SUPREME COURT OF QUEENSLAND

1. WILLIAMS JA:  The applicant, who was convicted of a series of sexual offences against three separate women, has appealed against the convictions and has sought leave to appeal against sentence.  There were 17 counts in all before the jury;  some charges resulted in a nolle prosequi at the end of the Crown case, some resulted in not guilty verdicts, and the jury failed to agree on two.  The principal ground relied on by the appellant is that he was prejudiced at his trial because of the joinder of charges and the admissibility of what could be described as propensity evidence.

2. In order to appreciate the issues raised on the appeal, it is necessary to set out in summary form the charges before the jury, each result, and each sentence. The following schedule sets out the position.

The offences involving McLellan and Reading occurred at the same place and at the same time, and there was no issue raised as to the joinder of the charges involving those two complainants.  The attack mounted by counsel for the appellant was with respect to the joinder of the charges involving the complainant Birt with those involving the complainants McLellan and Reading.  Essentially, the argument was that the joinder of those charges meant that prejudicial propensity evidence was before the jury and a different result could well have been reached if the charges involving Birt were tried separately from those involving McLellan and Reading.

3. As will become evident, much of the force of the appellant's argument is negated by the not guilty verdicts with respect to the charges involving the complainants Pearce and Birt and the failure to agree on the charges involving the complainant Hill; there were logical reasons justifying the verdicts of the jury. A consideration of all the verdicts clearly demonstrates that the jury acted in accordance with the directions given in the summing-up and considered each charge separately. There was no attack on the summing-up; indeed, counsel for the appellant described it as "copybook".

4. The trial in question had been preceded by two proceedings brought pursuant to s 592A of the Criminal Code and aborted trials.  It was consequent upon rulings made on the s 592A applications that the trial proceeded on the 17 counts outlined above.  The rulings on those pre-trial applications followed detailed consideration of cases such as Sutton v R (1984) 152 CLR 528, Hoch v R (1988) 165 CLR 292, and Pfennig v R (1995) 182 CLR 461.  The joinder of the charges was permitted on the basis that there was a "striking similarity" between the events which became material to the issue of the identification of the offender on a number of the counts, and to the acceptance (or otherwise) of the complainants' evidence as to the range of sexual acts involved in others.  On the hearing of this appeal the collocation of specific facts associated with the offences was said to constitute the "signature" of the appellant.  That submission was derived from a passage in the judgment of Mason CJ, Deane and Dawson JJ in Pfennig at 488:

"Often that high level or degree of cogency is found in the striking similarity, underlying unity or 'signature' pattern common to the incidents disclosed by the totality of the evidence".

Though the appeal concentrated on the offences involving Birt, McLellan and Reading because guilty verdicts were there returned, it is really necessary to consider the evidence relevant to the 17 counts (and the jury verdicts returned in relation thereto) in order to dispose of the appeal.

5. I would also mention briefly at this stage that evidence was also called from a witness Husted, who was raped by the appellant some time prior to the events giving rise to the counts before the jury. Her evidence was admitted on the "striking similarity" and "signature" basis, and it has to be considered in the context of the joinder of the charges involving the five complainants before the jury. The admissibility of Husted's evidence was the subject of a separate ground of appeal.

6. Counsel for the appellant made much of the fact that, with respect to the charges involving McLellan and Reading, identity was not in issue, whereas identity was the critical issue from the defence point of view with respect to the charges involving Pearce, Birt and Hill. That, to my mind, over-simplifies the position. The appellant pleaded not guilty to all charges, and did not give evidence. In cross‑examination it was put to both McLellan and Reading that some consensual sexual activity occurred between each of them and the appellant, but each of those complainants denied what was put where it conflicted with their account of what occurred.  In broad terms, the sexual activity suggested during cross-examination was far less extensive than that alleged by each of those complainants.  With respect to each of the five complainants the jury had to be satisfied beyond reasonable doubt that the appellant was the offender with respect to each count, that the sexual act constituting the offence in each count occurred, and that each sexual act occurred without the consent of the complainant.  As is established by cases such as Sutton and Pfennig, the "strikingly similar" conduct may establish not only the identity of the offender but also it may make it more probable that the charged acts occurred.

