The Queen v Ivey[1997] QCA 247

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.  68 of 1997

C.A. No.  181 of 1997

Brisbane

Before Macrossan CJ

Fitzgerald P

Thomas J

[R v.  Ivey]

THE QUEEN

v.

RUSSELL CHARLES IVEY

(Appellant)

Macrossan C.J.

Fitzgerald P.

Thomas J.

Judgment delivered 19 August 1997

Separate reasons for judgment of each member of the Court; Macrossan C.J. and Fitzgerald P. concurring as to the orders made, Thomas J. dissenting in part.

APPEAL AGAINST CONVICTION DISMISSED.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED INSOFAR AS IT RELATES TO THE SENTENCE OF 14 YEARS’ IMPRISONMENT FOR RAPE.

APPEAL ALLOWED IN RESPECT OF THAT SENTENCE WHICH IS SET ASIDE AND A SENTENCE OF IMPRISONMENT FOR 11 YEARS SUBSTITUTED.  THE SENTENCES IN RESPECT OF THE OTHER OFFENCES AND THE OTHER ORDERS MADE BELOW STAND.

CATCHWORDS: CRIMINAL LAW - SEXUAL OFFENCES - appeal against convictions for burglary, indecent dealing and rape - at trial complainant gave evidence that she did not use physical resistance against appellant because she was afraid of him - whether that evidence made the verdicts unreasonable, unsafe and unsatisfactory.

SENTENCE - appellant sentenced to total of 14 years’ imprisonment - prior convictions for rape and violence - jealous obsession with complainant causing her to live in fear of him - whether sentence of 14 years manifestly excessive.

Counsel:  The applicant/appellant appeared on his own behalf.

Mrs L. Clare for the respondent.

Solicitors:  The applicant/appellant appeared on his own behalf.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date:  13 May 1997.

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 19/08/1997

I agree with the reasons stated by the President for dismissing the appeal against conviction and in that respect there is nothing I need to add.

At the hearing of the appeal the appellant was self-represented and the appeal notice as originally drafted had not sought to raise any challenge to the sentences imposed below.  In the course of the submissions, attention was directed to the sentences including particularly the substantial one of fourteen years for rape.  After some discussion the appellant conveyed that he wished the sentences to be considered if his appeal against conviction should not succeed.  The Court indicated that it would add a consideration of the sentences to its review of the matter.

The Court is always concerned to ensure that so far as is reasonably practicable there is an appropriate consistency in the levels of sentences imposed.  Although precise comparisons can rarely be made between the circumstances of different cases, the Court will intervene when there is such a departure from broadly indicated sentencing levels that a sentence under appeal appears to be manifestly excessive.

The facts involved in the commission of the offences in the present case have been set out by the President and most of the details need not be repeated.  The appellant and the complainant had previously been in an intimate relationship and the appellant was unable to accept that the relationship had been finally terminated by the complainant.  He was obsessively emotionally involved and was so unwilling to let her go, she was forced to change addresses in an attempt to escape his attentions. 

The events of the night of the offences would have been terrifying to the complainant and deeply distressing in their consequences.  The fact that the appellant completely uninvited and against all her wishes in the matter broke into her house at night is a very serious aspect. Although in his anguish the appellant treated the complainant most reprehensibly in his futile attempts to bring her to accept a reconciliation, he did not gratuitously inflict physical injuries.  However, the circumstances clearly called for the imposition of very substantial custodial terms.  The question is whether the effective term of fourteen years is so high that it should be regarded as manifestly excessive.

Allowing for all of the circumstances of the case including those that add in a significant way to its seriousness but looking as well at the broad range of penalties imposed for offences of these kinds, the conclusion should be reached that the term of fourteen years stands outside the permissible range. 

I would grant the application for leave to appeal against sentence in the case of the fourteen year term, agreeing with the President that a sentence of imprisonment of eleven years should be substituted.  I agree also with the other details of the order that he suggests.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 19 August 1997

The appellant has appealed against his conviction in the District Court at Townsville on 7 February 1997 of three offences committed on 8 February 1996; namely that:

1. he broke and entered the dwelling house of E in the night-time with intent to commit an indictable offence therein;

2. he unlawfully and indecently assaulted E by penetrating her vagina with his fingers; and

3. he committed rape upon E.

