The Queen v Gosden & H[1997] QCA 354

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

 C.A. No. 281 of 1997

 C.A. No. 282 of 1997

Brisbane

[R v. Gosden]

[R v. H]

   THE QUEEN

v.

BRADLEY JAMES GOSDEN and

H

(Applicants)

Davies JA.

Moynihan J.

Ambrose J.

Judgment delivered 17 October 1997

Judgment of the Court

APPLICATIONS  FOR  LEAVE  TO  APPEAL  AGAINST  SENTENCE  DISMISSED.

CATCHWORDS: CRIMINAL LAW - Appeal - Appeal by each applicant against sentences for assault occasioning bodily harm and for procuring sexual acts by coercion with a circumstance of aggravation - Appeal by H against sentence for indecent assault with a circumstance of aggravation - whether sentences manifestly excessive.

Counsel:  Mr P. Hardcastle for the applicants

Mr M. Byrne Q.C. for the respondent

Solicitors: Wonderley & Hall for the applicant Gosden

R.F.G. Finlayson & Associates for the applicant H

Director of Public Prosecutions (Queensland) for the respondent

Hearing date:  25 September 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 17 October 1997

These are applications for leave to appeal against sentence on the ground that the sentences imposed were manifestly excessive.  The applicants were sentenced together with Simon Andrew Williams, Kevin McKellar, David John Poysner and George Alexander Robinson.  All were sentenced on 20 June 1997.

Gosden pleaded guilty to two counts of  assault occasioning bodily harm in company and to two counts of procuring sexual acts by coercion with a circumstance of aggravation.  He was sentenced to six months imprisonment on each of the first two counts and to three years imprisonment on each of the second.  The terms were ordered to be served concurrently and there was no recommendation of eligibility for early consideration for parole.  Gosden had originally pleaded guilty to two further counts of indecent assault with a circumstance of aggravation but as a consequence of submissions as to sentence made on his behalf the judge below set aside the pleas of guilty to those two offences and entered pleas of not guilty.  The prosecution accepted Gosden’s pleas to the counts for which he was sentenced in discharge of the indictment so far as he was concerned.

H pleaded guilty to the same counts of assault occasioning bodily harm in company and of procuring sexual acts by coercion with a circumstance of aggravation as did Gosden.  He also pleaded guilty to the two further counts of indecent assault with a circumstance of aggravation.  H was dealt with as a juvenile.  He was sentenced to six months detention for each of the assault occasioning bodily harm in company counts, to eighteen months detention for each of the procuring sexual acts by coercion with a circumstance of aggravation counts and to two years detention in respect of the two counts of indecent assault with a circumstance of aggravation.  The terms were ordered to be served concurrently and it was ordered that he be released after serving fourteen months in detention (57% of two years detention).

The offences for which the applicants and the other persons referred to earlier were dealt with arose out of events which took place in the early hours of the morning of 4 January 1997 in and about the town of Oakey.  The offences arose out of the way in which the applicants and the others treated two persons named O and B.  It should be mentioned that all of those involved in the events were or had been residents of Oakey for a large part of their lives and were well known to one another.  O and B were each disabled both intellectually and physically.  Each was intellectually impaired as that term is used in the Criminal Code and that constitutes the circumstance of aggravation referred to in the various counts on the indictment.  O and B were friends and had no occasion to fear any members of the group before the events to be described shortly.  O was 47 years of age.  He had limited vocal skills with a cognitive functioning level equivalent to that of a child of five or six.  B was 25, was born deaf but regained hearing as a consequence of surgery when he was a child.  He too had a cognitive functioning level equivalent to that of a child of five or six.  As has been said each was intellectually impaired.  It appears that although O and B lived an independent lifestyle in many respects, each of them resided with parents upon whom they were essentially dependent.  The effect of the events founding the charges on the complainants and those responsible for their care are not difficult to imagine and were in evidence before the sentencing judge.

