The Queen v Basic[2000] QCA 155

COURT OF APPEAL

McMURDO P

McPHERSON JA

MACKENZIE J

CA No 11 of 2000

THE QUEEN

v

BASIC, Veljko   Applicant

BRISBANE 

DATE 03/05/2000

JUDGMENT

THE PRESIDENT:  The applicant was convicted on 16 December 1999 in the District Court at Southport of one count of assault with intent to rape, one count of indecent assault with a circumstance of aggravation and one count of rape.  He was sentenced respectively to two years', three years' and eight years' imprisonment.  Two hundred and sixty-five days was declared to be part of the sentence already served.

The applicant was also declared to be convicted of a serious violent offence under s 161B Penalties and Sentences Act 1992.  The applicant claims the sentence is manifestly excessive.

On Saturday, 2 January 1999 the complainant, a 19-year-old woman, left home at 6.15 am to commence her work as a sales assistant.  She intended to walk to work as there were no buses at that early hour.  It was raining heavily.  Whilst walking down a concrete pathway near a residential unit block and bushland, she saw the applicant who appeared to be calling his dog.  She was able to provide police with an accurate description of this man; this included a description of his distinctive thin black moustache which stopped just before the corners of his mouth.

After passing him she was grabbed from behind and one hand was placed over her mouth and the other around her waist.  Her assailant pulled her close to his body saying, "Don't scream and I won't hurt you" and "Ssh, be quiet or I'll hurt you."  He dragged the complainant into bushland and said, "I won't hurt you if you just do as you're told.  All I want to do is feel you."

At all times he kept behind her so she could not see him.  She pleaded not to be hurt and was crying and sobbing throughout the attack.  At times she had trouble breathing.

The applicant had some martial arts training.  He undid the buttons and zips of her pants, put his hand inside the front of her pants and underwear and inserted a finger into her vagina touching her clitoris and moving his finger around inside her vagina for about five seconds.  He then pulled her pants and underwear down to her knees and pushed her forward on to her hands and knees.  He effected penetration of her anus.  She told him it was hurting but he continued to move up and down.  His penis was inserted almost fully and caused her a lot of pain.  The applicant ejaculated and removed his penis.  She turned briefly to see her assailant and saw it was the person who had apparently been calling his dog.

The applicant asked her whether she was going to call the police.  Of course she said she would not.  He said, "If you do, I'll hurt you.  I'll find out where you live."  He told her to walk out and go to work and said something like, "Don't look back or I'll hurt you."  She was distressed and crying and requested help from two people who did not respond.  A third person assisted her.  She complained of rape as they walked to the police station together where a formal complaint was made.

The applicant lived in nearby units and matched the description given by the complainant.  Police doorknocked the area including the applicant's unit but no one answered.  The applicant inquired of a neighbour what was happening and on being told of the police search for an alleged rapist said, "Oh, well, if they don't want to knock on my door they don't want to know what I know."

A number of residents saw the applicant in the general area where the crime occurred at about the time it occurred.  The medical evidence supported the complainant's version of events and samples of semen found in the area of her anus and underwear were taken.

A comfit photograph she prepared bore a striking resemblance to the applicant.  Items of property were taken from his home including clothing and a toothbrush.  The applicant fled the jurisdiction with his female partner.  He was detained at Perth airport on his way to Christmas Island.  He had shaved his moustache and changed his hair colour.  He had $8,000 in cash.  He refused to answer police questions.  Samples of blood were taken from him which matched the semen sample taken from the complainant.

The complainant's victim impact statement indicates that the offence has severely affected her personal relationships and her lifetstyle.  It is hard for her to sleep and she is receiving counselling.

The applicant pleaded guilty at an early stage so that the complainant was not required to give evidence at committal.  The case against him, which I have set out in some detail, was a very strong one.  Nevertheless, he is, of course, entitled to the mitigating benefit of an early plea of guilty.

The submission made by the Crown prosecutor at sentence was that the appropriate penalty was about 10 years' imprisonment.  If the sentence fell below 10 years' imprisonment then a declaration should be made under s 161B(3) Penalties and Sentences Act 1992, declaring the applicant to be convicted of a serious violent offence.

Defence counsel at sentence submitted that a sentence of about nine years should be imposed and there should be no declaration made under s 161B(3).

The applicant, who was 31 years old, was born in Yugoslavia and came to Australia at the age of 14.  A psychological report prepared by Mr Geoffrey Grantham, and other material, set out that the applicant's father was a violent alocholic who assaulted the applicant's mother and the children.  The applicant's father and older brother were involved in drug dealing.  He was sexually molested over a period of six to 12 months in return for money when he was about 10 or 11 years old.  During the time leading up to the offence the applicant abused alcohol.  Mr Grantham concluded that it appeared the applicant enjoyed an adrenalin rush from sexual intercourse with unusual partners; he carried out an opportunistic rape for sexual gratification and demonstrated poor impulse control.

The rape was not in the most violent category.  The complainant's physical injuries were thankfully not serious and as has been noted, no weapon was used.

