R v Atwell[2000] QCA 266

McPHERSON JA:  The applicant for leave to appeal against sentence in this case was convicted on pleas of guilty in the District Court at Brisbane of two counts of rape and three of attempted rape, 10 of burglary, and one of burglary with violence, three of assault, one with circumstances of aggravation, and one of disabling in order to commit an indictable offence.

Both rape and burglary are offences that carry a maximum penalty of life imprisonment, and the learned sentencing Judge in this instance imposed sentences of life imprisonment in respect of the two counts of rape and the disabling offence.

He also imposed sentences of imprisonment for seven, or seven and a half years, in respect of the burglary offences, six or seven years for the attempted rapes and various other terms of imprisonment, some of them cumulative, for the other somewhat lesser offences to which the applicant also pleaded guilty.

The effective overall penalty was therefore life imprisonment.  Since the offences are serious violent offences, the applicant would, even if he received a fixed penalty of 20 years (as is suggested by his counsel on this appeal) nevertheless be imprisoned for a period of not less than 15 years, as he also will be in respect of the life sentences that have been imposed. 

The only difference is that which was pointed out by Mr Justice Thomas in the course of submissions, namely that, with respect to the fixed sentence, the applicant could hope for parole at a certain point, which he might not be entitled to expect if the life sentences remained.

The offences were all committed during a comparatively short period of the year, or slightly more, between 14 December 1997 and 16 January 1998.  The victims were all older or elderly women, ranging in age from 59 to 86 years, living alone in home units or flats in one of the southside suburbs.  The offences took place at night, or in the early hours of the morning.  From these and other facts in the record, it is evident that a degree of planning and preparation went into the commission of the offences.  The applicant must have selected his victims in advance.   He gained entry to their homes in various ways, in one or more instances by cutting through screen doors, and so on.  In most, if not all of the cases, the victims were asleep and woke to find the applicant already in their bedrooms, or in some cases, already upon them.

Counts 1 & 2 - WM (aged 77)

Counts 1 and 2 in the indictment refer to the first in this series of offences, and in order to impart an impression of the kind of thing that happened, I will read from the applicant's outline summarising the circumstances of that particular offence or offences.

 In the early hours of 14 December 1997, the complainant heard a noise inside her unit and then felt a knee in her back and a hand over her mouth.  When she screamed, the applicant forced his fingers roughly into her mouth, causing her to bleed.  As she struggled, she heard the applicant make a "growling" noise and pushed her face into a pillow.  When she said that she would not scream again, the applicant removed his hand from her mouth, but pushed her nightie towards her face and said, "I'm going to fuck you" then commenced to suck her breast.

 The complainant struggled to sit up on the bed and tried to turn the light on, but the applicant grabbed her hand.  As she sat upright on the edge of the bed, he pushed her nightie back up and inserted more than one finger into her vagina.  The complainant began holding her chest and panting.  When she told him that she was having a heart attack and that he would be caught for murder, he removed his fingers, pulled her head towards him and stroked her hair.  He then said, "I'll let you settle down.  I'll go now", and departed.

She was in a sense more fortunate than some of the other victims of this series of offences, if one can talk about good fortune in relation to a matter of this kind.

The foregoing account, like those that follow, is taken from the appellant's written outline of submissions on the appeal.

 Count 3 - NM (aged 76)

 The complainant was awoken at 1 a.m. on 26 January 1998 by someone rubbing her arm.  The applicant said, "It's all right, you know me" but she started yelling "Go away."  The applicant got up off the bed and left through the front door.  It was later discovered that the applicant had cut the flyscreen on the front security door and turned the key that was still in the lock.

 Counts 4 & 5 - RM (aged 59)

 At about 3 a.m. the complainant awoke to find someone kneeling between her thighs.  When she screamed, the applicant pulled the pillow out from beneath her head and put it over her face.  She then told him that she would not scream any further, saying "I'll be quiet.  Do whatever you came here for and then go."  The applicant then raped her, telling her as he did so that she was "sexy" and "beautiful".  He then withdrew his penis and apologised, and left through the front door.

 The complainant locked all the doors and windows and then went to the bathroom and vomited.  After she had cleaned herself up, she noticed a shadow at the kitchen window.  This, she saw, was her attacker, wearing a mask or a hat.  She got the telephone and called the police.  The police took some time to arrive, and until they pulled into her driveway, the applicant remained outside her kitchen window, staring in.  Although it was missed by the police who attended, the applicant had cut a slit in the flyscreen on the security door.

