R v Rankine[2000] QCA 238

WHITE J:  The applicant seeks leave to appeal against the sentences imposed on him in the District Court at Mount Isa on 16 March 2000. He pleaded guilty to two counts on each of two indictments before the Court and three counts on ex officio indictment. It is convenient to mention the offences chronologically although the order of the indictments and the charges on them are not so arranged.

The applicant pleaded guilty to two charges of entering two dwellings and stealing on 1 November 1998 at Mount Isa on one indictment. On each count he was sentenced to nine months imprisonment. He pleaded guilty to one count of entering a dwelling and stealing and one count of indecent assault with a circumstance of aggravation on 28 November 1998 at Mount Isa on another indictment. He was sentenced to terms of imprisonment of 12 and 18 months respectively in respect of those two counts.

He pleaded guilty on ex officio indictment to one count of entering a dwelling with intent, one count of stealing and one count of indecent assault with a circumstance of aggravation on 8 January 2000 at Mount Isa. He was sentenced to three months imprisonment for the stealing offence and three years imprisonment for the indecent assault. All terms of imprisonment were to be served concurrently.

The learned sentencing Judge did not make any recommendation for early eligibility for parole. The grounds of appeal are that the sentence is manifestly excessive and that the learned sentencing Judge erred in not suspending all or part of the sentences. In his written submissions, Mr East for the applicant abandoned the complaint that the learned sentencing Judge ought to have wholly suspended the sentences which he imposed but that he ought to have suspended part of the sentence.

The complaint that the sentences were manifestly excessive is confined to the three year term of imprisonment imposed for the indecent assault on 8 January 2000. In his oral submissions, Mr Byrne QC for the Crown, concedes that it is on the high side.

The applicant was a 20-year-old young man at the time of the offences with two apparently minor disorderly behaviour previous convictions in 1996 and 1997, one breach of bail in 1998 and one minor drug possession conviction in 1999.

On 1 November 1998 the complainant, David Smith, awoke about 5.30 a.m. in his motel room in Mount Isa and saw the applicant rifling through some items spread out on a bench. When challenged the applicant grabbed some cash and ran off. About half an hour later the complainant Graham Taylor was awoken in his bedroom in his house and noticed the applicant leaving his room. The applicant was eventually detained by police. The property taken was cigarettes. The applicant was charged and granted bail. On 28 November 1998 the complainant DW was in bed with his girlfriend in their house and was awakened about 6.30 a.m. by the applicant sucking on his penis. The applicant left and the complainant went looking for him, noticing a bag near the door containing his cigarettes and CD's and videos belonging to his flatmate, the complainant Shane Bishop.

DW was somewhat embarrassed about the incident and returned to bed but about five minutes later he heard Bishop calling out after the applicant had entered his bedroom. The complainants chased after the applicant and located him with the bag and their possessions. He was subsequently arrested, charged and again released on bail.

The final offences occurred to a young man named M who was staying in a Mount Isa hotel. At about 6 a.m. on 8 January he was awoken by the applicant kissing him and putting his tongue in his mouth. The applicant then started performing oral sex on him. The complainant threw the applicant across the room and blocked the exit but he managed to escape through a toilet window. The complainant noted that his room had been ransacked and $180 taken. Entry was gained by the removal of windows in the toilet.

The complainant identified the applicant who was arrested and charged later that day.

The learned sentencing Judge had the benefit of a psychiatric report from Dr Basil James. Dr James was unable to elicit any response from the applicant which would assist him to understand why the applicant had engaged in the indecent assaults. The applicant denied any homosexual inclination.

The applicant was described by Dr James as intelligent with a very successful sporting life and a reasonably good family background. Dr James concluded that the applicant had difficulty in conveying his experiences in terms of thoughts and feelings and stated,

 "It would seem to me that the opportunity for appropriate psychotherapy with the goal of allowing and helping Daniel to discover his inner self would be an excellent investment and would constitute a major recommendation with respect to his future mental health."

His Honour recommended that a copy of Dr James' report be forwarded to the Corrective Services Commission to aid in appropriate treatment during the term of his imprisonment. His Honour was particularly concerned at the applicant's apparent inability to control these impulses. It was accepted that the indecent assaults were unplanned.

