The Queen v Fletcher[1998] QCA 286

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 243 of 1998

Brisbane

[R. v. Fletcher]

THE QUEEN

v.

LLOYD CLARK FLETCHER

(Applicant)

McMurdo P.

Thomas J.A.

Cullinane J.

Judgment delivered 25 September 1998

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL - indefinite sentence - abduction, assault occasioning bodily harm whilst armed - disabling in order to commit an indictable offence - whether applicant was a serious danger to the community at time of sentence and in the future - absence of psychological or psychiatric evidence - whether sentencing judge exercised discretion properly to impose an indefinite sentence where prisoner is serving a term of life imprisonment.

Penalties and Sentences Act 1992, s. 163

R. v. Wilson (C.A. Nos. 200 of 1996 and 333 of 1996, 28 November 1997)

Counsel: Mr T. Rafter for the applicant

Mr P. Rutledge for the respondent

Solicitors:   Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

Hearing Date:  16 September 1998

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 25 September 1998

1. The applicant seeks leave to appeal against an indefinite sentence imposed pursuant to s. 163 of the Penalties and Sentences Act 1992 as amended in respect of a charge of disabling in order to commit an indictable offence.
2. The applicant is 40 years old. Before turning to the circumstances of the offence in respect of which the indefinite sentence was imposed it is necessary to say something about his history.
3. On 12 November 1977, he pleaded guilty to the rape and attempted murder of a young woman at Innisfail. The circumstances of these offences were placed before the learned sentencing judge. After raping the complainant whom he encountered when she was walking home late at night, he placed his hands around her throat and applied such force that she lost consciousness. She regained consciousness and found she was being dragged along a narrow jetty. The applicant punched her in the face and she again lost consciousness, regaining consciousness when she felt her body hit the water. At this time she became aware of something tied tightly around her neck. She saw the applicant standing on the jetty looking down at her. It appears that the applicant had tied the complainant’s bra around her neck so tightly that it could only be removed by cutting it with a knife. The applicant was sentenced to eight years’ imprisonment for the count of rape and 15 years’ imprisonment for the attempted murder. These sentences were imposed on 9 March 1978 at the Circuit Court at Cairns. He was released on 6 March 1987.
4. He appeared before the Wangaratta County Court on 20 February 1990 charged with kidnapping and recklessly causing injury to a 13 year old girl on 24 October 1989. The circumstances of this offence were also placed before the learned sentencing judge. As the complainant was riding her bicycle home on the afternoon of 23 October 1989, the applicant first of all passed her in his vehicle. After she had turned off the road towards a bridge about 50 metres away she saw the applicant (whom she did not know) walking towards her on the side of the bridge. He told her to get off the bike. When she did not do so, he grabbed hold of the bike. She ran away, and it may be inferred that at some stage she screamed. He chased her but she fell. He then grabbed her by the arm and produced a knife. He held it to her stomach and told her to shut up or he would put it through her. He told her to come with him and commenced to walk her back towards her bike. A vehicle came on the scene and the applicant told the occupant that the complainant had fallen from her bike. Another vehicle also came on the scene and the driver asked whether everything was alright. On this occasion the complainant managed to get away and run to the vehicle where she told the driver that the man had a knife and she asked for help.
5. The applicant was sentenced to five years and two months’ imprisonment in respect of this offence and it was ordered that he serve a minimum four years’ imprisonment. He was released from custody on 18 August 1993.
6. On 20 April 1997, the applicant committed a number of offences, one of which is the offence of disabling with intent to commit an indictable offence in respect of which the indefinite sentence was imposed. We will return to the circumstances of these shortly.
7. On 18 July 1987 (that is, about four months after his release from custody in respect of the offences committed in November 1977) he raped and murdered a young woman whose body was found off the Gateway Arterial Road. She had last been seen late the previous evening at Redcliffe.
8. The applicant was not arrested in relation to these offences until 1997. He was convicted of them in the Supreme Court at Brisbane on 8 May 1998. The sentencing remarks of the trial judge, when he sentenced the applicant on 8 May 1998, were also before the learned sentencing judge. It appears that DNA tests which were able to be carried out in 1997, but not at an earlier date, showed a frequency of recurrence of some 1 in 6.4 billion persons of the match between the sample of DNA from the sperm found in the deceased with the blood sample taken from the applicant at about the time of the commission of the offence. Further samples were taken from the applicant in 1997. He was sentenced to 20 years’ imprisonment in respect of the rape count and to life imprisonment in respect of the murder count.
9. The learned sentencing judge in that case in relating the facts said that the applicant had approached the deceased somewhere along the Esplanade at Wynnum and that she had entered the car as a result possibly through his offering her a lift, but more probably by forcing her at knife point into some part of the car. On the facts as he related them for the purposes of sentence, he said that the applicant took the deceased to the area where her body was later found and apparently dragged or forced her down the embankment under the threat of a knife. The deceased was subjected to violence and sexual intercourse took place. She was found to have died as the result of the infliction of four stab wounds to her upper body, two of which penetrated the heart.
10. To the above history should be added the fact that between 23 October 1987 and 1 July 1988 the applicant was in prison for breach of parole as a result of certain traffic offences.
11. Late on the evening of 19 April 1997, or just after midnight on 20 April 1997, the complainant, who was the victim of the offence the subject of this application for leave to appeal, went to the Wynnum Railway Station to catch a train having parted company with a friend with whom she had spent some time after she and her friend had finished work. The complainant noticed that the time was about twenty to one while she was at the station and that nobody else was there. She saw a car pull into the car park followed by a man in dark clothing walking up the stairs of an overhead walkway situated at one end of the station. As she was reading a book she suddenly felt a hand over her mouth and heard a man call “don’t move, grab your bag, grab your shoes, come with me”. At the same time, she felt pressure applied to her throat, and subsequently realised that a knife was being held to her throat. He took her to the overhead bridge with one hand over her mouth and the other holding the knife against her throat. She was taken to the car which she had seen the man get out of earlier and was pushed into the back seat. He got in on top of her and pulled at her clothes. He produced some elastoplast which he put over her mouth and as she started to struggle and tried to free herself she was punched in the face three or four times. She recalls the applicant putting his hands around her neck and applying force to her neck. She lost consciousness, her last recall being of blood running from her nose down her throat internally and externally. She regained consciousness, managed to unlock the door, pull the door handle and kick the door open with her feet. As fortune would have it, there were four teenagers passing at the time and she yelled out to them for help. She was at this time partly out of the car and the applicant then pushed her out onto the ground and drove away. At this time, she became aware that there was nylon rope tied to both of her wrists.
12. The complainant’s physical injuries included a broken nose, two black eyes, cuts to her forehead and cheek, a laceration to the neck, rope burns to her wrists and ankles, and swelling and bruising to her forehead, cheeks and head.
13. The applicant was charged with abduction, assault occasioning bodily harm whilst armed, and the offence of disabling in order to commit an indictable offence. This latter offence is provided for in s. 315 of the Criminal Code. The maximum sentence is life imprisonment.
14. He was sentenced to seven years’ imprisonment in respect of the first two counts.
15. A nominal sentence of life imprisonment was stipulated in respect of the count of disabling with intent and an indefinite sentence under the provisions of s. 163 was imposed. Section 163(2) requires the Court to state a nominal sentence when an indefinite sentence is imposed.
16. As his Honour the learned sentencing judge observed, the offences which have been described occurred over an aggregate period of about five years during which the applicant was at liberty.
17. The circumstances of the offence the subject of this appeal and the circumstances of the earlier offences have been set out in some detail. They form the basis of the remarks of the learned sentencing judge in finding that the applicant is a serious danger to the community as s. 163(3) requires before an indefinite sentence can be imposed:

