R v ELS; ex parte Attorney-General
[2004] QCA 111
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- R v ELS; ex parte Attorney-General[2004] QCA 111
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R v ELS; ex parte Attorney-General[2004] QCA 111
R v ELS; ex parte Attorney-General[2004] QCA 111
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | DC No 301 of 2003 DC No 330 of 2003 DC No 342 of 2003 DC No 343 of 2003 |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | |
DELIVERED EX- TEMPORE ON: | 14 April 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 April 2004 |
JUDGES: | McMurdo P and Davies and Jerrard JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent convicted after a trial of one count of rape, and on pleas of guilty of one count of incest, one count of sexual assault, one count of assault occasioning bodily harm and one count of breaking, entering and stealing – where sentenced to five years and three months imprisonment on rape and lesser concurrent sentences on the remaining charges – where rape of 15 year old who considered respondent to be her cousin – where incest committed upon 14 year old niece – where assault of de facto partner – where respondent had prior convictions for assaults and breaches of Domestic Violence orders – where respondent breached suspended sentence by commission of the offences – whether sentences manifestly inadequate |
COUNSEL: | B G Campbell for the appellant A J Moynihan for the respondent |
SOLICITORS: | Director of Public Prosecutions for the appellant Legal Aid Queensland for the respondent |
THE PRESIDENT: The respondent pleaded not guilty in the Ipswich District Court on 1 December 2003 to one count of rape and three counts of indecent treatment of a child under 16, alleged to have been committed between 31 January and 1 March 2001. He was acquitted of the three counts of indecent treatment but convicted of rape on 2 December 2003. He then pleaded guilty to an assortment of charges contained in a further three indictments: one count of breaking, entering and stealing on 29 December 1993; one count of incest on 19 March 2003; and one count of sexual assault and one count of assault occasioning bodily harm, both committed on 15 April 2003. On 3 December 2003 he was sentenced to five years and three months imprisonment on the rape and to lesser concurrent sentences on the remaining charges. The appellant, the Attorney-General of Queensland, contends that the sentences imposed were manifestly inadequate.
The respondent was 31 years old at sentence. He has a criminal history which includes an appearance in the Magistrates Court in 2002 for breach of a Domestic Violence Order and assaults occasioning bodily harm for which he was sentenced to three months imprisonment suspended for two years. In 2003 he breached that suspended sentence and was convicted but not further punished and the suspended sentence was extended for three months. The Domestic Violence Order was again breached later in 2003 and this time the respondent was convicted and sentenced to five months imprisonment. These offences were committed on the respondent's defacto partner, the complainant in the offences with which this Court is concerned which were committed on 15 April 2003. He also had a number of traffic and street offences, breaches of the Bail Act and minor offences of dishonesty for which he was sentenced to community based orders. In 1996 he was convicted of assault occasioning bodily harm and aggravated assault on a female and sentenced to six months imprisonment.
The circumstances of the offence of rape were as follows. The respondent raped a 15 year old young woman who considered him to be her cousin. He had grown up in her mother's home. He plied her with a large quantity of alcohol and took her to his home. The respondent's partner and their three children were at home but were not present in the room when the rape occurred. He put his hand over the complainant's mouth and raped her whilst she lay on a couch. He said he had been waiting for this day and had watched her since she was small.
The complainant provided a victim impact statement in which she said that the incident had turned her life upside-down. She felt depressed and she has started sniffing paint and experimenting with illicit drugs to try and forget the incident. She complained to her family about the conduct, only reluctantly because she did not want to make trouble. She no longer feels she can trust members of her extended family.
The offence of incest occurred as follows. The complainant was the respondent's 14 year old niece. Once again, he plied her with alcohol and took her for a drive in his car. He had sexual intercourse with her in the backseat of the car.
When the respondent's defacto partner heard about this incident she terminated their relationship but the respondent went to her home on 15 April 2003, once again in breach of a Domestic Violence Order. Whilst she was on the telephone he touched and fondled her breast and put his hand down her pants, touching her on the genitals in spite of her protests. When the complainant pushed him away he punched her repeatedly to the face. Others, some aged as young as 11, came to assist the complainant. The respondent desisted for a time but then again commenced to punch and kick her to the face. The complainant, who was pregnant with the respondent's fourth child suffered facial bruising, lacerations and a broken finger.
