R v AQ[2003] QCA 479

SUPREME COURT OF QUEENSLAND

WHITE J:  The applicant pleaded guilty in the District Court at Emerald on the 11th of August 2003 to two counts of indecent assault on the female complainant on the 7th of December 2002.  The applicant was aged 31 years at the time of the offences.  He had no previous convictions and he was employed by a family company as an excavator truck driver around mines in Central Queensland.

The complainant, who was the same age as the applicant, commenced a relationship with him in Brisbane at about the beginning of 2000.  The applicant lived in Blackwater and drove to Brisbane to see her regularly.  After a few months, the complainant moved with her two children, aged 9 and 10, to live in Blackwater with the applicant.  At the beginning of 2002, she bought her own house in Blackwater and the applicant moved into the home with her.

The relationship broke down in about mid last year, although it seems that there had been problems previously.  While the applicant was away working near Winton, the complainant moved his belongings to the family business premises where she also worked as a book and record keeper.  They eventually resumed their relationship about 4 to 6 weeks or so prior to the subject complaints being made.  The applicant would stay at the complainant’s house over night and consensual sexual relations occurred.  Whilst the applicant was away for work, the complainant decided to end the relationship finally, although she didn't tell him of this decision.

On the evening of the offences, the applicant arrived back in Blackwater and went to the complainant’s home about 10 o'clock in the evening where she and her children were watching television.  It would appear that there was some arrangement for him to be there.  The applicant had some food.  They showered and went to bed.

There were some differences in the accounts given by the prosecution and defence counsel below but not in essentials.  The differences seem to me, for a large part, to be what was in their respective minds.  The complainant determined that the relationship was over and the applicant thought that things were much the same as before.

When the applicant commenced sexual intimacy with the complainant, she asked him not to do so and pushed him away.  He was persuaded that there was nothing different on this occasion to others in the past where the complainant had finally agreed to consensual sex after initial reluctance.  However, he did not deny that he said to her words such as, "No means yes.  Every other time you say no, you end up doing it.  No means yes.  I've been away for three days.  I deserve this.  You want it over.  I want the last time."

The applicant continued to force himself upon the complainant holding her hands above her head and stroking her and rubbing his penis in the area of her vagina.  That conduct constituted count 1.  The complainant left the bedroom and sat outside on the veranda, smoking cigarettes, where she was joined by the applicant who spoke harshly to her.  She had a drink of water and returned to bed.  The complainant joined her and engaged in similar sexual activity, as previously, without her consent, culminating in simulated sexual intercourse without penetration.

The complainant went into the children's bedroom and eventually they slept with the complainant's daughter between them in the double bed.  In the morning after a conversation with the complainant, the applicant accepted that the relationship was finally over.  The complainant spoke to a friend that morning and complained of the conduct of the applicant, but it was not until he returned to the house in her absence and removed his belongings including a computer which he had purchased, but in which she apparently felt she had some proprietary interest, that the complainant went to the police.  There has been no contact between them since.

His Honour characterised the applicant's conduct as constituting serious sexual assaults.  There is no doubt that the applicant assaulted the complainant in a particularly unattractive fashion, but it is questionable whether the conduct could be described as serious sexual assault.  There was no gratuitous violence involved beyond the sexual activity itself and holding the complainant's hand above her head.

His Honour noted that the applicant had succeeded in imposing his wishes on the complainant in the past over her reluctance.  He observed that by the second incident it must have been clear to the applicant that the complainant wanted no sexual activity with him and she was entitled to have her right to say “no” vindicated in the Courts.  That may be accepted.

Where, in my view, his Honour fell into error was imposing a term of imprisonment at the top of the range and requiring the applicant to serve the whole 12 months imprisonment, rather than wholly suspending it or partially suspending it after a short period.

If his Honour had taken account of the matters personal to the applicant as well as his plea of guilty by moderating some other head sentence than that which he imposed he failed to indicate that fact, as Mr Moynihan - for the applicant - in his written submissions has suggested, although anything higher would have been outside the range.  His Honour was not given any comparable sentences.

The matters personal to the applicant which would, in my view, have led to a lesser sentence than that imposed are the applicant's age; that he has no previous criminal history; that he was a hard worker and the mainstay of the family business; that he paid maintenance for a 12 year old child; that he was a participating member in the local community; and that he had pleaded guilty.  These factors were insufficiently taken into account by his Honour, such that his sentencing discretion - in my view - miscarried.

Counsel have referred to numerous cases - many of which bear no resemblance to this application - but which do indicate the range for offences with more serious features than this.  This case has none of the features which the Court of Appeal referred to in R v. Jones, CA No 285 of 2003, which dictate when a term of imprisonment must be imposed and at least partly served.  No child was involved.  The complainant was not vulnerable through mental, physical or intoxication disability.  There was no breach of trust.  There was no gratuitous violence and neither was it a violent assault after the relationship had been terminated.

As Mr Byrne, for the Crown, has indicated, the facts of this case are closest to those of R v. J, CA No 3 of 2002, where a sentence of 12 months suspended after four months was not interfered with on appeal.  In that case the applicant was well aware that the relationship between himself and the complainant was over, and nonetheless arrived at her house at night and in the face of her opposition, carried her struggling into her bedroom.  He engaged in sexual conduct short of penetration.  It is true that there was only one offence, but the whole conduct was much more serious and intrusive than here.

The applicant has been in prison since 11th August, 2003 - almost three months - and has spent three days in pre-sentence custody.  I would vary the sentences imposed below by suspending them forthwith.  The orders which I would make are:

Grant the application.  Allow the appeal.  Vary the sentence imposed below by suspending the term of imprisonment forthwith, with an operational period of 12 months to operate from the date that the sentence was imposed below.

McPHERSON JA:  I agree.

WILLIAMS JA:  I agree.

McPHERSON JA:  The order will be in the form stated by Justice White in her reasons.