R v K[2000] QCA 43

COURT OF APPEAL

McPHERSON JA

DAVIES JA

WILSON J

CA No 305 of 1999

THE QUEEN

v

K Applicant

BRISBANE

DATE 24/02/2000

JUDGMENT

McPHERSON JA:  The applicant was convicted on pleas of guilty in the Children's Court at Brisbane and sentenced in respect of various offences.  The sentences and the offences for which they were imposed can be described as follows: two years imprisonment in respect of assault occasioning bodily harm; four years for entering a dwelling house at night with intent; 12 years for rape; three years for assault occasioning bodily harm; and 12 years for a second count of rape.  All sentences were to be served concurrently, with the result that the effective sentence is 12 years imprisonment.  Pursuant to s 188(1) of the Juvenile Justice Act 1992 the applicant must serve 70 per cent of his sentence before being released.  He was a child or juvenile at the date of commission of the offence and, by a slim margin, also at sentence.  It is perhaps worth pointing out that, if he had been an adult, he would have served 80 per cent of the sentence inasmuch as the offences, or some of them, in this case constitute serious violent offences within the meaning of the Penalties and Sentences Act, and were committed after the provisions governing those offences came into force.

The offences were committed on three different dates on or between 22 September and 1 November 1998.  They can be summarised as follows.  First, in relation to count 1, the offence was committed on 22 September 1998 when the applicant threw a piece of wood through an open window of a house, hitting the complainant and knocking her unconscious.  The sentence, as I have already said, for that offence was two years imprisonment.  The complainant, who is a young woman, was sitting quietly in the privacy of her home when she was suddenly and unexpectedly struck in this fashion.  Considerable force must have been used to project the piece of timber because she was rendered unconscious and knew nothing about what had happened until she regained consciousness.

On 18 October 1998 the complainant in count 2, who is also a young woman then aged 31 years, left the front door of her house open one night after a friend had come to visit.  She later heard the door close and, on making a search, found that someone had unplugged her bedroom lamp, pulled back the bed covers, opened drawers, spread her underwear over the room, as well as scattering a packet of condoms there, and removing a light bulb from the kitchen.

Later, while the complainant was in the bathroom, she heard noises from outside, and on investigation found that her handbag was missing.  She then telephoned her mother and asked her to come over, as she was becoming afraid of what was happening.

Then, on going into her five year old son's room, she saw a figure walking towards the kitchen from the hallway.  It was the entry of the person whose figure she saw that gave rise to count 2, entering a dwelling house with intent, which attracted a penalty of imprisonment for four years.

Count 3 was another offence committed on the same occasion at the same place.  After the complainant had seen the figure walking towards the kitchen, she was grabbed by the neck and throttled to the point of gasping.  It was the applicant who was doing this, and they both ended up on the floor, and it was only then that the complainant finally got the applicant's hands away from her throat for a period.  He proceeded to lick her on the outside of her vagina and then raped her.  In the process numerous frightening death threats were made to the complainant, and she was subjected to considerable physical force in the course of the rape.  In respect of that offence (count 3) the sentence, as I have already said, was one of 12 years imprisonment.  When the complainant's mother arrived, the applicant still had hold of the complainant and he started to throttle her again.  He eventually decamped, escaping through the complainant's son's bedroom window.

The offence in count 4 involved a different complainant and took place on 1 November.  On this occasion, the complainant was a 33-year-old woman living alone in a home unit.  She discovered one evening that her bedroom window screens had been damaged.  While having dinner the lights went out.  She checked the fuse box and found that the laundry window screen was also damaged.  She decided then to call for help.  Then the applicant came up from behind her and put his hand over her mouth.  When she tried to scream he punched his hand into her mouth.  During this assault (which was the subject of count 4 in the indictment) the applicant bit the complainant on her face, choked her so that she could not breathe or scream, subjected her to death threats, grabbed her hair and pushed her head into the concrete, and produced a knife (or something that looked like one) and pressed it against her neck.  These incidents were the subject of count 4, in respect of which a sentence of three years was imposed for assault.

I move now to count 5, which was one of rape.  The applicant removed a tampon from the complainant's body and raped her.  After threats of what he would do to her if she moved or reported him, he ran off.  The sentence in this instance was also 12 years, to be served concurrently with the other sentence of 12 years for rape.

