R v D[2003] QCA 520

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:The applicant pleaded guilty to an assortment of very serious charges contained in five indictments.

The first indictment concerned two counts of indecent treatment of a child under 12 with a circumstance of aggravation for which the applicant was sentenced to one year imprisonment.   The second indictment concerns two counts of receiving with a circumstance of aggravation, two counts of fraud, two counts of unlawful use of a motor vehicle with a circumstance of aggravation, four counts of stealing, one count of common assault, one count of unlawful use of a motor vehicle and one count of fraud with a circumstance of aggravation.  On this indictment, the applicant was effectively sentenced to three and a half years' imprisonment cumulative on the first indictment.  The third indictment contained one count of procuring a sexual act by administering a drug for which the applicant was sentenced to four years' imprisonment with a declaration that he was convicted of a serious violent offence and this sentence was cumulative upon counts 1 and 2.

All three of these indictments were presented ex officio.

The fourth indictment contained one count of aggravated fraud for which the applicant was sentenced to three and a half years' imprisonment.

The fifth indictment contained one count of grievous bodily harm for which the applicant was sentenced to four years' imprisonment cumulative upon the remaining counts and again with a declaration that he was convicted of a serious violent offence.

Additionally the applicant was sentence to concurrent terms of imprisonment on seven summary offences of tainted property.

All this meant that the applicant's combined term of imprisonment was eleven and a half years and for eight years of that term he would be required to serve 80 per cent before becoming eligible for post prison community based release under Part 9A Penalties & Sentences Act 1992 (Qld) ("the Act").

The applicant contends the sentence imposed is manifestly excessive in that the offences contained in the second indictment should not have been made cumulative, that no declaration under Part 9A of the Act should have been made and that the sentence did not reflect the time he had spent in custody and his pleas of guilty.  In his oral submissions today he especially emphasises that the totality of the sentence is crushing and overall is manifestly excessive.

The applicant was 46 years old at sentence and has a worrying criminal history.  It commenced interstate as a juvenile in 1972.  The applicant was sentenced to periods of detention from 1974 for offences involving motor vehicles.  In Queensland he was first convicted in the Ipswich District Court in 1975 for offences of break enter and steal and attempted break and enter, for which he was sentenced to three months' imprisonment.  His convictions for minor property offences continued in 1977 and in 1983 he was sentenced to two years' imprisonment for unlawful use of a motor vehicle.  On appeal that was reduced to six months' imprisonment.  In 1986 he was again convicted of unlawful use of a motor vehicle but on this occasion was fined.   However, the next month he was again convicted of unlawful use of a motor vehicle and sentenced to two years' imprisonment, which on appeal was again reduced, this time to 15 months.  In 1990 he was convicted of two charges of assault and fined. In 1995 he was sentenced to three years' imprisonment with a recommendation for parole after 10 months for further property offences involving a motor vehicle.  In 1995 he was sentenced to one month imprisonment for escaping legal custody.  In 1996 he was sentenced to an effective term of five years' imprisonment with a recommendation for parole after two years for two counts of indecent dealing with a child under 16 and one count of procuring sexual acts by administering a stupefying drug. Later that year he was sentenced to an effective term of seven years' imprisonment for four counts of rape and one count of assault occasioning bodily harm with a recommendation for parole on 25 September 1998.

It is necessary to set out the facts of the applicant's offending to properly deal with his contentions.

The first indictment concerned the child of the applicant's de facto, who was aged between nine and 11 years at the time.

These offences occurred between 1993 and 1995. The offences on this indictment were committed at about the same time as his 1995 conviction for indecent dealing and the complainant here was the sister of that child and the daughter of the woman he was convicted of raping in 1996.  The facts were that he came into her room while she was asleep, removed her clothes, exposing her vagina and touched her vagina with his fingers.  He then took off his clothes, rubbed his penis on her exposed vagina but without penetration.  The second count occurred in a similar manner.

A victim impact statement was tendered at sentence, which showed the complainant had been, unsurprisingly, greatly traumatised by the offending.  She looked on him as her father.  She remains fearful of him.  She has been emotionally disturbed by the offending in every aspect of her life and is still bravely attempting to come to terms with it.

