Attorney-General v Burley[1998] QCA 98

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.449 of 1997

Brisbane

[R v Burley; ex parte A-G]

THE QUEEN

v.

TROY ALLEN BURLEY

Respondent

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Fitzgerald P

McPherson JA

Shepherdson J.

Judgment delivered 19 May 1998

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

ATTORNEY-GENERAL’S APPEAL AGAINST SENTENCE ALLOWED. SENTENCES OF 16 YEARS IMPRISONMENT IMPOSED BELOW SET ASIDE AND IN LIEU THEREOF SENTENCES OF 20 YEARS IMPRISONMENT IMPOSED.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 19 May 1998

The circumstances giving rise to this appeal are set out in the reasons for judgment of Shepherdson J. 

The question for this Court’s consideration is whether an effective sentence of 16 years’ imprisonment for the respondent’s total criminality was so low as to warrant increase by this Court.  That question must be answered by reference to the law in force at the time of the respondent’s offences, which occurred prior to the amendment of the Penalties and Sentences Act 1992 by the Criminal Law Amendment Act 1997 and the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997. 

Accordingly, although the respondent’s offences were serious violent offences within the meaning of Part 9A of the Penalties and Sentences Act, his sentences can be remitted under the Corrective Services Act 1988.^[1]    However, there is no basis for an assumption that he will be granted parole under the Corrective Services Act, and not be required to serve the full period of imprisonment to which he has been sentenced.  The sentences imposed on the respondent were required to be no more severe than is necessary to achieve the purposes for which they were imposed.^[2]  He is a young man, presently aged 20 years, with no previous criminal convictions.  He pleaded guilty and is entitled to have that taken into account in reduction of his sentences unless there are reasons for not doing so.^[3]  Further, in my opinion, the sentencing judge was correct to assume in favour of the respondent that there is some prospect of his rehabilitation.   Such an assumption, and not the contrary assumption, reflects ordinary human experience.  Neither the report of Dr Grant, which is referred to in the reasons for judgment of Shepherdson J., nor any other material available to the sentencing judge entitled him to be satisfied that there was no prospect of the respondent’s rehabilitation or that his prospect of rehabilitation was negligible.  If such a conclusion was to be formed adversely to the respondent, the prosecution was required to adduce the necessary evidence. 

The respondent committed terrible crimes and must be severely punished.  Imprisonment for 16 years is a severe punishment, but, the Attorney-General argues, is not sufficiently severe.  Particular emphasis was placed in the Attorney’s submissions on the need to deter the respondent in particular and others who might otherwise commit similar offences.   The protection of the community is a material consideration, as is any propensity of the respondent to re-offend.  Nonetheless, he cannot be sentenced to life imprisonment merely to avoid or minimise that risk.^[4]

As the prosecution submissions before the sentencing judge and the Attorney-General’s submissions in this Court recognised, the respondent’s crimes can be adequately punished by less than life imprisonment.  According to the Attorney-General’s submissions, the minimum sentence appropriate is imprisonment for 20 years, not the effective sentence of 16 years’ imprisonment imposed below.

Of course, there is no formula which can be applied to determine the correct sentence, and deference must be given to the sentencing judge’s discretionary judgment.  Regard must also be paid to the mitigating factors to which I have referred.  Nonetheless, the number, range, violence and brutality of the respondent’s crimes has convinced me that his effective sentence is inadequate.  In my opinion, the minimum sentence called for is imprisonment for 20 years.  Because of the respondent’s youth, absence of prior convictions, pleas of guilty and possibility of rehabilitation, no heavier sentence is called for.

To give effect to the conclusion which I have reached, it is appropriate to allow the appeal in respect of the offences for which the appellant was sentenced to 16 years’ imprisonment, set aside those sentences, and substitute in each case a sentence of imprisonment of 20 years.  The orders made below should not be otherwise altered.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 19 May 1998

I have read what has been written by Shepherdson J.  I am in general agreement with the reasons he gives for increasing the sentence of imprisonment imposed below from 16 to 20 years.

A series of incidents was involved in which, over a comparatively short space of time, the respondent committed rape or attempted rape on four different women, together with associated offences.  All of the offences involved violence or threats of violence accompanied by the use of a knife, as well as degrading and painful treatment of his victims, which in at least one instance caused physical and disabling injury that may well prove to be permanent.  In addition, the experience of being treated in this deliberately terrifying and inhuman manner has inevitably inflicted deep emotional and psychiatric harm on each of the victims.

