R v Mallie[2000] QCA 188

COURT OF APPEAL

de JERSEY CJ

McMURDO P

DUTNEY J

CA 49 of 2000

ROCKHAMPTON

DATE 17/05/2000

JUDGMENT

THE PRESIDENT:  The applicant pleaded guilty in the Mackay District Court on 24 January this year to one count of burglary; one count of stealing; two counts of assault occasioning bodily harm; one count of sexual assault; and one count of rape.

The sentence was adjourned until 4 February to allow the defence to obtain a psychiatric report.  The applicant was then sentenced to 10 years’ imprisonment in respect of the rape and to lesser concurrent sentences in respect of the other offences.

In respect of the rape, a declaration was made that the applicant was convicted of a serious violent offence under Part 9A of the Penalties and Sentences Act 1992.  The declaration was in any case automatic because the sentence was for 10 years.

The complainant was a 37 year old woman who was alone in her Mackay home as her husband was away working in Weipa.  She fell asleep in her bed, naked, with the lights on.  The applicant broke into the house some time after this but before midnight.  After making determined efforts to enter the house in circumstances where it must have been obvious to him that the lights were on and the car was in the garage; this strongly suggested the presence of someone in the house.

The applicant entered the complainant’s bedroom and turned off the light.  She awoke to find the applicant crouching at the bottom of her bed, she sat up and told him to get out.  He said he wanted a cigarette.  He then punched the complainant, knocking her backwards.  He punched her with both fists about five or six times.  At some stage the complainant lost control of her bladder.  She injured her thumb whilst trying to protect herself.  She pleaded with the applicant not to hit her.  He manoeuvred her so that she was lying across the bed.  He touched her breasts and leant on top of her.  He removed his wallet from his pants.  The complainant thought at first that this movement was to produce a knife.  She was very frightened.  He then exposed his penis and grabbed her hand, making her masturbate him to gain an erection.  After doing so, he raped her.  He tried to kiss her.  She said, “I’m sorry I can’t, my mouth hurts.  My name is K, please don’t hurt me.  I haven’t done anything to you, why do you want to hurt me?”

The applicant said he would not hit her again.  After he finished having intercourse with her he pulled up his pants and despite his earlier assurances, again punched her in the face.  He then stood up and punched her with both fists a further four or five times.  Once more the complainant pleaded with him not to hit her.

The applicant stood back and the complainant bravely kicked him in the stomach saying, “I’m going to kill you, you son of a bitch.  Now get out of my house.”  The applicant staggered out of the bedroom and ran from the house as the complainant also ran outside, naked, to seek help.  She had the humiliating experience of not receiving assistance from a nearby neighbour who finally gave her a towel but would not let her inside.  Fortunately an off-duty police officer, who lived nearby, came to her aid.

Later she realised that her purse had been taken from her handbag. 

The applicant’s fingerprints were found at the scene and later his DNA was found to match semen taken in a swab from the complainant’s vagina.

The complainant suffered significant injuries.  She was examined at 5.15 am the next morning by Dr Michael Mackay who noticed that she smelt of urine and was covered in streaks of blood on her face and her hands.  The majority of her injuries were concentrated around her left eye.  She was unable to open the left eye because of gross swelling of both the upper and lower lids.  There was some bruising and swelling above the left eye.  There was a cut to the left eye which later required stitches.  There was extensive bruising, discolouration and swelling below the left eye.  She also had a small cut to her lower lip, a round abrasion 2.5 centimetres in diameter on the back of her left shoulder and bruising with tenderness at the left thumb about the region of the interphalangeal joint.  She was given morphine for pain, a tetanus needle and a prescription for three antibiotics in an attempt to prevent the development of any sexually transmitted diseases. 

She was severely affected by the offence and details of that were set out in her Victim Impact Statement tendered at sentence.  During the attack she feared for her life.  The experience was painful, demeaning and humiliating.  She said that teeth were knocked out and she has been left with a scar on her lip.  She had hoped to get assistance from her mother but her mother had terminal cancer and was unable to be with her.  Her 18 month marriage broke up for a time.  She has suffered post-traumatic stress disorder and as a consequence has made several attempts to end her life.  She has been hospitalised on five occasions for her depression and has been treated with antidepressants.  She has remained anxious about contracting sexually transmitted diseases.  She has had counselling and treatment from a social worker and a psychologist.

The offences have affected her most intimate relations with her husband.  She was unable to work for a time and lost her job; this led to more financial difficulties. 

