The Queen v Mason[1997] QCA 67

COURT OF APPEAL

McPHERSON JA

AMBROSE J

WHITE J

BRISBANE

DATE 19/03/97

JUDGMENT

WHITE J:  The applicant was convicted on his own plea of guilty on 12 July 1996 of one count of unlawful assault occasioning bodily harm; one count of rape; one count of disablement to commit an indictable offence; and one count of robbery.  The offences occurred on the evening of the 1st and 2 December 1995.

The applicant was sentenced on 25 July 1996.  His Honour imposed sentences of four years imprisonment for the unlawful assault; 14 years imprisonment for the rape; 10 years imprisonment for the offence of disablement to commit an indictable offence; and eight years imprisonment for the count of robbery.  All were to be served concurrently and time spent in pre-sentence custody was declared to be time served under the sentences.

His Honour also sentenced the applicant for breach of an intensive correction order which he had imposed on the applicant in September 1995 for a term of 12 months imprisonment to be served concurrently with the offences that he was dealing with that day.

The applicant is 35 years old and has a relevant criminal history particularly the offences giving rise to the intensive correction order which occurred on 1 April 1995 and which involved threats, assaults and a siege in respect of his de facto wife and their three young children. There are two other offences in his criminal history involving violence which are recorded in 1990 and earlier in 1995.

Although the applicant who appears before the Court on his own behalf does not quarrel with the head sentence, and indeed, expresses the opinion that his conduct was bad, in order to deal with the submission that he ought to have been given a recommendation for release on parole earlier than the statutory scheme, it is necessary to say something about the circumstances of these offences.

The complainant was a woman of 32 at the time of the offences, she had met the applicant some years previously through a mutual friend.  The complainant was a lesbian by sexual preference and this was apparently known to the applicant.  She had not been in a sexual relationship with a male for at least 15 years prior to the offences.

On the evening of 1 December 1995, the complainant was at home by herself and fell asleep watching television.  At about midnight, she was awoken by the applicant knocking on the front door.  He said he had come to apologise to her and that he had got out of gaol some five weeks earlier.  She said that, at the time when the applicant went to gaol, she had not been on very good terms with him.  He came into the house and they went into the lounge room and watched television for a while and talked.  The complainant said she did not wish him in her house but was too scared to ask him to leave.

Later in the evening, the applicant went to the toilet, came out and said it contained a centipede so the complainant went to the toilet cubicle.  He followed her and suddenly grabbed her around the face with his left arm, his hand was over her mouth and face and his fingers were digging into her eyes.  He had a knife in his right hand pressed against her throat and repeatedly told her not to scream or he would stab her.  He dragged her around with the knife held to her throat threatening her that he would slit her throat.

The applicant made the complainant turn off lights so that he would not leave fingerprints.  They went into a bedroom and she begged him to let her go offering him money but he said words to this effect, "You're going to get it up you now you lesbian slut."  She told him she was using a tampon which was not the case to which he responded, "Turn over then you lesbian cunt and you will get it up the arse."  He tried to turn her over, she resisted him and she felt the knife cut into her side.  He made degrading comments and made her take her clothes off.  He dug his fingers into her eyes and said he would pull her eyeballs out. 

Still with the knife to her throat and threatening her, he had forced intercourse with her.  Afterwards, he made her shower.  In the lounge room, he wrapped a teatowel around her throat and pulled it so tightly that she began to choke.  He demanded drugs or money and said that if she did not give them to him he would kill her.  He continued to pull the towel tighter and she lost consciousness.

She recalls waking up on the floor and he was standing over her and kicking her; he demanded money.  He again put the towel around her neck and forced her into the bedroom and she gave him $120.  He demanded more money, tightened the towel and she lost consciousness again.  When she awoke, he was pulling her into the hallway by her hair and he forced her into the shower.  He told her not to be long, and as she left the bathroom, she noticed him leaving through the front door.  He threatened her that if she did not leave town he would kill her.  The complainant said that he said that Rockhampton was not a gay person's town but a black man's town.  The applicant is an Aboriginal man. 

