The Queen v Laman[1997] QCA 357

IN THE COURT OF APPEAL 

SUPREME COURT OF QUEENSLAND

C.A. No. 142 of 1997

Brisbane

Before McPherson J.A.

Shepherdson J.

White J.

[R. v. Laman]

THE QUEEN

v.

CLIFFORD EDWARD LAMAN

(Applicant) Appellant

McPherson J.A.

Shepherdson J.

White J.

Judgment delivered 21 October 1997.

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.  APPLICATION TO APPEAL AGAINST SENTENCE GRANTED AND APPEAL ALLOWED TO THE EXTENT OF SUBSTITUTING FOR THE EXISTING PAROLE RECOMMENDATION A RECOMMENDATION THAT THE APPELLANT BE CONSIDERED FOR PAROLE FROM 7 JANUARY 2003.

CATCHWORDS: CRIMINAL LAW - Indecent Assault - Rape - Whether prior relationship between complainant and appellant terminated - Whether totality principle of sentencing relevant .  M. v. The Queen (1994) 181 C.L.R. 487; R. v. Coss (C.A. 262 of 1994); R. v. Cutajar, ex parte Attorney-General (C.A. 338 of 1995).

Counsel:  Mr P.E. Nolan for the appellant

Mr D. Meredith for the respondent

Solicitors:  Harris Sushames for the appellant

Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 12 August 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21 October 1997

This is an appeal against conviction after a trial in the District Court in which the appellant was found guilty of rape and five other cognate offences including indecent assault consisting of anal intercourse.  There is also an application for leave to appeal against sentence.

The offences alleged were committed on 19 November 1995.  At that time the complainant, whose first name is Allison, was living alone with her 20 month year old daughter at her house or flat at Cannon Hill. She had first met the appellant in October of that year.  The acquaintance rapidly developed into a sexual relationship but it lasted only for a fortnight or so, until 3 November or thereabouts, before coming to an abrupt end.  There was, it seems, a difference of opinion as to which of the two had terminated it.

After their parting, the complainant and the appellant were not together again until the evening of 19 November.  He came to her door at about 7.15 p.m. and she let him in.  He was, she said, very drunk and angry.  There was some talk over a cup of coffee in the lounge room.  An argument ensued and she stood up to let him out.  He sprang at her, threw her on to a mattress, pulled off her pants, and, after perpetrating the various other indignities with which he was charged, he raped her.  Then he turned her over and sodomised her.  She did not consent to any of these acts.

When he left soon afterwards, she telephoned the police at about 8.00 p.m.  They arrived at about 8.20 p.m. and found the complainant in a distressed condition.  She was shaking and crying and complained she had been raped.  She was taken to hospital and medically examined, where she was found to have fresh bruising, minor scratches and abrasions on parts of her body, bite marks around one nipple, and a tear in the edge of the verge of the anus.  Swabs were taken in the vaginal and peritoneal area.

At the trial, the appellant did not himself give evidence, but it is accepted that at the trial the only issue was whether the complainant had consented to sexual intercourse and perhaps also to the other acts complained of.  It was put to the complainant that her allegations were false and had been fabricated by her after the appellant’s rejection of her in November.  The swabs taken from her body were subjected to DNA testing but the seminal fluid was generally too small in quantity to permit a conclusion, except for one taken from high in the  vagina, which in fact served only to eliminate the appellant as the source of the sperm recovered from that source.  The explanation given for it was that she had had sexual intercourse with another man some 24 hours before the incident alleged; but the evidence had little relevance once her consent became the only matter in issue at the trial.

Although the appellant himself did not give evidence, two witnesses were called in the defence case.  One testified to having in November 1995 received at the appellant’s work place a telephone call from a woman calling herself Allison, who, having demanded to speak to the appellant, then called the witness a liar when she told her he no longer worked there.  The other witness was another woman who, with a male friend, had shared a flat with the appellant at about this time. She said that in early to mid-November 1995, after the appellant stopped seeing the complainant, there had been persistent telephone calls from the complainant, who repeatedly inquired after the appellant.  For her part the complainant denied all but one of these calls, claiming instead that it had been he that had pestered her after the breakup of their relationship, on at least one occasion threatening her that he would cut her throat.  This and other incidents which she attributed to him were reported to the police.

The evidence of the two defence witnesses and the course of cross-examination of the complainant presented an impression which, if accepted, tended to bear out the appellant’s claim that it was she who was relentlessly pursuing him rather than the reverse.  In support of this hypothesis, a letter was tendered and read to the jury which she admitted having written, and in which she expressed her great admiration, not to say affection for him; but at the same time charged him with having been a faithless lover who had used her simply for sexual gratification, and then left her for another.  In the letter she admitted to feelings of anger and frustration, and to having been hurt by his rejection of her.

