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- Appeal Determined (QCA)
R v TM QCA 130
SUPREME COURT OF QUEENSLAND
R v TM  QCA 130
CA No 1 of 2005
DC No 453 of 2004
DC No 135 of 2004
Court of Appeal
District Court at Cairns
29 April 2005
15 March 2005
Jerrard JA, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
1.Grant the application for leave to appeal against sentence
2.Allow the appeal by substituting for the sentence of eight years for the count of torture a sentence of seven years
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE - where applicant/appellant convicted of three counts of digital rape, one count of torture and one count of stealing - where applicant/appellant sentenced to a total of 11 years imprisonment - where learned sentencing Judge made a declaration under s 161B(3) of the Penalties and Sentences Act 1992 (Qld) in relation to the eight years imprisonment imposed for the count of torture - whether total imprisonment imposed offends the totality principle - whether total imprisonment imposed is manifestly excessive
Penalties and Sentences Act 1992 (Qld), s 161B
R v CL  QCA 120; CA No 127 of 2003, 23 April 2004, considered
R v Roelandts  QCA 254, (2002) 131 A Crim R 603, considered
R v Brown  QCA 110, (2000) 110 A Crim R 499, considered
J D Henry for the applicant
R G Martin SC for the respondent
Legal Aid Queensland for the applicant
Department of Public Prosecutions (Queensland) for the respondent
- JERRARD JA: In this appeal I have read and respectfully agree with the reasons for judgment of Cullinane J, and the order His Honour proposes.
- CULLINANE J: The applicant seeks leave to appeal against sentences imposed on him at the District Court at Cairns on 10 December 2004 on his pleas of guilty.
- He was charged on two indictments. On one he was charged with rape at Thursday Island on or about 29 August 2003. On the other he was charged with one count of torture, two counts of rape and one count of stealing at Cairns between 26 May 2004 and 28 May 2004.
- He was sentenced to three years imprisonment on the rape count on the first indictment and eight years imprisonment on the count of torture on the second indictment (which was an ex officio indictment) to be served cumulatively with the term imposed for the count of rape on the first indictment. No sentences were imposed in respect of the two counts of rape on the second indictment but a term of six months imprisonment to be served concurrently with the eight years imprisonment was imposed in respect of the stealing count. The learned sentencing judge made a declaration under s 161B(3) of the Penalties and Sentences Act 1992 (Qld) in relation to the torture count.
- At the time of the commission of the second offences the applicant was on bail and awaiting his trial in respect of the count on the first indictment. The committal proceedings had taken place in February 2004.
- In each case of rape the offence was constituted by digital penetration of the vagina.
- The applicant was born on 3 November 1962. He was 42 when dealt with on 8 June 2004.
- The first offence which was committed on Thursday Island arose out of an assault by the applicant upon the complainant whilst she was asleep at the residence of the applicant. The applicant at the time was the manager of a bottle shop at a hotel where the applicant was a bar attendant. They knew each other and had socialised occasionally. On the evening of the offence, the complainant and a female friend were in the company of the applicant late in the evening and they went to the applicant’s residence where it was agreed they would spend the night.
- After falling asleep the complainant awoke to find the applicant sitting on the floor beside her with his hand inside her shorts and underpants and with a finger or fingers being moved in and out of her vagina. She immediately jumped up and after some exchange with the applicant she and her friend left the premises.
- The applicant admitted the offence in an interview with the police.
- At the committal proceedings the complainant was cross-examined.
- The learned sentencing Judge, whilst accepting that the applicant was entitled to some credit for pleading guilty to that indictment referred to the fact that up until the committal proceedings his approach had been one which suggested a less than full acknowledgement of his guilt and a less than full remorse for his action.
- The second group of offences occurred in Cairns. The complainant was a woman from overseas, who was in Australia on a one year working holiday.
- She had commenced to work with a recruiting agency at which the applicant worked and had moved into accommodation of which the applicant was the caretaker.
- On the afternoon of the incident the complainant and another occupant of the unit were having a drink in the unit when the applicant arrived with a bottle of whisky which he said he had just won. The other person left but the applicant and the complainant spent some time talking and consuming some of the whisky. At the applicant’s suggestion they both went back to his unit to watch a movie on television. When it ended at about 10.30 pm the applicant made advances to the complainant. He gave, or attempted to give her a back massage, and reached a point where he undid her bra, at which stage she said she was going to leave. As she commenced walking towards the door the applicant blocked her way and struck her twice with his fist to the face. As a result she bled and he told her to take her clothes except her underclothes off and shower in the bathroom.
- When she was emerging after doing so she said something to the applicant who reacted by head butting her and grabbed her around the front of the neck and threatened to punch her again. He told her to take her underpants off and to get onto the bed. When she did so he tied her hands behind her back and her legs together, with a tie between her feet and her hands.
- He obtained her handbag from her unit and from that extracted the PIN numbers to two automatic telecards.
- He adjusted the tie to the complainant’s legs and retied them so that they were spread apart after which he rubbed her breasts and penetrated her vagina with his finger.
- After looking through the contents of her handbag he again digitally penetrated her. These acts constituted the first count of rape.
- After taking photographs of her with her camera he placed a pillowcase over her head and placed a gag on her. He applied shaving cream to her pubic area and shaved it before he then took some further photographs.