His Honour declined to make any recommendation for early parole eligibility. He said:

 "I have deliberately not made a recommendation because it seems to me in your case it is very important for those who have the responsibility of assessing you to feel confident that you can be released into the community without being a risk either to yourself or to others."

There are two issues for consideration on this application: whether the sentence of three years for the second indecent assault is excessive, and whether his Honour fell into error in failing to make a recommendation. As to the latter, the parole authorities are guided by issues such as risk to the community before granting parole, whether or not a sentencing court makes a recommendation for parole earlier than the statutory scheme. That is one reason why factors personal to a prisoner in mitigation of sentence where a term of imprisonment is contemplated, might more appropriately be accommodated in a reduction of the head sentence. See R v. Lowe (1984) 154 CLR 606, Mason J at 615. It was open to his Honour to make no such recommendation but the question then is whether the sentence of three years imposed for the second indecent assault on 8 January which was double that imposed for the first such offence, was manifestly excessive, since it was necessary for the learned Judge to reflect the plea of guilty and other matters in mitigation in a reduction of the head sentence.

The only apparent difference between the two indecent assault offences was the additional kissing on the mouth and that the applicant was on bail for the earlier indecent assault some 13 months earlier, and of course, that it was a second offence.

Mr Byrne has referred to Aaskof, CA 308/1995, as a comparable sentence. The applicant in that case entered the complainants' dwelling while they were asleep. He engaged in a quite violent struggle with them, inflicting contusions and abrasions on the man and attacking the woman in the region of her vagina without injury. That applicant had been sentenced the week previously to the subject sentence, to four years imprisonment for robbery with violence which had occurred about a year before the subject offences.

The term of imprisonment of three years cumulative on the four years with five months in pre-sentence custody taken into account was described by the Court of Appeal as not light punishment but not excessive. The applicant had pleaded guilty and had a very bad past criminal history, including crimes of violence.

There are significant distinguishing features from this case, namely that the applicant's serious prior criminal history and the degree of violence used in the commission of the assaults are absent here. This applicant was described as a slightly built, not tall young man, who could not have taken on his victims were they awake.

The case of Hijck, CA 19/1984, concerned the offender breaking into the bedroom of a 19-year-old young woman at 2 a.m. who was living alone save for her baby. He was naked and she awoke to find him fondling her in a sexual manner and noted that he had an erection. He was convicted after a trial and sentenced to two years imprisonment with a recommendation for parole after six months. He had no previous convictions.

The other case referred to by Mr Byrne, of Gibson CA 12/1989, was a much more serious offence and not comparable. The offender broke into the complainant's home with the specific intention of forcing her into sexual intercourse and hid until she went to bed. He hit her about the head and half strangled her before he desisted, but when asked to leave did so. He had no previous convictions, expressed immediate remorse and pleaded guilty on ex officio indictment. A sentence of seven years with a recommendation for parole after two and half years was not disturbed on appeal although a cumulative term was made concurrent.

Putting to one side the submission that the learned sentencing Judge might have fashioned a different kind of order which included some supervision, the concern is that due recognition may not have been given to the applicant's timely pleas of guilty as required by section 13 of the Penalties and Sentences Act 1992. After passing sentence his Honour added that he took into account the pleas of guilty and that one had proceeded by way of ex officio indictment but it seems to me that his Honour could not have given that factor adequate consideration by imposing a term of imprisonment of three years for the second indecent assault.

In my view, three years would have been at the very top of the range for this offence without more and therefore, in my view his Honour fell into error. It follows then that a lesser penalty ought to be imposed to reflect the plea of guilty and also other factors personal to the applicant, such as his youth and minor previous criminal offences.

An appropriate sentence in my view to take account of those factors, but also to take account of the fact that this was a second indecent assault and that the applicant was on bail at the time, would be a term of imprisonment of two years. Accordingly, the orders which I would make would be to grant the application and allow the appeal to the extent of substituting a term of imprisonment of two years in respect of count 3 on the ex officio indictment.

DAVIES JA:  I agree.

THOMAS JA:  I agree.

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