R v Edwards[2001] QCA 366

COURT OF APPEAL

DAVIES JA

WILLIAMS JA

WILSON J

CA No 173 of 2001

THE QUEEN

v.

ANN MAREE EDWARDSApplicant

BRISBANE

DATE 05/09/2001

JUDGMENT

DAVIES JA:  On 22 June this year the applicant pleaded guilty to the following offences committed on 11 May this year:  burglary; assault occasioning bodily harm with a circumstance of aggravation; sexual assault with a circumstance of aggravation; deprivation of liberty; and torture.

For the offences of burglary and torture she was sentenced to four years' imprisonment and she was sentenced to lesser periods of imprisonment for the other offences.  A recommendation was also made that she be eligible for parole after serving nine months of that four year term.

The applicant was 28 years of age at the time of commission of these offences, having been born on 2 April 1972.  She has no other criminal history.

Merely from the description of those offences it can be seen that they were very serious.  But they also involved an invasion of the complainant's home in company with others and conduct, the torture, which caused her extreme fear for her safety and integrity and considerable physical pain.  This Court has on many occasions emphasised the need to deter such vigilante style conduct.  The circumstance of the commission of these offences was as follows.

Three other offenders were involved, Meyer and Corrie who are males, and Lugg, a female.

Lugg apparently believed that the complainant had had sexual relations with her boyfriend and may also have informed on him to the police.  The others, including the applicant, agreed to go with Lugg to the complainant's house where they arrived early in the morning on the day in question.

There was some discussion beforehand about topics which included in effect torture of the complainant.  So although the applicant was by no means the principal offender involved in what followed, on the other hand she knew or had a pretty good idea about what was going to happen.  Meyer was armed with a replica pistol which apparently fired plastic pellets.  Lugg was armed with a knife.  The complainant was only 20 years of age.

They entered her house and her bedroom while she was still in bed in the early hours of the morning.  Lugg, in effect, accused her of engaging in a sexual relationship with Lugg's boyfriend.  The complainant naturally became immediately fearful, thinking that she was about to be beaten up.  A torch which had been shone in her face for some time was put out and she felt something hitting her in the right foot and then again in the lip, in each case stinging her badly.  It was in each case plastic pellets fired from the gun.  She thought she was hit by these six or seven times.  Lugg then told her to get up and get dressed, which she did.  She was punched several times in the bed, including by the applicant who punched her in the stomach.  She was then escorted to a waiting car, Meyer holding her by the hair as they went.  She had been told that if she did not walk to the car they would drag her out and put her in the boot.

During the journey she was threatened with torture by Lugg who told her that she was going to cut her clitoris out.  Lugg also hit her with a closed fist in the face on several occasions during this trip.  This journey ended at a place called Jolly's Lookout on the way to Mount Glorious.  She was, either during the journey or at the end of the journey, shot in the foot with a plastic pellet from the gun.  At this stage the complainant was very frightened and crying. 

From there they proceeded to Kallangur where she was taken inside a motel room.  She was pushed to the floor where she nearly fainted.  By this time there were, it seems, other persons present.  Curiously, one of the males turned on a video camera and commenced filming.

One of the men then removed her clothing, leaving her completely naked, and the applicant assisted in this by directing the complainant to take her top off.  She had attempted to resist the removal of the last part of her clothing but without success.

She was then forced to sit on a chair with her legs apart.  It was about this time that the applicant again punched the complainant, this time in the face.  Some other blows were delivered, the cumulative effect of which caused the complainant's nose to bleed and also causing pain under her right eye.

She was then told to have a shower, which she did, but one of the males entered the shower with her, sat down on a wooden chair and watched her.  She was still crying.  She was then told to get dressed, which she did.

Shortly after this the applicant left and very shortly after the applicant left there was a knock on the door, the manager, making some formal inquiries.  At this point the complainant was able to seek assistance and thereby escape from her ordeal.

The complainant did not have, it seems, any long-lasting physical injuries but the ordeal would no doubt have left her understandably deeply traumatised.  The applicant's part in all of this, as appears from what I have said, was considerably less than some of the other offenders, especially Lugg and Meyer.

She said she was involved because she was frightened of Meyer with whom she was in some kind of relationship.  She said she had punched the complainant in the face at the motel because the other female urged her to do so.  But there does not seem to have been any similar suggestion with respect to the punch which she delivered in the complainant's own bedroom or in the assistance which she apparently gave to undressing the complainant.

Nevertheless, it may be correct that she initially did not wish to be involved in these offences and was involved because of her involvement with Meyer.  None of this, of course, is a defence but it was put forward as mitigating a sentence which might otherwise be imposed on the applicant.  The learned primary Judge took these matters into account. 

Meyers has been separately sentenced.  His sentence for these offences was a sentence of eight years' imprisonment with a recommendation that he be eligible for parole after serving three years.   He also pleaded guilty.   Unlike the applicant, he had a criminal history.

He was, in this case, as I have already indicated, a much more active participant than the applicant.  Mr Moynihan, who appeared for the applicant today, does not question the reasonableness of the sentence imposed on Mr Meyers.

There are a number of personal factors which the learned sentencing Judge rightly took into account in the applicant's favour in imposing the sentence which he did.  The applicant had herself been subjected to abuse and violence, including rape, by members of her own family from a very young age.

She had then entered into a number of violent relationships with men, in which she had been badly treated both physically and mentally.  In consequence, her personality was characterised by her own perception of powerlessness.  This had some relevance to her part in the subject defences, in that she felt, she said, that she herself would become a victim again if she did not participate.

In addition, she was very remorseful and felt guilty that she had not protected the complainant against this conduct.  Her subsequent conduct is some indication of the genuineness of her remorse.  She cooperated substantially with the police in respect of her own involvement and she, in addition to that, gave the police some cooperation, which was taken into account in a confidential hearing by the learned sentencing Judge.

During the course of that hearing, the learned sentencing Judge, having indicated a sentence which he would otherwise have imposed, reduced it for the applicant's cooperation, particulars of which were put before his Honour and which I need not repeat here.

The end result was a sentence to which I have already referred, but the effect of his Honour's reduction for that cooperation is, as Mr Moynihan accepts, to have reduced the sentence which he otherwise would have imposed by about a third.

The reduction of the applicant's head sentence for her lesser involvement in the matter than Meyers, the circumstances relating to her involvement and cooperation, was, in my opinion, no more than was appropriate.  Nor do I think that the further recommendation was more than was appropriate to take into account the personal matters to which I have referred.

The extreme seriousness of the offences in this case cannot, in my opinion, permit the imposition of a sentence which does not include a period of actual imprisonment, at least in the case of a person who can no longer be properly described as a youthful offender.

For those reasons, I do not think that the sentence as a whole is manifestly excessive and subject to one matter, I would refuse the application. 

It does appear, however, and this is accepted by both counsel, that his Honour, the learned sentencing Judge, erred in imposing separate sentences for the offences of assault occasioning bodily harm with a circumstance of aggravation, sexual assault with a circumstance of aggravation and deprivation of liberty, those matters being, in effect, subsumed in the torture offence for which the applicant was sentenced to a four year term.

Accordingly, I would grant the application and allow the appeal, only to the extent of setting aside the sentences imposed for assault occasioning bodily harm, sexual assault and deprivation of liberty.  Otherwise I would confirm the sentences imposed by the learned District Court Judge.

WILLIAMS JA:  I agree.

WILSON J:  I agree.

DAVIES JA:  The orders are as I have indicated.