psychologist’s report and matters to do with the applicant’s mental position. Her Honour noted that there were aspects of his personality which were problematic and needed to be addressed, but that he had obtained a health plan. Further, that the applicant had sufficient insight to recognise that his actions had a serious impact on the complainant, and had acknowledged the need for treatment in the future.
However, her Honour said that the applicant had not been entirely frank with the psychologist, and there was a tendency to minimise or justify some aspects of the offending. Her Honour then characterised the offending in this way:
“But apart from drinking and smoking the joints with her, it does not appear as though you made any move until she was out of it. And the way you treated her sleeping body was rough, doing actual physical harm to her. You pointed out to [the psychologist] that you did not ask for consent but that you did stop when she asked you to. While it is true that you did not make the situation worse by persisting after [the complainant] had objected, you committed the offences when she was incapable of saying or doing anything – at a time when she was completely vulnerable. You betrayed the trust of a close friend, to use her body at a time when she was defenceless.”
Noting that the sentence must be one to deter others who were inclined to violate a woman sleeping in her own bed, and recognising the applicant’s co-operation, age, antecedents and remorse, the learned sentencing judge said there was a need to ensure appropriate supervision in the community. Her Honour, in that context, referred to the fact that this was a victim violated whilst unconscious, with an anticipated added burden of fear of the unknown and worry about the extent of what she could not remember.
Counsel for the applicant has advanced a number of matters in support of the contention that the sentences imposed, and in particular those for the two counts of rape, were manifestly excessive. In truth the application concerned only the sentences for rape.
“While the Criminal Code establishes the same maximum penalty, whether the rape be accomplished by penetration by the penis or digitally, it is reasonable to observe that without additional aggravating features (weapons, extra brutality, threats of serious harm, premeditation, residual injury etc), a rape accomplished digitally may generally be seen to be somewhat less grave than a rape accomplished by penile penetration. That is because it may be less invasive, would not carry a risk of pregnancy, and would ordinarily carry substantially reduced risk of infection …”
I do not consider that the court in Colless was attempting to lay down an overriding principle. The use of phrases such as “may generally be seen” and “somewhat less grave” point very clearly to that conclusion. Rather, it was simply an observation as to factors which might be relevant in the consideration of the offence of rape.
As was said in R v Wark there is no rigid compartmentalisation of rape offences into two categories, firstly digital rape and secondly penile rape. In each case “it is the particular circumstances which will determine the level of criminality and together with other facts the sentence to be imposed”. Accepting as a general proposition that penile rape will attract a higher sentence than digital rape or oral rape, there may be cases calling for punishment as great or exceeding those involving penile penetration.
Before the sentencing judge, as before this Court, reliance was placed upon two decisions in particular, R v Keevers; R v Filewood and R v HX. The applicant seeks to distinguish those decisions not just by their different facts, but also because each was a sentence imposed after a trial. By contrast the applicant pleaded guilty at an early time, expressed his remorse and made an apology to the complainant in the days following the offence.
Keevers and Filewood involved two offenders who participated in an assault on a sleeping woman. Filewood was 24 when he and Keevers (23) went back to a unit occupied by a teammate, and where the teammate and the complainant were lying asleep in bed, following a drunken outing. The complainant woke to the sensation of kissing on her neck and rough fondling of her breast. At about the same time she felt that she was “getting punched in the vagina”, with a feeling of stinging and aching. She then woke up to find Filewood at the bottom of the bed removing his hand from her vaginal area. Keevers was at the head of the bed. Filewood admitted that he had placed his fingers inside her vagina, and they remained in that position for a couple of minutes. The complainant had various injuries to her genitalia inconsistent with consensual sex.
Filewood’s sentence of two years and six months, suspended after nine months, was found not to be manifestly excessive. The court noted that the complainant was a virtual stranger to Filewood, and entitled to feel secure from intrusion while in bed. Further, the court considered that the sentence should deter those who were inclined to take advantage of a sleeping woman unable to make conscious decisions. The rape was one which involved substantial digital force and was committed upon a sleeping woman in her own bed during the night time. In the view of de Jersey CJ, that justified the sentence, describing it as “quite moderate”.
Filewood involved two offenders who evidently worked in tandem, in a planned joint attack on a woman they did not know other than as the partner of a teammate. The brazen nature of the offence was demonstrated by the fact that the victim’s partner, the offenders’ teammate, was in the same bed where the attack happened. Further, the sentence was imposed after a trial. That is sufficient to distinguish Filewood and conclude that it does not stand as a yardstick for a sentence as high as three years in the applicant’s case.
Before this Court reference was also made to the decision in R v Hennessy. That involved a plea of guilty to one count of rape, resulting in a sentence of three years’ imprisonment to be suspended after nine months. The circumstances involved a 17 year old offender and a 15 year old girl, the two being in a relationship which involved sexual intercourse. On one occasion they were on a bed together and the offender had inserted his finger into the complainant’s vagina, without objection. She objected when he inserted additional fingers, and told him to stop. Shortly thereafter he commenced intercourse, inserting his penis into her vagina. She told him it hurt and asked him to stop but he persisted. He continued even though she objected and tried on a number of occasions to push him away.