She found that the cord to the telephone was cut but put it together, called a friend, and later in the day, saw the police.  The complainant had haemorrhaging in her eyes due to the strangulation; she sustained bruising to her neck which had an imprint mark from the chain she was wearing; she had a superficial wound to her right hand; a cut to her back and swelling to her foot. A victim impact statement written by the complainant was tendered and a statement by a social worker. 

The consequences for the complainant not surprisingly were very severe.  Through fear, she left Rockhampton and she was, at the time of sentence, receiving therapy and counselling.  The applicant initially ran from the police but they later apprehended him.  He provided a false alibi and declined to be interviewed.  He first declined medical examination but then agreed.

The applicant only pleaded guilty after DNA evidence had been obtained implicating him and then only after the fifth test had been completed, the figures being one in two million Caucasians and one in one million Aboriginals. 

The learned sentencing Judge noted the applicant was sexually abused in an orphanage as a child.  He was apparently one of those unhappy aboriginal children taken from his home by the authority of the State.

The learned sentencing Judge noted that the applicant had problems throughout his life with alcohol and drug addiction although there was nothing before the Court to suggest that he was suffering from excessive ingestion of alcohol or drugs on that night.  He instructed his counsel that he had no memory of these events.

The plea of guilty came only after a number of mentions in the criminal sittings.  These offences were committed three months after the applicant had appeared before the learned sentencing Judge in respect of the offences involving the assaults on his de facto wife for which the intensive correction order had been made.

The applicant complains that the sentence is manifestly excessive in that he agreed to plead guilty to these charges on an understanding that he would have received a recommendation for release on parole after about five years and he maintains that position before this Court.

In his written outline he mentions another matter which ought to be dealt with.  He submits that the sentence was manifestly excessive in as much as, having regard to the fact that the maximum sentence which a District Court could impose is 14 years, this was at the top of its jurisdiction.

However, section 61(2) of the District Court Act enlarges the jurisdiction of District Courts' criminal jurisdiction to try a person charged with certain identified offences by reference to the Criminal Code whether or not the maximum penalty is in excess of 14 years and this includes section 347, the offence of rape.

It is clear when reading the sentencing remarks of the learned sentencing Judge that he did regard the plea of guilty as significant.  It is also clear that having in mind the past history of violence of the applicant, he was disposed to leave the question of release on parole to the authorities.  Although he does not expressly say so, the circumstances of the offence which I have outlined, and a consideration of comparable sentences for these sorts of offences, make it clear that the learned sentencing Judge could have imposed a higher head sentence had no account been taken of the plea.

In my view there is no basis for criticism for failing to make a recommendation if that is what has occurred and it seems to be so.

The third matter which is dealt with in the written outline was that the learned sentencing Judge erred in law in proceeding to sentence the applicant without giving him the opportunity  of reading the victim impact statement.  He does not, as I understand it, maintain that position before this Court now, but it should be mentioned that he was represented by counsel at sentence who had read the victim impact statement.  That appears at page 18 of the record and the salient features of it were mentioned by the learned sentencing Judge in sentence.

As I have indicated, this was a very bad case which has had enduring consequences for the complainant and a severe deterrent sentence was warranted against the background of the applicant's history of attacks on women and the nature of these attacks. 

In my view his Honour would have been justified in imposing a head sentence in the vicinity of 15 or 16 years.  That he imposed 14 years seems to me to suggest that he has given the benefit of the plea of guilty to the applicant. 

That there are prospects, according to the applicant, which he has said to us today in respect of his rehabilitation cannot be taken into account in dealing with this application.  Had those matters been before the Court when sentenced, no doubt His Honour would have given them the weight they are entitled to.

An analysis then of the comparable cases of Gerrits CA 158, 192/1991, Penniment CA 38/1992 and Williams CA 136/1996 show that this sentence was certainly within range and there is nothing to justify interfering with His Honour's head sentence or his failure to make a recommendation in those circumstances and I would dismiss the application for leave to appeal against sentence. 

AMBROSE J:  I agree.

McPHERSON JA:  I agree.  The order is that the application for leave to appeal is dismissed.