R v Dutton[2005] QCA 17

SUPREME COURT OF QUEENSLAND 

[1] McMURDO P:  I agree with the orders proposed by McPherson JA and with his reasons.

[2]  McPHERSON JA: The applicant pleaded guilty and was sentenced on 16 April 2004 in the District Court to sentences of imprisonment, which in combination totalled 10 years, for one count of sexual assault, one of rape, one of exposing an intellectually impaired person to an indecent act, two counts of indecent acts in a public place, one of attempted rape, one of sexual assault with an aggravating circumstance, one of going armed so as to cause fear, and one of wilful damage. In addition, the sentencing judge activated a prior sentence of imprisonment for 6 months suspended for 3 years on 12 September 2002, which was ordered to be served concurrently.

[3]  For count 2 (rape), the sentence was 7 years, with an accompanying declaration that it constituted a serious violent offence; for count 1 (indecent assault), the sentence was two years; on count 3, it was two years for exposing an intellectually impaired person to an indecent act. Those sentences were made concurrent among themselves. On the remaining counts (4-9) together (which included the attempted rape in count 5 and the sexual assault in count 7, for each of which a 3 year sentence was imposed), the concurrent sentences for those offences totalled 3 years. This second group of sentences (counts 4-9) were ordered to be served cumulatively upon the first group (counts 1 to 3), thus producing in the end the combined head sentence of 10 years already mentioned for all of the nine sentences imposed. That was after his Honour had applied a discount of two years for the plea of guilty and for a period of some 400 days of pre-sentence custody.

[4]  The applicant’s personal circumstances and history attract some sympathy. He was 28 at the time of offending and 29 at sentence. He is married with two children. He had a seriously disadvantaged upbringing in foster homes and institutions. It seems he was, as a child, uncontrollable and in consequence was abandoned by his parents and rejected by others who tried to care for him. At an early age he began a life of crime both here and later in Victoria, which until more recently has continued unbroken since 1987 except for periods of imprisonment. Most of the offences consisted of breaking and entering, burglary, stealing, false pretences, unlawful use of motor vehicles and the like. There is a record in 1991 in the Children’s Court of an aggravated assault on a female; but, before us, the applicant questioned the accuracy of that entry, and it may fairly be disregarded in the present context. After his marriage he seemed to be settling down. He had a job as a metal worker until he was laid off on compensation, which was when these offences took place.

[5]  There can be no complaint about the order making the two series of sentences cumulative. The offences in those two groups were committed on separate dates and occasions and against quite different complainants. It is nevertheless said that the overall sentence is excessive having regard to the impact of the serious violent offence provisions of the Act,  the period of 400 days which the applicant spent in custody before being sentenced, and his plea of guilty. Alternatively, it has been suggested that the discount in the head sentence to 10 years from a starting point of 12  years allowed on account of those mitigating factors was inadequate.

[6]  The offences were committed on dates between 29 January 2003 and 7 March 2003. Those in the first group (1, 2 and 3) were especially serious, and it was in respect of count 2 (rape) that the learned judge made a serious violent offender declaration. The complainant Ms D in counts 1 and 2 was a disability support worker who cared part-time for Ms B, a 22 year old woman with profound physical and intellectual disabilities which prevent her from communicating. On the morning of 29 January, the applicant accosted them on the Wynnum mangrove boardwalk and exposed his penis to them above his shorts. Despite the pleas of Ms D and her appeals to the applicant to leave them alone because of Ms B’s vulnerable condition, he grabbed Ms D by the breast, exposed it and sucked and licked it (count 1). He treated her with some violence or roughness and forced her to take his penis in her mouth on some three or four separate occasions (rape: count 2). He threatened he would do this to Ms B if Ms D did not comply with his wishes. Ms D was trying to shield or prevent the applicant from doing anything to Ms B, whom she knew was easily terrified and upset. It should be added that Ms D is herself a person with no sexual experience, so that in effect she courageously sacrificed herself in order to protect her disabled companion. The identity of the applicant as the perpetrator of this offence was later confirmed through DNA evidence from saliva located on Ms D’s brassiere.

[7]  On 2 February 2003, two days after the offences on 31 January 2003, the applicant was arrested on some quite unrelated charges. He was granted bail on 1 February, before committing the remaining offences while he was still on bail.

[8]  Counts 4 and 5, concerned offences committed against a 45 year old woman on a beach at Bribie Island. The applicant presented himself naked to her on the beach and masturbated in front of her. He pulled her bikini top down, twisted her breast (count 4) and tried to push his fingers into her vagina which was covered by her denim shorts. On one view he may perhaps have penetrated her in this way; but he was charged only with and pleaded to attempted rape (count 5) in respect of this act. He threatened to have sexual intercourse with her, but fortuitously another woman walker appeared on the beach, and he ran off.

[9]  On 24 February the applicant confronted another woman and her daughter inside a female public toilet at Woodridge, which he entered. After the initial encounter, he at first drove away in his car, but soon returned to the toilet naked and brandishing a knife at the older of the two women. In the course of this incident, he took her by the arm and squeezed it causing her pain.  She screamed, whereupon he decamped again.

