The Queen v O'Brien[1998] QCA 80

FRYBERG J:  On 30 October 1997 the applicant pleaded guilty in the District Court at Southport to one count of assault occasioning bodily harm, one count of indecent assault with circumstances of aggravation, one count of rape and one count of attempted rape.  He now applies for leave to appeal against sentence of imprisonment for 11 years on the count of rape.

The offence took place shortly after 6 a.m. on Sunday, 26 January 1997.  The victim, a 33-year-old woman, was taking an early morning walk from her home at Nerang.  It was, of course, daylight, although it was an overcast morning.  As she walked past a local park she was seized from behind by the applicant. 

He pinned her arms and said, "Just do as I say and I won't hurt you.  I am going to fuck you."  He dragged her by the hair and her shorts to a nearby toilet block and then to an area of bushland.  Her screams for help were heard by a passer-by and she called the police.  Meanwhile the applicant bashed the victim's head against the ground a few times and also punched her on the head a number of times.  These actions were the subject of count 1.

He then frogmarched his victim down a gully and through a stream toward the river bank.  In this area he pushed her to the ground, pulled up her top and squeezed her left nipple hard.  He also pulled her shorts aside and inserted his finger into her vagina.  She asked why he was doing this and he replied, "Because I want to fuck you."  This conduct was the subject of count 2.

After forcing her to walk for a distance the applicant again forced her to the ground face down.  Up to this point he had forcibly prevented her from seeing his face and he continued to do so.  He made her bend over and said, "Do you like arse fucking?"  She dissuaded him from sodomy but he ripped her underpants off so violently he caused her injury. 

While she was kneeling with her head down he raped her.  She attempted to persuade him to stop without success.  She pleaded with him not to ejaculate inside her and said, "You haven't got any diseases, have you, because I'm pregnant."  He replied, "No."  He ejaculated on to the ground.  She was, in fact, pregnant, although she only suspected that was so at the time.

While she was pleading with him he twice told her that he might "keep" her.  Out of the corner of her eye she saw him ejaculate and she said, "Haven't you come yet?"  He said, "I'm going to teach you that it takes a long time to come."  He then tried to rape her again but failed to penetrate her for lack of an erection.  That conduct was the subject of count 4.

After threatening to tie the victim up, the applicant agreed to leave her lying on the ground where she said she would stay for 10 minutes.  He threatened that if she moved he would shoot her.  He then tried to escape.

However, by then, the police had arrived and was searching the area.  He was seen by members of the public and ran away.  They chased him and caught him. Shortly afterwards the police arrived and arrested him.  When he was apprehended he said such things as, "Let me go, I'm in big trouble.  My life is over.  I want to run so the police can shoot me."  After his arrest he said to a police officer, "I don't know why I done that shit."

Later, in a recorded interview, the applicant said that he was an alcoholic and had been out drinking.  He claimed to have no recollection of what had happened, although he did not deny the substance of the allegations.  He cooperated in the provision of specimens and testing showed that six hours after the offence he had a blood alcohol concentration of 0.063 per cent, suggesting that at the relevant time it would have been from .135 per cent to .16 per cent.

The victim made her way back to the street where she found assistance.  She was very distressed and had suffered multiple bruises and abrasions to various parts of her body and head.  More than three months later she was still suffering continuous headaches at the back and front of her head where she was bashed.  Her mental state was greatly affected.  She had difficulty sleeping, suffered nightmares and had recurring dreams of being raped.  She found difficulty communicating with people and was extremely nervous if someone was behind her. 

She felt she needed, in public, to sit with her back to a wall or a corner.  She thought she was suffering extreme paranoia, which she recognised as over-sensitivity, but she felt out of control and powerless to stop these feelings.  She would often break down and cry when this occurred. 

Her relationship with her boyfriend suffered severely and was temporarily broken off.  After consultation with her doctor and counsellors she decided that she would not be able to cope with a child as it would remind her of the rape.  She had an abortion which she would not have considered had she not been raped.  At the time of her victim impact statement she felt unable to take up any permanent and meaningful employment and unable to set her mind to study. 

She was having weekly counselling and no longer felt emotionally stable.

At the time of the offence the applicant was aged 28.  His criminal history began at the age of 15 with charges relating to the theft of a motor car.  More relevantly, in 1989 he was convicted on one count of burglary, two counts of theft, one count of indecent assault and one count of unlawful assault.

On that occasion the applicant, after drinking, forcibly entered a home where he found his victim in bed.  He jumped on top of her, sucked her breast, ripped off her underpants and forced a finger into her vagina.  He was given then a six month suspended sentence.  Doubtless his age was a factor in that sentence.  He claimed that at that time he had a severe alcohol problem and had become and remained at the time of sentencing for this offence, an alcoholic.

The sentencing judge accepted that the applicant had a very serious alcohol dependency.  The Crown vigorously contested the applicant's claim to have no memory of the attack before the sentencing judge.  It was asserted that this false claim negated the existence of remorse.  His Honour found that the applicant probably suffered some degree of brain damage resulting in memory loss as a consequence of his alcohol dependency.  He said he was prepared to give the applicant the benefit of the doubt on the question of remorse.  This finding was based on a report by Dr Ian Curtis, a psychiatrist, who saw the applicant some months after the offence. 

Dr Curtis expressed his view on the basis of what the applicant told him.  His view was that the applicant was suffering alcoholic amnesia related to patchy memory formation and therefore poor memory retrieval episodes after severe alcohol intoxication.  He expressed no view on whether the applicant would have been able to remember the circumstances of the offence.  He thought there were signs of self motivation into rehabilitation and self improvement.

