R v Watcho[1998] QCA 331

COURT OF APPEAL

McMURDO P

PINCUS JA

MACKENZIE J

BRISBANE

DATE 07/08/98

JUDGMENT

PINCUS JA:  This is an application for leave to appeal against sentence.  There were a number of offences committed in May 1997 in respect of which the applicant was sentenced in the District Court by His Honour Judge Pratt on 12 June 1998.  The date of the offences is significant because, as is common ground, the sentences which the judge was entitled to impose are governed by the law as it was prior to 1 July 1997, when important changes were made. 

There were two batches of offences, as to which I will mention the details, and in respect of each of them His Honour Judge Pratt imposed, as the largest terms, a term of life imprisonment, for rape. He imposed lesser terms of imprisonment for the other offences and the result was that as from the date of sentencing, which was 12 June 1998, the applicant became liable to serve a term of life imprisonment.  He was, however, at the time already subject to terms of imprisonment imposed in 1992 and 1996, totalling 10 years and three months; the argument which Mrs Richards advanced on his behalf was, in essence, that if one takes the term of imprisonment imposed as starting in 1992 and finishing at some indeterminate date no earlier than 2011, the totality principal applies, at least to such an extent as to justify or require a favourable recommendation for parole.  It is, in my view, clear that the totality principle is potentially applicable, but the question whether or not it applies in such a way in the present case as to justify interference with the ordinary parole date depends, of course, upon all the facts. 

It is, I think, convenient to start, in chronological order, with offences for which the applicant was sentenced in 1992.  These were offences of entering a dwelling-house with intent, indecent assault and rape.  There were four charges each of indecent assault and rape, and the maximum term of imprisonment imposed related to the rapes and was 10 years.  The facts relating to those offences were explained by the prosecutor before His Honour Judge Pratt.  They were as follows.

The complainant was a 25-year-old woman who resided with her four-year-old son.  At about 8 p.m. on 17 June 1991 the prisoner knocked on the front door and after a short conversation forced his way into the house as the complainant attempted to shut the door.  He produced a garden fork and demanded money.  He then said he did not want money, he wanted the complainant; he waved the fork in front of her face in a threatening manner and in this way forced her to take her clothes off.  He then forced her to perform oral sex and to have intercourse with him in various rooms of her residence.  These acts were accompanied by threats to kill the complainant and also her son if she did not comply.  The son witnessed some of the events and the prisoner only fled when other persons arrived on the scene.  The prosecutor remarked before the primary judge:

"Those facts have some significance in the fact that they show a chilling premonition for the present offences before Your Honour this morning."

The prosecutor then went on to explain that during the course of serving the term of imprisonment which had been imposed in 1992, the applicant was granted leave to go by himself to a drug and counselling centre.  He was supposed to return the same day; he did not return that day and committed these offences. 

A few days later, on 22 May, the first complainant, who was a 58-year-old woman, was attacked by the applicant.  He came in her gate and she walked out to meet him to dissuade him from coming into the house; after some conversation he closed the gate so that she could not get out and picked up a piece of metal pipe and ordered the complainant to go inside.  She started screaming for help.  He shoved her down to the floor, knelt over her and starting punching her in the face with his right hand in a clenched fist.  She could not recall how many times she was struck.  She was crying and praying for help.  He took money from her purse.  He pushed her towards her son's bedroom in the house and pushed her down on the bed.  The complainant was calling out, "Lord, help me."  The applicant started pulling off her clothes.  He told her not to move while she was on the bed and he started going through the drawers and cupboards in the room.  He found a piece of clothing and tied her feet with that.  The complainant feared for her life.  She reached over to an ironing board, took up an iron and hit the applicant on the head.  He then began punching her again all over the face and then on her chest and body, as well as saying, "Stop screaming."  The applicant tied the complainant's hands together, inserted a finger in her vagina, tried to insert his penis but could not.  He went to the kitchen.  She thought he was coming back with a knife but he returned with margarine and with the assistance of that he put his fingers back in her vagina, began to lick her vagina with her legs untied, and then while she was crying he penetrated her vagina and ejaculated.  He pulled his pants off and told her not to move, again went through the drawers and cupboards in the bedroom.  She was still tied.  She had blood all over her and she went to her neighbours and the police were called. 