“In light of your past conduct I am satisfied that you are a serious danger to the community.  You would, were I to impose life imprisonment, remain a risk of serious physical harm to members of the community, especially vulnerable young women in isolated situations who seem to have been regular targets of your lustful depredations.

There is a need to protect such people from that risk.  What persuades me to these conclusions is a consideration of the circumstances of these offences in the context of your prior history.  You emerge as a chilling serial offender, a serious risk to the community.”

18. In considering this question, his Honour adopted the approach suggested by Pincus J.A. in The Queen v. Robert Anthony Wilson (C.A. Nos. 200 of 1996 and 333 of 1996, 28 November 1997). In adopting that approach, his Honour considered the question of whether the applicant was a serious danger to the community not only at the time of sentencing but also in the future if an indeterminate sentence were not imposed. We consider that that was the correct interpretation of ss. 163(3)(b) and 163(4)(d) of the Penalties and Sentences Act.
19. Two grounds of appeal were argued. The first ground advanced was that the evidence was insufficient for the finding that the applicant was a serious danger to the community. The absence of psychological or psychiatric evidence was referred to in relation to this ground but it was correctly conceded that such evidence was not necessary before such a finding could be made. It may be noted that neither the Crown nor the applicant chose to call any evidence suggesting psychiatric illness or excuse.
20. On our view, the circumstances surrounding the commission of this offence, taken with the applicant’s history, not only provided ample justification for the finding which his Honour made but might be thought to have virtually compelled it.
21. The second ground advanced - at least formally - was that his Honour, having made the finding, nonetheless ought to have exercised the discretion which then arose in the applicant’s favour by declining to impose an indefinite sentence. Before the learned sentencing judge, it was contended that the special position of a person serving a term of life imprisonment so far as any question of release is concerned under the statutory regime of the Corrective Services Act 1988 justified an exercise of discretion in the applicant’s favour. However, it is clear that the Penalties and Sentences Act by its terms contemplates the making of such an order where the nominal sentence is life imprisonment and the applicant’s counsel conceded that no error could be identified in this respect in the learned sentencing judge’s exercise of discretion to impose the indefinite sentence.
22. The application for leave to appeal is refused.