R v Jerome[1997] QCA 299

[1997] QCA 299

COURT OF APPEAL

PINCUS JA

DAVIES JA

WILLIAMS J

CA No 230 of 1997 

THE QUEEN 

v.   

TROY JEROME Applicant

BRISBANE

DATE 18/07/97

JUDGMENT

PINCUS JA:  Mr Justice Davies will deliver the first judgment.

DAVIES JA:  The appellant was convicted in the District Court on 23 May last of burglary for which he was sentenced to 8 years imprisonment, rape for which he was sentenced to 14 years imprisonment, indecent assault for which he was sentenced to 2 years imprisonment and indecent assault with digital penetration for which he was sentenced to four years imprisonment.

The sentences were concurrent so that the effective term was one of 14 years.  However they were imposed cumulatively upon a term of imprisonment which he was then serving, being one of five years for attempted rape and indecent assault.

The offences the subject of the conviction and sentence on 23 May last were committed on 2 September 1996 whilst he was on parole in respect of the earlier offences.  His full time discharge date in respect of the earlier offences was said to have been 31 May 1996.  He seeks leave to appeal against the sentences imposed on 23 May.

Prior to the earlier offences to which I have referred, the applicant had a substantial criminal history dating from 1978 when he was a juvenile.  Most of them were for offences of dishonesty and driving offences and some of them resulted in short terms of imprisonment.

The principal offence for which he was sentenced in 1993 was the attempted rape of his 72 year old grandmother, who at the time lived with the applicant.  She entered her room to find the applicant naked and with an erection.  She chastised him and told him to go to his room and sleep and he left without comment.  A short time later he entered the lounge room where she was sitting, still naked and with an erection but with socks on his hands.  It is plain that by this time he intended to rape her.

He pulled her from her chair and inserted fingers into her mouth whenever she screamed.  He dragged her into his room, closed the door, threw her on his bed, removed the light bulb, tore her clothes off and attempted to rape her.  When she asked for a drink he let her up and followed her to the kitchen.  She attempted to get a knife from the knife drawer but he apprehended her and threw her to the floor.  He then dragged her back to his room where he forced his penis into her mouth.  When she said she was haemorrhaging he allowed her to go to the toilet but stayed there with her.  Whilst she was on the toilet he again forced his penis into her mouth, stopping only when she indicated she was going to be sick.

The complainant eventually managed to escape to the next-door house where she rang the police.  He was, as I have said, on parole in respect of these offences when he committed the offences the subject of the present application.

These offences involved a planned and premeditated rape on an elderly woman whom the applicant knew.  He had been drinking heavily and on the night in question had an argument with his wife in consequence of which, after calling the police, she left.  He then decided to go to the complainant's house with the intention of raping her.  He knew her because his wife occasionally cleaned her house.

He took a pair of socks to wear as gloves on his hands.  He said that he chose the complainant because he thought she would be an easy victim.  She lived alone at the time.  When he arrived at the complainant's house he turned off the power at the power board and entered through the bathroom window.  Before entering the house he took off most of his clothes.  He used a cigarette lighter to find his way around the house.  He had socks on his hands to avoid fingerprints and in order to cover the complainant's mouth.  He forcefully pushed the complainant on to her bed and lay on top of her.  He told her that he was going to have intercourse with her, but that if she lay still everything would be all right.  He knew that she was frightened of him.  He initially digitally penetrated her and then raped her.  He then threatened her that if he she told anyone he would make it worse for her.

It is plain that the next morning he was seized with remorse.  He went to the complainant's house and asked her forgiveness, which not surprisingly she refused.  He then returned home where his wife had returned and he confessed to her.  He then proceeded to give himself up and his plea of guilty was made promptly.

There is no clear indication in the evidence before the sentencing Judge what effect this incident had on the complainant.  She had mild dementia and did not remember all of what had occurred.  However she was shocked because she thought that she and the applicant had been good friends.  She said the ordeal was like a dream.  Her feelings were indescribable.  She was terrified and she had prayed for help.  Although one can only speculate on the possibility of long- term psychological harm, it is likely that she will be affected at least in the short term.

There are three aspects of this matter which in my view are disturbing and which justify the imposition of a sentence of a kind which was imposed.  The first was the planning and premeditation which was involved in the commission of this offence.  The second is that it is the second offence of a similar kind and committed whilst the applicant was on parole for the earlier offence.  The third is that both involve rapes of elderly women, possibly indicative of a particular form of deviation, the repetition of which might continue unless adequately deterred.  The last two factors are matters which are analogous to those referred to by the High Court in Veen v. The Queen [No. 2] [1988] 164 CLR 465. 

It should be noted in this respect that the applicant, partly whilst in gaol and partly whilst on parole, completed a sexual offenders' treatment plan and participated for a while in the maintenance of that plan although it appears that his attendance and cooperation in that maintenance began to deteriorate sometime prior to the commission of these offences. 

It should also be noted that whilst neither during the course of the commission of these offences nor during the course of the offences committed in 1993 did the applicant cause actual physical injury of a substantial kind.  The extent of violence used and the threat if injury were together used to instil fear in the victim.

The last two factors to which are referred indicate, in my view, that the applicant when released from prison will offend in a similar way unless in the meantime his demonstrated propensity is curbed.  They show a strong need to impose a sentence which, though within the range of offences for matters of this kind, will deter the applicant from committing further offences of a like kind.  See Veen at 477.