His Honour placed no reliance on the plea of guilty in forming his view on the question of remorse on the basis that the applicant was almost caught in the act and the Crown case was overwhelming.

With some hesitation I have come to the conclusion that we should not go behind His Honour's finding.  The finding does not seem to have played a major part in the sentence which His Honour imposed and it does not encompass any finding as to the reason for the remorse.  It is conceivable that self pity may have been involved.

The judge said that he took into account, in the applicant's favour, the fact that he cooperated to some extent with the police, that he had a good work history and held a very responsible position with a large construction company and that his plea of guilty spared the complainant the unpleasantness of having to testify at trial.  The committal had been a hand-up committal.

He noted a number of references tendered on behalf of the applicant and the fact that his wife was supporting him at the time of trial notwithstanding the existence of a domestic violence order at the time of the offence.  It has not been argued before us that His Honour ignored any material factor.  

One matter which His Honour said he regarded as a very serious aggravating factor was that the applicant persisted in his attack after he was told that the victim was pregnant.  Whether that statement was accurately represented to His Honour by the Crown Prosecutor in the context in which it was made was debated during the argument.  In my view it is perhaps not unfair to say that the flavour of what His Honour was told was less than a fair representation of what the victim had said in her statement to the police.

The applicant submitted that in fixing a head sentence of 11 years and not making any recommendation for parole, the learned sentencing judge gave insufficient weight to the applicant's plea of guilty and his personal circumstances, including his remorse, his good work record and his prospects for rehabilitation.  Reference was made to a number of cases.

It seems to me, having regard to those cases, that a head sentence of 11 years is within the range of sentences which could be imposed.  However it is somewhat difficult to see how high a head sentence might have been imposed if significant weight was given to the mitigating factors to which I have referred.  There is no doubt that some weight needs to be given to those factors at some point.

When one turns to the cases one finds the case of Adcock,

CA 392/1994, decided on 2 December 1994, the one which was relied upon first on behalf of the applicant.  That was an appeal by the Attorney-General.  In that case the prisoner was sentenced to 11 years imprisonment with a recommendation that he be eligible for parole after serving three and a half years.  The complainant in that case was aged 15 and still at school and had been the subject of a rape which was not one of any particular violence.  The circumstances, however, were described as both violent and revolting and that statement must be one of relativity only.  The case is comparable in the sense that the offender in that case ignored his victim's pleas and also sought to rely, quite wrongly in my view, on the fact that he had taken alcohol. 

We were referred also to the decision of this Court in Harvey,

CA No 354/1994, decided on 26 October 1994.  There the applicant was 24 years of age at the time the rape was committed.  The sentence imposed by the sentencing judge was one of 12 years imprisonment with a recommendation for parole after six years.  The complainant had been forced into a toilet block at the Royal Brisbane Hospital in daylight and punched and there raped and otherwise forced to behave with indecency.  The applicant in that case had an extensive criminal record including a previous offence of rape.  A psychologist found him to be mentally deficient and likely to re-offend.  The application for leave to appeal was dismissed.  It seems to me that that is a more serious case than the present.

The same I think is true of Soper, CA 119/1994, a decision given on 15 June 1994 in this Court.  There the sentences imposed were imprisonment for 11 years.  The plea of guilty in that case (and I should have added that all of these cases were cases of pleas of guilty) came late and only after the receipt of DNA results.  The sentencing judge said but for that plea he would have imposed imprisonment for 12 years.

The offence involved considerable violence to the victim, violence which caused her great pain as a result of a back injury.  The applicant attempted to fabricate an alibi, showed no sign of remorse and was persistently abusive in relation to the complainant and also attempted to have evidence fabricated of an alibi in support of him. 

He was 22 years old and had an extensive criminal record. 

Finally, I should refer to the decision in Costello, CA No 573/1996, a decision of this Court on 15 April 1997.  That decision is more recent than the others to which I have referred.  The applicant in that case was 24 years of age and he raped a 14-year-old girl on her way home from a skating rink.  He had a lengthy criminal history and was on parole for robbery with personal violence while armed at the time of the offence.  He was also on bail for a number of assaults on police officers including two charged as serious assaults.  The girl was overcome by near suffocation.  The applicant was sentenced to 13 years imprisonment.  Again, his intellectual capacity and psychological condition and personality were the subject of evidence.  He had a low IQ and an anti-social personality disorder.  The sentence of 13 years was not interfered with.  While that is a more recent case it does seem to me to be a case which indicates a higher range of head sentence than would be appropriate in this case.

I would approach the present application on the basis that the head sentence which ought to have been imposed was approximately the one which was imposed.  It seems to me difficult to reconcile the giving of proper weight to the factors in the applicant's favour to which I have referred with the head sentence having been adequately reduced. 

In any event, I think that the proper way to recognise those factors is to make a recommendation for earlier parole. 

In my view, the orders which were made below do not properly reflect this need and are for that reason manifestly excessive.  I would allow the application and grant leave to appeal.  I would not interfere with the head sentence which was imposed but I would add to it a recommendation that the applicant be considered for parole after the expiry of four years of the term of imprisonment.

DAVIES JA:  I agree.  When one has regard to the applicant's remorse which the learned sentencing Judge found to be genuine, his prospects of overcoming his alcohol dependence, his plea of guilty and his good work history, I do not think the sentence which was imposed without a recommendation for early parole sufficiently allowed for the applicant's prospects of rehabilitation.

I would therefore agree with the orders proposed by Justice Fryberg and with his reasons.

PINCUS JA:  I agree.

DAVIES JA:  The orders are as indicated by Justice Fryberg.