The offences of incest, indecent assault and assault occasioning bodily harm all occurred whilst the respondent was on a suspended sentence for the prior convictions concerning his defacto partner.
The break, enter and stealing offence, the least serious of the matters before this Court, occurred in 1993 when the respondent acted as a lookout for five others who broke into the Mount Garnet Post Office and stole 500 blank money orders, $4,000 in cash, date stamps, phone cards and a safe. He admitted his involvement in this offence when interviewed in April 2003 about the other offences.
The combination of the respondent's diverse and prolific offending constituted very serious breaches of the criminal law committed over a lengthy period. With his prior criminal history a substantial effective term of imprisonment was warranted as an individual and general deterrent.
The Prosecutor's final contention at sentence was that a penalty of six years imprisonment was appropriate for the offence of rape, a lesser concurrent sentence for the offence of incest and a cumulative sentence for the offences committed against his defacto partner of three or three and a half years imprisonment. Defence counsel at sentence contended that a five year sentence for the offence of rape with a 12 month cumulative sentence for the offences involving his defacto partner was appropriate.
The appellant now contends that a sentence of six years imprisonment in respect of the rape and three years cumulative imprisonment in respect of the offence of assault occasioning bodily harm should be substituted for the sentences imposed at first instance.
The learned sentencing Judge saw himself imposing, "a severe sentence, rather than a mild one, on the rape count, and making all other sentences to be pronounced concurrent", consistent with the approach taken by Williams JA in R v Nagy [2003] QCA 175; CA No 24 of 2003, 2 May 2003, apparently regarding these series of offences as related or following a pattern of offending. His Honour also took into account 55 days which the respondent had served in custody and which was unable to be adequately taken into account as time served under the sentence. His Honour was additionally impressed with the respondent's efforts at rehabilitation.
In the end, the question is whether the effective sentence imposed for all the offending, whether it be cumulative or concurrent, adequately reflects the respondent's criminality, bearing in mind the principles of totality discussed in Mill v The Queen (1988) 166 CLR 59.
Unsurprisingly, none of the cases to which we have been referred as comparable sentences are really comparable to the diverse offending in the circumstances here. R v Williams [2002] QCA 211; CA No 361 of 2001, 21 June 2002 and R v C [2002] QCA 82; CA No 291 of 2001, 19 March 2002, demonstrate however that an effective sentence of five years and three months imprisonment in the circumstances here for two quite separate acts, one of rape of a 15 year old child and a subsequent one of incest of a different 14 year old child, was a very lenient sentence. When concurrent sentences were also imposed for the unrelated property offence and the serious offences of violence committed by the respondent upon his former defacto partner in circumstances where he had prior convictions for like offences and was breaching a Domestic Violence Order and a suspended sentence, then the effective sentence imposed of five years and three months imprisonment is demonstrably manifestly inadequate. It does not reflect the respondent's overall criminality and nor does it provide a sufficient individual and general deterrent sentence.
I would substitute a sentence of six years concurrent imprisonment on the incest count. A sentence of two years imprisonment on the assault occasioning bodily harm count, made cumulative on the sentences imposed for the remaining offences, is also appropriate. Because of the 55 days spent in custody for which the respondent is not entitled to a formal credit and the numerous pleas of guilty here I would reduce this sentence to 18 months cumulative imprisonment.
I would allow the appeal to the extent of first substituting a term of imprisonment of six years for the four years imprisonment imposed at first instance on the count of incest in indictment number 301 of 2003, and, second, in respect of the offence of assault occasioning bodily harm in indictment number 343 of 2003 instead of imposing a sentence of three years concurrent imprisonment I would substitute a sentence of 18 months imprisonment cumulative upon the sentences imposed on the remaining offences.
DAVIES JA: I agree.
JERRARD JA: I agree and observe that the respondent, whilst not having prior convictions for offences of predatory sexual intercourse with his female relatives in 2003, had committed a like offence in 2001.
THE PRESIDENT: The orders are as I have outlined.