The applicant, who has lived mainly in Victoria, has a number of previous convictions including property offences in 1988 for which he received community based orders; assault with a weapon in 1990 for which he was fined; trafficking in heroin in December 1990 for which he was sentenced to three and a half years' imprisonment to serve a minimum of two years reduced on appeal to serve a minimum of nine months.  It seems he helped the authorities in respect of that matter and was at one time on a witness protection program.

The applicant complains that the learned sentencing Judge did not undertake the sentencing exercise in accordance with the procedures set out in R v Bojovic [1999] QCA 206, CA No 4 of 1999, 8 June 1999, and followed in R v McCartney [1999] QCA 238, CA No 13 of 1999, 22 June 1999 and R v Newcombe and Middleton [1999] QCA 408, CA Nos 101 and 143 of 1999, 28 September 1999.

The sentencing Judge stated that he had decided to make the declaration under s 161B(3) because the offence was very serious, violence was used and the offence of rape occurred immediately after two other offences involving a degree of violence.  It is clear from the stated facts that these offences were all closely connected to each other and constituted one episode.  The last reason referred to by the learned sentencing Judge cannot alone in this case justify the making of a declaration.

The real question, however, is whether the sentence imposed which includes the declaration was so outside the proper sentencing range that it was manifestly excessive.

The offence was committed upon a young woman alone in a public place.  Although the complainant was not brutally bashed the offence was humiliating, degrading and a terrifying attack upon a young woman.  It has had the expected effect of making her fearful of going out alone in public.

The learned sentencing Judge clearly understood the parameters of his sentencing discretion.  Although the applicant had no like prior convictions he had a significant criminal history and did not have the mitigating benefit of youth.

The comparable sentences of R v Soper, 119 of 1994, 15 June 1994 in which a sentence of 11 years imprisonment was imposed and R v Pini, 67 and 196 of 1981, 21 September 1981 in which a sentence of 14 years imprisonment was imposed were more serious than the facts that constituted this offence.

In R v George, 226 of 1991, 13 June 1991 the 18-year-old applicant, who had a minor criminal history but no previous convictions for sexual offences, violently raped and sodomised a 27-year-old Aboriginal virgin in an isolated area after following her for a kilometre.  He was intoxicated.  He struck the complainant with a large stone or rock and hit her on the head with his fist.  Her shoulder was dislocated during the attack and she suffered other relatively minor injuries.  The offender pleaded guilty at a very early stage and was sentenced to 11 years imprisonment reduced on appeal to nine years with no early recommendation for parole.  That case involved more violence than here but the applicant was a much younger man.

In R v Sorbey, 243 of 1993, 27 April 1995 the complainant met the appellant at a party.  She expressed some dissatisfaction with her accommodation and the appellant told her he knew of suitable premises.  When accompanying her to those premises he grabbed her and violently constrained her in order to rape her.  He sodomised her causing her intense pain.  She escaped when he left her for a short while and was treated in hospital for an injury to her lip, scratches and bruises on her leg and back and swollen and tender labia and anal tissues.  He was 27 years old and was convicted after a trial in which he showed no remorse staring intently at the complainant during her vigorous cross-examination.  He was sentenced to nine years imprisonment on each count.

In R v Q, 248 of 1994, 6 October 1994 the applicant raped and indecently assaulted at gunpoint a 17-year-old school girl who was a virgin.  The complainant was the sister of the applicant's fiance.  The applicant had a fight with his fiance and went to the family home.  He killed the cat and drank alcohol.  When the complainant arrived home from school the applicant attacked her, terrorised her, raped her and threatened to kill her.  The complainant was emotionally disturbed by the rape.  The applicant was 23 years old with a good work history and demonstrated remorse.  The applicant was sentenced to nine years imprisonment which was upheld on appeal although an earlier parole recommendation was given after three and a half years.

A case similar to the case before this Court is that of R v O'Brien, 418 of 1997, 6 March 1998.  The applicant was 28 years old.  He pleaded guilty 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 was sentenced to 11 years imprisonment.  He attacked a 33-year-old woman on her early morning walk from her home at Nerang in daylight hours as she walked past a local park.  He dragged her to a nearby toilet block where he bashed her head on the ground a few times and punched her a number of times and then frogmarched her down a gully where he committed the offences.  He was heavily intoxicated.  He had a prior conviction for a sexual offence in 1989 when he was a juvenile for which he received a non-custodial sentence.  On appeal the sentence was held to be within the range but a recommendation for release after four years was added.

These comparable sentences demonstrate that the sentence imposed in this case was within the appropriate rate of seven to 10 years.

Although the applicant pleaded guilty the prosecution case was strong.  He was a mature man with prior convictions and a parole recommendation was not required.  The sentencing Judge imposed a sentence at the lower end of the sentencing range and decided to declare the offender to be convicted of a serious violent offence.  In doing so the learned sentencing Judge correctly adopted the approach set out in Bojovic.  The sentence imposed is within the appropriate sentencing range.  I would refuse the application for leave to appeal against sentence.

McPHERSON J A:  I agree.

MACKENZIE J:  I agree.

THE PRESIDENT:  The order is the application for leave to appeal against sentence is refused.