 Counts 6 & 7 - JW (aged 66)

 The complainant, who is deaf, was woken by a gloved hand being placed over her mouth.  When she started to whimper and cry, the applicant patted her head and pressed his hand down harder on her mouth.  He pushed her legs apart and rubbed her vagina, causing discomfort.  He knelt between her legs and unsuccessfully attempted to penetrate her vagina with his penis, however he did not have an erection.

 He got off the bed, patted her on the shoulder and kissed her on the cheek and made as if to leave, but turned around and again patted her shoulder and kissed her before departing.

 Counts 8 & 9 - RM (aged 66)

 The complainant woke up to find a hand over her mouth and someone half on top of her.  The applicant pushed down on her face causing pain to her mouth area.  She saw that he was wearing a mask or some type of covering on his face.  She started screaming for help and the applicant told her to be quiet and that he wasn't going to hurt her.

 She struggled to push him off and kept fighting until she had no strength left.  The applicant pulled her panties down and tried to push her legs apart.  She tried to resist, but he eventually got the better of her and she found that his penis was touching her vaginal area.  The applicant kept saying "Open up!  Open up!" and she felt a stinging pain.  She did not know if he penetrated her or not.  The applicant then got up and ran out of the back door.

 A number of witnesses observed a white Ford utility in the area at about the time of the incident.

 Count 10 - HB (aged 69)

 The complainant, who has only one leg, was awoken by the applicant placing his hand over her mouth.  She noticed that he had a balaclava over his head and gloves on.  When she asked him what he was going, he did not reply.  She screamed, and he ran out of the room.

 Counts 11 & 12 - ES (82 years)

 The complainant woke up to find the appellant on top of her with his hand over her mouth.  He was wearing a woollen garment on his head and had what felt like woollen gloves on.  She screamed and wrestled with him and they both fell to the floor.  He lifted her nightie up to her waist area, and tried to touch her breasts and pushed her panties down to the top of her legs.  He ran his finger down her outer labia without penetrating her vagina.  The applicant left via the bedroom door and jumped from the balcony.

 The covering from the applicant's face was later found on the bedroom floor.  The complainant must have removed it during the struggle (which perhaps explains the applicant's sudden departure).

 Counts 13 & 14 - BP (aged 78)

 These offences occurred in the same block of units as that occupied by the complainant in respect of count 3.  The complainant woke to find a pillow held over her face and someone lying on top of her.  She was able to breathe, but only just.  She screamed and struggled, but could not get her head out from underneath the pillow.  The applicant pulled her nightie up nearly to her neck and she then felt his erect penis between her legs.  She kicked and scratched him as much as she could, saying, "No, you're not!  Not me, mate!"  As the struggle continued his penis got closer to her vagina but suddenly the applicant got off and ran out a sliding door.  The complainant felt that her nightgown was damp with what turned out to be semen.

 Counts 15 & 16 - EY (aged 79)

 The complainant awoke to see a shape leap towards her in the dark.  She felt a pillow over her face and a hand between her legs.  The applicant gouged with his fingers inside her panties.  She called out for a friend, Myrtle, and then for another, Ben.  At the mention of the name "Ben" the applicant desisted and left.

 Counts 17 & 18 - DS (aged 64)

 Once again, the method employed by the applicant was to place a pillow over the complainant's face.  When she moved her head to one side to get some air, the applicant pulled her hair so that her head was back under the pillow.  She attempted to kick the applicant, but her legs were caught up in the sheets.  With her free right hand, she was able to grab hold of the applicant in the area of his rib cage.  She pinched and twisted and at the same time was able to free her knee so as to strike the applicant in the abdomen.  The blow caused the applicant to fall off the bed and he shuffled, stopped and apparently winded, out the door.

 Counts 19 & 20 - EJ (aged 86)

 The complainant had woken up and was in the process of getting up to go to the toilet when she felt an arm holding her across her upper body.  The applicant said, "I'm going to rape you."  She called out for Ben, her neighbour, but the applicant lay on top of her, causing her difficulty in breathing.  After a struggle he penetrated her with his penis, ultimately ejaculating.  At one point he said to her, "You can't do anything.  There's no point in calling Ben."  During the rape, he had something over her mouth to prevent her from calling out.  After he ejaculated, the applicant simply got up and left.