The applicant submits that the overall sentence is manifestly excessive and whilst it was not submitted on his behalf by Mrs McGinness that it was wrong to make the present sentence cumulative upon the sentence which he was serving when he committed these offences, it was submitted that the overall effect of these sentences being made cumulative on the earlier sentences demonstrated that the sentence imposed was excessive.

Because the earlier sentences would expire in accordance with their full term on 23 August 1998, the effect of the imposition of the present sentences cumulative upon those was that the full term of the cumulative sentences would not expire until about 16 years after the commencement of the present sentences.

In my view nothing in the cases cited to the Court demonstrates the correctness of that argument.  The two main cases relied on were The Queen v. Tomlin CA No 56 of 1995, judgment delivered 4 April 1995, and The Queen v. Schwartz CA No 311 of 1996, judgment delivered 19 September 1996.

The first of these was one primarily relied on by Mrs McGinness.  However, it was pointed out by Mrs Clare that there were a number of factors in that case which distinguish it from this and which indicate in my view that when those factors are taken into account the sentence imposed in this case was not outside the appropriate range.  The offender in that case was a very young man and it is important, in my view, that that factor is generally taken into account in offences.  The offences were only a few weeks apart, whereas in this case, the offences the subject of this application were committed after the offender had served a sentence of gaol and after he had undergone what was thought to be a program to treat his strong and violent sexual urge and though it is true in Tomlin that with respect to one of the offences, the attempted rape, the applicant went to trial, he nevertheless in his evidence at trial confessed his guilt and on the rape charge, he pleaded guilty.

When those factors are taken into account, as I have indicated, I think Tomlin indicates that the sentence imposed in this case, even in its totality, was not outside the range of a sound sentencing discretion and Schwartz, in my view, relied on more I think by Mrs Clare for the respondent also, in my view, supports that conclusion.

Not surprisingly, none of the cases referred to us combine the factors to which I have referred which arise in this case and nor do they demonstrate as this case seems to do, the apparent incapacity of a program designed to enable the applicant to control his sexual urges to have any apparent effect.

Although the sentence was, in the absence of gratuitous violence, a high one I think that the circumstances to which I referred places them in the range of a sound sentencing discretion.  There were nevertheless two errors in His Honour's reasons which in my view did not cause a sentencing discretion to miscarry.

The first of these was a failure to state how, if His Honour did, he took the plea of guilty into account, or if he did not, his reasons for not reducing the sentence (see section 13 of the Penalties and Sentences Act ).  But in the end, as I think Mrs McGinness accepted, the question is not so much that, but whether, having regard to the totality of the sentence, it was manifestly excessive and, as I have indicated, in my view, it was not.

In particular, in my view, a parole recommendation of less than the halfway mark was not appropriate in this case.  The second error is one which I think needs to be corrected.  Section 157(3)(a) of the Penalties and Sentences Act requires a Court imposing another term of imprisonment on an offender who is already serving imprisonment for an offence, which was the case here, to make a fresh recommendation for parole relating to the period of imprisonment that the offender must serve before being eligible to apply for parole.  The learned sentencing Judge omitted to do this.  I would therefore grant the application and allow the appeal, only to the extent of adding to the sentence imposed a recommendation that the applicant serve until 23 February 2003 before being eligible to apply for parole.  That date is the mid point of the term of imprisonment which the applicant is now required to serve.

In making that recommendation, I am not saying that he should be eligible for parole on that date; that is a matter which should be considered at the appropriate time by those in authority who have the opportunity of observing the likelihood at that time of his release without further endangering women.

PINCUS JA:  I have, as I indicated during the hearing, been concerned that the sentence for this rape committed by the applicant might be excessive as infringing the principle in Veen [No. 2] [1988] 164 CLR 465 at 477.

The relevant passage is included in the Crown's submission in this case delivered by Mrs Clare.  To adapt the language of the High Court, quoted by Mrs Clare, the question is whether the offender's criminal history has produced the result that a penalty has been imposed which is "disproportionate to the gravity of the instant offence".  If that has occurred, then, again to adapt the language of the High Court, the result has been that the offender has been given a fresh penalty for a past offence.

The circumstances that there were prompt confessions made here and prompt exhibitions of remorse appear to me sharply to distinguish cases in which somewhat similar penalties have been imposed, one instance being Gerrits (CA No. 158 of 1991, in which the judgment of this Court was delivered on 4 October 1991). 

If one has regard to the previous sentences which have been discussed before us, there is in my view ground for thinking that the applicant has received a substantial sentence.  The question which has troubled me is whether or not the sentence is one within the range or merely a high one.  I have in the end concluded that although it appears to me to be high, the sentence is not one with which we should or could properly interfere.  I agree that the order which is proposed by Mr Justice Davies should be made.

WILLIAMS J:  Given that the offences in question were committed whilst the applicant was on parole for a similar offence and given the degree of planning and premeditation involved in the commission of the offences, I consider a head sentence of 14 years to be within the appropriate range where there have been pleas of guilty.

In addition to the authorities referred to by Mr Justice Davies in his reasons, I would add a reference to the decision of the Court of Criminal Appeal in Gerrits, CA No 158 of 1991, judgment delivered 4 October 1991.  I agree with the reasons of Mr Justice Davies and with the orders he proposes.