The victim impact statements of the complainants show how much they have suffered and in particular the third of the complainants in this group.  Her health has been affected.  She was previously in good health.  Now she is unable to sleep properly as a result of the experience and in consequence suffers frequent infections of different kinds.  She felt the need to leave the town where she was living because she could not bear being reminded of her experience.  Her unfortunate state of health has affected other members of her family.  She tries to conceal her true feelings from those around her, but this is not always possible and her family is aware of the strain she is under.  She is now in the kind of unhappy condition that would be expected after the terrifying experience she has gone through, which is not easy for her or for her family to bear.

Turning to the personal circumstances of the applicant himself, they are that he was a litle over 16 years old at the time of these offences having been born on 13 August 1982.  He and his family came here from Fiji in December 1997.  His mother is said to have been an alcoholic, and she eventually abandoned the family while they were still in Fiji.  His father was imprisoned here in 1998, and the applicant now lives with his stepmother and her partner and other family members in Australia.

The applicant is said to have been physically and emotionally abused by some of these persons and as a result he turned to alcohol and marijuana, which he is, or until detained was, still using and abusing.  Dr Cook, who provided a psychiatric report on behalf of the defence, considers that the physical and emotional abuse and the alcohol and marijuana use are a significant factor in the applicant's problems.  The applicant had either stopped attending school, or had been suspended or excluded, at the time these offences were committed.

While detained in the youth detention centre, as he has been since his arrest, he is said to have been showing suicidal tendencies, although according to Dr Cook's report these are now said to have eased or even ceased.

The applicant plainly merits sympathy for his unfortunate upbringing and family background and his Honour said he took account of these matters in arriving at the 12-year sentence imposed.  In doing so, he relied on R v Burley to which he was referred by counsel and which in some respects has a close resemblance to the offences committed by the applicant.  The Court of Appeal in Burley's case increased the sentence of a serial rapist to 20 years imprisonment in respect of four counts of rape (or three and an attempt) committed over a somewhat longer period of time.  Both in the methods adopted to commit those crimes, the unnecessary violence, and the offenders' emotionally deprived backgrounds, as well as the reason suggested for it, there are obvious similarities between Burley's case and this.

It is said that his Honour made insufficient allowance for the youth of the applicant.  He was only 16 when he committed these offences.  The offender in Burley was, however, himself only 17 when the first offences were committed and 18 at the time of the later offences.  Like the applicant here, he also pleaded guilty.  The difference in ages, the fact that the applicant was younger, and the fact that more offences were committed by Burley, called for a lower sentence in this instance than in Burley's case; but those differences are reflected in the considerably lower head sentence imposed here.  His Honour, it should be added, expressly found that the subject offences in this instance were particularly heinous.  On the authority of R v Dillon (CA 368 and 452 of 1998) and the decisions cited in the judgment in that case, the learned sentencing Judge was plainly entitled to come to that conclusion.  No challenge was made on this application for leave to appeal to his Honour's having reached that conclusion on the facts of the case.

In arriving at the effective sentence of 12 years imposed here, the learned sentencing judge began with a head sentence of 14 years.  Considered apart from his youth and other personal factors, a sentence of that duration does not impress me as manifestly excessive for offences of the character and seriousness committed in the circumstances in which they were.  Sentences of the order of 12 years imprisonment for single instances of violent rape carried out by intruders on women in the apparent safety of their homes are becoming increasingly common and, so far as imprisonment can achieve it, deterrence is properly regarded as a major sentencing consideration in cases of this kind.

Here the applicant committed two such offences within a comparatively brief space of time, and a 14-year head sentence as a starting point does not appear to me to be excessive, having regard particularly to the number, character and circumstances of the offences committed.

The fact that the applicant will have to serve 70 per cent of that sentence is a direct consequence of s 188(1) and the Court should not, in my opinion, be astute to avert the result of that statutory provision in some way that is not legitimate.  There are, in the present matter, no special circumstances capable of attracting the discretion under s 188(2), and counsel for the applicant candidly conceded that that was so in the proceedings before us.  It was submitted that a more generous discount than two years should have been made for the applicant's pleas of guilty here, but there is nothing in the material to suggest that the applicant's guilty pleas were an especially valuable or unsolicited admission of his guilt.  On the contrary, he initially declined to be interviewed by the police, and was ultimately identified as the offender by forensic methods.