Notwithstanding those matters, the offender and the complainant continued their sexual relationship for some time thereafter. The offending came to light when the complainant’s mother found a letter from the offender, apologising for raping her.
This Court found that the sentence was manifestly excessive only to the extent of the period to be served before suspension. That period was reduced to 11 weeks, the time already served.
As can be seen Hennessy involved two rapes, the first digital and the second penile. But the second involved persistence in the face of objections, and use of the offender’s strength to overcome physical attempts to make him desist. That is a different situation from that of the applicant, and makes Hennessy of little utility as a yardstick for a sentence of three years here, let alone the imposition of nine months before parole eligibility.
The remaining authority referred to was R v HX. There is no need to refer to it further as the circumstances of the offending (a violent rape in a car, with the doors locked) are so far removed from the present case as to make it of no utility.
The circumstances of the applicant’s offending were very serious. He was well aware that the complainant would not countenance an intimate relationship or a sexual relationship with him, having rebuffed such suggestions on prior occasions. He was also aware that the complainant had recently suffered a bereavement in the family and the loss of her pet dog, and was consequently in a state of grief. He was also aware that she had mental health issues. Notwithstanding all of those matters, he felt entitled to take advantage of her when she was unconscious, having indulged in smoking cannabis and drinking in the hours leading up to that time. The learned sentencing judge’s findings were that this was not an opportunistic offence. That said, the degree of premeditation cannot be said to be like that in Filewood, but rather formed when he was invited to stay over.
By his own admission to the police, the applicant assaulted the complainant in circumstances where it must have been obvious that she was completely vulnerable and unable to form a conscious decision about what was occurring. In so doing, he assaulted her with some force, bruising her breasts and “hammering” at her vagina in a way which caused her considerable pain. He did not know that she suffered from endometriosis, but that was no excuse, nor does it constitute a mitigating factor.
However, there were features that warranted moderation in the applicant’s sentence. His immediate apology and subsequent full admissions were accepted as showing genuine remorse. Further, his admissions to police enabled the Crown to establish Counts 2, 4 and 6, thus extending the provable offending conduct by at least the one additional rape count. The applicant had no previous criminal history, and signified his willingness (which was not doubted) to engage in treatment for his personality disorders.
In my view, Filewood and Hennessy do not stand as yardsticks which would support a sentence of three years’ imprisonment in this case. Counsel for the Crown conceded that her endeavours had not revealed such a comparable authority. Therefore, in my view, the sentence can be demonstrated to be manifestly excessive.
The very serious nature of the offending conduct has been set out above. It calls for a sentence that reflects the need to deter others who might be inclined to violate a woman sleeping in her own bed. The applicant’s young age, immediate and genuine remorse, cooperation with the authorities (in the form of his early plea and admissions that enabled a more extensive set of offences to be pressed), and his willingness to take steps towards treatment, all serve to moderate his sentence, both as to the head sentence and the time he should serve in custody.
In the circumstances a sentence of two and a half years should be imposed. The period to be served should be no more than the six and a half months the applicant has already served. However, to give the applicant the certainty of release this sentence should be suspended immediately.
I propose the following orders:
- The application for leave to appeal is allowed.
- The appeal is allowed.
- Set aside the sentences imposed on 2 August 2019 and in lieu thereof sentence the appellant to two and a-half years’ imprisonment, suspended as from 19 February 2020 for an operational period of two and a-half years.
McMURDO JA: I agree with Morrison JA.
 Count 1.
 Count 1.
 Count 2.
 Count 3.
 Count 4.
 Count 5.
 Count 6.
 Count 7.
 Though the agreed schedule of facts stated that the Facebook messages would be tendered at the sentencing hearing that was not done.
 The learned sentencing judge rightly discounted that opinion as being based on self-reporting. As was conceded by Counsel for the applicant, the psychologist was not qualified to make that diagnosis.
 Appeal Book (AB) 31 lines 15-18.
 AB 44.
  QCA 26;  2 Qd R 421.
 Colless at .
  QCA 172 at -.
  QCA 207.
  QCA 91.
 Filewood at - per de Jersey CJ, Williams JA and Philippides J concurring.
  QCA 523.
  QCA 91.
 See AB v The Queen (1999) 198 CLR 111;  HCA 46.
- Published Case Name:
R v Smith
- Shortened Case Name:
R v Smith
 QCA 23
Holmes CJ, Morrison JA, McMurdo JA
21 Feb 2020
- White Star Case:
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC229/19 (No Citation)||02 Aug 2019||Date of Sentence (Clare SC DCJ).|
|Appeal Determined (QCA)|| QCA 23||21 Feb 2020||Application for leave to appeal against sentence allowed; appeal against sentence allowed; sentences set aside and in lieu thereof the applicant be sentenced to 2.5 years imprisonment suspended as at 19 February 2020 for an operational period of 2.5 years: Holmes CJ and Morrison and McMurdo JJA.|