The grounds of appeal prepared by the barrister who represented the appellant at his trial were as follows:

“1.The Learned Trial Judge erred in law in allowing evidence of statements made by the complainant to the complainant’s mother to be led when the statements were not made by the complainant at the first reasonable opportunity by the complainant.

2. The Learned Trial Judge erred in his summing up to the jury in that he failed to properly direct the jury on what evidence was capable of amounting to corroboration, and the distinction between evidence of recent complaint and evidence of corroboration.

3. The Learned Trial Judge erred in his summing up to the jury in failing to give the dignity to the defence case that which was accorded the crown case.

4. The verdicts of the jury should be set aside on the grounds that they are inconsistent, unreasonable, unsafe and unsatisfactory.”

Subsequently, the appellant was sentenced to imprisonment totalling 14 years^[1] and, at the hearing of his appeal in respect of his convictions, the Court granted the appellant, who appeared without legal representation, an extension of time within which to apply for leave to appeal against his sentence and accepted his notice of appeal against conviction as such an application.

The appellant did not seek to support any of the grounds raised in the notice of appeal.  The real basis of his appeal was encapsulated in his statement that “She said [in evidence] she allowed me to ... do them things”. 

The evidence in chief of E revealed that she and the appellant were involved in a sexual relationship at various points between June and October 1995.  The relationship broke down because of the appellant’s jealousy.  Subsequently, he pestered her and, on at least one occasion in January 1996, stayed at her house for a period of four or five days, although neither invited nor welcome to do so.

After what she described as some “trouble” between her and the appellant, E resided in a women’s refuge and then stayed at her mother’s house in Richmond for somewhere between a few days and a few weeks.  The appellant telephoned her every day, sometimes up to 30 times a day.  He threatened to shoot E’s mother and her mother’s partner, “Trevor”, to burn E alive and, on a number of occasions, to rape her.  The appellant said that he wanted a reconciliation with E and wanted to know whether or not she had any boyfriends.

Subsequently, E and her children moved into a house next door to her mother’s house.  On 7 February 1996, E spent some time at her mother’s house before returning home between 9 and 10 p.m., leaving her children in bed at her mother’s house.  After locking the doors and windows, E went to bed wearing a nightie and underpants.

At approximately 2 a.m. on 8 February, E was woken by a “big bang”, and saw the appellant standing at the door of her room with a pickaxe in his hand.  The appellant asked her if the pickaxe “was meant for him”, and she replied that the children had found it under the house.  The appellant told her that if he had caught a “bloke” in bed with her he would have killed them both.  E asked him to put the pick handle down and suggested that they talk.  The appellant pushed Eon to the bed and pulled her hair and, when she told him that he was hurting her, he told her not to yell “because your mum and Trevor will hear”.  The appellant asked E if a man whom he named had slept with her.  She described the appellant as aggressive and said that she was “too scared to do anything”.

After the appellant put the pick handle down, he and E went into the lounge room, where they prayed.  She said that she was praying for help, and that the appellant said, “I’ll tell you how to pray.  Lord, why did I do this, why did I come up here.  Please help E and her children.”

The appellant suggested that he and E go into the bathroom “so he could see if [she] had had sex with anyone”.   In the bathroom, he penetrated her vagina with his tongue and fingers.  He asked her if she was enjoying herself and she did not respond because she was too scared to say no.  He asked her whether she was having sexual intercourse with anyone else and she told him that she was unable to do so because she had thrush.

The appellant nonetheless suggested that they go into the bedroom to have sexual intercourse and put his arm around E’s right arm.  She remained silent but tried to stay away from the bedroom because she “knew that [the appellant] wanted sex”, and she did not.  Once inside E’s daughter’s bedroom, the appellant asked her to have sexual intercourse with him but she said that she did not want to do so but wanted to go to sleep.  She asked the appellant to leave and he replied that he would but stated that he loved her and did not want anyone else to be with her.

E then lay on the bed.  The appellant rolled her over and undressed her and “hopped on top” of her and commenced to have sexual intercourse.  Although she did not offer any physical resistance, E was crying and asked the appellant not to give her a love bite.  The appellant then told E to “hop on the floor”.  When she said that that would hurt her, the appellant placed a pillow beneath her head and pulled her away from the wall.  The sexual intercourse which had commenced on the bed was resumed on the floor.  E tried to pull her legs away from the appellant’s shoulder and tried to resist his attempts to kiss her on the mouth.  He asked if he could “fuck [her] up the arse”.  E replied: “No, nature’s not meant to be like that, you’re meant to have sex in the vagina.”  On a number of occasions, the appellant said “You’re not enjoying it.”  He asked her whether or not she had had an orgasm, and she told him that she was not sure. 