Rape is an offence that carries a maximum sentence of life imprisonment.  Factors that go slightly in mitigation of that penalty in the case of the respondent here are his pleas of guilty to all of the offences charged; and his youth at the time the offences were committed.  As regards the former, it is fair to say that the respondent’s identity as the attacker was subsequently established in such a way as to render conviction practically inevitable.  Nevertheless, it is not unknown for persons facing an inevitable outcome to plead not guilty and insist on a trial.  The advantage of his guilty pleas in saving public expense and, what is more important, of sparing the victims the ordeal of a trial, with all the additional emotional stress it would impose, are therefore matters which it is legitimate to take into account in arriving at the appropriate penalty in this instance.  The respondent’s pleas of guilty are capable of being considered as some slight evidence of remorse on his part.  By contrast, it was a feature noticeably absent in R v. Colin Arthur Jackson (C.A. 376 of 1987), in which I was the primary judge who imposed the sentence of life imprisonment at first instance.  It may be useful to add that, in that case, six of the victims of that serial rapist were required to give evidence at a trial lasting two weeks or more only to find that the accused himself admitted his guilt on the appeal. 

The other mitigating factor is, or is said to be, the respondent’s youth.  He was 17½ years old at the time of the first offence and 18 at the time of the others.  He had no prior convictions of any kind.  It may fairly be said that a young man who behaves in a way that is more characteristic of someone older does not deserve to have his youth taken into account in his favour.  Knowing not to rape women is not a lesson that is learned by experience.  Nevertheless, the respondent’s relative youth and his unfortunate family background are matters that ordinarily attract consideration in fixing sentences even for serious offences; and, until that process is directly forbidden by legislation, it is proper to allow some weight to those factors even in the case of offences like these.

Against those factors must be weighed the possibility of re-offending behaviour on the part of the respondent.  Without the aid of divine prescience, it is really not possible for anyone to be confident that the respondent will not offend again on his release from prison after serving whatever sentence may be imposed.  As I read the  psychiatric report, the assessment made by Dr Grant is by no means optimistic.  He says that the risk for future offending behaviour is “quite high” unless some kind of intervention can be achieved that assists the respondent in overcoming what Dr Grant describes as his sadistic sexual impulses.  He goes on to add that, in any case, therapy for such  problems is very difficult and that the respondent would need much greater evaluation to assess whether he is capable of change.

In these circumstances, the only course open to a Court in performing its sentencing function is to arrive at a sentence of appropriate duration for the offences involved.  Preventive detention on a permanent basis is not a permissible course, or, at any rate, not one that we are asked or have power to consider here.  One can only trust that the respondent will not be released by those who have the authority to do so before the full term of his sentence has expired unless there is then good reason for supposing that a repetition of these vile offences will not ensue.  The risk of his doing further serious harm to other innocent individuals will fall to be considered in the light of any prediction which it may then be possible to make in the light of his behaviour up to that time.  It is not a matter on which this Court is competent to reach any reliable opinion on the material now before us.

In my opinion, a sentence of imprisonment for 20 years is appropriate.  The Attorney’s appeal should be allowed to the extent of increasing the respondent’s sentence to that level.  

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 19 May 1998

On 24 October 1997 in the District Court at Brisbane the above named Troy Allen Burley pleaded guilty to 28 charges contained in two indictments.  Twenty-seven counts were on one indictment and on the other was one count of stealing.

The twenty-seven charges arose out of the respondent’s violent attacks on four women during a period of 8 months in 1995 and 1996.  Those attacks included the respondent having raped three of the women.

A learned District Court judge sentenced the respondent to varying terms of imprisonment.  Effectively the head sentence was that imposed for each of 3 rapes committed on the last of his victims - 16 years imprisonment.

The Attorney-General of Queensland has appealed against the sentence of 16 years imprisonment on the ground that the sentence is manifestly inadequate for the following reasons:-

1. it failed to reflect adequately the gravity of the offences generally and in this case in particular;
2. it failed to take into account sufficiently the aspect of general deterrence;
3. it failed to take sufficiently into account the aspect of dangerousness; and
4. the sentencing judge gave too much weight to factors going to mitigation.