These most serious consequences of this crime upon the complainant have also taken their toll on her husband and young adult daughter. 

The applicant was 22 at sentence and 20 at the time of the offence.  He had a solid work history and a number of references were tendered to that effect.  He pleaded guilty by way of ex-officio indictment but, as has been noted, the case against him was an overwhelming one. 

The report tendered on his behalf established that he had abused alcohol and cannabis from 16 and then progressed to the use of amphetamines.  He was affected by the dangerous combination of amphetamines and alcohol when he committed these offences.  He had no recollection of the offences but when confronted with the DNA evidence expressed remorse and pleaded guilty at an early time.  He has committed no further offences although he was at large in the community until his arrest on these charges on 30 October 1999.

He has some criminal history which included a conviction for assault occasioning bodily harm in 1994 for which he was ordered to do 40 hours community service.  He also had convictions for wilful damage, possession of dangerous drugs, evading a rail fare and traffic offences. 

The visiting psychiatrist at the prison, Dr Alroe, was of the view that the applicant was addressing his abuse of alcohol and drugs and had relatively good rehabilitative prospects.

The applicant wrote a letter of apology to the complainant which was tendered at sentence.  He has the support of his family.  Character references tendered at his sentence suggest this conduct was out of character.  This of course is all consistent with the applicant’s abuse of alcohol and amphetamines at the time he committed these wicked and violent offences.

The learned sentencing Judge accepted the prosecution’s submission that the appropriate range of sentence in this case was 10 to 14 years and took into account the mitigating factors by sentencing this applicant at the lower end of that range.  The applicant’s counsel, Mr Chowdhury, claims the range is eight to 10 years.  In support of that submission he relies on the case of R v Chinfat 354 & 355 of 1995 delivered 17 November 1995, where this Court said that the appropriate range in that case was eight to 10 years’ imprisonment.  That case, although very serious, was in a different category to this.  Chinfat and the complainant had a relationship between 1985 to 1990 and had two children during the period.  They were not cohabiting after 1990.  During and after the relationship had concluded, the applicant was violent towards the complainant and forced sexual intercourse upon her.  This case, in my view, is even more serious because the applicant was a stranger to the complainant and broke into her home in the night time and stole property from her as well as assaulting and raping her.

Of greater assistance is the case of R v Coghlan [1998] 2 Qd R 498 which involved the rape of a woman unknown to Coghlan, in her own home with the use of considerable violence.  Coghlan had an unfortunate early life and had abused drugs and alcohol; that abuse was the explanation for his involvement in this offence.  Like this applicant he did not have an extensive criminal history, expressed remorse and pleaded guilty.  Coghlan was sentenced to 14 years’ imprisonment with a recommendation for parole after six years.

In R v Grienke [1992] 1 Qd R 196, the complainant was a 53 year old woman who was known to Grienke as he had done odd jobs for her.  She lived alone.  Grienke broke into her home, threatened her and punched her, fracturing her cheek bone before raping her.  He was 28 years old and was slightly intellectually handicapped.  He pleaded guilty.  Grienke was sentenced to 12 years’ imprisonment with a recommendation for parole after four and a half years.

Both Coghlan and Greinke preceded the 1997 amendments to the Penalties and Sentences Act 1992.  Parole recommendations can no longer be made for sentences of rape involving 10 years or more.  These cases nevertheless support the submission accepted by his Honour that the range was 10 to 14 years’ imprisonment for this offence.

The sentence imposed was at the bottom end of that range and gives proper weight to the applicant’s plea of guilty, a factor especially important in cases of this type.  Although the case against him was overwhelming, his plea saved the complainant from having to relive her dreadful experience in the witness box.

The applicant was quite young and had a limited criminal history.  He committed this offence whilst abusing the highly dangerous combination of alcohol and amphetamines.  It seems, despite this, that he has reasonable prospects of rehabilitation because he is addressing his substance abuse, but the offence itself was extremely frightening and serious.  The applicant not only raped the complainant but did so after breaking into the safety and privacy of her home at night.  He then violently, gratuitously and on a number of occasions assaulted her and stole her property.  She has suffered greatly as a consequence. 

The sentence imposed properly balances the competing factors in this case.  It is not manifestly excessive.  I would refuse the application.

THE CHIEF JUSTICE:  I agree.

DUTNEY J:  I agree.

THE CHIEF JUSTICE:  The application is refused

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