The remaining offences occurred between October 2000, shortly after his release from prison, and February 2002.

The offences contained in the second indictment are as follows.  The applicant broke into a vehicle and stole a cheque book, later withdrawing $4060 by presenting one of the cheques and transferring the proceeds to his own account. That conduct constitutes counts 1 and 2.  Count 3 and 5 occurred in this way.  The complainant agreed to sell his vehicle to the applicant but was not prepared to transfer the vehicle until full payment had been made.   Before this occurred he found his vehicle was missing. It was later located in the applicant's possession.  Items had been removed from it, including the registration plates and a winch.  Count 6 concerned the complainant lending the applicant his computer to use whilst the applicant was employed at Balandoor Station. When the applicant left his work at Balandoor Station, he took the computer, valued at $3300 with him.  Counts 7 and 8 occurred when the applicant answered an advertisement for a car which was for sale.  He looked at the vehicle and gave a false name.  He returned the next day and told the complainant that he did not have a licence.  She agreed to drive the vehicle for him on a test drive.  When she started the car, the applicant pushed her out of the vehicle and drove off.

The complainant was frightened during this episode. The transfer documents she had filled out in anticipation of a sale were missing from her home and were later found in the applicant's possession.  Count 9 concerned a stolen carry bag from a unit at Rocklea which contained a wallet and other personal items.  The complainant's credit card was later found in the applicant's possession.  Count 10 concerned the applicant, who was then in company with one Halliday, forging cheques on the complainant's company by computer alterations; two cheques of $12,000 and $5000 respectively were cashed from the complainant's account.  The complainant and his wife operated the Yandina Caravan Park.  The applicant previously stayed there, and at his request had been provided with a refund cheque for $230 rather than cash.  It seems he used the information obtained from that cheque to commit those offences.  The remaining counts occurred in these circumstances. The applicant then opened a TAB betting account with a forged cheque of $7900 and withdrew $7800 in three separate withdrawals on one day.  He then went to another TAB agency and deposited four cheques totalling $30,000. The cheques were not honoured.  At yet another TAB agency he attempted to withdraw funds from this account. The car he was driving at the time had been stolen from a railway station.  He next attempted to purchase goods at a Harvey Norman store with a forged cheque, but left without completing the transaction whilst checks were conducted at the Harvey Norman store.  The stolen vehicle was recovered and a wallet, cash and tool boxes were missing from it.  On another occasion, the Commonwealth Bank mailed a refund cheque for $98.06 to Peter Swain, an alias used by the applicant. The applicant altered the cheque to $48,000 and paid the proceeds into a National Australia bank account in Bundaberg, successfully withdrawing $40,000 from that account.

The third indictment concerned a 14 year old complainant, the daughter of the applicant's cousin.  She was having family difficulties and he offered to take her to his home to speak with a counsellor.  The counsellor was not present at his home and he knew this.  This was simply a ruse to get the 14 year old complaint under his power.  He gave her some milk.  She noticed that it tasted peculiar and saw a powdery residue in the bottom of the glass.  The applicant said this was vanilla. He offered her a smoke of marijuana, which she declined.  She remembered starting to feel groggy and apparently passed out. She awoke to find the applicant with his arm around her, the zip on her pants half down and her shirt raised. A blood sample later taken at a hospital disclosed traces of a sedative.

The fourth indictment contained a number of charges to which the applicant pleaded not guilty and was subsequently acquitted on trial.  Immediately before the trial, however, on the 12th May 2003, he had pleaded guilty to count 4 on this indictment, a count of aggravated fraud.  This offence involved him selling property which did not belong to him.  He brazenly carried out the fraud on the premises of the owner of the property.  He received $5000 for the assorted motor vehicles and equipment with a promise of a further $5000 on completion of the sale.

The total loss resulting from the applicant's criminal conduct in relation to the property offences was over $80,000.

