The Queen v Press[1997] QCA 7

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 489 of 1996

Brisbane

[R. v. Press]

THE QUEEN

v.

MICHAEL ROBERT PRESS Appellant

(Applicant)

Fitzgerald P.

McPherson J.A.

Fryberg J.

Judgment delivered 14 February 1997

Joint reasons for judgment of Fitzgerald P. and McPherson J.A.  Separate dissenting reasons of Fryberg J.

APPLICATION GRANTED AND APPEAL ALLOWED TO THE EXTENT OF REDUCING SENTENCE OF IMPRISONMENT IMPOSED ON COUNT 3 (RAPE) FROM NINE YEARS TO SEVEN YEARS. THERE BE A CORRESPONDING REDUCTION FROM FOUR TO THREE YEARS IN THE PERIOD OF IMPRISONMENT TO BE SERVED BEFORE THE APPLICANT IS CONSIDERED FOR PAROLE.  ALL OTHER SENTENCES, ORDERS OR RECOMMENDATIONS MADE BELOW NOT TO BE DISTURBED.

JOINT REASONS FOR JUDGMENT - FITZGERALD P. & McPHERSON J.A.

Judgment delivered 14 February 1997

On pleas of guilty in the District Court at Maroochydore, the applicant was convicted and sentenced to concurrent terms of imprisonment of three years for burglary, three years for indecent assault with a circumstance of aggravation, and nine years for rape.  A recommendation was made that he be considered for parole after serving four years of the sentence.  This is his application for leave to appeal against the sentence for rape on the ground that it is excessive.

The offences were committed in the early hours of the morning of 21 October 1995.  The complainant, who was 17 years old, lived in a unit with her boyfriend.  His parents lived in another unit in the same block.  She went to bed at 11.30 p.m. on the night of 20 October leaving her boyfriend watching television.  She was partly wakened at 4.30 a.m. by someone climbing into bed with her.  She thought it was her boyfriend.  He started to lick her vagina and put his fingers into it (count 2).  He rolled her over on her stomach and had intercourse with her.  She then rolled on to her back again, pushing him away, and heard the applicant (as it was) say “Can I turn the light on?”.  At this she became aware that it was not her boyfriend.  He turned the light on and she screamed.  The applicant attempted to hold the complainant down on the bed, but she pushed him off and ran from the room.  Her boyfriend woke, came to the bedroom, and apprehended the applicant, who was dressed only in a shirt.  Her boyfriend and his stepfather, who had been summoned from the other unit, then set about punching the applicant.

The applicant had apparently entered the unit through a window after removing a flyscreen.  However, when interviewed by police, he had no recollection of the events at the unit, and no memory of events earlier in the night beyond recalling that he was at a night club, where he had been drinking heavily.  He lived somewhere in the area but did not know the complainant or the address where she lived.  She was adversely affected by the experience, and has suffered considerable emotional and psychological trauma as a result.  She had been the victim of sexual abuse from the age of 12, and the experience of that night resurrected her earlier fears and feelings of insecurity, which she had only recently succeeded in overcoming.  In consequence, as she believes, her relationship with her boyfriend came to an end, and she has since been receiving psychiatric treatment, which is likely to continue in future.

The applicant is a man aged 34, born in England, whose parents brought him to South Australia when he was a child.  He appears to have a good work record, mainly in the retail industry, in which he was employed at the time of the subject offences.  He has a couple of prior offences to his name, although it is fair to say that the only one of any consequence was committed in February 1995 in circumstances referable to the break-up of a relationship with a woman.  It appears to have been the outcome of a dispute over some property.  In respect of that offence or incident, the applicant was placed on a good behaviour bond, which had not expired when the subject offences were committed.

In other respects, the applicant seems to have led an honest and useful life.  The source of his problems appears, clearly enough, to have been or to be alcohol.  Since he was 20 years old he has had a drinking problem, which, with the help of Alcoholics Anonymous, he solved for about 18 months before succumbing to it again.  He is now participating in a course of treatment for it in the prison.  The learned sentencing judge appears to have accepted that it was alcohol that led the applicant to commit the offences in question.