7. On the s 592A applications the following six points of similarity were noted by the judge as applying to all the complainants (initially matters involving eight complainants' were being considered):

1. All complainants were working as prostitutes on the streets of Fortitude Valley or New Farm;

2. The offender acted alone;

3. All offences occurred at night;

4. The offender acted from a motor vehicle;

5. Either immediately before or immediately after getting the victim into the vehicle the offender represented to the victim that he was a police officer;

6. The offender took the complainants to isolated spots in the same geographic location (apart from the complainants McLellan and Reading who were taken to the residence of the former).

8. But for the five complainants involved in this trial the points of similarity did not end there. At trial, and on appeal, the Crown referred to similarities in the actual sexual conduct with each of the complainants. In that regard reference was made to:

1. Vaginal intercourse from behind;

2. The insertion of a finger into the anus;

3. Oral sex after vaginal intercourse;

4. Ejaculation from oral sex;

5. Stimulation from having his nipples bitten hard and pinched hard by the complainant;

6. Selection of very young girls.

9. In addition to all that, a matter of particular significance was that the offender used a mobile phone after the attack to make, or simulate the making of, a phone call to intimidate the complainant. In that way the offender furthered the pretence that he was a police officer.

10. Another piece of evidence which provided a common link was the description of a very distinctive ring (square with a small diamond in the corner) and locket described by a number of complainants as being worn by the offender. A ring matching that description, and engraved with the initials of the appellant, was located by police at the appellant's residence whilst executing a search warrant. Finally, two of the complainants also referred to a scar on the offender's lower abdomen.

11. The evidence of the five complainants, relevant for present purposes, can be summarised as follows.

12. Pearce

She was born on 15 August 1975, and in 1991, while still a high school student, worked as a prostitute in the Valley-New Farm area.  She was then about 16 years of age and was working to finance a drug habit.  On a night in January 1992, following her usual procedure, she approached a vehicle which had stopped near where she was standing.  She gave a description of that vehicle.  She asked the driver if he was a police officer and he initially said no.  Then he said he was and produced some form of badge and photograph.  She gave a description of that male person.  She began to cry when told he was a police officer;  she did not want to be arrested and have her parents find out she was working as a prostitute.  The male occupant told her that for him not to arrest her she would have to have sex with him.  She told him she would do whatever he wanted so long as she was not arrested.  She got into the car and it was driven to a vacant lot in the New Farm area.  The male unbuttoned his shirt and asked her to play with his nipples using fairly strong force.  He then asked her to suck his penis.  When she requested that he put a condom on he said no;  again he threatened to take her to the police station.  Thereafter she sucked his penis which was followed by intercourse (using a condom) in the motor vehicle.  She then got out of the car and the male person drove off.  Again, early in 1996, when she was aged about 20, she was working in the Fortitude Valley area as a prostitute.  On this occasion she got into a motor vehicle and the occupant produced a police badge.  The driver asked for a discount and said if he got a discount he would not arrest her.  The vehicle drove around a number of suburbs near Fortitude Valley but ultimately she was dropped back near where she had been picked up.  She said that the person involved in the 1996 incident was the same person involved in the 1992 incident.  She did not give a statement to police until 1998.  She had been a significant heroin user whilst working as a prostitute.  She had ceased working as a prostitute and also ceased using heroin by 1998.  During cross‑examination she indicated that she really did not want to come to court;  she wanted to forget all about her life as a prostitute and heroin user.  She asserted that she was not a consenting party to the sexual activity.