The offences were of course of a kind that had a very serious impact on the lives of the unfortunate victims.  In some instances, their outlook on life has been shattered.  There are victim impact statements that attest to this.  The even tenor of their former days has been grossly disrupted.  Some have been so terrified that they have had to move from their homes where they were living contentedly before these events.  Most, if not all of them, suffer from a sense of alienation from society, and from men in particular, since these events occurred.  They are, most of them, women who are not especially well off, and were living in State Housing Commission homes, so that their range of choice of residence is naturally very limited.

These are necessarily generalisations about their present unhappy state, and they do not convey the full impact of the individual ordeals through which they passed.  I do not, however, propose to refer in detail to each of the victim's  accounts of her experience, but they have the sincere sympathy of this Court, and, I would expect, of all responsible people in our State.

Somewhat surprisingly, the applicant is not a young man.  When sentenced, he was 47 years old, having been born on 10 May 1952.  He had a severely deprived and unhappy childhood.  He did not know his father, and his mother died when he was about 13, after he had had to nurse her for some two years or so on his own.  His first marriage ended in a divorce, and his children of that of a later union were killed in a house fire.

These events may perhaps explain his behaviour, although it is hard to see why, but they do not excuse it.  He has recorded convictions in 1992, 1993, 1996 and 1997 for wilful exposure, five such charges having been recorded in 1993.  On the last occasion, he was placed on probation for 12 months and he was still subject to that regime when he committed the first five of these sets of offences.

Offences like wilful exposure are sufficiently bizarre to attract psychiatric analysis and treatment, and he was in fact psychiatrically examined at the time, and again after his arrest on these offences.  The result of the most recent analysis can be summed up by saying that psychiatric opinion is that there is no treatment that can be used to ensure that sexual offenders of this kind will not reoffend, although it is also said that it is not really possible to say whether or not they will offend again.

Both Dr Grant and Dr Fama, who examined the applicant in this way, say that he lacks insight into his problem and, without having insight, his behavioural problems are not likely to be solved.  He is said to have been suffering at the time of these offences from a condition of depressive disorder, but one that in the opinion of those experts did not amount to a mental illness.

When all these circumstances are considered together, there is no real reason to doubt the appropriateness of the penalty imposed on the applicant.  Sentences of life imprisonment are sometimes imposed for a series of offences like these.  I refer, as examples, to The Queen v. C A Jackson in 1967 and The Queen v. Killen in 1991.  In The Queen v. Burley the sentence was 20 years' imprisonment; but, although the offences there, as to which as I recall there were four victims, were associated with greater violence, the offender was only 17 and a half years old at the time and there was a difficulty in increasing the sentence above the level imposed because of what had been said at the sentence hearing before the matter came on appeal.

Here the most serious features of the offences in this case are the large number of victims attacked during a comparatively short period of time; and more specifically, the fact that the victims were older or elderly women who were attacked in the sanctity of their own homes.

The fact that the applicant plainly went out of his way to plan these offences must also count very heavily against him.  If women, and particularly elderly women, are not to be secure in their own homes, then it is difficult to see where they can hope to be safe.

The fact that the learned sentencing Judge did not specifically mention having taken the pleas of guilty into account does not in my opinion signify that the application should be granted, even though the Act requires that the matter be mentioned in open Court.  It would not justify interfering with the sentences in this case.  It is true that by the appellant's pleading guilty, the victims avoided the trauma of having to relive in the witness box at trial the experiences they had gone through.  But it can, I think, also be said that the pleas of guilty enabled the applicant himself to escape the experience of being the focus of publicity and attention throughout a trial that would have lasted a good many days.  It is a factor that counts, in my view, not only in his favour that he pleaded guilty, but may also, in cases like this, be one which would save him from extensive hostility and unpleasantness.

He was in fact apprehended through extensive and intensive detective work, and identified as the perpetrator through DNA analysis, which probably made his plea of guilty of somewhat less value than it otherwise would have been. 

His admissions were not entirely full and frank.  He claims not to be able to remember some of the incidents or things that happened in the course of the offences, and I note that the psychiatrists say that this is a problem which is involved in his lack of insight, and his unwillingness to recognise what he has to do to reform himself.

In the final analysis, my own view is that the sentences of life imprisonment, and indeed all the sentences in this case were and are appropriate, and that there is no proper basis on which this Court could interfere to reduce or set them aside.  I would therefore dismiss the application for leave to appeal against sentence.

DAVIES JA:  I agree.

THOMAS JA:  I agree.

DAVIES JA:  The application is refused.