R v S; ex parte Attorney-General
[2003] QCA 361
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- R v S; ex parte Attorney-General[2003] QCA 361
- Add to List
R v S; ex parte Attorney-General[2003] QCA 361
R v S; ex parte Attorney-General[2003] QCA 361
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | |
DELIVERED EX TEMPORE ON: |
|
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 August 2003 |
JUDGES: | McMurdo P, Jerrard JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: | Appeal against sentence allowed. Instead of the sentence imposed at first instance, substitute a sentence of seven years imprisonment with a recommendation for post prison community based release after two and a half years. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL – APPLICATIONS TO INCREASE SENTENCE – where respondent pleaded guilty to one count of procuring a sexual act by coercion, one count of entering a dwelling with intent with a circumstance of aggravation and one count of rape - where respondent sentenced to an effective term of six years imprisonment with a recommendation for post prison community based release after two years - whether sentence fails to reflect sufficiently the gravity of the offence – whether learned primary judge gave too much weight to mitigating factors - whether sentence manifestly inadequate R v Beaver [2002] QCA 238; CA No 114 of 1992, 2 June 1992, considered R v Hunt [1994] QCA 507; CA No 305 of 1994, 12 September 1994, considered R v M [2001] QCA 166; CA No 221 of 2001, 1 May 2001, distinguished R v Stephens; ex parte A-G (Qld) [1994] QCA 507; CA No 411 of 1994, 28 November 1994, considered |
COUNSEL: | C W Heaton for the appellant A W Moynihan for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent |
THE PRESIDENT: The applicant pleaded guilty on the 22nd of May 2003 to one count of procuring a sexual act by coercion. One count of entering a dwelling with intent with a circumstance of aggravation and one count of rape. He was sentenced to an effective term of six years imprisonment with a recommendation for post prison community based release after two years. The appellant, The Honourable the Attorney-General of Queensland, appeals against that sentence contending that it is manifestly inadequate in that it fails to reflect adequately the gravity of the offence to take sufficiently into account general deterrence, and that the sentencing Judge gave too much weight to mitigating factors. Mr Heaton, on behalf of the Attorney, contends that to discount the head sentence to six years and to give the early recommendation for parole was to twice benefit the respondent with the effect that the sentence is manifestly inadequate.
The respondent was 32 when the offences occurred and 33 at sentence. The complainant was his 23 year old de facto wife and the mother of their three young children. The respondent had a short criminal history involving some relatively minor drug matters, but more seriously, he had a previous conviction for assault occasioning bodily harm. This offence was committed upon a friend of the complainant in these offences. The friend attempted to defend the current complainant and was punched to the head by the respondent for her trouble. She fell backwards and hit her head. The last mentioned offence was the catalyst for the complainant in this matter ending her six year de facto relationship with the respondent.
The respondent was subject to a domestic violence order and his efforts to renew the relationship were unsuccessful. He did regularly visit the complainant to see their three children and would often stay at her home for some hours with the children. On the 5th of December, 2001 he arrived for such a visit bringing with him a tub of ice cream and a box of ice cream cones. The complainant and the three children all had an ice cream cone and during the course of the evening the complainant and the respondent shared cones of something more potent, marijuana. At about 6 p.m. the respondent made more ice cream cones for the children and the complainant. When she neared the end of her cone, the complainant tasted something bitter and crunchy and threw the remainder of it into the bin.
It was later found when analysed to contain Nitrazepam, the active ingredient in tablets such as Mogadon and Alodorm - an hypnotic sedative. This constituted the first count on the indictment.
The children were fed and put to bed and the respondent left at about 9.30 p.m. The complainant went to bed and awakened later in the evening to find the respondent on top of her. He had entered the complainant's home without her permission, through the laundry door. It was about 12.20 a.m. He said he wanted to make love to her one more time as he was leaving town. She refused and asked him to leave the house. She was terrified. He tried to silence her by putting his hand over her mouth. She felt as though she had a hangover. He then put a pillow over her head to silence her complaints. She remained silent but continued after a time to ask the respondent to get off her. He finally succeeded in penetrating her with his penis as he silenced her with his hand over her mouth.
He told her that he had contracted a sexually transmitted disease and she should now go to a doctor; nobody else would want her because she would now, like him, have this disease.
He told police that he was unsure whether or not he had a sexual disease but suspected he may have.
The complainant was treated by a doctor and was not finally cleared as not contracting any sexually transmitted disease for 12 months.
She rang police who were unable to attend that night and she reported to the police station next morning. That afternoon the respondent rang the complainant and in a tape-recorded conversation admitted forcing himself on her and raping her, stating that he had parked his car down the road. He said, "Neither of us is going to be able to have a fucking partner again". The respondent suspected the complainant had a new boyfriend and repeated words to the effect that her new friend was not safe from the prospect of getting a sexually transmitted disease from her.
The complainant's victim impact statement expressed her distress after the commission of these offences. She was especially anxious that she may have contracted a sexually transmitted disease. She was frightened to be alone and for this and other, including financial, reasons had to move out of her home. She has had nightmares and insomnia, which continued at the time of the writing of her statement 17 months after the offence. She was then receiving counselling.
The delay in the finalisation of these matters, which occurred in December 2001 was because of delay in the Prosecution receiving the results of forensic testing.