E told the appellant that her mother and children would be home shortly and he said that he would hide in a manhole in the roof.  He took the pick handle and raised it towards her and she asked him not to hurt her.  He then went back to her bedroom and sat on the bed, where she put her hands around his neck and attempted to choke him.  The appellant said “If you don’t stop it I’ll hurt you.”  E then retreated and told the appellant to leave, which he agreed to do.  He said that he intended to go to Western Australia and wanted her to join him.  E said that she did not want to go anywhere.  Conversation continued for about an hour during which, on a number of occasions, the appellant told E that, if she called the police, he would “give them something to come around for”.

The appellant suggested that E drive him to the bus stop, but then resiled from that suggestion because of the risk that someone would see him or E would ring the police.  She agreed to drive him in her car and “drop him along the road”.  She said that she agreed to this because she wanted him out of the house before her children arrived as they were terrified of the appellant.

Before they left the house, E changed her clothing and the appellant looked for his thongs which he found at the back of the house.  They drove towards Hughenden and, on a number of occasions, the appellant urged E to become reconciled with him.  He started “feeling [her] up”, and she told him to stop.  She said that his emotional state was sometimes calm and other times aggressive, and she attributed his aggression to jealousy.

They stopped at a petrol station outside Hughenden to obtain fuel, and then proceeded to a bus stop where the appellant got out of the car, telling E to inform the man whom he suspected she was having a sexual relationship with that he would be back and would shoot him.  E drove back to Richmond where she told her mother what had happened and rang police from her mother’s house.

The cross-examination of E sought to establish that the acts which she attributed to the appellant were consensual.  The following matters appear from answers which she gave:

1. She did not yell out for help when she saw the appellant in her house because she was “frightened for [her] life” and afraid that he would hit her;

2. She asked the appellant if they could talk throughout the incident in an attempt to calm him down.

3. She did not attempt to run away from the house because she was afraid and she believed that the appellant would run after her.  That was so even though, at one point, the appellant was lying on the lounge room floor on his stomach with his hands behind his head.

4. The appellant did not physically force her to do any of the acts alleged by her.

5. She did not stop the appellant because of his physical strength and her fear.

6. She was not physically forced into the bathroom or bedroom.

7. She followed the appellant into the room where the pick handle was because she “didn’t want everything smashed in [her] house” and the appellant had caused her “enough money as it is”.

8. The closest bus stop was two blocks away from her house but she did not drive the appellant there because he was concerned that someone would see him and contact the police.  She drove him to Hughenden to get him out of her house and away from her family.  She considered that it was preferable for him to harm her than her children.  She stopped driving about five kilometres out of Hughenden but could not remember why although it might have been so that the appellant could urinate.

1. During the trip to Hughenden, she gave the appellant her silent telephone number because “he was in the house with [her]”.

10. After she stopped at a bus stop in Hughenden and the appellant got out of the car, she complained that she had no fuel.  The appellant then offered to buy her petrol and they went to a service station where they both walked inside and she purchased drinks and paid for the petrol.  She was too afraid to make a complaint or ask for help.

11. When the appellant finally got out of the car, he was aggressive and making threats towards the man with whom he believed she was having a sexual relationship.

It is beyond question that it was open to the jury to be satisfied beyond reasonable doubt that the appellant committed the offences of which he was convicted if it accepted the evidence of E, as it obviously was entitled to do.  It follows, of course, that the verdicts are not “unreasonable, unsafe and unsatisfactory”.

The only other point raised by ground 4 in the notice of appeal was presumably based on the acquittal of the appellant on a second count of unlawful and indecent assault.  That does not mean that there was inconsistency between that verdict and the appellant’s convictions.

Ground 1 is obviously without substance on E’s version of events.

Grounds 2 and 3 are also without merit, and it is somewhat surprising that they were drafted by counsel who represented the appellant at his trial.  A number of redirections were sought, and all were granted.  For example, fair directions were given in relation to corroboration, and the complainant’s statements to her mother on her return from Hughenden were expressly excluded from the jury’s consideration of corroboration.