13. Birt

This complainant was born on 21 April 1978 and in 1994, aged 16, she was frequenting the Valley-New Farm area with prostitutes.  Her evidence was that on the relevant night in September 1994 she was recording number plates of vehicles into which her friend Amanda got.  On that night Amanda approached a silver van which had pulled into the kerb.  Then another vehicle (XD Falcon) pulled up adjacent to the van.  Amanda also spoke briefly to the driver of the Falcon;  she asked if he was a police officer and he replied no.  Amanda then returned to the van.  At that stage the driver of the Falcon asked Birt about Amanda's prices; Birt opened the door of the Falcon and sat in the car, leaving the door open.  She claimed that the car drove off whilst the door was still open;  she then shut the door and felt scared.  (There was evidence from other witnesses which suggested that Birt got into the vehicle and that the door may have been closed before it drove off.)  According to Birt, after the vehicle drove off the driver informed her that she was safe as he was a policeman.  She said he produced a yellow piece of paper with some police symbol on it.  He drove to an isolated area in New Farm where there were factories and railway tracks.  After they got out of the vehicle the male person walked her behind a brick wall.  He there removed her shirt and bra and pulled hard on her nipples.  He then removed the remainder of her clothing.  She had to call him "sir" throughout the incident.  He made her bend over and touch her toes;  then he inserted his thumb into her anus and his fingers into her vagina.  Afterwards he inserted his penis in her vagina from behind.  He then had her suck his penis until ejaculation.  She gave a description of the male person.  Following those incidents the male person produced a mobile phone and made, or purported to make, a call.  He gave a description of Birt in the course of speaking into the phone.  He then dropped her off closer to where she had been picked up.  This complainant gave evidence of seeing a ring on the male person's left hand;  it was a square ring with a diamond.  She asserted she was not a consenting party to the sexual activity.

14. McLellan and Reading

These two women were together at all material times.  The incident in question occurred in June 1996 when McLellan was aged 28 and Reading 25.  They were not regular prostitutes in the Valley-New Farm area but went there on the night in question to earn some money.  The evidence suggested there may have been some prior agreement to do a lesbian act for a fee.  As already noted, the appellant did not contest the fact that some sexual activity occurred between himself and the complainants at the time and place in question;  it was put to each of these complainants in cross-examination that some sexual activity occurred and that it was consensual.  On the night in question McLellan approached a motor vehicle which had pulled into the kerb near where she and Reading were standing.  She got into the motor vehicle and it drove off.  The driver, the appellant, said that he was a police officer and would take her off the street.  McLellan became scared and asked that he also pick up her girlfriend.  As they were driving around the block the appellant roughly grabbed her breasts.  He said he would do what he liked as McLellan could go to prison for prostitution.  Having driven around the block he stopped to pick Reading up.  Reading entered the vehicle and McLellan directed the appellant to her flat.  McLellan gave the following account of what followed thereafter.  At the flat the appellant told Reading to take her clothes off whilst she, McLellan, made some tea.  He was talking in a stern voice, and using police talk.  She gave a description of the appellant which included his having a silver ingot around his neck.  He took his clothes off and then told McLellan to take her clothes off.  He told both women to squeeze and bite his nipples;  he then had an erection.  McLellan put a condom on the appellant and he told her to suck him off.  Whilst McLellan was doing that he had Reading squeezing his nipples and he had his hand in her crouch area.  He then had the women reverse roles;  Reading was sucking his penis and McLellan squeezing his nipples.  He then bent McLellan over a couch and inserted his penis into her vagina and a finger into her anus.  That was followed by Reading masturbating him to ejaculation.  He then produced a mobile phone and made, or purported to make, a call.  He used words to the effect that he had two girls to be picked up;  it appeared that he was speaking to police officers.  She was not a consenting party to what occurred.

15. During cross-examination McLellan denied that the appellant gave Reading $100. She denied that she got undressed voluntarily. It was put to her that no condom was used and that the appellant did not have intercourse with her. She denied those matters.

16. Reading gave a description of the appellant and her evidence as to what occurred at the flat was as follows. The appellant said he was a police officer who could have them booked for prostitution. He then told them to take their clothes off. He told Reading to bite his nipples really hard. He bent McLellan over and Reading saw him insert a finger into McLellan's anus. The fingers of his other hand were in her (Reading's) vagina. He then forced her head onto his penis; there was some ejaculation onto her shoulder. Then he had intercourse with McLellan. She asserted all that occurred without her consent. She gave evidence of the use of the mobile phone. She also gave evidence of the appellant wearing a square ring with a diamond in the corner and a silver locket. There was also a scar on the appellant's lower abdomen.

17. Under cross-examination Reading denied that she was paid $100 for sexual activity. It was put to her that he attempted to have sex with McLellan but stopped. She denied that. In the course of her cross-examination she gave some answers suggesting the appellant had a small penis.