To succeed the Attorney-General must satisfy this Court that the sentence of 16 years is outside the scope of a proper sentencing discretion (R v. Melano ex parte Attorney-General of Queensland) (1995) 2 Qd.R 186.

Before I turn to the relevant facts I should say that before this Court, Mrs Clare who appears for the appellant, submits, as she did before the learned sentencing judge, that the head sentence should be  in the range from 20 years to life imprisonment and in fact she has asked this Court to allow the appeal and impose a sentence of life imprisonment.

The learned sentencing judge had before him a schedule giving particulars of each of the twenty-seven charges appearing on the first indictment.  His Honour also heard oral submissions detailing the changes.  I propose to give some detail of the charges in respect of each of the four victims.

Victim No 1

This complainant was a 22 year old single English woman residing at a caravan park at Bundaberg.  At about 5.30 a.m. on 28 October 1995 she went to a nearby toilet block.  The respondent had followed her into the toilet block and used a knife to force her into two shower cubicles.  He committed six offences upon this woman, being, deprivation of liberty, indecent assault, attempted rape, indecent assault with a circumstance of aggravation (forcing her to perform oral sex), indecent assault and attempted anal intercourse and rape.

Physical injuries suffered by this victim included bruising to the neck and chest, grazed lips, blood on the labia majora and grazes and lacerations to the vaginal entrance.  The knife was used  by the respondent throughout the sexual assault accompanied by threats to kill. 

These events transformed this victim from a carefree young woman who had confidently travelled around the world to a person afraid to be alone and constantly battling irrational fears.

Victim 2

This complainant was a 22 year old typist on her way to work.  As she approached the pedestrian overpass to the Gailes Railway Station at about 6.30 a.m. on 11 April 1996 the respondent grabbed her from behind.  He dragged her at knife point towards bushes saying “slut, bitch, follow me” and “you better act as my girlfriend or I’ll slit your throat”; he pushed her towards a fence and then on to the ground as she resisted.  She screamed for help and a man responded.  The respondent fled.

The behaviour I have just set out constituted attempted rape.  The respondent also committed the offence of grievous bodily harm.  The complainant tried to get away from the respondent and grappled with him when he was holding the knife.  He struck her with the knife on her hands and arms.  She pushed the knife away from her throat with her hands.  She suffered scarring and permanent tendon damage to her thumb - this has threatened her occupation as a typist.  She has undergone two operations and physiotherapy is ongoing.

Victim No 3

This complainant was aged 18 years when at about 11.35 a.m. on 28 May 1996 she left a train at Ebbw Vale Railway Station to walk towards her home.  She followed a concrete pedestrian path when the respondent ran from behind, seized her and covered her eyes with one hand and pressed a knife to the right side of her throat saying words to the effect “don’t scream or I’ll kill you”.  He forced her from the path she was following and into a grassy area some 5 metres away.  Over a period of some 40 minutes he committed the following offences:-

1. three separate rapes;
2. indecent assault with circumstance of aggravation (fellatio);
3. indecent assault with circumstance of aggravation (anal intercourse or sodomy);
4. indecent assault with circumstance of aggravation - digital penetration of the vagina;
5. indecent assault with circumstance of aggravation - forcing the complainant on to her hands and knees and digitally penetrating her anus;
6. two charges of indecent assault - one of undressing the victim and using her dress to blindfold her; then kissing both breasts and then pushing a knife against one breast and the other indecent assault being forcing the complainant to masturbate him;
7. common assault - after deep tongue thrusting during vaginal rape - spat in her mouth and made her swallow his saliva;
8. stealing - stealing $130-$135 from the complainant’s purse.

The respondent, while going through this complainant’s wallet, read out her name and address.

The physical injuries suffered by this complainant included a bite to the neck, superficial lacerations all over her body except her face, marks from the knife on her neck, throat and breast and redness and tenderness of the vagina and anus.

The evidence shows that at some stage the respondent wrote down this complainant’s telephone  number and some months later the paper with her telephone number on it was still in his wallet.