The count of grievous bodily harm occurred in this way. The complainant, a 20 year old woman, answered the applicant's newspaper advertisement for employment as a chef on a boat operating out of Cairns.  The applicant, wearing a suit and driving a Porsche motor vehicle, met the girl's family and persuaded the girl and her family that he was a proper person to employ the woman.  The complainant and the applicant travelled to Cairns together and stayed in a caravan park. Although he had demonstrated a romantic interest in the complainant, she did not reciprocate.  He told her that he was suffering from cancer and wanted to spend money on her, look after her and give her the Porsche motor vehicle. She recalled on the night of the offence accepting the complainant's offer of an orange drink during the dinner she had cooked for them.  Her next recollection was that the applicant was on top of her with his hands around her throat, positioning himself as if to have sexual intercourse with her, but he was unable to obtain an erection.  She resisted him and she had a recollection of a punch to the face.  She next recalled being dropped at the Cairns Base Hospital and being in extreme pain.  She suffered a broken jaw, a black eye, pain in her neck and severe pain to her left rib area.  Her face was swollen and she was unable to eat solids for a period and unable to work for about three months.  She also suffered emotionally as well as physically as a result of the applicant's violent attack on her.  Material tendered at sentence established that she had been diagnosed with severe post traumatic stress disorder and has, at least for the time being, given up her studies at TAFE.  She has been unable to hold down a job and was then unemployed.  She is receiving counselling and is on medication for depression, anxiety and panic attacks.  Her family too has been traumatised and blame themselves for allowing her to travel with the applicant who falsely obtained their trust.  For the moment she lives in constant fear and believes her life will never return to normal.  I should also add her jaw required surgery and she was hospitalised for a time.

The summary offences concern the possession of a Porsche and Mercedes Benz motor vehicle, a Rolex watch, computer equipment and cash, for which the applicant had no plausible explanation.  That property was valued at over $45,000.

The concerning aspects of these offences is their great variety, the extensive period over which they occurred and that the applicant reoffended so soon after his release from prison in October 2000 for offences of a like type. The numerous and serious property offences required considerable planning and were sophisticated.  The offences of violence were extremely serious, involving a degree of deviousness and his taking advantage of friends and family.  He is a mature man with a significant criminal history for like offences.

The learned primary Judge took into account that the applicant had spent 18 months in custody awaiting sentence for these and other offences.  Her Honour observed that the property offences, alone, warranted a significant penalty in the vicinity of six to seven years' imprisonment, the grievous bodily harm offence, alone, a sentence of six years' imprisonment, and the offence of administering a drug to a minor and procuring a sexual act, alone, a sentence of six or seven years' imprisonment.  Her Honour however took into account the totality principle, the applicant's plea of guilty and that the applicant had spent 18 months in custody which could not be the subject of a declaration because it did not relate solely to these offences.  Her Honour observed that there were however at least three or four separate categories of offences and cumulative sentences were warranted.  Indeed the applicant's counsel at sentence conceded that this was a case where it was appropriate to impose cumulative sentences.

Her Honour, in imposing cumulative sentences, recognised that she should reduce the terms she would otherwise impose for principles of totality.  Her Honour concluded that a sentence of about 15 years' imprisonment was warranted initially but reduced this by 18 months for the time already served in custody and by a further two years to take into account the plea of guilty, reaching the figure of eleven and a half years' imprisonment.  Her Honour also decided that because of the applicant's prior violent criminal history and the serious nature of the offences, that serious violent offence declarations should be made in relation to the administering charge and the grievous bodily harm charge.

The Judge was entitled to impose the declarations in respect of these offences: see s 161C of the Act and R v Powderham [2002] 2 Qd R 417.  Her Honour's reasoning was logical, appropriate, and does not reveal any error.

Whilst the sentence imposed was a high one, the multiple, varied and serious offences involving large amounts of property, serious violence, breaches of trust and sophisticated criminal behaviour, when coupled with the applicant's previous criminal history, was entirely appropriate.  The applicant has not demonstrated that it was manifestly excessive or that there was in any other way any demonstrated error.

I would refuse the application for leave to appeal against the sentence.