That was not the end of the applicant's activities on that day because he attacked another woman that night, a 45-year-old woman who was living by herself.  The applicant came to the door and made an inquiry, and one of the questions asked was, "Do you live here on your own?" to which she replied, "Yes."  She closed the door on him and he later knocked on the door.   The applicant pushed his way in and used both hands to push her in the chest and shoulders saying, "Have you got any money?"  She picked up a knife and said, "You had better leave."  He picked up a weapon himself, held it in his right hand and pointed it towards her saying, "I don't want to hurt you but I will if you don't put the knife down."  And so she put the knife down.  The applicant grabbed her and led her into the lounge room and told her to sit down.  She would not do that so he punched her in the mouth.  She could feel the blood running in her mouth.  He pushed her back in the chair, again asked for money, took her right elbow and pulled her out of her seat and took her upstairs.  He told her to turn the lights off and close the blinds.  The complainant attempted to escape but was caught.  He spun her around and gave her an upper cut punch under her jaw.  He then pushed her up the stairs and led her into a bedroom.  She said, in effect, that she was menstruating.  He pushed her on the chest onto the bed, pulled her trousers off, pulled off her upper clothing and told her to turn over.  The complainant was fearful for her life and she complied.  The applicant raped her and asked her whether it felt good.  He then raped her again.  He found her handbag and extracted some money, pushed her out of the bedroom, asked her where her car keys were, took them, led her out the door to where her car was parked.  She opened the driver's door.  As the applicant walked around the complainant tried to escape again.  He grabbed her by the hair and pulled her head back, put his hand over her mouth and threw her to the lawn and saying, "If you try anything like that again I'll cut your throat."  He pushed her into the car and they drove off.  He was giving directions as to where he wanted to go.  Threats were made during the journey.  Ultimately they came to a bushland site.  The applicant made the complainant drive there and park, and told her to get out of the car.  He urinated, forced her back into the car into the back seat saying, "I feel like another fuck."  He asked her for a "head job", put his hands behind her head and pulled her down towards his penis.  She was saying her mouth was too sore from the earlier assaults.  He grabbed her by the breasts.  At this stage she managed to escape by saying that she needed to urinate.  She stayed squatting as long as she could and then ran away, and escaped. 

The police were called; these events having happened on 22 May, the applicant was apprehended on 24 May and would not say anything to the police.  The complainants were medically examined and found to have the sorts of injuries which one would expect in this situation.  We have victim impact statements before us which, if I may say so, it is unnecessary to deal with in detail.  They show that the effects were extremely serious, so far as the victims were concerned, and it is distressing to read them.

The argument which was advanced by Mrs Richards on behalf of the applicant, as I have mentioned, focussed upon the Judge's recommendation for parole.  His Honour recommended that the applicant be eligible for parole in the year 2013.  So to express the matter, I must say, overlooks a point which was made during the course of argument by Mrs Richards, which is that it is not absolutely clear whether what His Honour said was, in fact, a recommendation for parole.  Assuming that it was, it is common ground that it should not stand; Mr Henry, on behalf of the prosecutor, agrees that it should not stand.  It appears that His Honour made a recommendation for parole, if that is what it was, in respect of the year 2013.  His Honour did so because he was given to understand that that was the year in which the applicant would become eligible for parole in the ordinary course and because he understood that he was required to make a recommendation for parole.  Both understandings were incorrect.  In fact, the date upon which the applicant will become eligible for parole is 13 years after the date of sentence; that is, he will become eligible for parole on 12 June 2011.  That is somewhat before the date fixed by the judge; in view of His Honour's misapprehension, induced by what he was told, it seems clear that the parole recommendation His Honour made cannot stand.