Victim No 4

This victim was a 42 year old woman who was a university student and a mother of children.  At about 11.45 a.m. on 25 June 1996 she alighted from a train at Ebbw Vale Railway Station and began to walk along a path beside the train line to catch a bus.  She intended to cross an overhead bridge and when about 10 metres from the bottom of the stairs to that bridge,  the respondent seized her from behind, placing his cupped hand hard against her nose and mouth and at the same time holding a knife against her neck.  She was forced at knife point to walk into an abandoned industrial shed not far from the railway station.  Apart from the knife, he continued to hold his hand over this victim’s mouth causing her to hyperventilate such that she believed she was going to faint.  She tried to pull his hand away from her mouth in order to get a breath but he struck her several times across the face and ears and threatened to kill her.  He tied her jumper around her head so that she could not see what was going on.  This complainant’s ordeal at the hands of the respondent lasted about 40 minutes.  During this time he committed the following offences:-

1. three separate rapes while in the shed;
2. assault with intent to rape - this occurred before she reached the shed;
3. two offences of indecent assault each with a circumstance of aggravation (fellatio);
4. indecent assault - she was forced to masturbate him using both hands;
5. stealing - the respondent stole $80 from her bag during the time when this victim was being subjected to the above conduct. 

The respondent said to her “Tell me where you live.   If you lie I will check your driver’s licence and I’ll go and get your kids.  You don’t know what I’m going to do to your kids.  I would enjoy having sex with some little girls”.  The victim believed what he said.

This victim’s physical injuries included three lacerations to her neck, cuts to the inner and outer  arms and to her hands and wrists, scratches to her knees, at least 9 linear lacerations below her breast (caused by the knife) injury to an eye and cheek and tenderness and pain in the genital area.

When the respondent was eventually located he strenuously denied responsibility for any of the charges to which he ultimately pleaded guilty.  The cases against him were overwhelming.  In the case of each of the three rape victims he was identified by DNA evidence - the spermatozoa found in each victim was his.  In addition he had kept the telephone number of one of the victims.  Two of the victims had been raped at or near railway stations frequented by the respondent.  Gailes and Ebbw Vale are on the Brisbane - Ipswich rail line.  In addition the respondent’s girlfriend had observed the respondent’s disappearance at the time when the last rape had occurred and his dishevelled and dirty appearance soon afterwards . 

The respondent was born on 8 January 1978.  He was 17½ years old at the time the first rape was committed and was 18 years old at the time when he attacked each of the other victims.

At the hearing before the learned sentencing judge on 24 October 1997 when the respondent pleaded guilty to all the offences, the respondent’s counsel accepted the facts in relation of each offence as stated by the prosecutor.  His Honour had victim impact statements from each victim.  

In his sentencing comments made on 28 November 1997 His Honour said:-

“I can summarise the offences by saying that there were three planned, systematic and deliberate rapes and one attempt to commit rape and associated offences.  All were committed upon women who were strangers to you in public places where they were entitled to feel that they were safe.  The attacks had some sadistic overtones, you threatened them with a knife to subdue and terrorise three of them, the experience of three at least was terrifying, humiliating and degrading, it can be described as an ordeal.  You used insulting and obscene language you threatened to kill them and to pursue them afterwards if they complained to the police.

Your fourth intended victim fortunately got away after a struggle with you but because you were carrying a knife she suffered wounds to her hands.  She has some permanent disability remaining in one-hand which required surgery.  The other three all suffered fortunately relatively slight physical injuries at the time but as their statements show they have suffered serious emotional damage.

You caused fear in the Ipswich area particularly for many women using the train.  Three  of these offences were committed near railway stations in the Ipswich area.  You caused the community great expense.  The police regarded the matter seriously enough to set up a separate task force.”

The respondent was a strong, fit and well young man who had been a good boxer.

The learned sentencing judge had before him a report dated 10 June 1997 from Dr Donald A Grant a psychiatrist, described as “Clinical Associate Professor in Psychiatry”.  This report had been obtained by the respondent’s solicitor.  On 6 June 1997 Dr Grant had interviewed the respondent at the Arthur Gorrie Correctional Centre and when he prepared his report he had notes which he had made in conversations with the respondent, as well as a statement from the respondent’s father, a statement from the respondent’s mother and a brief of evidence from the Queensland Police Department including statements of complainants, witnesses and police as well as a record of interview between the police and the respondent.  Dr Grant said the respondent was “clearly fully aware of the scope and number of offences”.   The respondent detailed to Dr Grant the first rape - that committed in Bundaberg - and as the report shows, told Dr Grant that:-

“He felt scared and at the same time stimulated in a strange way by the assault.  Once it started and the woman did what he said, he said he calmed down and it was easier”.