18. Hill

The events involving this complainant occurred on a night in January 1997.  She was a young prostitute working in the Valley area.  She approached a vehicle which stopped at the kerb near where she was standing.  There was conversation about oral sex and prices.  She got into the car and it drove off.  As the vehicle passed the Valley police station the driver made an observation that they were friends of his.  There was no other specific reference to police.  He drove to an isolated area.  There he undid the buttons of her dress and told her to behave and she would not get hurt.  He asked if she liked anal sex.  He bent the complainant over, had an erection, and tried to insert his penis in her anus.  At that stage he was holding her breasts hard.  He then turned her around and put his penis into her vagina.  He pulled out and said he wanted oral sex and wanted her to squeeze his nipples hard.  He ejaculated during oral sex.  Hill gave evidence that the male person's penis was fairly large;  it certainly wasn't small.  She noticed an appendix scar on the male person and gave evidence that he was wearing a necklace with pendant.  When the sexual activity ceased he produced a mobile phone and made, or purported to make, a phone call in which he asked another man to come and pick her up.  At that point the complainant ran down the road and sought assistance.  She gave a statement to police that night claiming she was not a consenting party.

19. As already noted, Husted was also called as part of the prosecution case. In June 1987, then aged 17, she was working as a prostitute in the Fortitude Valley area. Following her usual practice she entered a motor vehicle which stopped at the kerb. As it drove off the driver told her that he was a police officer and "us boys do it differently". The vehicle drove to a point where the male person had intercourse with her both vaginally and anally without her consent. Husted ran away naked. She described the offender as wearing a ring; it was square, with the initials LGM on it, and had a little diamond in the corner. She identified the appellant as the offender. On 10 November 1988 in the Supreme Court the appellant was convicted of raping her and having carnal knowledge of her against the order of nature, but the jury on this trial were not told that. On this trial she identified the appellant as the person who had raped her in 1987.

20. Though a number of the complainants had made complaints to the police shortly after the incidents in question, the detailed police investigation of those complaints was undertaken in 1998. The complainant Pearce had not spoken to police until that investigation was underway. As part of the investigation a search of the appellant's residence was carried out on 24 September 1998 and as already noted a ring matching the description given by some of the complainants was then located. The appellant was arrested on 24 September 1998.

21. Each of the complainants had given the police some description of the motor vehicle involved. In some cases that included some reference to model and part of the registration number. Evidence was placed before the jury of vehicles owned by the appellant. The jury could well have regarded evidence of that type as circumstantial evidence linking the appellant to the crimes and supporting the evidence of the complainants. It is not necessary to set out such evidence in detail.

22. Each of the complainants gave a description of the offender. Some aspects of each of those descriptions were consistent with the appellant being the offender, but no such description was sufficient to positively identify the appellant. Indeed it was not put to the jury that they could act solely on any of the evidence describing the offender as sufficient evidence identifying the appellant beyond reasonable doubt as the offender. The prosecution relied on the "strikingly similar" conduct together with the circumstantial evidence to establish the identity of the offender; by his conduct he left his "signature".

23. The events alleged to constitute Counts 1 and 2 (Pearce) occurred more than eight years prior to the trial. Pearce, at the material time, was a heavy heroin user, and was probably affected by heroin on the night those incidents occurred. Also, she was something of a reluctant witness. She had made no complaint to the police until their investigation was underway in 1998; she indicated she would have preferred not to have been in the witness box at all. Count 3 was an attempt to procure a sexual act by false pretence; as indicated by the summary above, no actual sexual act took place on that occasion. Again, there was no complaint to police before their investigation was underway.

24. In all of those circumstances one can well understand a jury having a reasonable doubt about some element of those charges. They may well have regarded Pearce as a witness whose evidence was not so reliable as to enable them to be satisfied beyond reasonable doubt of all the elements of the charges.

25. There was also a clear basis on which the jury could have returned a not guilty verdict of the abduction charge involving Birt. That charge was based on the proposition that the vehicle drove off whilst the door was still open and at a time when Birt was not a willing passenger in it. As there was some evidence that Birt had entered the car and closed the door before it moved off, a not guilty verdict was understandable, and was not in any way inconsistent with the guilty verdicts on Counts 6, 7 and 8.