- He performed oral sex upon the complainant and while he was doing this penetrated her vagina with his finger. This constituted the second count of rape.
- Later both of them fell asleep and when the complainant woke the next morning she managed to free herself. However she found she was dizzy and had difficulty standing up. The applicant woke and when he saw that she had freed herself, retied her.
- She was then held for the whole of the following day. She was provided with food and water and escorted to the toilet but at all times while she did so her hands remained tied.
- At some time during the course of the day he suggested that he might take her to some remote place and leave her there, leaving her to get back to a settled area. She remained bound throughout the day and into the evening. After he went to sleep she managed to free herself. At this time the applicant appeared to be asleep in front of the television. She called his name a couple of times and when he didn’t answer she escaped. She put on such clothing as she was able to find in the unit and ran to a nearby restaurant.
- In all, she was held captive for about 26 hours.
- She had sustained swelling and bruising to both eyes, a swollen nose and bruising and swelling to the left ear area as well as lacerations where an earring had apparently punctured her skin and some bruising to her shoulder and leg.
- When the police attended at the applicant’s unit they found the complainant’s cards and camera which contained photographs he had taken of the complainant during her ordeal.
- In this instance also the applicant fully admitted what he had done and expressed remorse for his actions. He could give no explanations beyond saying that something in his head had snapped.
- The complainant in her statement (Exhibit 4) said, not surprisingly, that she was fearful of her life during the ordeal.
- It is the applicant’s contention that the total imprisonment imposed of eleven years, when the totality of the applicant’s criminal responsibility is considered, fails to make any adequate allowance for factors to be taken into account in his favour. These include his pleas of guilty to the two indictments with particular emphasis being placed upon the timely plea on the second indictment, which was an ex officio indictment. The applicant had no criminal history of any significance to these matters and that also, it is said, required some allowance to be made in his favour.
- The sentence overall including the declaration is, so the argument goes, manifestly excessive.
- We were referred to a number of cases involving sentences for digital rape and for torture.
- Counsel for the applicant did not cavil at the learned sentencing Judge’s imposition of cumulative sentences. Indeed in the circumstances of this case the imposition of cumulative sentences was to be expected.
- The criminality involved in this case, particularly the torture count, was of a high level. The complainant must have been fearful for her life over the substantial period that she was held. She was treated in a degrading manner and subjected to a number of indignities. She was violently assaulted by the applicant.
- Subject to a qualification to be shortly mentioned I would not be inclined to interfere with the sentences imposed by the learned sentencing Judge.
- We were referred to a number of sentences imposed in the case of non-penile rape cases which were contained in a schedule. There is nothing in this schedule which in my view provides any support for the proposition that the sentence of three years imprisonment on this count was outside the permissible range.
- So far as the offence of torture is concerned, this was introduced into the Criminal Code in 1997 and there are, as at this time, still only a relatively small number of judgments of the Court of Appeal in such cases. The circumstances of cases of this kind will obviously vary and may vary widely. However I think that the cases to which we were referred, in particular R v Roelandts (2002) 131 A Crim R 603 (in which the Court took the opportunity to emphasise the need for terms of imprisonment which represented a condign response from the Courts to the criminal conduct involved in cases of torture), R v Brown (2000) 110 A Crim R 449 and R v CL  QCA 120 are consistent with the sentence of eight years imposed in this case to be served cumulatively with the count of three years for rape. The sentence taken overall does not, in my view, offend the totality principle as was argued for the applicant. It can be accepted, as counsel for the applicant argued, that in some of those cases there are features of the conduct involved which can be described as more serious than in the present case. As against this, the offence of torture was committed whilst the applicant was on bail awaiting trial for the offence of rape. His plea of guilty to the offence of torture has to be considered in light of the discovery, shortly after the offence, of the incriminating material in his unit, including the photographs. His conduct was, on any view, extremely serious involving, as it did, a violent, degrading and terrifying attack upon the complainant.
- It is clear that in making the declaration that he did, the learned sentencing Judge was intending to exercise the discretionary power which he had under s 161(B)(3) of the Penalties and Sentences Act 1992 rather than making a declaration of the kind required to be made in the circumstances to which s 161(B)(1) applies. It was accepted that His Honour intended that the applicant serve 80 per cent of the sentence imposed on the count of torture and one half of the sentence imposed on the count of rape before being eligible to be considered for post prison community based release.
- The effect, however, of judgments of this court is that where, as here, cumulative sentences imposed for schedule offences total or exceed ten years the offender is obliged to serve 80 per cent of the total of such terms of imprisonment before being eligible for release. See R v Powderham  2 Qd R 417 and R v Dutton  QCA 17.
- I see no reason to differ with the learned sentencing Judge’s declaration but in order to give effect to his intention I would be prepared to reduce the sentence in the torture count from eight years to seven years. This would mean that the applicant would become eligible for release after serving eight years of the total term of the imprisonment imposed which would effectively, if not precisely, equate with what His Honour’s sentence was intended to achieve so far as eligibility for release is concerned.
- In my view then the application ought to be granted. I would allow the appeal and substitute for the sentence of eight years for the count of torture a sentence of seven years.
- JONES J: I agree with the reasons of and the order proposed by Cullinane J.
- Published Case Name:
R v TM
- Shortened Case Name:
R v TM
 QCA 130
Jerrard JA, Cullinane J, Jones J
29 Apr 2005