For his part, the appellant, when the nature of the charge was explained to him early on the day following the complaint of these offences, exclaimed to the police that she was a “psycho bitch”, adding “I went round and I fucking abused the cunt last night.  Don’t worry about that”.  When asked to elucidate, he said “the psycho bitch” was “the fucking one that’s been ringing all me friends all the time”.

The jury were no doubt pressed by the defence to view the case as an example of the age‑old story of a woman scorned, who would stop at nothing, including fabricating a false charge, in order to avenge herself on her false lover.  It would have been open to them to accept that version of events.  But there are indications that they applied themselves with care and attention to their task before arriving at their verdicts of guilty on all counts.  The sole ground of appeal was and is that the verdicts were unsafe and unsatisfactory, and that the jury should not have convicted having regard to the state of the complainant’s veracity (or lack of it) as displayed at the trial.

It must be said that there was material before them sufficient to raise a doubt about the complainant’s account of the termination of the relationship or the reasons for it; its impact on her; and her denial at the trial that she made the telephone calls attested to by the two defence witnesses. The letter admittedly written by her to the appellant goes far to supporting his and their version of those events.

There are, however, reasons why, even if it was accepted that the complainant had not told the truth about these matters, the jury might nevertheless have accepted her account that she was set upon, raped, and otherwise dealt with on the evening of 19 November 1995 in the manner she described.  In the first place, her own evidence was given in what, so far as the sterile pages of the record book are capable of conveying on an appeal, was a detailed, logical, and apparently reliable manner.  First, her evidence, although challenged in cross-examination, on the critical question of what, if anything, had happened that night, was completely uncontradicted.  Next, it seems clear enough from what the appellant said to the police when taken into custody next morning that he admitted at least having been to her home on the preceding night and having “abused” her there.  That went some way towards supporting her account of events.  The distressed condition of the complainant witnessed by others at 8.15 pm. that evening was, unless she was successfully feigning it, consistent with the account she gave at the trial of what had happened.  The bruising and scratching noticed on medical examination went to support her story, and fitted in with the particulars she gave in evidence of what had been done to her.  Finally, the tear in the fringe of her anus tended to confirm her evidence of having been sodomised by the appellant.  Dr Leonard said that, although other explanations were possible, it was a fresh tear or split, and not a chronic fissure of long-standing.

When all these matters are taken into consideration it seems clear that it was reasonably open to the jury to accept her evidence of what had happened on the evening in question, even while also accepting, as they may well have done, that she had not told the truth about her subsequent pursuit of the appellant after their relationship had come to an end.  Assuming that her conduct in that regard was that of someone either lovelorn or vengeful or possibly both, it is plain that the appellant was equally frustrated and angered by her unwanted and persistent attention and interference in his affairs.  In that state, and affected as he was by the influence of alcohol, he may well have decided to put a stop to her activities by giving her a brutal lesson that would teach her to leave him alone in the future.

At the very least, it was open to the jury to reach such a conclusion in arriving at their verdicts.  In the end, the case is one where, despite the apparent unreliability of the complainant’s evidence about her conduct before the incident on 19 November 1995, she may, as a reading of the transcript of her testimony itself tends to suggest, have presented as a convincing witness on the central issue in the case.  The matter is therefore one where the impression gained from seeing and hearing the complainant give her evidence at the trial was likely to have formed a decisive factor in persuading the jury of the appellant’s guilt: cf. M. v. The Queen (1994) 181 C.L.R. 487, 494.  Conversely, it is not an instance where there is a significant possibility that an innocent person was convicted.

We would therefore dismiss the appeal against conviction.

Turning to the application for leave to appeal against sentence, the learned judge of District Courts imposed an effective sentence of seven years for all the offences of which the appellant had been found guilty, of which there were six in all.  In addition to the rape and sodomy, there was a charge of indecent assault constituted by forcing the complainant to take the appellant’s penis in her mouth;  another of sticking his fingers in her vagina; yet another arising from his having bitten her nipple; and, in addition, a charge of assault occasioning bodily harm.

A sentence of imprisonment for seven years is well within the range of penalties imposed for offences of this kind and, from the appellant’s standpoint, compares not unfavourably with that in R. v. McIlvaney (C.A. 427 of 1996).  Needless to say, the complainant has been seriously affected by the experience she underwent.  In the end, therefore, the only arguable point is that the cumulative effect of the term of imprisonment imposed for the subject offences is, when taken with an existing sentence to which the appellant was subject to at the time, such as to amount to such a “crushing burden” upon him as to require moderation.

The subject offences were committed on 19 November 1995.  On 3 June 1994, the appellant had been convicted in the District Court at Brisbane of robbery in company, for which he was sentenced to five years, together with unlawful use of a motor vehicle for the purpose of facilitating the commission of an indictable offence, for which the sentence was imprisonment for 18 months.  Those two offences were committed on 5 October 1992.  On the same occasion in the District Court, he was also sentenced to imprisonment for 18 months for breaking, entering and stealing on 29 September 1992.  All of those sentences were ordered to be served concurrently, with a recommendation that the appellant be considered for parole after serving nine months of the total five year sentence.