Dr Grant noted that “subsequent offences took a fairly similar course”.  He recorded that in between assaults the respondent hid the knife in a toilet between the wall and the ceiling where he knew his (the respondent’s) girlfriend could not reach.  Dr Grant recorded the respondent told him “that although he was obviously sexually aroused during the assaults he said it was not really a pleasant kind of arousal.  It was more a stimulation and a feeling of fear”.  I should add that Dr Grant, when speaking of the first offence at Bundaberg, recorded:-

“He denies planning this event in any degree, but when questioned indicated that he had thought about it for a few days beforehand.  He said he had thought about going out and ‘looking at people’ (that is, voyeurism) and that his thoughts went from there and he started thinking about raping somebody.  For about two days he had thought about how he would go about it and planned how he would approach the woman from behind and put his hand over her mouth etc.”

As to motivations Dr Grant recorded that the respondent said:-

“He really does not know why the assaults occurred.  He said he has asked himself a hundred times and can’t really come up with the answer.  He said it was not to do with sexual frustration in that he had never had any trouble getting girlfriends and could have any girl he wanted.  In Bundaberg he was very well known as a boxer, he had a good name, his picture was often in the paper, he had been considered for Olympic selection and he had no trouble at all finding decent girlfriends.  At the time of the first assault he was going out with his girlfriend, Anne, and that had not yet become a sexual relationship.”

Dr Grant said the respondent indicated that at the time of the assaults he had a number of stresses in his life relating to inter-personal relationships.  The first of these was to do with his mother, his parents having separated when he was 14 and this had caused him trauma.  The respondent chose to stay with his father and towards the end of 1995 the respondent’s mother told him she was planning to go to Germany to live with her new husband.  Dr Grant records the respondent “says he was rather caught up in all this strife between his parents “and his mother left for Germany about July 1996 and was staying at his house in Brisbane when one of the incidents occurred.

Dr Grant noted also that the respondent had a difficult situation relating to girlfriends in that while he was still at school he was going out with his girlfriend Anne but had also developed a liaison  with his subsequent girlfriend Sue-Ellen and that over a period of some months there was a lot of tension and arguing involving the respondent and these two girlfriends.

The respondent told Dr Grant that when he was 11 or 12 he was sexually abused while staying in a caravan in Bundaberg, the perpetrator being an old man in a caravan park who had befriended him. 

According to Dr Grant the respondent said he had had quite a lot of sexual experience even before he started going out with Anne.

In the assessment portion of his report Dr Grant said (in a passage very largely quoted by the learned sentencing judge in his sentencing remarks):-

“Mr Burley’s history suggests some antisocial and narcissistic traits in his personality.  At the time of the offences he was involved in rather complex relationship problems with two girlfriends who were rivals for his affections.  He was also coping with the impending separation of his mother and sister who were moving to Germany.  Mr Burley’s offences were clearly planned and tended to follow the same pattern.  It is probable that the offences were motivated by suppressed rage at female figures in his life (mother and girlfriends) and that this rage was displaced onto his victims.  Whilst unconscious mechanisms were no doubt involved in the motivations, the actual behaviour was well organised and deliberate.

The pattern of offending behaviour is very worrying in that it suggests sexual sadism with serial offending.  The risk for future offending behaviour is therefore quite high unless some kind of intervention can be achieved which assists Mr Burley in understanding and overcoming these impulses.  At present, Mr Burley’s understanding of his offences is very limited and although he is expressing an intellectual understanding that he needs to try to understand his behaviour the motivation for actually carrying this out may not be  great.  In any case therapy for such problems is very difficult and he would need much greater evaluation to assess whether he was capable of change.

From the information which I have there is no indication that Mr Burley was suffering from any psychiatric illness at the time of the offences and I do not believe there would be any grounds for a defence of unsoundness of mind.  He is now likewise not suffering from any identifiable psychiatric illness and is fit to plead and fit for trial.”

Dr Grant concluded his report as follows:-

“If you wish me to evaluate Mr Burley further in relation to possible treatment potential and issues of future dangerousness, please let me know.”

It appears there has been no such evaluation and there was no material placed before the judge to suggest such evaluation had occurred.

