R v Sams[2003] QCA 240

SUPREME COURT OF QUEENSLAND

DAVIES JA:  I will ask Justice Williams to deliver his reasons first.

WILLIAMS JA:  After a trial in the Beenleigh District Court, the appellant was convicted on the 8th of August 2002 on one count of torture, one count of assault, two counts of indecent assault, two counts of assault occasioning bodily harm, one count of rape and one count of assault occasioning bodily harm whilst armed.

The jury found him not guilty of a further count of assault and two further counts of assault occasioning bodily harm.  He lodged a notice of appeal against conviction, alleging in essence that the verdicts were unsafe and unsatisfactory and that the verdicts of acquittal were inconsistent with the verdicts of guilty.

After that appeal against conviction was filed, a notice of abandonment of the appeal against conviction was lodged.  The appellant now seeks to withdraw that abandonment and to argue that the conviction was unsafe and unsatisfactory.

The Court adopted the view that in the circumstances it would look at the merits of the appeal and only if there was a prospect of success would it become necessary to consider whether or not leave to withdraw the notice of abandonment should be granted.

The appellant appeared on his own behalf and placed before the Court two documents, setting out at some length, his argument in support of the appeal against conviction.

He also relied on an outline of argument which had been prepared at an earlier point of time when he had legal representation.

The critical issues before the jury were whether or not they accepted the complainant's evidence beyond reasonable doubt that she was assaulted in the way alleged and then whether or not those various assaults constituted the offence of torture as defined in the Criminal Code.

It emerged in the course of the evidence that the complainant, on a number of relevant occasions, was affected by alcohol and it also appeared that she had suffered a number of injuries, many of which could not be dated.

There were inconsistencies in her evidence which were highlighted by the learned trial Judge in his summing-up.  The appellant did not give evidence and the evidence of the complainant was not contradicted.

In my view, the verdicts of guilty were not inconsistent with the verdicts of not guilty on the three counts to which I have referred.  There were bases on which a jury, properly instructed, could have had a reasonable doubt about those charges.

For example, one of the counts on which the jury found the appellant not guilty involved the use of a machete to assault the complainant, thereby cutting her breast.

The medical evidence did not confirm any sign of injury to the breast, such as may have occurred in those circumstances.  For reasons such as that, the jury were entitled to bring in the verdicts that they did.  I am not satisfied there was any inconsistency.

The appellant in his written submissions also complained about the admissibility into evidence of a domestic violence order which the complainant had obtained prior to the commission of a number of the assaults in question.

In my view, there was no error on the part of the learned trial Judge in admitting the domestic violence order into evidence at the trial.  There was also a complaint that the learned trial Judge wrongly rejected the evidence of a

Mr Reid.

It appears that Mr Reid, for a period, had been a neighbour of the complainant and the appellant and he had given a statement to the police.  He was deceased by the time of the trial and in consequence defence counsel sought to have his statement placed before the jury pursuant to section 93B of the Evidence Act.

The Prosecutor indicated willingness to tender the statement, provided the learned trial Judge ruled that it was relevant.  The statement, so far as one can glean from a perusal of the record, indicated that the complainant was an alcoholic and that the maker of the statement had seen injuries to her on some two occasions.

Those matters were really not in dispute at the trial.  The learned trial Judge, in the course of argument, made the observation, "There's not a lot in it that's relevant."

He then went on to say, "I don't think I can make any ruling about it either way at the moment."  Subsequently, the issue as to the admissibility of the statement was not re-argued.

There is no substance in the appellant's complaint with respect to that.  It therefore follows that there is no prospect of the appellant succeeding in an appeal against conviction and in consequence it is not necessary for the Court to consider further the circumstances in which  abandonment of the notice of appeal could be withdrawn.  Leave to withdraw the notice of abandonment should be refused.

I now turn to the application for leave to appeal against sentence which has at all times remained extant.  The learned trial Judge sentenced the appellant to 10 years' imprisonment, on each of the count of torture, the two counts of indecent assault and the count of rape.  He sentenced the appellant to 12 months' imprisonment on the assault charge, being Count 2 on the indictment, and 18 months' imprisonment on the remaining charges of assault occasioning bodily harm and assault occasioning bodily harm whilst armed.

He ordered that all the sentences be served concurrently and declared the appellant to be convicted of a serious violent offence.  The appellant contends that the sentences are manifestly excessive and also relies on an issue raised by counsel in the outline to which I have previously referred.

Relying on cases such as Pearce v. The Queen (1998) 194 CLR 610 and R v. R and S; Ex Parte Attorney-General [2000] 2 QdR 413, it is submitted that because the other counts constituted the basis for the conviction of the offence of torture, no separate penalty should have been imposed on the offences other than torture.

Convictions were rightly recorded, but no separate penalty should have been imposed with respect to the charges evidencing the torture.  Counsel for the Prosecution now agrees with that submission.  It follows that the sentences imposed on Counts 3, 4, 6, 2, 5, 10 and 11, should be set aside, but the convictions for those offences should remain.

In my view, bearing in mind that the offences constituting the offence of torture include one count of anal rape, one count of indecent assault involving the insertion of a didgeridoo into the complainant's vagina, and one count of indecent assault involving the use of a cardboard roll against the complainant's vagina, a sentence of 10 years' imprisonment for torture was appropriate.

In the circumstances, I would grant leave to appeal against sentence, allow the appeal to the extent of setting aside the terms of imprisonment imposed with respect to Counts 2, 3, 4, 5, 6, 10 and 11, but otherwise the sentences imposed should stand.

DAVIES JA:  I agree.

ATKINSON J:  I agree.

DAVIES JA:  The orders are as indicated by Justice Williams.