R v C[1998] QCA 207

COURT OF APPEAL

McPHERSON JA

DAVIES JA

THOMAS J

CA No 479 of 1997

THE QUEEN

v.

C Applicant

BRISBANE

DATE 27/05/98

JUDGMENT

DAVIES JA:  On 15 December last the applicant pleaded guilty to carnal knowledge by anal intercourse of a child under the age of 12 years. In fact, at the time of the offence which was 15 May 1997, the child victim was only two. The applicant was then 25 years of age and is now 26. He was sentenced on the same day as his plea to life imprisonment back dated to the date of the offence, 15 May 1997. He seeks leave to appeal against that sentence.

The offence was described, accurately, by the learned sentencing Judge as one of almost unimaginable brutality. The child was asleep in bed at her grandmother's house. The applicant, who was related to the complainant and looked upon her as his niece, was observed to enter the house although he did not live there. He entered the room in which the child was sleeping, locked the door on the inside and then savagely anally raped her. Her grandmother, hearing the child's cries, entered the house and attempted to enter the room but found it locked. She called to her brother to obtain the spare key. When she managed to open it and enter the room, she observed the applicant, whom she described as a nephew, and called upon him to leave the house. He climbed out the window and ran off into the bush.

She then saw the complainant lying on the mattress naked and crying. There was a great deal of blood about and the child's nappy, which she had been wearing, was some distance away. The child was airlifted to Cairns Base Hospital where she was examined under anaesthetic. She was found to have substantial injuries. There was substantial injury to her peritoneum and posterior vaginal wall extending to the rectum. There was evidence of a whitish discharge around the vulva, perineal and anal region and there was a torn rupture of the external sphincter. There was bruising around the anus and superficial tears inside the wall of the lower part of the rectum. Her vaginal hymen was torn. This was plainly caused by forceful entry, possible with a male erect penis through the anal region.

There was some doubt about the complainant's faecal continence later in life. There will be scarring in the vagina and rectum which may limit her sexual functions. She has permanently lost her hymen and there will be a permanent scar on her abdomen. This may later cause chronic pelvic and abdominal pain later in life. However, it was hoped that, subject to her scarring, she would make a complete physical recovery. It is of course impossible to assess what psychological harm she may have suffered.

When first approached by police, despite his aunt's identification, he denied involvement and said that he had been framed. A de facto wife later provided a false alibi for him. However in a later record of interview he said he had been drinking until early the previous morning, that he walked into the house and saw the complainant asleep and that his mind went blank when he jumped on her. He said:  "I found out she was too small and I just got off and the old lady came in then."  He also said that he thought it was an old lady sleeping there. This sounds an incredible explanation and I note that the psychiatrist who examined him for his own solicitors did not believe it. He agreed to plead guilty only after committal when forensic testing showed the complainant's blood on penile swabs taken from him.

It may be accepted that the applicant was affected by alcohol at the time of the commission of the offence. However he was sufficiently aware of what he was doing to lock the door of the room from the inside before raping the young child. He also plainly had control over his physical actions. He managed to escape through the window and he ran to his own home after being observed by the child's grandmother. In any event, of course, self-induced intoxication, as this plainly was, cannot diminish the seriousness of the offence.

The applicant has a history of violent conduct. In December 1988 he was imprisoned for seven days and ordered to undergo probation and community service in connection with the use of a firearm, including discharging it in a public place, as well as breaking and entering with intent. In June the following year he was convicted on two counts of assault occasioning bodily harm, fined and given further community service. Then in December 1989 he was again convicted of discharging a firearm in a public place and using one whilst under the influence of liquor. On this occasion he was sentenced to two months imprisonment. Then on 25 July 1991 he was convicted of his most serious offence before this one which involved discharging a shot gun at a police officer. The offence of which he was convicted on this occasion was attempting to strike with a projectile with intent to do grievous bodily harm. On this occasion he was sentenced to five years imprisonment. Then on 5 April 1995 he was sentenced to a further six months imprisonment for assault occasioning bodily harm whilst armed with an offensive weapon. This was an assault on a woman with a star picket. It is no excuse to say that in each of these occasions it appears that he was affected by alcohol. On the contrary it appears that, when affected by alcohol, as he apparently frequently was, he became violent.

Dr Richards, a psychiatrist, to whose report I have already referred in passing, expressed a pessimistic view of his prognosis. He was not suffering any psychotic or neurotic disorder. It was simply that when intoxicated he became very aggressive and violent. Moreover, the doctor said that when drinking he just did not give a damn. He was satisfied that if the applicant continued to drink, further violent anti-social acts of one sort or another would certainly occur. The learned sentencing Judge said that the applicant showed no significant demonstration of remorse. That is plainly right. Indeed he showed no demonstration of remorse of any kind. His plea of guilty can hardly go to that. And Dr Richards said that the applicant did not appear to be concerned about the nature and degree of the physical and emotional damage his behaviour may have caused the child. He is at least of average intelligence but he is plainly a danger to the community when affected by alcohol and there is not the slightest suggestion that he has any intention, if released, of overcoming his alcohol dependence. It was submitted on his behalf before us this morning by Mr Atkinson that a sentence of life imprisonment to an Aboriginal person, whom the applicant is, who particularly values his freedom, is a crushing sentence. It was submitted that by virtue of its indeterminate nature it would not afford him a goal to aim at or to plan or hope for the future. No doubt that is correct and though one may understand that submission one must bear in mind that in imposing the life sentence the learned sentencing Judge said that, in his view, this case was one of the worst examples of the offence for which he was sentencing. In my view, his Honour was justified in reaching that conclusion. When one has regard to his previous violent conduct and the almost unbelievable brutality of this offence I cannot disagree with the conclusion which his Honour reached in imposing the sentence which he did. I would therefore refuse the application.

McPHERSON JA:  I agree.

THOMAS J:  I agree.

McPHERSON JA:  The application is refused.