The learned sentencing judge proceeded to state several considerations which he had taken into account in fixing an appropriate sentence.  He mentioned the need for a sentence “to punish, to deter and in an appropriate case to protect the community, in this case, women”.  His Honour went on:-

“The established principles say that while protection of the community may be taken into account in fixing an appropriate sentence the end result must not in any event be out of proportion to a proper sentence merely to achieve the protection of the community.”

His Honour said that, if possible, rehabilitation was to be taken into account and he then said:-

“I assume here bearing in mind the remarks of the psychiatrist, that there is some prospect of your rehabilitation.  I must take into account the fact that even now you have not yet reached your 20th birthday.  In particular I have considered at length the question of your pleas of guilty.  As the prosecutor has pointed out there was always a high probability if not certainty that you would be convicted because of the strong evidence against you in particular the evidence of the DNA analysis.”

One question that arises in this Court is whether the remarks made by Dr Grant did entitle the learned sentencing judge to assume that there was some prospect of the respondent’s rehabilitation.  If the remarks did not entitle the learned sentencing judge to make that assumption then the risk of his offending in the future (which Dr Grant described as “quite high”) takes on greater significance when considering whether or not the 16 year head sentence was an exercise of a proper sentencing discretion.  I shall later return to this question.

I should at this stage say the learned sentencing judge imposed sentences for the crimes of rape as follows - 8 years for the first rape victim (victim 1), 12 years for the second rape victim (as well as 12 years for sodomy of this victim: victim 3) and  16 years for the third rape victim (victim 3) and he followed this course “to reflect the mounting seriousness of what happened”.  He said:-

“The effective head sentence for all your offences will be 16 years imprisonment with no recommendation for any parole.”

His Honour imposed sentences for all the other offences.  In respect of the first victim the respondent received 2 years imprisonment for each of the crimes of deprivation of liberty and indecent assault and the remaining three offences including attempted rape attracted sentences of 4 years imprisonment.

For the second victim the respondent was sentenced to 4 years imprisonment for each of the crimes of attempted rape and grievous bodily harm.

For the third victim his Honour sentenced the respondent to 12 years imprisonment for each of the three crimes of rape and the crime of indecent assault with the circumstance of aggravation (anal intercourse).  He sentenced him to 1 years imprisonment for stealing $130-$135, 2 years for each of the counts of common assault and indecent assault, 4 years for indecent assault with circumstance of aggravation (fellatio) and 6 years for each indecent assault with circumstance of aggravation (digital penetration of her anus and digital penetration of her vagina.) 

For the final victim his Honour sentenced the applicant to 1 years imprisonment for stealing  $80, 2 years for assault with intent to rape, 4 years for indecent assault (forcing the victim to masturbate him with both hands) 8 years for each of the two charges of indecent assault with circumstances of aggravation (fellatio) and 16 years for each of the 3 counts of rape. 

The present respondent has been described as a serial rapist.  In the Queen v.  Jackson (CA 376 of 1987) the Court of Criminal Appeal dealt with a serial rapist who had been sentenced to life imprisonment.  In that case there were seven women victims of the offences which had been committed at the Gold Coast between and including 19 January 1986 and 13 September 1986.  An application for leave to appeal against sentence was refused.  In Jackson’s case the learned sentencing judge imposed incremental sentences beginning with 10 years imprisonment for the rape first in time and in respect of a count of attempted sodomy committed on the same day a cumulative sentence of a further 2 years imprisonment.  Sentences for rapes subsequent in time were increased with the head sentence being life imprisonment.

Thus, the approach taken by the learned sentencing judge in Jackson of increasing the penalty for each subsequent offence has been followed by the learned sentencing judge in the present case.

The principles referable to a sentence of life imprisonment have been considered by the Court of Criminal Appeal in R v. Chivers (1993) 1 Qd.R 432.  Thomas J at pp. 435 to 437 referred to what he described as “attempts” made in the High Court in Veen v. The Queen (1979) 143 CLR 458 (“Veen No 1") and Veen v. The Queen (No 2) (1988) 164 CLR 465 to formulate these principles and said:-

“Those cases highlight the potential collision between two separate sentencing principles.  One is the relevance of the protection of the community in the formulation of the sentence; and the other is the need to keep the sentence proportionate to the circumstances of the particular crime committed.”