His Honour recognised that there had been a lengthy period of pre-sentence custody by making a declaration in respect of 258 days which had already been spent in detention by the time the applicant was sentenced.

The main focus of submissions on this appeal has been the applicant's juvenile status at the time the offences were committed, and the obstacle which the length of sentence is said to present to hopes of rehabilitating the applicant.  So far as rehabilitation is concerned, I have already referred to the applicant's unfortunate childhood and adverse upbringing.  Against that must be weighed in the balance the fact that he appears so far to have shown little or no genuine remorse for his misdeeds.  That was the impression given to the Family Services Department officer who interviewed him, although, in that respect, it appears to be at odds with the psychiatric report provided by Dr Cook, which records that the applicant "sincerely regrets the actions which have brought him here".  It may be that, as the Judge interpreted it, this was a reference to the applicant's predicament rather than to any regret at the offences which he has committed.  Dr Cook regarded the "matrix" of psycho-social adversity and disadvantage which the applicant had experienced as, in his words, "at least a contributing factor" in his offending.  So much may be accepted, but the applicant suffers from no identified psychiatric disorder and the offences he committed were premeditated, calculating and carried out with a degree of determination or persistence, as well, I would add, as unnecessary degree of cruelty.  An element of deliberate stalking is apparent in his manner of committing these offences.  The real possibility of a recurrence of such offending behaviour, which is a matter not mentioned by Dr Cook, cannot be overlooked.

His Honour said that the applicant has little or no insight into his problems, and I notice that the Family Services officer thought it reasonable to suggest that the applicant poses a significant risk to the community.  His Honour evidently accepted that opinion saying that, if released into the community, the applicant would present a serious ongoing danger to women.  That conclusion was not disputed in the written submissions before us and, having regard to the character and his method of committing these offences, it is plainly a risk that a Court cannot likely ignore.  In that context, I also notice that the learned sentencing judge described the applicant in a more general way as being a danger to the community.  All matters considered, I would not be prepared to regard the prospects of rehabilitation in the case of this applicant as so compelling as to overwhelm the need to impose an otherwise appropriate sentence in the case.

I turn now to the other issue in this matter, which is the appellant's age of 16 at the time of the offences.  There is little doubt that the underlying general philosophy or policy of the Juvenile Justice Act is that youthful offenders should, for sentencing purposes, be treated less severely than mature offenders in respect of offences of the same general description.  Youth is a mitigating factor in many types of offences, and justifiably so, especially in relation to offences that can be attributed to immaturity of judgment, rash behaviour, or inability or failure to appreciate the harmful consequences of the offender's actions.

The rapes committed by the applicant are very far from being of that character, and, on the contrary, may be considered to disclose a level of premeditation, calculation and deliberate violence that is characteristic of some older offenders.  It is not, for example, a case of a youth who, as sometimes happens, has participated in such an offence because of peer group pressure, or perhaps surrendered to the impulse of the moment.  In the present instance, there was simply no excuse of that kind for the serious offences committed by the applicant, or the violent, premeditated and remorseless way in which he went about them.  In that respect, there is little to distinguish the applicant from the offender in R v Burley.

For all these reasons, I would refuse the application for leave to appeal.

DAVIES JA:  I agree.  I only wish to add some remarks with respect to the relevance of Burley to the sentence which is imposed here.  It is true, as Mrs McGinness pointed out, Burley was sentenced under a different sentencing regime from that under which the applicant is required to be sentenced here.

Burley was sentenced under the Penalties and Sentences Act in the form in which it existed prior to the 1997 amendments.  The applicant, as I have said, is required to be sentenced under the Juvenile Justice Act.

However, that does not make Burley wholly irrelevant in considering it as, in some way, analogous to the circumstances of this case and as a useful comparable authority.  Quite the contrary, in my view, provided account is taken of the differences in sentencing regimes under which the two offenders are required to be sentenced.

Taking that into account, it seems to me that Burley is a useful, comparable decision and it was quite appropriate, as the learned presiding Judge has sought to do, to use it as analogous here.

For those reasons in addition to those given by the learned primary Judge I agree that the application should be refused.

WILSON J:  I agree that the application should be refused.  I agree with the reasons expressed by the presiding Judge and also with those of Justice Davies.

McPHERSON JA:  Yes.  I, too, agree with what Justice Davies has said.  The application for leave to appeal against sentence is dismissed.