The Queen v S[1997] QCA 287

COURT OF APPEAL

MACROSSAN CJ

WILLIAMS J

BYRNE J

CA No 186 of 1997

THE QUEEN

v

S Appellant

BRISBANE

DATE 25/07/97

JUDGMENT

WILLIAMS J:  As the result of events which occurred on the evening of 16/17 June 1996 the appellant was charged with a number of counts in the District Court.  There was one count of unlawful wounding, two counts of unlawful assault occasioning bodily harm, one count of deprivation of liberty, two counts of indecent assault involving oral intercourse, two counts of indecent assault involving anal intercourse and two counts of rape.

When the appellant was arraigned he pleaded guilty to the offence of unlawful detention.  He also pleaded guilty to one of the charges of unlawful assault occasioning bodily harm.  It can be said - and the significance of this will become evident in a moment - that the charge of assault occasioning bodily harm to which he pleaded guilty was a catch-all covering all the assaults not covered by the other count on the indictment.

It can also be said in broad terms that the particulars of the charges indicated that counts 2, 3 and 4 related to oral intercourse, anal intercourse and vaginal intercourse at an early stage in the evening's proceedings.  Counts 7, 8 and 9 related to similar charges occurring at a point of time after, on the complainant's evidence, her legs had been tied with an electrical cord.

The complainant, one R, and the appellant had been living in a de facto relationship on and off over a period of time.  For some time prior to 16 June 1996 they were living apart but some social contact continued.  There was apparently a domestic violence order in place.  On 16 June the appellant and the complainant, it is agreed, met at the Waterloo Hotel and there was some general discussion which ultimately resulted in an agreement between the two whereby some seafood and a bottle of bourbon was purchased and they returned to the complainant's home to consume that food and drink.  According to the appellant's evidence some marijuana was also smoked in the early stages of the evening.

There seems no doubt on the accounts given by both the appellant and the complainant that after the food and drink had been consumed they were sitting or lying on a mattress in the lounge room.  According to the complainant there was an argument instigated by the appellant against the background of his allegations that she had been associating with other men.  According to the complainant that led to her being slapped around the head and her being pinned to the mattress.

The evidence given by the complainant was that the appellant then produced a red Swiss pocket knife and made a threat to disfigure her face.  Her evidence is that he then cut her above the left eyebrow with that knife.  He then used the knife by placing it in her ear and under her nipples.  It would appear that, at that stage, both parties were in a state of substantial undress.  The knife was also held to her bellybutton and the complainant's evidence was to the effect that the appellant said he would slice her there too.

There were more blows to the head and, at some stage, she passed out.  According to the complainant's evidence the appellant used the knife to cut off some of her hair.  Other blows were struck, according to the complainant and, in addition, his fingers were placed in her mouth ripping at her lips in all directions.

According to the complainant's evidence, during those events, there were forced acts of oral intercourse, anal intercourse and rape.  Again, taking up the account of the complainant's evidence, she complained that she was feeling cold and the appellant picked up an electric heater and put it on her stomach.  That incident became the other count of assault occasioning bodily harm.  I should have said that the cutting above the left eyebrow with the knife constituted the charge of unlawful wounding.

After the heater was placed on the complainant's stomach she said that the electrical cord attached thereto was used to tie up her feet.  After that there were further incidents when the appellant put his penis in her mouth, subsequently used vaseline and sodomised her, and subsequently to that had vaginal intercourse.

The whole episode took place over some hours.  It would appear to vary between five and seven hours on the whole of the evidence.  The episode came to an end when the complainant went to the bathroom and then saw her chance to escape from her house.  She ran naked to the house next door, falling over a fence or rail in the process of doing so.

Neighbours gave evidence of the complainant coming to their house.  When she was seen by them her face was swollen, her hair was cut and she was naked.  They called the police.  The complainant was taken to the Royal Womens Hospital where she was seen by Dr Myers at about five a.m.  Dr Myers gave a detailed account in evidence of the injuries that she noticed.  There was blackening of both eyes, blood in the right ear, swollen lips, dried blood, haematomas at both the upper and lower lips.  There was the laceration to the forehead and there was a burn mark on the left side of her abdomen.

She was then taken to the Royal Brisbane Hospital where Dr Fawcett stitched the laceration which was about five centimetres long above the left eyebrow.  Dr Myers considered the burn mark on the complainant's abdomen to be fresh and that was also observed by Dr Fawcett who described it as a first degree burn; that is, of course, the most superficial of burns.

The appellant gave evidence in his own defence.  There's not a great deal of difference between the accounts given by the appellant and the complainant as to the events leading up to their arrival at the complainant's house on the evening in question.  According to the appellant shortly after they arrived they had a shower together and then proceeded to consume the food and drink and also to smoke some marijuana.  In the course of that, according to him, they were lying on the mattress in the lounge kissing and fondling each other in a state of, at least, semi-undress.  According to him, they then had an act of normal consensual intercourse.

In that regard I should note that an extract from an affidavit of the appellant, sworn prior to trial, in which he denied having intercourse with the complainant and denied that spermatozoa located in her vagina came from him, was admitted in evidence.  Subsequent forensic testing confirmed that the spermatozoa was almost certainly from the appellant.  It was after that that he admitted in the course of his evidence having the one act of sex.