[10]  Those incidents were the subject of counts 6 and 7. For count 8, the scene shifted back to the Wynnum mangrove boardwalk. The complainant in this instance was jogging in the area, when she saw the applicant in a blue car. His trousers were open at the front and he was masturbating. The car came towards her and she ran off, but she was able to recall part of the registration number. The next day she saw him and the car again, and was able to report him to the police by reference now to the full registration number of the car. He was arrested on 6 March 2003 and was refused bail. The final offence (count 9) was committed when he wilfully damaged an intercom system in the watchhouse.

[11]  The applicant was later identified by each of his victims (except Ms B) on their being shown a photographic identification board. Taken with the DNA material, there is no occasion for any concern about the validity or propriety of the pleas of guilty, even though the applicant is now inclined to doubt their wisdom. If he had not pleaded guilty, he would not have received the discount of 12 months for his plea.

[12]  The rape committed on Ms D in the presence of the disabled Ms B was particularly heartless as well as revolting.  Predictably there has been a lasting impact on Ms D, Ms B and Ms B’s parents, who were, of course, very committed to protecting their daughter from frightening experiences like this. To have had this happen must greatly have added to the stresses caused by her unfortunate plight. Taken with the offences in counts 1, 2 and 3, a sentence of 7 years imprisonment for all these counts was appropriate to the nature of his criminal conduct. It was carried out at a time and in a public place in which the complainants might fairly have been supposed to be safe from such an aberrant attack. The learned judge was justified in declaring the offence of rape in this group to be a serious violent offence. As a result, the applicant will have to serve 80% of the 7 years imposed before becoming eligible for parole. It seems plain the learned judge intended that after completing that sentence, the applicant would have to serve at least half of the 3 year sentence for counts 4 to 9 before he could be considered for parole. Added together, this would produce a total of about 7 years or so for all offences, before such eligibility arises.

[13]  As to the complaint that the judge did not take sufficient account of the applicant’s plea of guilty and the 400 day period in presentence custody, it must be said that the Crown case was a strong one. The plea of guilty was not offered until after the complainants (other than Ms B) had been subjected to the ordeal of extensive cross-examination at committal, and only after the DNA evidence had become available. The pre‑sentence custody of 400 days was taken into account in imposing the head sentence by allowing reductions totalling 12 months on counts 4 to 9. This left a balance of some 35 days out of the 400, which are fully catered for in activating the suspended sentence of 6 months and making it concurrent with the other sentences in this group.

[14]  The only possible cause for complaint arises from making the declaration that the rape in count 2 is a serious violent offence. Standing alone that would, as I have said, mean that, before becoming eligible for parole, the applicant will be required to serve 80% of 7 years, representing about 5.6 years of the sentences imposed on counts 1, 2 and 3. The judge intended the applicant serve at least 50% or 18 months of the 3 year sentence imposed in respect of counts 4 to 9, making in the end a total of approximately 7 years, or a little more, of the ten year head sentence before he qualifies to be considered for parole.  This, however, overlooks the operation of the provisions of s 161C of the Penalties and Sentences Act 1992 as interpreted in R v Powderham [2002] 2 Qd R 417. Because the offence in count 5 (attempted rape) is also a schedule offence, the effect of s 161C(3), read together with that decision, is that the applicant must also serve 80% rather than 50% of the 3 year sentence imposed on that count.

[15]  The operation of the sentence as it stands therefore is that the applicant will not become eligible to be considered for parole until he has served 8 years (instead of about 7 years) of the combined ten year sentence. This is, in fact, what he says he has been told by the prison authorities. Since he was sentenced for all these offences on the same day, I consider that advice accords with the law laid down by s 161C(3) and applied in R v Powderham. To the complaint that it fails to give effect to his Honour’s apparent intention of confining the serious violent offence declaration to the 7 year sentence on count 2 (rape), Mr Copley’s response was that the eventual sentencing outcome is nevertheless not excessive and should not be disturbed. However, while acknowledging that it would be open to this Court to adopt such an approach on this appeal, I consider it preferable to try to preserve the outcome that his Honour evidently had in mind in arriving at the sentence he imposed on 16 April 2004. I think this can best be achieved by reducing the sentence on each of count 5 (attempted rape) and count 7 (sexual assault) from 3 to 2½ years. It produces a combined sentence for all nine offences of 9½ years (instead of ten), and brings it into line with what his Honour originally intended. The applicant will have to serve 80% of the 7 year sentence, and then 50% of the 2½ year sentence, or about 7 years, before being eligible for parole. There is no reason to alter the sentencing orders in any other way.

[16]  The orders are (1) that the appeal against sentence is allowed; and (2) that each of the sentences imposed on counts 5 and 7 in the indictment are reduced from three to two and a half years.

[17]  JERRARD JA: I respectfully agree with the reasons for judgment of McPherson JA and with the orders he proposes.