Mrs Richards argued that because of the decision of this Court in the case of Gipters (C.A. No. 25 of 1995, 30 May 1995), one should regard the period of 13 years, to which I have referred as being the non-parole period, as running not from the date of this sentence but from the date of the sentence imposed in 1992.  It was suggested by Mrs Richards that this followed from Gipters and from the fact that the expression "term of imprisonment," which is used in section 166 of the Corrective Services Act 1988, is defined in that Act so as to require the earlier determinate sentences to be added to the life sentence, in order to calculate parole. 

In my opinion, this is incorrect and it is not the law that one adds anything to a life sentence; a life sentence is the maximum period and there can be no question of adding to it.  The period after which the applicant is eligible for parole, as defined by section 166, was at the relevant time 13 years.  Had the offence been committed on or after 1 July 1997 that would have been 15 years; but it is common ground that what might be called the old law applies, because of the date of the offence.  To get back to Gipters, the expression "term of imprisonment" which is defined in section 10 of the Corrective Services Act includes the expression -

"the unbroken period of imprisonment a person is liable to serve by virtue of a number of sentences, whether ordered to be served concurrently or cumulatively".

It is Mrs Richards' argument, as I understand it, that because of the definition of "term of imprisonment" one takes the date of beginning of the calculation back to 1992.  The answer, in my opinion, is that Gipters has to do only with the addition of determinate terms of imprisonment, for the purpose of calculating the mid-point which applies, under the present law at least, by virtue of section 166(1)(d) of the Corrective Services Act.  Gipters has nothing to say as to the time at which a person becomes entitled to apply for parole in respect of a life sentence.  That term is imposed directly by section 166 and at the relevant time was, as I have mentioned, 13 years.

It is therefore clear, in my view, that the applicant will become eligible for parole on 12 June 2011.  The only question which remains to be discussed, and that briefly, is Mrs Richards' suggestion that the principle of totality produces too harsh a result for this applicant in that, having been imprisoned in 1992, he cannot emerge from prison by way of parole until a time nearly 20 years later; Mrs Richards says this is excessive.  It is true that the period of time of which I have spoken is a very substantial one, but it is also true, regrettably, that these are appalling offences which were committed while the applicant was given the benefit of what was supposed to be a very short release from prison for a purpose designed to improve his welfare.  It is impossible, in my view, to persuade oneself that any reasonable application of the principle of totality could produce the result that the ordinary fixation of parole, that is after 13 years, operates unjustly.

The danger which the applicant currently represents to the community is evident.  Whether or not he will represent such a danger in the year 2011 may be another matter altogether, and no doubt his application for parole at that time will be considered carefully.  I am of the view that there is no sound reason to think that the date which the law ordinarily imposes, that is 12 June 2011, will produce the result that the applicant has been imprisoned for too long a period, or a period which would entitle him to feel that he has been treated unjustly by the law.

The way in which I would therefore deal with the application is as follows.  I would grant the application and allow the appeal, but only to the extent of deleting any recommendation which the applicant obtained from the primary judge with respect to parole, and in particular deleting the recommendation which mentioned release in the year 2013.  Otherwise, I would dismiss the application.

MACKENZIE J:  I agree.

THE PRESIDENT:  I agree.  I would only add that, in deciding that the sentence is an appropriate one in all the circumstances, despite the totality principle, it is obviously a very significant factor that a psychiatric report was tendered from Dr Grant which stated:

"When one considers the totality of Mr Watcho's history, it is clear that he suffers from a severe personality disorder with narcissistic and anti-social traits.  The recent alleged rapes plus the history of rapes in 1992 are a source of considerable concern as they may indicate an added element of sexual sadism in Mr Watcho's make-up.  The chances of re-offending would appear to be high, especially if Mr Watcho once again abuses alcohol upon release from prison...  I doubt whether any realistic treatment would be possible in regard to sexually deviant behaviour in view of Mr Watcho's lack of insight and lack of remorse about this aspect of his life."

The order is that the application for leave to appeal is granted.  The sentence imposed in the District Court on 12 June 1998 is set aside to the limited extent of deleting the recommendation for release on parole.  Otherwise the sentence imposed on 12 June 1998 in the District Court of Brisbane is confirmed.