R v H[2003] QCA 478

SUPREME COURT OF QUEENSLAND

WILLIAMS JA:  On the 22nd July, 2003, the applicant pleaded guilty to one count of deprivation of liberty, one count of assault with intent to commit rape, three counts of common assault and three counts of sexual assault with circumstances of aggravation.  Each of those offences had been committed on 24 August, 1998.

He was sentenced to 12 months imprisonment with respect to the counts of deprivation of liberty and common assault, three years imprisonment for the assault with intent to commit rape, and four years imprisonment on the counts of sexual assault with circumstances of aggravation.  Those sentences were to be served concurrently, but an order was made that the sentence be suspended after the applicant had served 18 months.  Some 259 days of pre-sentence custody were declared to be part of the sentence.

The complainant was a Japanese woman aged 31 years, who was sharing a unit with another couple and the applicant at Surfers Paradise. The applicant was born in Korea on 26 May 1976 and had been living in Australia for some time. His parents lived in Sydney. He had no previous convictions.  The complainant had met previously a Korean friend of the applicant's named J, who was about a year older than the applicant.

On 23rd August, 1998 the complainant retired to bed.  Some time later she noticed the applicant in the room.  He said he was looking for something and she did not raise any objection and went back to sleep.  Later she was awoken again by the applicant and J in her bedroom.

A lighted candle had been placed in her bedroom and on the whole of the evidence it appears it was placed there by the applicant.  Both men advanced upon the complainant who was still in bed.  Each held her down on the bed - one man on each side of her.  J produced a knife, held it to her face and said words to the effect of "Don't say anything, don't talk.  I finish quickly".  J pulled his pants down and exposed his penis.  He tried to put the complainant's sleeping mask over her eyes but was unsuccessful due to her resistance.  It is that conduct which, on the prosecution case, was the assault with intent to commit rape.

J then held the knife to her face, pinched her nose, and covered her mouth on a number of occasions.  J tried to put something into the complainant's mouth.  That conduct constituted one of the assault charges.

The complainant asked what was happening.  She was told to shut up and was punched in the stomach by J.  That was the next of the assault charges.

J then lifted the bed clothes away from the complainant and raised the pullover she was wearing above her breasts.  J sucked one of her nipples and the applicant simultaneously did the same to the other.  That was count five on the indictment.  J then performed an act of cunnilingus upon the applicant for a few seconds and then kissed her on the neck.  That was count six.  J made the complainant hold his penis while he digitally penetrated her vagina.  That was count seven.  When she refused to move her hand along his penis he punched her in the stomach.  That was the final of the assault counts.

Throughout the whole of that episode, the applicant was holding the arm of the complainant above her head.  At other times he placed his weight across her body onto the bed.  When the complainant asked the applicant why he was doing that she noticed that his face was down into the bed and not looking.

It was submitted both before the sentencing Judge and on the hearing of this application that the applicant was not the prime instigator and that in some way he was overborne by J who was a slightly older man.  In my view that is not made out by the material in the record before the sentencing Judge.  The applicant was a very active participant.  As I have already said, he was holding the complainant down throughout the whole of the episode and by sucking on her breast he indicated that he was a full and willing participant in the overall escapade.

On the day following the incident the applicant rang the complainant and apologised to her, alleging that he could not say no as J was older than he was.  As I have already said, that is not a matter which to my mind is established by the material.

A few days later the complainant made a complaint to the police.  As part of the police investigation she made a telephone call to the applicant.  Again in that conversation he said that he had woken the complainant as J wanted to speak to her; that he did not know that J had a knife; but agreed that he remained in the room for some 20 to 30 minutes.

It should be noted that the learned sentencing Judge indicated that it was unrealistic for the applicant to say that he did not know that J had a knife.  Whilst that may have been the case initially, it must have been obvious to him in the course of the overall incident.

Thereafter, the applicant left the Gold Coast and was not interviewed by the police until the 23rd of August 1999, some 12 months after the commission of the offence.  On that occasion, he gave a false version to the police.  He was less than frank in his statement to them.

He was arrested and granted bail on the 16th of September 1999.  He failed to answer that bail on the 10th of November 1999 and a warrant was issued for his arrest.  He surrendered himself on the 4th of December 2002, more than three years after he had absconded on bail.  That is why there was such a significant delay between the commission of the offence and his being dealt with in Court.

The learned sentencing Judge referred to the fact that this was a sexual assault in company whilst one of the men was armed, and that it was a sustained attack lasting for some 20 to 30 minutes.  In my view, in those circumstances, a head sentence of four years was clearly within range.  As was observed during the course of submissions in this Court, there was an element of trust between the complainant and the applicant because they were sharing accommodation.  That trust was breached in a very serious way on the night in question.

Ultimately, before this Court, counsel for the applicant did not contend that the sentence of four years was so far above the range that this Court ought to interfere with it.  He concentrated his submissions on the mitigating factors which he said should have resulted in a suspension after 12 months, or at least a recommendation for parole at that time.

It is true that ultimately there was a plea of guilty which meant that the complainant, who had returned to Japan, did not have to come again to Australia to give evidence.  It is also the fact that the applicant, shortly after the incident, apologised and expressed some remorse.  Further, in the intervening period, he has not committed any other offences. 

In my view, ordering a suspension after 18 months of the head sentence of four years adequately took those matters into account.  As counsel for the prosecution submitted in this Court, it is significant that a suspension was ordered and not a recommendation for parole which may or may not have been granted after the expiration of 18 months.  Here there is certainty in the sentence, so far as the applicant is concerned.

In all the circumstances, for the reasons which I have given, it has not been established that the sentence imposed was manifestly excessive and the application for leave to appeal against it should be refused.

McPHERSON JA:  I agree with what Justice Williams has said and that the application should be refused.

WHITE J:  I agree also.

McPHERSON JA:  The order is that the application for leave to appeal is dismissed.