R v Lonesborough[1999] QCA 120

COURT OF APPEAL

de JERSEY CJ

McPHERSON JA

THOMAS JA

CA No 428 of 1998

THE QUEEN

v.

PETER JOHN LONESBOROUGH Applicant

BRISBANE

DATE 13/04/99

JUDGMENT

THOMAS JA:  The applicant was convicted in the District Court on three separate indictments.  On the first indictment there were eight counts of rape relating to the first female complainant who was the applicant's de facto partner at the time.  The second indictment alleged one count of rape relating to a second female complainant who had met the applicant some 10 days before the incident.  The third indictment contained three counts of dangerous operation of a vehicle with a circumstance of aggravation and a further count of unlawful use of motor vehicle.

The applicant was arrested in October 1997 in relation to the rapes of the first complainant.  He was on bail when he committed the rape on the second complainant in April 1998.  When approached by police he took flight giving rise to the offences detailed in the third indictment.  On the first indictment he was sentenced to 10 years' imprisonment on each count to be served concurrently.  On the second indictment he was sentenced to 10 years' imprisonment to be served cumulatively and these convictions were declared to be ones for serious violent offences.

He was sentenced to five years' imprisonment on the remaining offences in the third indictment to be served concurrently with the other sentences and there was a further declaration of absolute disqualification from holding a driver's licence.  The total sentence imposed was therefore 20 years' imprisonment with 80 per cent having to be served.

The circumstances which I shall now recount are largely taken from the summary presented on behalf of the applicant.  Count 1 commences in the month of September 1997 at Bribie where the applicant had had a falling-out with the complainant whom he had known for about 12 months.  She had made it clear to him that she was unwilling to have further sexual activity with him at that time.  An argument erupted in the bedroom over the question of sexual relations.  The applicant left it and returned with a large kitchen knife with a 20 centimetre blade.  He threatened to stab himself and then told the complainant to remove her clothes and held the knife to her throat.  He tore off her underwear, tied her hands behind her back and then had intercourse with her.  She was crying during this act and described it as very painful. 

The second count occurred not long afterwards.  He allowed her to get dressed again and then told her to get undressed and repeated a forceful intercourse with her.  They then remained in the bed until morning.

On the next morning which concerns counts three and four the applicant forced the complainant to have intercourse against her will.  She cried out in pain and was told to shut up.  After that occasion he forced his penis into her anus.  At the conclusion of that he told her that she had deserved what had happened to her because she had given him HIV.  The applicant then told her that he had got the disease from another woman.  This caused the complainant great distress. 

It may be mentioned in passing that subsequent testing revealed that the complainant had not contracted any disease from her contact with the applicant.  At this point the applicant promised that he would not touch or assault her again.  She stayed with him because she was extremely frightened of what he might do if she left. 

On the following days similar conduct continued which relates to counts 5, 6, 7 and 8 of the first indictment.  There were four further acts of rape.  Eventually the complainant drove to her mother's house where she made a complaint and the police were involved.  The complainant suffered pain in the vaginal and anal areas and on medical examination was found to have two lacerations in the vagina.

The applicant was arrested and released on bail and then committed for trial after a full hand-up committal.  His criminal history shows that by 28 March he had formed another de facto relationship with another woman. 

This resulted in another offence with which he had been dealt before he came before the District Court on the present matters.  The complainant there was a 28 year old female who also seems to have been in a short-term de facto relationship with the applicant.  She asked him for some money to buy some food for the children and an argument developed.  He grabbed her left hand, twisting it around, causing her little finger to break.  She sought refuge in a bedroom.  The applicant approached her saying, "It's only dislocated, I'll put it back in for you."  He grabbed the hand again and twisted it causing her to suffer further pain.  When she was medically examined she was found to have an oblique fracture to the finger.  The applicant, when interviewed, said that he had defended himself against the complainant and that was how she had been injured.

However, before he was dealt with for that offence the offence the subject of the second indictment was committed on 15 April 1998.  The complainant this time was a 19-year-old woman whom he had met through a friend.  He offered to teach her how to drive a truck.  He drove her north along the highway and took an exit from the main road at night time.  He attempted to undo the zip of her jumper but was rebuffed.  He asked her to take her clothes off but she refused.  He then produced something metallic in his hand saying, "You're not going to make me use this, are you?"  She described herself as being in fear of her life and complied with his demands.  He inserted his fingers into her, performed oral sex and then sexual intercourse with her.  He asked her whether she had ever thought of becoming a prostitute and gave her $150 which she at first refused but, when pressed, accepted in order to avoid further conflict.  He took her back to her vehicle and she complained to her flat-mate upon returning home. 

On the following day the police attended the applicant's place of work.  They observed him driving his truck and activated a police siren in an attempt to stop him.  He continued to drive.  A police officer on the roadway gestured for him to stop his truck but then had to throw himself out of the truck's path as the applicant drove on past him.  There followed a lengthy pursuit from Redcliffe to Gladstone.  The three charges of dangerous operation of a vehicle relate to that course of driving.  The unlawful use charge relates to his use of the truck without the permission of the owners.