The appeals against conviction should be dismissed.

As mentioned earlier, the appellant was sentenced to a total of fourteen years’ imprisonment, with a declaration that 369 days spent in custody prior to conviction and sentencing was time already served under the sentence.  The sentences imposed were fourteen years for rape, eight years for breaking and entering with intent, and eight years for indecent assault.  All sentences are required to be served concurrently.

The appellant, who was aged 35 years when the offences were committed and 37 years when he was sentenced, has prior convictions, including a conviction for rape in 1978 and for unlawful wounding in 1992.  The victim on that occasion was his then de facto wife.  Various other offences involved violence or damage to property.

Reference has been made to the fact that, prior to the present offences, the appellant had a sexual relationship with the complainant which broke down because of the appellant’s jealousy.  In her submissions, the prosecutor described the appellant as having a “jealous obsession”, and it is plain that his behaviour caused serious concern and inconvenience to the complainant.  When the complainant returned after driving the appellant to Hughenden, a witness described her as  looking as though she was about to have a “breakdown”.  A victim impact statement indicated that the complainant suffers from nightmares, sleeplessness and headaches and that she and her children continue to live in fear of the appellant.  A pre-sentence report obtained at the request of the appellant’s legal adviser at his trial stated that the appellant has deep-seated and lifelong personality problems, that he still maintains that the complainant loves him, that he continues to deny culpability for the present offences, and that detention is unlikely to modify his behaviour.  In his sentencing remarks, the trial judge described the appellant as a danger to women; although that might overstate the position, the appellant would certainly be a danger to the complainant if he was at large.

Nonetheless, a sentence of imprisonment for 14 years for the present offence of rape cannot be maintained consistently with such recent decisions of this Court as R. v. Stirling,^[2] R. v. Press^[3] and R. v. McIlvaney.^[4]  In my opinion, an appropriate sentence for his rape offence would not exceed imprisonment for eleven years.  However, there is no reason to impose any lesser sentence.

Accordingly, I would dismiss the appeal against conviction, but grant the application for leave to appeal against sentence insofar as it relates to the sentence of 14 years’ imprisonment for rape, and allow the appeal in respect of that sentence, which should be set aside and a sentence of imprisonment for eleven years substituted.  The sentences in respect of the other offences and the other orders made below should stand.

REASONS FOR JUDGMENT - THOMAS J

Judgment delivered 19 August 1997

I agree with the President's reasons for dismissing the appeal.

However I do not agree that the sentence of 14 years was manifestly excessive.

It is difficult to use the cases of Press,^[5] Stirling^[6] and McIlvaney^[7] where sentences of 7 years, 7 years and 8 years were respectively upheld as sentence-indicators in other than relatively typical examples of the offence of rape.  The dominant features of the present case are the applicant's history, including a previous conviction for rape and the circumstance that he will continue to pose a danger to society.  That particular conviction for rape was in 1978 and he was then sentenced to 8 years' imprisonment.  He has convictions for other matters as well, of which a conviction of wounding in 1992 has particular relevance as it involved the use of a knife upon his then de facto wife.  After threatening her with it he used it to puncture her left lung, and was sentenced to 12 months' imprisonment.  It is also to be remembered that the present complainant, who had a sexual relationship with him between June and October of 1995, obtained a domestic violence order against him in 1996 which he breached by appearing at her house.  This was followed by the rape and other offences (on 8 February 1996) described in the President's judgment.

The salient feature of the present case is the obsessive conduct and personality of the applicant who would seem to represent a danger to any woman with whom he has a relationship, and to this complainant in particular.  He demonstrates a lack of any capacity to understand, even now on the appeal, the wrong he has done, or that the relationship had ended and that he had no rights over her.