The following short account of events is based on a summary contained in the sentencing remarks of the learned sentencing judge. O and B, having enjoyed a good night out, encountered the group, whose members have been identified earlier, and which of course included the applicants.  The man Williams took possession of O's wallet and stole $20.  He pleaded guilty in respect of that and was sentenced.  The members of the group, acting in concert, then threatened and abused the complainants, refused to allow them to leave and obstructed their attempts to do so.  Then there occurred a series of events during which the group moved from place to place.  It is difficult to determine the duration of the events and for present purposes unnecessary to do so.  The complainants were ordered to strip and were compelled to do so by assaults and intimidation.  Throughout the course of events they were continuingly threatened, assaulted, intimidated, belittled and mocked by various members of the group in the presence of the others.  It should be noted that the members of the group, with the exception of Robinson, were under the influence of alcohol and Gosden in addition had taken the anti-depressant Prozac.

The prosecution’s acceptance of the pleas by the various defendants in discharge of the indictment reflected difficulties in determining who had been responsible for some aspects of the conduct founding the charges.  It is perfectly understandable that the prosecution did not call the complainants to give evidence in respect of sentencing issues and the sentencing judge remarked that it was unfortunate that they could not be treated as special witnesses for the purposes of s.93A of the Evidence Act.

The sentencing remarks demonstrate that the judge was conscious of the need to sentence the appellants only for the offences to which they had pleaded, that there was no evidence from the complainants to controvert accounts contained in submissions on sentence and that he bore those considerations in mind in sentencing the applicants.  The sentencing judge acknowledged that the pleas were timely, they obviated the need for the complainants to give evidence at a trial and overcame potential difficulties in making out a case essentially based on the complainants’ evidence.

Returning to the summary of the events, having been compelled to strip the complainants were forced to commit fellatio on each other.  Threats to kill or cause serious injury were used to force them to do so.  There were threats, for example, to throw a complainant off a bridge and under a railway engine which was shunting in the vicinity.  One of the group (never satisfactorily identified) produced a stick which was inserted into the anus of each of the complainants.  It seems that in O's case this occurred on a number of occasions.  In B’s case a medical examination the next day founded the conclusion that considerable force had been used.  During these events the complainants were screaming, crying and endeavouring to escape but could not.

As the events progressed the complainants were directed to commit sodomy with each other.  One of them was unable to achieve this bringing an angry response from members of the group.  The other complainant was then compelled to commit sodomy on his companion.  Each of the complainants was then compelled to insert their fingers into the anus of the other.  Members of the group made derogatory remarks about spreading a version of activities around the town.  The complainants ultimately managed to escape, one was naked.

The sentencing judge appositely summarised the treatment meted out to the complainants, as “depraved and cruel” and went on “What you did was depraved and terrible in the extreme.  You as a mob set upon and terrorised and humiliated two entirely innocent people who were known to you.”  He stated that the timely plea was reflected in the sentence imposed and expressly stated (correctly) that the influence of alcohol and the drug Prozac were not mitigating circumstances.

The sentencing judge was faced with a difficult task in endeavouring to balance the various sentencing considerations and their application to each of the defendants so as to reflect both the overall circumstances and the considerations particular to each offender.  The reason for his difficulty will be apparent from the account of events.  It is clear from his sentencing remarks that he was aware of this and that he was careful in his endeavours to impose appropriate sentences.

In sentencing Gosden the judge acknowledged that he came from a stable family environment and had been in employment since leaving school.  He had recently been accepted into a training program at the Pittsworth abattoirs, was a talented sportsman and was well spoken of in the community.  The judge acknowledged that Gosden had no criminal history and that imprisonment was “very much a sentence of last resort after considering all other options” in the case of persons such as this applicant.  He also acknowledged that Gosden had not been convicted on the two counts of indecent assault with a circumstance of aggravation.  He referred to the need for parity taking into account a psychiatric report concerning Robinson and the fact that H was sentenced as a child and regarded it as appropriate to treat those three, broadly speaking, in the same manner.