26. There is no need to explore in detail possible reasons for the jury's inability to reach agreement on Counts 16 and 17 involving Hill. Though a phone call, or purported phone call, was made at the end of the sexual activity, there had been no earlier assertion by the offender that he was a police officer. It may well be that some members of the jury were not satisfied that there was sufficient factual similarity to enable the conclusion to be drawn beyond reasonable doubt that the appellant was the offender.

27. Two grounds were stated in the Notice of Appeal, namely error of law in allowing the evidence of Husted to be led and error of law in allowing the joinder on the one indictment of complainants. In the first written outline of submissions lodged with the Court some 10 alleged errors in the summing-up were asserted. On the hearing of the appeal, counsel specifically stated that those complaints about the summing‑up would not be pursued.  In the course of argument counsel for the appellant sought to add additional grounds which were set out in Exhibits 2 and 3;  the Court reserved the question whether formal leave to amend would be granted but heard full argument on the issues raised.  Those additional grounds can be stated as follows:

1. His Honour erred in law by admitting the evidence relating to McLellan and Reading in the trial involving the complainant Birt;

2. The learned trial judge erred in failing to order that the Birt, Pearce and Hill charges be tried separately from the McLellan and Reading charges;

3. The learned trial judge erred in failing to discharge the jury pursuant to s 597A of the Criminal Code when the question of the identity of the alleged offender was not put in issue in relation to the McLellan and Reading charges;

4. The learned trial judge erred in failing to discharge the jury pursuant to s 597A of the Criminal Code when it emerged at trial that the appellant was prejudiced and embarrassed in his defence because of the admission of evidence in relation to the McLellan and Reading charges which was highly prejudicial and not probative in relation to the other charges, including -

1. Reading's admission that she and McLellan would do a lesbian act for $100;

2. Reading's admission that she got into the appellant's car because it had something to do with the $100 for the lesbian act;

3. The sexual activity involving the three persons;

4. McLellan's evidence relating to the appellant picking her up;

5. The learned trial judge erred in failing to discharge the jury when it became apparent during the trial that the identity issue, the basis of the s 592A ruling, was not a live issue in relation to the McLellan and Reading charges.

28. It should be noted with respect to grounds (iii) and (v) that they are based on the proposition that there was a material change in circumstances at the trial from the position considered on the s 592A application. That is not so. The s 592A application which was heard on 31 July 2000 followed abortive trials at which it had become clear that identity was not in issue with respect to the complaints of McLellan and Reading. As the transcript of submissions on 31 July 2000 shows, that was an issue fully argued. Counsel for the appellant then sought separate trials on the basis that identity was not in issue with respect to McLellan and Reading. That is a matter which the learned judge took into account in delivering his reasons on that application on 2 August 2000.

29. There was no change of circumstances in that regard at the trial; but in any event no application for separate trials was made in the course of the hearing because of evidence which emerged.

30. Before returning to consider the critical questions raised by this appeal the decision of this Court in R v O'Keefe [2000] 1 Qd R 564 should be noted.  Therein this Court considered the appropriate test to be applied in the light of the reasoning in Hoch and Pfennig.  The statement by Mason CJ, Deane and Dawson JJ in Pfennig at 481‑2 was recognised as indicating the appropriate test:

"In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged".

After considering that and other relevant passages from Hoch and Pfennig, Thomas JA (with the concurrence of Pincus and Davies JJA) said at 573:

"In consequence it seems to me that the only sensible resolution of these passages requires the trial judge to address two questions -

1. Is the propensity evidence of such calibre that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged?  ... and

2. If the propensity evidence is admitted, is the evidence as a whole reasonably capable of excluding all innocent hypotheses?".