In that pursuit he drove through red lights on major arterial roads, along the Bruce Highway and through residential areas where he drove in excess of the speed limit.  Other vehicles had to manoeuvre to brake to avoid collision.  He drove at a police car which had to swerve in order to avoid collision.  Numerous police vehicles and a helicopter became involved.  The incident resulted in a state of emergency being declared and road blocks were set up.  Several of these were evaded by his driving on the incorrect side of the road or onto the edges of the road.  On one occasion he drove through a rest area within a short distance of a large number of people causing them to scatter.

He did a U-turn and drove towards a stationary police car narrowly missing a collision.  He drove towards a police officer who discharged shots at the tyres of the truck and then continued through a residential area of Tannum Sands, again through red lights.  At a further road block he braked heavily and collided with a police vehicle and was finally apprehended.

His criminal record consists of previous convictions for false pretences, stealing, impersonating a police officer, wilful and unlawful damage to property, dangerous driving, failing to remain at the scene of an accident, unlicensed driving, aggravated assault on a female, receiving, seven charges of unlawful possession of a motor vehicle with intent to permanently deprive for which he was sentenced to two years imprisonment in 1988, stealing as a servant, breach of probation, breach of community service order, and the assault occasioning bodily harm that was committed after his committal on the first of the present indictments.

The earlier dangerous driving had involved a police pursuit ending in collision and further flight.  The first of the aggravated assaults on a female which was in 1981 consisted of his punching his then de facto wife in the face following an argument.  He also punched a friend of hers who had tried to defend her.

The learned sentencing Judge accepted that the applicant had given a very early indication of a plea of guilty and, indeed, throughout the history of the offences he maintained that type of co-operation.  His Honour also correctly noted an escalating and depraved violation of women and emphasised the importance of both personal and general deterrence as well as the need for community protection.

Counsel for the applicant submitted that the 10 year sentences imposed for each group of offences, that is to say the first indictment and the second indictment reaching a total of 20 years, failed to recognise the totality principle.  

The mental condition of the applicant was the subject of a report which indicated that the applicant had a long-standing addiction to amphetamines.  The doctor was of the opinion that this was significant in explanation of the conduct which may be described as the dangerous driving, and that his flight from the police was a paranoid reaction induced by amphetamine addiction.  However, it seems clear that the applicant's mental state as inducted by amphetamines had no relationship to the charges of rape.

His Honour spoke of the need to avoid a totally crushing effect from a lengthy imposition of cumulative sentences.  Such an effect forms the burden of the present submissions that have been made on behalf of the applicant.  In my opinion, the following factors justify a serious view being taken of the total conduct that is here involved.

The applicant's criminal history involves violence to women and, as has been mentioned, seems to have been of an escalating and arrogant nature.  Aggravating features include the use of a weapon in some of the counts, the multiplicity of the offences, which included sodomy, the fact that they occurred over a prolonged period when a small child was present in the house, emotional and physical damage to the first complainant and indeed, considerable aftermath to the lives of both of the complainants.

There is also the feature of talk of an HIV infection.  The aggravating feature of the offences in Indictment number 3 are the prolonged course of dangerous conduct and the extraordinary lengths to which it was necessary to go in order to stop him.  Counsel for the applicant rightly conceded that a maximum sentence was appropriate on the counts in the third indictment, the maximum sentence for such counts being five years.

We have been referred to a number of past sentences which have been considered in this Court.  Burley (CA 449 of 1997, 19 May 1998) resulted in a sentence of 20 years for serial rapes upon four women.  Others such as Ivey (CA 68 and 181 of 1997, 19 August 1997) recognised the appropriateness of sentences in excess of 10 years for very bad cases of rape against de facto partners.  That level might increase for repeat offenders.

As counsel have conceded, there is no comparable case which allows any comparison to be made of an overall sentence for such a range of conduct as we have here.  The sentences could have been fashioned in various combinations.  For example, each of the groups of offences, including those of dangerous driving, could have been made cumulative upon each other.  By way of example only, it might have been possible to consider sentences for the first two indictments, that is to say all the rapes as justifying cumulative sentences of the order of 16 years, especially when one takes into account that the second rape was committed when he was on bail for the first series of offences.  It would then have been possible to consider a cumulative term in relation to the dangerous driving offences. 

I accept that appropriate totality is the relevant matter here.  The fact that this applicant will under the current regime serve 80 per cent of the terms actually imposed is not a factor that can be allowed to persuade the Court to reduce the length of the term that otherwise might be considered appropriate.

Having given anxious consideration to this matter, I express the view that whilst the sentences are high, especially when the pleas of guilty are considered, they cannot be said to be manifestly excessive, such that this Court should interfere.  I would accordingly refuse the application.

THE CHIEF JUSTICE:  I agree.

McPHERSON JA:  I also agree.

THE CHIEF JUSTICE:  The application is refused.