The Queen v Costello[1997] QCA 93

COURT OF APPEAL

DAVIES JA

McPHERSON JA

MACKENZIE J

CA No 573 of 1996

THE QUEEN

v.

DARREN MICHAEL COSTELLO (Applicant)

BRISBANE

DATE 15/04/97

JUDGMENT

MACKENZIE J:  The applicant who was 24 years of age pleaded guilty to a number of offences arising out of an incident, the culmination of which was the rape of a 14-year old girl, who was on her way home from a skating rink.

The offences to which he pleaded guilty were rape, disabling with intent to commit rape, four indecent assaults with circumstances of aggravation and assault occasioning bodily harm. The complainant did not know the applicant but from things he said after the offence he apparently knew who she was.

She was walking along the bank of a creek when he tackled her from behind. She told him to stop and began screaming. He pinched her nose shut and blocked her mouth with the rest of his hand for a substantial period. He also punched her in the face several times and told her he had a knife. She had begun to black out when he removed his hand from her nose and mouth.

He then demanded that she remove her pants and when she did not he tried to do so and eventually succeeded. After he had partially undressed himself and pulled her underwear off he committed an act of oral sex on her and inserted his fingers into her vagina. She did not resist because she was afraid he might try to suffocate her again. He then demanded that she rub his penis and forced her to fellate him. Then he raped her.

After he had finished she said she wanted to go home but he tried to persuade her to stay and made a further sexual advance which she resisted. She said she was going and began to walk home. He walked with her and persuaded her to sit in the park with him where he tried to persuade her not to make a complaint to the police. After she became angry and hit him she walked off and saw him walking off in a different direction. She immediately went to a friend's house in a distressed state and made a complaint. The complainant was easily identified from a likeness compiled in accordance with her description and while he admitted being at the skating rink that evening, he denied that he had done anything wrong.

The applicant has a lengthy criminal history. His first recorded conviction occurred on his sixteenth birthday for attempted robbery of a female taxi driver. Some of the subsequent offences are not serious in themselves but throughout them there is a pattern of violence.

However, others are more serious. Most relevantly at the time of the present offences he was on parole for robbery with personal violence whilst armed. This involved an attack with a baseball bat on a heavily pregnant woman in a house that he had entered looking for money and drugs.

At the time of that offence he had been on bail for a number of assaults on police officers including two charged as serious assaults. He was subsequently convicted for those offences.

The present offences with which we are concerned are serious offences, involving as they did following a young girl to a secluded place and there overcoming her by partial suffocation, other actual violence and threats of further violence and then committing sexual acts upon her against her will.

The sentencing Judge sentenced the applicant to 13 years imprisonment for each of the offences except the assault occasioning bodily harm for which he sentenced him to two years' imprisonment. Each of the sentences was to be served concurrently but cumulatively on periods of imprisonment that he was serving at the time of the sentence on 11 December 1996.

By the time of sentence his parole for previous offences had been cancelled and he was also required to serve 28 days for fine defaults. We were told that the expiry date after remissions for these periods of imprisonment would have been 25 January 1998. The learned trial Judge fixed a non-parole period as half the sentence of 13 years.

The Crown had submitted below, and here maintained a submission consistent with it, that a range of 12 years to life imprisonment was open. While the comparative sentences to which our attention has been drawn vary in their effect, there is support in the comparatives, for example Losch, for that submission.

The defence submission was that a range of nine to 12 years was appropriate. The sentence is obviously a long sentence. However, it is in my view appropriate to take the accused's history of violence into account in fixing the head sentence and in those circumstances a heavy sentence was not unjustifiable.

There was a further factor in the case and that was evidence concerning the applicant's intellectual capacity, his psychological condition and his personality. These were analysed carefully in the Judge's sentencing remarks. The applicant has a low IQ. He has been assessed variously as being mentally retarded and at best in the dull to borderline category. There was an early opinion from a psychiatrist, which was discounted to an extent by later opinions, that he suffered from paranoid schizophrenia.

He clearly has an anti-social personality disorder and a history of substance abuse and from what he told the medical practitioners he often ceased medication prescribed for the purpose of modifying his undesirable behaviour.

The learned sentencing Judge made findings which were not really attacked in this appeal in respect of that. He concluded that the applicant suffered from some mental disturbance or personality trait which predisposed him to be violent. He observed that he could be treated with drugs but there was no real prospect of any rehabilitation. He said that in saying that he did not ignore that he had attended appropriate courses in prison and later in the reasons he concluded that, in his view, the applicant continued to be a danger to the community. The mental state of a prisoner is, of course, a relevant consideration. However, as Mr Justice Brennan as he then was, observed in Channon's case that is a factor that can cut both ways depending on the particular circumstances of the case.

The head sentence of 13 years by itself, in my opinion, was a sentence which was objectively appropriate and there were in this particular case no factors leading to a necessity to reduce it because of the prisoner's medical condition. Postponing it by the extent of the sentences to be served did not, in my view, offend the totality principle.

For a person with the applicant's violent history, even allowing that this was the first offence of violence involving sexual violence, in my view, the overall effect of the sentences is not manifestly excessive. I should mention that it was drawn to the Court's attention that in respect of count 4 a circumstance of aggravation had been charged which is not known to the law. In that situation the application in respect of that should be allowed and a sentence of five years substituted in lieu of the 13 years imposed on count 4. Otherwise, in my opinion, the application should be refused.

McPHERSON JA:  I agree.

DAVIES JA:  I agree.

McPHERSON JA:  The order-----

MR MARTIN:  I'm sorry, Your Honours, just for formality's sake, the count that's incorrect is, in fact, count 5 on the indictment, not count 4.

MACKENZIE J:  Count 5, is it, I'm sorry.

MR MARTIN:  I've checked the original indictment and there's an arraignment on the previous page.

MACKENZIE J:  Is there, all right, well count 5, where I said count 4.

McPHERSON JA:  Except in the particular mentioned in Mr Justice Mackenzie's reasons, the application for leave to appeal against sentence is dismissed. The particular, of course, is the one that relates to count 5.