Rape is a serious offence, which ordinarily attracts a heavy penalty.  It is plainly more serious when committed against a woman in her own home.  In R. v. Stirling (C.A. 205 of 1996) Thomas J., with the concurrence of Fitzgerald P. and Davies J.A., said that a nine year sentence seemed more appropriate for cases where there were “specially serious factors, such as infliction of injury, use of serious threats, possession of a weapon, or some factor of a particularly aggravating kind”.  All generalisations in sentencing matters tend in time to be revisited on their authors; but, subject to that perhaps superfluous counsel of caution, his Honour’s observation is a useful starting point for the appropriate sentence in this case.

In Stirling a sentence of imprisonment for 9 years was reduced on appeal to 7 years, with a recommendation for parole, in the case of a rape in circumstances similar to those presently under review that was committed by a man of comparable age but with a not insubstantial record of prior convictions.  See also R. v. Raymond (C.A. 229 of 1994), where a sentence of 8 years, with a recommendation after serving three years, was not disturbed in the case of a burglary and rape committed by an 18 year old man.  It was argued that the margin between the sentences there and that imposed here is not so great as to justify intervention in the present instance; but the Court should be on guard against the tendency of sentences in cases of this kind to “creep” upwards to higher levels without giving careful consideration to whether or not such increases are called for.

In the present case the applicant co-operated with the police within the limits of his ability to recall what had happened.  He agreed to supply body samples for scientific analysis when asked to do so, which makes it perhaps unlikely that his memory loss was being faked.  No one has suggested that it was.  His plea of guilty was, it is true, somewhat belated; but he explained the delay as being due to the applicant’s hope that, through treatment he was undergoing, he would recover his memory of what had happened.  The applicant is a slightly-built man, who after the offence received a beating from the complainant’s boyfriend and his stepfather, which has left some residual permanent disability to the applicant’s face and his vision.  He is entitled to have it taken into account as a factor going to some extent in mitigation of sentence.  The offence, although serious, was not committed by using force, or accompanied by violence of any kind.  There is no particular factor that can be identified as justifying departure from the starting point so recently suggested by this Court in R. v. Stirling.

In the circumstances the application should be granted and the appeal allowed to the extent of reducing the sentence of imprisonment imposed on count 3 (rape) from nine years to seven years. There should be a corresponding reduction from four to three years in the period of imprisonment to be served before the applicant is considered for parole.  Any other sentences, orders or recommendations made below should not be disturbed.

REASONS FOR JUDGMENT - FRYBERG J

Judgment delivered 14 February 1997

In my judgment, while the sentence imposed on this 34 year old rapist was in the circumstances high, it was not outside the ambit of the discretion of the sentencing judge.

That judgment reflects the issue before the Court of Appeal.  In resolving that issue, it is in my view at best dangerous to rely upon generalised statements of fact made in other cases (even unanimous statements made in the Court of Appeal).  It is too easy to slip into the error of applying such statements as though they were persuasive or even binding statements of law.

Similarly, I do not think this Court should concern itself with whether there is a tendency for sentences to "creep" upwards to higher levels.  Trial judges have a discretion in sentencing.  A perceived trend toward higher sentences within the ambit of that discretion does not constitute a ground for the Court of Appeal to intervene. 

I would add one other observation, which may be of assistance in other cases.  The victim impact statement in the present case discloses that the victim underwent extreme worry about getting AIDS for over six months, until tests of her blood disclosed that she did not have the virus.  As the other members of the Court have observed, the applicant agreed to supply body samples for scientific analysis when asked to do so.  There does not appear to have been any testing of these samples for the purpose of relieving the victim's worry.  Even if such testing would not have been conclusive, the results of it may well have given some comfort to the victim had they been communicated to her.  The provisions of the Criminal Offence Victims Act 1995 impose positive duties on prosecuting authorities, and these duties might require courses of action not traditionally the province of lawyers.  Victims are entitled to complain if their trauma is not minimised by the thoughtful application of those provisions.

I would refuse the application.