There is also in the judgment of Thomas J in O'Keefe a passage which is of particular significance to the circumstances of the case now under consideration:

"Indeed propensity evidence can never of itself prove the facts in issue.  It is always ancillary to other proof.  An example would be where there is an arguable case based on a by no means overwhelming combination of circumstances tending to identify the accused as the perpetrator.  When the Crown has further propensity evidence of similar conduct which satisfies all the necessary tests of probative force compared with prejudicial effect, and of striking similarity or modus operandi, or as the case may be, such evidence is likely to be the clinching factor, and it would be very difficult to understand let alone explain why such evidence should be kept away from the jury". (571)

31. Here it was not disputed that the appellant was the person who engaged in some sexual activity with McLellan and Reading on the occasion in question. There was no direct evidence that the appellant was the offender with regard to the sexual activity with Birt. But there was such striking similarity between the circumstances of the offences involving McLellan and Reading on the one hand and Birt on the other as to make the evidence of McLellan and Reading admissible on the issue of identification on the trial of the appellant with respect to the complainant Birt. It is true that there were some differences. With McLellan and Reading there were two women involved and the sexual activity took place in a flat. With Birt there was only one woman involved and the sexual activity took place in an isolated area of New Farm. The striking similarities included the representation that the offender was a police officer, the combination of acts involving the sexual activity, and the use of the mobile phone at the conclusion of the incident. I have left out other aspects which might be regarded as striking similarities, but which also might represent usual conduct between prostitute and client. Then there is the evidence of Birt and Reading that the offender was wearing a square ring with a diamond in it.

32. On the trial of the appellant with respect to Birt the evidence of McLellan and Reading was in my view admissible applying the tests derived from Hoch, Pfennig and O'Keefe;  there was no reasonable view of it other than that it supported an inference that the appellant was guilty of the Birt offences.

33. Similarly, I have come to the view that the evidence of Birt was admissible on the trial of the appellant with respect to the McLellan and Reading charges. The striking similarity in the detail of the sexual activity (finger in anus, vaginal intercourse and oral sex) made it more probable (once identity was established) that the activity described by McLellan and Reading occurred. Whilst sexual activity of that kind may not be uncommon between prostitute and client it is the collocation of that conduct, considered in the context of the other features such as claiming to be a police officer and the unusual use of the mobile phone, which satisfies the test here.

34. Further, I am not satisfied that the jury's reception of evidence from Pearce and Hill prejudiced the appellant. As already noted the verdicts of the jury clearly indicate that each charge was separately considered in accordance with the instructions given during the summing-up.

35. That leaves for consideration the admissibility of the evidence of Husted. She was able to identify the appellant as the person who raped her in 1987. That rapist picked her up in his motor vehicle and asserted he was a police officer. She was able to give a very accurate description of the ring, including the appellant's initials on it. In my view there were sufficient striking similarities between the incident involving her and the circumstances of the offences involving Birt, McLellan and Reading to make her evidence admissible on each of the trials involving those complainants. It was particularly relevant to the identity of the offender with respect to the offences involving Birt, McLellan and Reading.

36. The joinder of the charges on the indictment was permissible because the evidence on any one was admissible on the trial of each of the others. It is that consideration which distinguishes this case from that considered in De Jesus v R (1986) 61 ALJR 1.

37. It follows that in my view there is no substance in the challenge to the convictions and the appeals against conviction should be dismissed.

38. The applicant also seeks leave to appeal against sentence on the ground that the sentence imposed was "in all the circumstances manifestly excessive".

39. The sentences for each of the offences in question are set out in the schedule at the commencement of these reasons. The sentences on counts 6, 7 and 8 were made cumulative on what was referred to by the learned sentencing judge as "your present sentence"; a reference to the sentence imposed for the rape of Husted. Otherwise all the sentences were to be served concurrently. The sentence for each of counts 7 and 8, the two counts of rape, was effectively 18 years. The learned sentencing judge noted that the applicant had been "held in custody for something like 2 years and 1 month on remand for these and other offences". Because other offences were involved it was not permissible for his Honour to order that that time be taken as time already served with respect to the sentences he was imposing. In consequence he went on to say that he intended to "reduce the head sentences that are applicable in relation to the rape offences to give due recognition for that time".

40. In the course of debate on sentence with the Crown prosecutor, the learned sentencing judge is recorded as saying, inter alia:

"As I understand it, the appropriate recognition is to reduce the head sentence by 4 years, which would take into account eligibility for parole and that sort of thing.  Now, that was the old formula that used to apply before the Penalties and Sentences Act . . . ".