The Court had the benefit of a psychiatric report from Dr Richards, a psychological report from Philip Hale and a pre-sentence report.  He is described as not psychotic, but as having paranoid personality traits.  The pre-sentence report asserts, reasonably I think, that if his attitude persists, there is a reasonable probability that he will reoffend in a similar way again.  The case therefore raises the same kind of problem as sometimes emerges in sentencing an offender, who after killing another is found guilty of manslaughter on the ground of diminished responsibility.  Where there is a prospect of reoffending, those sentences are often very high, because they give effect to the need to protect society.  While the need for proportionality is recognised, it is appropriate that the sentencing discretion be exercised having regard to the protection of society (Veen v. The Queen (No. 2) 164 CLR 465).  In that case the appellant was sentenced to life imprisonment for manslaughter (based on diminished responsibility), not long after being released on licence from prison for a former conviction of manslaughter based on diminished responsibility.  The sentencing judge described him as a continuing danger to society and as likely to kill again and in those circumstances felt unable to mitigate the severity of a life sentence on account of his mental condition.  The High Court, by majority, upheld the life sentence, holding that no error of principle had affected the sentence.  The protection of society was expressly recognised as a valid consideration, although the sentencing result must not be disproportionate to the crime.  Further, it was recognised that it is legitimate to take account of previous history when it shows a dangerous propensity.

There is of course considerable difficulty in translating these factors into figures.  Previous decisions of this court in which I find some useful discussion are R v. Chinfat^[8] and R v. K.^[9]  Chinfat was convicted inter alia of two counts of rape upon a woman with whom he had had a relationship.  The first rape occurred shortly before she gave birth to a child and the second a substantial period after their prior relationship had ceased.  The court reviewed a number of decisions involving rape of former de facto partners.  The court set aside sentences of 12 years and replaced them with 9 years.  Chinfat had a serious prior criminal history, the most relevant of which consisted of assaults occasioning bodily harm, and one offence of deprivation of liberty coupled with indecent assault, for which he had been sentenced to 12 months.  However the sentence in Chinfat does not appear to have been expressly influenced by any element of future danger to society.  In the present case, quite apart from the special reports, a second conviction of rape after serving an earlier sentence for rape is a very clear pointer towards such danger, and is a factor that should relevantly increase the sentence. 

Subject to framing a sentence that is proportionate to the gravity of the offences (R v. Jackway, ex parte Attorney-General CA. 9, 19 of 1996, 18 October 1996, QLR 21 June 1997),

"the antecedent criminal history is relevant . . . to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law.  In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.  It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender . . . from committing further offences of a like kind."

Veen above, p 477, per Mason CJ, Brennan, Dawson and Toohey JJ.

In K above, 67 cases that had come before the Court of Criminal Appeal between 1982 and 1991 involving sentences for rape were reviewed by Davies JA and Thomas J

"Looking at the sentences as a whole (that is to say the sixty-seven cases), it is apparent that sentences of more than ten years tend to be accompanied by aggravating features such as the commission of concurrent offences such as sodomy, or abduction or deprivation of liberty, or circumstances such as a brutal attack, the use of weapons, or attacks on very old women or very young girls, or cases where the authority of a father or person in loco parentis has abused the trust of a child."

The list of relevant aggravating circumstances was not exhaustive.  Circumstances such as those in the present case may certainly be described as "aggravating features".  The review in K revealed a range of results between 3 years and 20 years for the offence of rape.  The focus in that particular case was upon offences committed upon young persons in domestic situations.  In that particular case the court substituted a sentence of 11 years, but the circumstances are not comparable.

Life sentences for rape were upheld in the case of a serial rapist with respect to three of the four rapes of which he was convicted.^[10]  The protection of society was there regarded as a relevant factor demanding a substantial sentence, with particular regard to evidence that suggested that the offender was not adequately able to control himself.  In another case a sentence of 14 years' imprisonment was upheld for rape concurrently with a life sentence in respect of extreme violence accompanying the rape of two women which amounted to the attempted murder of both.^[11]  Fourteen years was upheld in the case of Gerrits^[12] for indecent assault involving sodomy upon a woman in her own home.  In that case some weight seems to have been given to a psychiatric report which indicated that the appellant was at risk of committing further antisocial sexually sadistic acts against women.  There is little point however in reviewing the cases further.  Whilst reasonably clear levels may be discernible with regard to more ordinary examples of this offence, there is a wide range open to sentencing courts in cases special features such as those that exist in the present case.

Having regard to this particular applicant's past history and to the future propensity that has clearly been revealed to the Court, I cannot say that a sentence of 14 years is manifestly excessive.  It is of course a very high sentence, especially as the circumstances do not reveal gratuitous physical violence.  They do however reveal a particularly frightening mental attitude, and they have seriously affected the complainant's life.

In all the circumstances I would not be prepared to disturb the sentence of 14 years.