The Prosecution at sentence contended a term of imprisonment in the order of seven to eight years was appropriate with a recommendation after about three years. With some prompting from the learned Judge, the prosecutor conceded that a seven year sentence with a recommendation for release after two and a half years was appropriate.
Interestingly, that sentence is the sentence imposed in a comparable matter, R v Spencer; ex parte Attorney-General [1991] QCA 127; CA No 80 of 1991, 24 June 1991, the facts of which were, however, even more serious than here.
Defence counsel at sentence contended that the sentence range was between five and seven years and asked for a sentence of six years imprisonment with a recommendation after two years, the sentence in fact imposed. The concerning aspects of this offending are that the respondent, in the course of the breakdown of a domestic relationship, with considerable premeditation and planning, attempted to drug the complainant in order to rape her, entered her home in the night time intending to rape her and did rape her in an attempt to continue to exercise power over her, well knowing that their de facto relationship had long ended. He acted in this way whilst the subject of a domestic violence order and without any regard to the presence of his three young children in the home at the time. Out of spite and jealousy and because he knew or suspected that the complainant had formed a new relationship, he terrorised her with threats that he had transmitted a sexual disease to her. During the rape he used violence to muffle her protests.
The respondent did not have any prior like history but nor did he come before the Courts as someone with an unblemished record. It seems that in other ways he had attempted to be a good father to his children and was a hard worker with a reasonable employment history. He has subsequently formed a new relationship by the time of sentence and his new partner wrote a favourable letter on his behalf which was tendered at sentence. Other letters tendered on his behalf at sentence confirmed his devotion to his children, whom he has not seen since the commission of these offences.
The learned sentencing Judge took a very compassionate view of the facts in favour of the respondent and was impressed with his prospects of rehabilitation because of his new friendship, his devotion to his children and his previous good employment history. His Honour was optimistic that the respondent would become a worthwhile citizen again in the future and not re-offend. His Honour's reasons demonstrated a very careful consideration of the various competing factors.
The appellant, in support of his contention that the sentence is manifestly inadequate, relies on the case of R v M [2001] QCA 166; CA No 221 of 2000, 1 May 2001. M was convicted after a trial of burglary, rape, assault occasioning bodily harm, deprivation of liberty, two counts of indecent assault with circumstances of aggravation and one count of assault. M and the complainant had recently terminated a nine year de facto relationship which had produced five children under eight years of age. He too was the subject of a domestic violence order. The circumstances of M's offending were more serious and more violent than in this case. M tied up the complainant and threatened her with a large knife. In addition to raping her he forced her to suck his penis on two occasions. She managed to free herself from her bondage and escaped to a public telephone where she rang police. Her injuries included a black eye and abrasions. This Court found that the sentence of nine years imprisonment in those circumstances was not manifestly excessive and observed that because of his prior history of criminal offending, which included four previous convictions for assault occasioning bodily harm, one of which was committed against the complainant's mother, and his convictions for breaching a domestic violence or similar order, M was fortunate that a declaration of a serious violent offence was not made.
A plea of guilty in offences of this type is a significant mitigating factor. For that reason and also because of the actual circumstances of the offence and case of R v M is of limited use as a comparable sentence but it indicates the higher end of the range applicable here.
Mr Heaton, for the appellant, concedes that the sentence imposed in R v Spencer of seven years with a recommendation for parole after two and a half years, and as requested by the prosecutor below, would be an appropriate sentence to reflect the mitigating factors of the plea of guilty. But is the sentence imposed here manifestly inadequate to justify this Court's interference? In the end I'm persuaded that it is. In this case the respondent has benefited for the mitigating circumstances twice, first, by a reduction of the head sentence and second, in an early recommendation for post prison community based release with the effect that the sentence ultimately imposed was, because of the very serious aspects of it which I have set out earlier in these reasons, manifestly inadequate. This is so despite the plea of guilty and promising prospects of rehabilitation here.
It is true that matters such as R v Stephens; ex parte Attorney-General [1994] QCA 507; CA No 411 of 1994, 28 November 1994; R v Hunt [1994] QCA 440; CA No 305 of 1994, 12 September 1994 and R v Beaver [1992] QCA 238; CA No 114 of 1992, 2 June 1992, were, considering their facts, very lenient in the sentences imposed. But it is significant that all these matters, together with R v Spencer, preceded the 1997 amendments to the Penalties and Sentences Act 1992 (Qld), which generally required courts to impose heavier sentences for offences of violence.
I would allow the appeal against sentence and instead of the sentence imposed at first instance substitute a sentence of seven years imprisonment with a recommendation for post prison community based release after two and a half years.
JERRARD JA: I agree with the reasons for judgment and the order proposed by the President. The aggravating features of this respondent's behaviour are well summarised in the President's judgment - and I repeat only that they demonstrate that this respondent both planned and prepared himself to rape this woman and then did so and afterwards tormented her with the claim that he had infected her with a sexually transmitted disease. In those circumstances it is not just tinkering with this sentence to amend it as the President proposes. I consider that an error in the sentencing process is demonstrated by the sentence which was passed and which necessarily must reflect that this respondent has benefited in both the head sentence imposed and in the subsequent recommendation in respect of the matters appropriate to be taken into account in mitigation. Those are adequately reflected in the sentence the President proposes, now that we are re-exercising the sentencing discretion.
PHILIPPIDES J: I agree.
THE PRESIDENT: The orders are as I've set out.