What his Honour did was reduce the head sentence of 18 years by 4 years 2 months to give the applicant credit for the 2 years 1 month period spent in custody on remand.  The overall sentence must be considered in the light of the circumstance that effectively the applicant is required to serve 13 years 10 months cumulative upon the balance of the sentence imposed with respect to the offences against Husted.

41. With respect to Husted, the applicant was convicted of rape and carnal knowledge against the order of nature. He was sentenced on 10 November 1988 to 6 years imprisonment with a recommendation that he be eligible for parole after serving 2 years.  Though precise details with respect to his release on parole and the consequences of the convictions for the offences involving Birt on that parole were not before the learned sentencing judge, they have been obtained at the request of this Court.  It is now clear that the applicant was released on parole on 9 November 1990;  the parole period was to expire on 9 November 1994.  The offences committed on Birt occurred on 6 September 1994, within that parole period.

42. Material placed before this Court indicates that Queensland Corrections has applied s 207B of the Corrective Services Act 1988 to the applicant;  that has the consequence that he has lost entitlement to remissions with respect to the Husted sentence.  Given the clear wording of s 207B that appears to be correct;  though the section was only introduced in 2000 it has retrospective effect.  After taking that into consideration, and giving effect to the cumulative order, Queensland Corrections has calculated that the applicant is required to serve a total sentence of 19 years and 10 months.  When the time served before release on parole is brought into account he now has a full-time discharge date of 26 August 2018, and a parole eligibility date of 25 September 2008.

43. The learned sentencing judge clearly erred in believing that because the Birt offences occurred within the parole period it was mandatory for him to make the sentences with respect to those offences cumulative upon the serving of the balance of the sentence for which parole had been granted. In his sentencing remarks he said:

"The sentences in relation to the offences upon Ms Birt, by virtue of the legislation, must be cumulative on the remainder of the sentence you have to serve".

It would appear that his Honour believed he had to apply s 156A of the Penalties and Sentences Act 1992, which only became law on 1 July 1997.  Given the reasoning of this Court in R v Mason and Saunders [1998] 2 Qd R 186 and Breeze (1999) 106 A Crim R 441, s 156A does not have retrospective operation.  The situation was one in which the sentencing judge had a discretion to impose a cumulative sentence, but he was not required by the legislation to do so.

44. Counsel for the Crown submitted that it was appropriate in all the circumstances in the exercise of that discretion to make the sentence for the offences involving Birt cumulative upon serving the balance of the term with respect to the sentence involving Husted. Indeed, it was submitted that on a careful reading of the sentencing remarks that was what the learned sentencing judge regarded as the appropriate way of structuring the sentence.

45. In his sentencing remarks the learned judge observed that the applicant "treated the complainants with arrogance and disregard". He stressed the fact that the applicant "used the pretence of being a police officer" to force the complainants to submit to his will. Though they were prostitutes "they were not prey, and deserve the full protection of the law". He noted that at the time of the commission of the Birt offences the applicant was on parole for "a very similar offence", and went on to say:

"There are a number of way in which I could construct the appropriate sentence here including making sentences cumulative.  In my view, the two sets of offences were separate and obviously involved different complainants and at different times.  It is therefore open to the court to order that the sentences be served cumulatively.  It is also my view that I can construct a sentence with an appropriate head sentence to reflect your total criminality and it is in that way that I intend to act here".

46. There his Honour was obviously referring to the possibility of making the sentences with respect to the counts involving McLellan and Reading cumulative on the sentence with respect to the count involving Birt. But he indicated that instead of doing that he would determine an appropriate head sentence reflecting total criminality for all those offences. He then went on to say, as quoted above, that the legislation required the sentences with respect to Birt to be cumulative on the remainder of the sentence the applicant had to serve for the Husted offence. He went on:

"That is, in my view,  appropriate considering it is an aggravating factor that you were on parole at the time of those offences for a very similar offence".

The Crown submits that that passage indicates that the learned sentencing judge considered it was appropriate to make the Birt sentences cumulative on the earlier one even if he was not required by law to do so.  In my view that is the proper inference to draw from the passages just quoted.  Given the error in the reasoning of the learned sentencing judge it is for this Court to determine afresh whether or not the sentences in question should be made cumulative.  That is an issue to which I will return.

47. Later in his sentencing remarks he described the applicant as a "predator whose previous jail term has failed to dissuade from similar offending". He further described him as "dangerous".