The appellant's evidence was that an argument then developed primarily against the background of allegations of the complainant's association with other men.  He admitted that he "grabbed her by the neck and shook her and that".  He also said he "slapped her a couple of times".  When he was asked was the argument getting worse he answered, "Not really.  It was just I went mad.  That is all".  He was asked about using a knife and he denied using a knife.  He was asked about cutting the complainant's hair and he denied that.  He denied using the electrical heater.  He was asked how did it come about that her hair was cut that night and he answered, "I don't know how that happened".

He also specifically denied anal or oral intercourse.  It was in those circumstances that the jury returned verdicts of not guilty with respect to the first acts of sexual intimacy between the parties.  Undoubtedly, in the light of the evidence given by the appellant that the first sexual intimacy that evening was consensual, the jury had at least a reasonable doubt on those issues.

It seems to me that there was ample evidence, particularly in the light of the pleas of guilty to the unlawful deprivation of liberty and the unlawful assault occasioning bodily harm relating to the catch-all of assaults other than the burn, and the confirmation in the medical reports of the injuries sustained by the complainant, supporting the jury verdicts.

The appellant's notice of appeal against conviction merely says:

"My legals did not present evidence which was vital as I'd requested them to subpoena places and people and also instructed them to ask questions at trial which were not put forward."

In addition to that he submitted a brief statement to the Court dated 17 July 1997.  In that he said:

"My instructing solicitor did not follow or act upon my instructions.  My barrister who I'd only met the day before my trial started did not ask any questions or raise every issue and was very inexperienced, incompetent and far from capable of providing me with natural justice.  For instance, the people and places, doctors, detectives I'd requested to be subpoenaed were not.  The hospitals which were vital were not subpoenaed."

The statement does goes on but it is merely repetitive of what I have already quoted.  The appellant placed some material before the Court in support of those matters.  For example, he made mention of the Wynnum Hospital.  He has a belief, which may or may not be right, that the complainant went to that hospital immediately after the incident and before going to the Royal Brisbane Hospital; but material that he has produced indicates that there are no records at that hospital relating to the complainant.  If she did go there, it may well be, given the time of day, she was immediately referred on to the Royal Brisbane Hospital.

Having read the material that the appellant has placed before the Court and listened to his argument in support of it, I cannot see that there is anything in those matters which causes concern as to the propriety of the convictions.  As I have said, it does seem that the jury listened carefully to the evidence and were prepared to give him the benefit of the doubt where that was called for.

Given the confirmation of the injuries sustained by the complainant and the plea of guilty to the deprivation of liberty, there is nothing unsafe and unsatisfactory about the convictions.  The appeal against conviction should be dismissed.

There is also an application for leave to appeal against sentence.  For the unlawful wounding the sentence was two years; for the assault occasioning bodily harm, the burn to the abdomen, one year imprisonment; the deprivation of liberty, one year imprisonment; the indecent assault, oral intercourse, six years imprisonment; the indecent assault, anal intercourse, eight years' imprisonment; the rape, 10 years imprisonment; and the catch-all assault occasioning bodily harm, two years imprisonment.

All of those sentences were to be served concurrently.  However, the effective sentence was 12 years imprisonment and that comes about in this way.  On 8 December 1995, some six months prior to the events giving rise to these proceedings, the appellant was convicted of four counts of receiving in the Brisbane District Court.  The sentence imposed was two years' imprisonment suspended for four years.

The convictions for these offences, of course, made operative that sentence and the learned sentencing Judge ordered that the sentences he imposed for these offences be cumulative on the two years which had to be served with respect to the receiving.

The learned sentencing Judge took into account the fact that there was a domestic violence order against the applicant at the time these offences were committed, that it was a bad case of its kind, that there had been what he described as systematic torture over five hours or so whilst the complainant was sexually abused, and the fact that a weapon was used in the course of the episode.

The learned sentencing Judge also had regard to the extensive criminal history of the appellant.  It included a number of serious property offences including arson, wilful destruction of property, housebreaking and the like.  There was also a conviction for trading in heroin.

The appellant challenged before this Court the statement made to the learned sentencing Judge that the arson conviction back in 1990 was committed against the background of an argument with a woman with whom the appellant had then been having an affair.  The Crown was not able to take the matter further in this Court.  But even if one leaves aside that circumstance, the mere conviction for an offence of arson in setting fire to a dwelling-house in 1990 is significant in the appellant's record.

When the overall criminality of the episode on the evening in question is taken into account a sentence in the range imposed here of 10 to 12 years is, in my view, appropriate.  Certainly, it may be said that a 12 year effective sentence is towards the top of the range but to a large extent that is because of the significant criminal history and the degree of violence which was associated with the events on the night in question.

In all the circumstances I would refuse the application for leave to appeal against sentence.  The orders I would propose would be: Appeal against conviction dismissed, application for leave to appeal against sentence refused.

THE CHIEF JUSTICE:  I agree.

BYRNE J:  I agree.

THE CHIEF JUSTICE:  The orders of the Court will then be those indicated by Mr Justice Williams.