In support of a submission that Gosden’s sentence was manifestly excessive, it was submitted that the trial judge failed to give appropriate weight to what was described as Gosden’s remorse and that he placed too much emphasis on a submission relating to prior acts by the complainants or one of them.  As to this, put shortly, in the course of submissions on sentence on Gosden’s behalf the sentencing judge was told that at some time prior to 4 January one of the complainants had engaged in conduct of a sexual nature in the presence of others.  The submission could fairly be taken as implying that the complainants’ conduct may in some way have led to or explained the events of 4 January and Gosden’s role in them.  The sentencing judge suggested that this was trying to shift the blame to “these intellectually impaired people” and went on to say that it indicated little insight on Gosden’s part into the enormity of what had been done and lack of remorse.  In the circumstances the inference drawn by the trial judge was open, appropriately drawn and relevant; it is not demonstrated that he gave it undue weight. 

Further submissions were made that the sentence failed to give appropriate weight to remorse and pointed to the pleas of guilty and the consequence that it was not necessary for the complainants to give evidence.  There was reference to a statement by Gosden to one of the investigating police officers to the effect that “I shouldn’t have done it because I’ve got relations too that are disabled.  I wouldn’t like to be one anyway”.  Taken in context the statement is not a very compelling demonstration of remorse.  As has already been said the pleas and their consequence were expressly taken into account in the sentence.

It was submitted that the sentence should have distinguished between Gosden’s less active role by comparison to that of others of the accused.  Gosden was sentenced for the serious offences to which he had pleaded guilty.  There is nothing to demonstrate that the sentencing judge acted on an impermissible view of his role.  A complaint was made that the sentencing of Gosden does not reflect parity with the sentences imposed on others of the accused.  The sentencing judge acknowledged the need to maintain parity while identifying difficulties in doing so in terms, for example, of the fact that H was sentenced as a juvenile and that the individual circumstances of the defendants varied.  He referred, for example, to the contents of a psychiatric report as bearing on the sentencing of Robinson.

It has not been demonstrated that the sentencing judge erred in the application in any relevant sentencing principle in dealing with Gosden.  When regard is had to the offences to which Gosden pleaded guilty and the circumstances in which they were committed, it is difficult to avoid the conclusion that imprisonment was appropriate and that the terms imposed were within the range available in the exercise of a sound sentencing discretion.

As has been said H was dealt with as a juvenile.  The sentencing judge gave consideration to the principles applicable to sentencing juveniles to periods of detention as they were considered by this Court in F and P.^[1]  He concluded that H’s personal circumstances suggested that he was a person “who was a first offender and should not go to jail”.  He had before him a report by an officer of the Department of Families, Youth and Community Care.  This did not favour detention or an immediate release order but favoured a community based order.  The sentencing judge, citing Bainbridge,^[2] decided however that these considerations notwithstanding the case was–

“So serious that notwithstanding youth and the absence of relevant previous convictions, the offender must go to jail”.

In the circumstances of this case it cannot be said that he erred in so concluding.

It will be recalled that it was ordered that H be released after serving 57% of the two years detention ordered in respect of the two counts of indecent assault with a circumstance of aggravation.  The effect of s.188(1) of the Juvenile Justice Act  1992 is that he would be released after serving 70% of the sentence unless for special circumstances, such as achieving parity, it was ordered that he be released between 50 and 70% of the time for which he was sentenced.   The adjustment reflects the sentencing judge’s endeavour to attain parity with co-defenders with three year head sentences who were eligible for home detention after 14 months and to be considered for parole after they had served 50% of the terms to which they have been sentenced as adults.  There was no complaint about this.

It was submitted that too much emphasis was placed by the sentencing judge on the complainant’s engaging in prior acts and H’s knowledge of it and that insufficient weight was given to his expressions of remorse.  Making due allowance for differences between them H is, however, in no different position from Gosden in respect of these matters.

H’s involvement may not have been as great as some other defendants but it is not demonstrated that the sentencing judge proceeded on any impermissible basis in this regard.  It has not been demonstrated that the trial judge erred in the application of principles or that the sentence imposed was other than within the range of a sound sentencing discretion.

The applications for leave to appeal against sentence by each of Gosden and H should be dismissed.