His Honour stated a number of propositions which in his view “seem justified from those decisions” and which he used for purposes relevant to the disposition of Chivers’ application for leave to appeal against a sentence of life imprisonment for attempted murder.  They were:-

1. The punishment to be inflicted must be proportionate to the crime.
2. The protection of the community from violent crime is a very important factor to be taken into account in sentence.
3. The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed subject of course to its not being disproportionate to the gravity of the particular offence.
4. The maximum prescribed penalty for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed and “This does not mean that one must envisage the worst possible example of the crime in order to impose the maximum penalty but rather that it must be seen as qualifying for the worst category of cases of that kind”. 

His Honour said:-

“It may be difficult if not impossible to envisage “categories” of cases of attempted murder, and I would interpret this statement as requiring that the circumstances reveal conduct towards the top end of the scale when one is looking at the range from the least serious to the most serious  examples of such offences.”  (at p. 437)

In the event Thomas J decided that a sentence of life imprisonment should be set aside and a sentence of 16 years imprisonment imposed in lieu.  Cooper J took a similar view and concluded that Chivers case was not in the worst category although it was a very bad example of the offence.  de Jersey J (as he then was) refused the application for leave to appeal.

In Veen v. The Queen (No 2) at p. 475 the Court adopted as an accurate statement of the law the following statement of Mason J in Veen v. The Queen (No 1) at 469:-

“In my opinion His Honour’s observations express the principle which is to be applied to cases of this kind.  They demonstrate that in such a case there is no opposition between the imposition of a sentence of life imprisonment with the object of protecting the community and the proportionality principle.  The court imposes a sentence of life imprisonment on taking account of the offender’s record; his propensity to commit violent crime, the need to protect the community and the very serious offence of which he stands convicted, imprisonment for life being a penalty appropriate to very serious manslaughter when it is attended by the additional factors to which I have referred.”

The observations to which His Honour was referring were those of Gibbs J (as he then was) in R v. Pedder (a decision of the Queensland Court of Criminal Appeal 29 May 1964 unreported).  It is unnecessary to set out those observations. 

Although Chivers was a case of attempted murder the various matters  applicable to imposition of a sentence of life imprisonment as discussed in that case are relevant in the present case where the maximum penalty for rape is life imprisonment.

The present case again highlights the potential collision between the two separate principles to which Thomas J referred.  In addition, as Cooper J said in Chivers (at p. 447):-

“The common law does not sanction preventative detention and the principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from recidivism of the offender.”

In my view, the outcome of the present appeal depends on whether or not the learned sentencing judge was correct in assuming that, bearing in mind the remarks of Dr Grant, there was some prospect of the respondent’s rehabilitation.  If those remarks did not justify such an assumption  being drawn then in my respectful view the learned sentencing judge erred and the head sentence was not the exercise of a proper sentencing discretion.  In that event it is open to this court to exercise the sentencing discretion afresh.

Part of what Dr Grant said was:-

“The pattern of offending behaviour is very worrying in that it suggests sexual sadism  with serial offending.  The risk for future offending behaviour is therefore quite high unless some kind of intervention can be achieved which assists Mr Burley in understanding and overcoming these impulses.”

As I have mentioned earlier in these reasons, Dr Grant then went on to say that the respondent’s understanding  of his offences was very limited and that:-

“Although he was expressing an intellectual understanding that he needs to try and understand his behaviour the motivation for actually carrying this out may not be great.  In any case therapy for such problems is very difficult and he would need much greater evaluation to assess whether he was capable of change.”

There was no evidence before the learned sentencing judge that this respondent was capable of change; there was no evidence of the evaluation suggested by Dr Grant to assess whether the applicant was capable of change and, it was not, with respect open to his Honour to assume as he did that there was some prospect of the respondent’s rehabilitation.  As I read Dr Grant’s report, the evaluation of the respondent’s capacity for change is a necessary precursor to therapy for the respondent’s problems, leaving to one side the matter of therapy for the problems being very difficult.  The problems to which Dr Grant referred were the applicant’s understanding of his offences being very limited and “although he is expressing an intellectual understanding that he needs to try to understand his behaviour the motivation for actually carrying this out may not be great”.

In my respectful view, the learned sentencing judge erred in assuming that, bearing in mind the remarks of Dr Grant, there was some prospect of the respondent’s rehabilitation.  Having said that I can well understand his Honour wishing to see some prospect of such rehabilitation in a 19 year old man.

