R v F[2001] QCA 416

COURT OF APPEAL

McPHERSON JA

JONES J

MULLINS J

CA No 90 of 2001

THE QUEEN

v.

F Appellant

BRISBANE

DATE 01/10/2001

JUDGMENT

McPHERSON JA:   I will ask Justice Mullins to give judgment.

MULLINS J:   The appellant is unrepresented.  He seeks to appeal against his conviction on 3 April 2001 of two counts of rape and one count of indecent dealing of a child under 16 under care.  He was sentenced for the two counts of rape to 10 years imprisonment with a recommendation for release on parole after 4 years and for the other count to a term of imprisonment of 18 months, concurrent with the sentence for the rapes.

The appellant also seeks leave to appeal against sentence.  There was a fourth count of indecent dealing on the indictment but there was a directed verdict of not guilty in respect of that count.  The grounds of appeal in the notice of appeal in relation to the conviction are that the conviction is unsafe and unsatisfactory and contrary to law.

The complainant was born on 23 April 1986.  Her mother subsequently married the appellant.  The appellant was therefore the complainant's stepfather.  At the time the offences occurred the household comprised the appellant and his wife, the complainant and her two younger brothers. 

The evidence given by the complainant relating to the first count of rape was that it was a night in September 1999.  The complainant was lying on the double bed in her bedroom. Her mother was out playing cards.  The appellant came into the room, placed his hand on her face, lay down on top of her and raped her.  The complainant said that during the rape she was hitting the appellant on the face and said she was going to tell mum on him.  The complainant said that when the appellant walked out of the room he said, "You'd better not tell your mother."

The complainant did not tell her mother.  She gave evidence of violence by the appellant towards her and other members of the household and that she felt frightened of the appellant.  The next day the complainant was picked up by her mother's sister to be driven to the football.  They stopped at that aunt's house.  The complainant's aunt gave evidence that the complainant was crying.  She asked what was wrong and the complainant told her that, "Noelly was being rude to her."

The aunt then asked the complainant, "What do you mean by being rude," and the complainant said, "He rooted me."  The complainant gave evidence that she did not make a complaint about the rape in September 1999 to her aunt.  There was an application during the trial by the appellant's counsel to exclude the evidence of fresh complaint in relation to count 1 from the complainant's aunt because the complainant denied making the complaint.

The learned trial judge refused the application.  The fact that the complainant denied making the complaint to the aunt did not necessarily require the exclusion of the evidence of the aunt, if it was apparently credible.  The learned trial judge gave appropriate directions in relation to the evidence of the complainant's aunt and pointed out to the jury that the complainant had no recollection herself of having spoken to her aunt the next day about what her stepfather had done to her the night before.

The complainant's evidence in relation to counts 2 and 3 was that she was in the lounge room watching TV when the appellant came into the lounge room, moved the coffee table away, sat down on the couch next to her, put his hand on her shoulder and then moved it down and rubbed the complainant's right breast.  After that the complainant said that the appellant pulled her legs up on the couch and raped her. The complainant said she sang out to her mother.  She said that her mother was hanging out the clothes.  She then said her mother was asleep.  The appellant gave evidence that her mother could not hear very well and had a hearing aid which she took out when she went to sleep.  The complainant gave different answers as to when these offences occurred.  She said on a Saturday, then she said on a Sunday, she also said that the offences on the couch took place around November 1999.

On 5 April 2000 the complainant spoke to the senior guidance officer at her school who made a referral to the police.  A police officer, Ms Belinda Moriarty, gave evidence of meeting with the complainant on 5 April 2000 and taking a statement from her the next day.  When the complainant gave evidence, she identified the date of the offences comprising counts 2 and 3 as occurring on the Sunday before the Sunday that she spoke to the police officer named Belinda.

The appellant gave evidence.  Although there were inconsistencies in the evidence of the complainant, including as to the timing of the offences which were the subject of counts 2 and 3, the jury had the opportunity to see and hear the complainant and to see and hear the appellant.  The case depended on the reliability and credibility of the evidence of the complainant.  There was evidence capable of supporting the jury's verdicts.  I cannot conclude that the verdicts are unsafe and unsatisfactory.  I therefore would refuse the appeal in relation to conviction. 

With respect to sentence, the learned trial judge's attention was not drawn to the effect of section 161A of the Penalties and Sentences Act 1992 which means that on the imposition of a 10 year sentence for the offence of rape the appellant has been convicted of a serious violent offence.

The effect of that is that pursuant to the Corrective Services Act 2000 the appellant is not entitled to apply for parole until he has served 80 per cent of his sentence which makes the recommendation of the learned trial judge that the appellant be considered for release on parole after 4 years meaningless.  The learned trial judge intended to give effect to the ameliorating factors which he identified in favour of the appellant by making the recommendation for early release on parole.

These ameliorating factors were the significance to the appellant of being deprived of participating in his Aboriginal community and that imprisonment would remove him some distance from his home area. 

Because of the oversight in respect of the operation of the serious violent offender provisions, the sentencing process has miscarried and the sentence for the rapes must be set aside and the sentence reconsidered.

The appellant was born on 29 August 1958.  He is now 43 years old.  He was 41 years old at the date of the offences.  He is illiterate. He has a considerable criminal history dating back to 1974 many of which offences can be related to excessive alcohol consumption.  He has previous convictions for assault, but none for sexual offences.  The learned trial judge was told that the appellant's wife is ill and is finding it difficult to care for their youngest son who is 9 years old, in the absence of the appellant.

The circumstances of the offences of rape are serious.  There were two separate rapes approximately 6 months apart.  There was an abuse of trust by the appellant as the stepfather of his 13 year old stepdaughter.  No violence additional to the rape itself was involved in the course of committing each offence.  The impact on the complainant has been significant, however.  She was kicked out of home by her mother, she does not go to school any more and describes herself as being "somewhat naughty" as she is now drinking alcohol and smoking.

The appellant is being sentenced after trial and when he has shown no remorse.  When asked what he wanted to say at the hearing of this appeal he repeated that he did not do the offences.  Mr Campbell of counsel for the Crown relied on the cases of Morris CA319 of 1989 and Griffiths CA218 of 1999 as comparable and to support a range of 8 to 10 years.  An appropriate sentence in all the circumstances for counts 1 and 3 is the one sentence of 8 years imprisonment.

I therefore would grant leave to appeal against the sentence for counts 1 and 3, set aside the sentence of 10 years imprisonment with an early recommendation for parole after 4 years and substitute a sentence of 8 years imprisonment.   This sentence is to be concurrent with the sentence of 18 months imprisonment imposed by the learned trial judge in respect of count 2.

McPHERSON JA:   I agree.

JONES J:  And I also agree.

McPHERSON JA:   The order of the Court is that the appeal against conviction is dismissed.  The application for leave and the appeal against sentence are allowed.  The sentence of imprisonment imposed on counts 1 and 3 varied by reducing them from imprisonment for 10 years to imprisonment for 8 years.