48. The Crown prosecutor at first instance had sought a life sentence and in support of that had referred the sentencing judge to, inter alia, R v Killen, CA No 129 of 1991, 20 September 1991, and R v. Jackson, CA No 168 and 376 of 1987, 7 March 1988.  In each of those cases a sentence of life imprisonment for offences including rape had been upheld on appeal.  Here the learned sentencing judge did not regard "the objective facts of these offences" as approaching the circumstances considered in each of those cases.  In consequence he determined that given the total criminality a head sentence of 18 years was appropriate.  He regarded that as "towards the upper end of the range".

49. The facts in Killen were worse than those here.  He was convicted of several counts of rape, burglary, robbery and assault involving four separate women over a period of some months.  At least two of the offences involved his entering the residence where the complainant was and there committing quite vicious assaults and a number of rapes.  He was a young man, but had a lengthy criminal history involving a number of counts of assault.  Similarly, the facts in Jackson were more serious.  He was convicted of 7 counts of rape, 3 counts of sodomy or attempted sodomy, 9 counts of indecent assault, and 1 count of assault occasioning bodily harm.  There were seven women victims of the offences which were committed between January and September 1986.  A weapon was used on most occasions.  The offender was aged 34 years and had no previous convictions.  Understandably the learned sentencing judge here considered that those cases were more serious, and that this case required a sentence less than life imprisonment.

50. Before this Court counsel for the Crown sought to justify the head sentence of 18 years imprisonment by referring to two recent authorities in this Court.  The first was R v Burley, CA No 449 of 1997, 19 May 1998.  The accused there had pleaded guilty to 27 counts arising out of violent attacks on four women during a period of eight months.  Three of the women were raped, some more than once;  there was an attempted rape charge against the other victim.  A knife was used to secure compliance with his demands.  The offender was aged 18 at the time of the offences and had no previous convictions.  He was effectively sentenced to 16 years imprisonment, but on the appeal of the Attorney-General that was increased to 20 years.  Though the crimes were extremely serious some credit had to be given on account of the offender's youth, his pleas of guilty and the fact he had no previous convictions.

51. The second case referred to was R v Barclay, [1999] QCA 457, 3 December 1999.  He was convicted after a trial of 2 counts of rape, 1 of indecent assault and 1 of assault occasioning bodily harm.  The complainant woman was quite severely bashed in the course of the attack.  The offender was a 39 year old man who had previous convictions including one for rape approximately 20 years earlier.  He had served terms of imprisonment for drug related offences.  He was initially sentenced to 15 years imprisonment and the court said it did not seem to be excessive and was supported by authorities.

52. Given the serial nature of the offences with which this Court is now concerned, the previous conviction for the rape of Husted, and the way the applicant preyed on young, vulnerable prostitutes, while masquerading as a police officer, a head sentence of 18 years imprisonment was clearly within range.  Discounting that to 13 years 10 months because of time spent in custody was, if anything, favourable to the applicant.

53. In all the circumstances I am not persuaded that a sentence of 13 years 10 months for the rapes was manifestly excessive.

54. The final question is whether or not this Court should determine that that sentence be served cumulatively with the balance of the sentence with respect to the offence against Husted. This Court recently in R v Shillingsworth, [2001] QCA 172, 11 May 2001, discussed the significance of s 9(2)(l) and (m) of the Penalties and Sentences Act 1992 when considering the imposition of a cumulative sentence.  Given the circumstances of this case the Court must also have regard to s 9(1)(e) and 9(2)(c) and (g).

55. In that overall context I have come to the conclusion that a cumulative sentence was called for, and that in all the circumstances making the sentence of 13 years 10 months for the rape of Birt cumulative on the balance to be served pursuant to the sentence imposed for the rape of Husted does not make the overall sentence manifestly excessive.

56. The application for leave to appeal against sentence should be refused.

57. The orders of the Court should therefore be:

1. On CA No 254 of 2000:  appeal against convictions dismissed.

2. On CA No 319 of 2000:  leave to appeal against sentence refused.

58. MOYNIHAN SJA:  I agree with Williams JA.

59. BYRNE J:  I agree with Williams JA.