As this Court is to exercise the sentencing discretion afresh, I return to the passage from the judgment of Mason J in Veen (No 1) which I earlier quoted and the matters to which his Honour referred.

This respondent had no prior criminal record.  He was indeed only 17½ years old when he committed the first rape.

In my view he has a propensity to commit violent crimes of a sexual nature against adult women.  This has been well demonstrated by his attacks upon the above four victims.  In my view also, there is a need to protect the community from persons who behave as this respondent did towards each of his victims.  The circumstances of the case against this respondent, while not being the worst possible examples which can be envisaged, nevertheless in my view qualify the rapes upon 3 of his victims for the worst category of rape cases.

There is no evidence that the respondent is capable of change as described by Dr Grant.

The respondent does not suffer any identifiable psychiatric illness.  There is a quite high risk of future offending behaviour.  The respondent is a young man who has pleaded guilty at an early stage in the criminal trial process and saved the community the cost of a quite lengthy trial and spared the complainants the ordeal of giving evidence, not only at a trial, but at a committal.

As Dr Grant said the risk for future offending behaviour is quite high “unless some kind of intervention can be achieved which assists [the respondent] in understanding and overcoming his impulses.”

Lack of evidence demonstrating any prospect of the respondent’s rehabilitation has worried me.  Should a sentence of life imprisonment as sought by the Crown be imposed?

I have taken account of the matters referred to by Mason J.  Two aspects telling against life imprisonment are the respondent’s youth and lack of a prior criminal history.  Aspects in favour of life imprisonment are his propensity to commit violent crimes of a sexual nature against women as amply demonstrated by his commission of the offences against his victims, all within a comparatively short time span as well as the quite high risk of future offending behaviour.  Another aspect telling against life imprisonment is the absence of evidence that the respondent is capable of change although it may fairly be argued that absence of that evidence does, in the circumstances of this case, bring to the fore the quite high risk of future offending behaviour.

Of course the respondent’s guilty pleas must be taken into account and the sentencing Court may reduce the sentence which would have been imposed had the respondent not pleaded guilty (s. 13 Penalties & Sentences Act 1992).

The sentencing court is not, under s. 13, actually obliged by a guilty plea to make a reduction in sentence (s. 13(1)(b) and R v Corrigan (1994) 2 Qd.R 415 at 416 (per Macrossan CJ and Lee J).)

In the respondent’s case, I would not reduce the sentence because of the guilty pleas - a course  I note followed by the learned sentencing judge.  The cases against the respondent in respect of victims 1, 3 and 4 were very strong and made so by the DNA identification evidence.

It may be said that pleas of guilty are to be encouraged by courts actually reducing sentences which would otherwise be imposed if accused persons plead not guilty and are subsequently found guilty.  Such reductions may also be effected by early recommendations for parole (R v Corrigan (supra)). While I do not doubt that s. 13 of the Penalties & Sentences Act is intended to achieve such a result, each case must be considered separately.  Here, the circumstances are such that whatever sentence of imprisonment is imposed, any reduction in that sentence is not warranted or justified.

Taking all relevant matters into consideration, I have concluded that a sentence of life imprisonment should not be imposed but that the sentences for each of the crimes of rape committed on 25 June 1996 should be increased to 20 years. 

The respondent will be eligible to apply for parole after serving 10 years of his sentence and I should expect that after the lapse of 10 years the Queensland Community Corrections Board will be able to assess whether or not the respondent has been assessed as capable of change in respect of the matters referred to by Dr Grant and if so whether he has changed.  No doubt the Board or whatever body is responsible for considering applications for parole will consider any up to date opinion as to the risk of future offending behaviour by the respondent.

In addition, I should expect that if the respondent were to present as a model prisoner while in custody, the parole granting authority will bear in mind that the respondent’s criminal conduct to date has involved women and the respondent will have been incarcerated with male fellow prisoners and have had little or no contact with women.

I would allow the appeal, set aside the sentences of 16 years imposed by the learned sentencing judge and in lieu, in respect of each of the crimes of rape committed on 25 June 1996 sentence the respondent to a term of 20 years imprisonment.

I would declare that the period of 261 days during which the respondent has been in custody and as already declared by the learned sentencing judge be taken as imprisonment already served under the sentence of 20 years imprisonment.