At the time he committed the subject offences, the appellant had been released on parole.  His conviction and imprisonment for those offences had the effect of automatically cancelling his parole: Corrective Services Act 1988, s. 187(1).  The consequence is that, by virtue of s. 190(1) of that Act, the period during which he was on parole is not to be regarded as time served in respect of the five year term of imprisonment imposed on 3 June 1994.  He will now be required to serve the balance of that term, which presumably amounts to some 4¼ years, subject only to any power the Community Corrections Board may have to release him on parole again.  See R. v. Cutajar, ex parte Attorney-General (C.A. 338 of 1995).

We are concerned here primarily with the propriety of the sentence imposed for the offences committed in 1995.  The question is whether there is any basis on which the Court can and should intervene to alter the sentence of seven years, with a parole recommendation after serving half of it, imposed for those offences.  It is clear that we cannot properly do so on the ground that the subject sentence of seven years is excessive.  Having regard to the number and seriousness of the six offences involved, and the circumstances in which they were committed, it is not possible to regard that sentence as anything but moderate.  A longer term of imprisonment would have been difficult to disturb on appeal.  As regards the five year sentence imposed in 1994, there was no appeal against it at the time it was imposed, and we are neither asked nor are we authorised to alter it on this appeal.  Even if we had the power to do so, there is nothing before the Court to disclose the circumstances which led to its imposition.  That sentence was accompanied by a generous recommendation for parole, which in due course was acted on by releasing the appellant after he had served nine months.  Loss of the benefit of the parole granted to him was a consequence of the appellant’s own conduct in committing further offences in 1995, coupled with the provisions of the Corrective Services Act already referred to.

This leaves for consideration the parole recommendation after 3½ years that was made by the judge in respect of the later offences in 1995. As regards his personal circumstances the appellant was 33 years old at the date of the offences in 1995 and is now 35 years old.  Unfortunately, he has a substantial record of previous offences dating from 1981.  He has been convicted on several occasions since 1983 of various offences against public order including assault on and resisting police, and also of wilful damage to property.

In 1989 the appellant served 160 hours of community service for assault occasioning bodily harm.  In 1991, he was again convicted of that offence, when he was sentenced to a term of imprisonment for six months on that count and concurrently for three months on a further assault charge.  In 1986 he was sentenced for breaching a probation order imposed in 1985 for drug offences.  Judging by his record of convictions, he has had problems in the past with both alcohol and drug abuse.  At sentencing in the District Court, it was said that he is now drug free, and that his defacto wife, who has remained loyal to him, has been able to exercise a favourable influence.  Nevertheless, the evidence is that he was drunk on the occasion on which the subject offences were committed; and, although it may to some extent explain his conduct, it does nothing to excuse his brutal treatment of the complainant in this instance, for which, as the judge said, he has shown no signs of remorse.

The personal circumstances including the past record of the appellant do not argue strongly for a special recommendation for parole in his favour.  Nevertheless the term he will serve under this and the earlier sentence before being considered for parole is lengthy.  A period of 4¼ years remains of the earlier sentence and he will serve a further 3½ years under the more recent sentence, making a total of 7¾ years before he is considered for parole under the judge’s recommendation in this instance.  On one view of it, that might be regarded as almost equivalent to a head sentence of 15½ years with an effective parole recommendation at the halfway mark.  As it is, he will not be due for release until 7 July 2008 (full term) and will not be considered for parole under the existing recommendation until 7 July 2005.

The submission before us was that this ignored the “totality” principle of sentencing, and led to an effective sentence that is so long as to amount to a “crushing burden” on the appellant.  The course to be adopted in sentencing in circumstances like these is, it was suggested, to aggregate the unserved portion of the earlier sentence (4¼ years) and the term of the more recent sentence of 7 years, and then fix a parole date at the half-way mark.  In R. v. Coss (C.A. 262 of 1994), Thomas J. said that, in cases where the offender has served less than half of the first sentence, “a prima facie reasonable result may be obtained if one adds together the old and the new sentences and specifies half of that as the new non-parole period”.  His Honour pointed out that the application of that formula will not produce a satisfactory result in all cases, and, as the Chief Justice observed in the same case, it is prudent for the sentencing judge to consider carefully the result he intends to achieve.

In the present case the appellant had served very little of his first sentence of five years when he was released on parole.  There is therefore a basis for applying the formula suggested by Thomas J. or a modification of it.  We consider that justice would be done to the appellant if, after aggregating the remaining 4 years he must serve under the first sentence and the 7 years under the most recent sentence, parole was then recommended at the half-way mark; that is after 5½ years, or on 7 January 2003.

We would accordingly allow the application and appeal against sentence and vary the sentence by substituting for the existing recommendation a recommendation that the appellant be considered for parole on 7 January 2003.