SUPREME COURT OF QUEENSLAND

[1]  THE COURT:  On 21 February 2005, the applicant pleaded guilty to one count of stealing, and one count of indecent assault.  He also pleaded guilty to committing a public nuisance and consuming liquor in public.  On the stealing charge he was sentenced to 12 months’ imprisonment, and pre-sentence custody of 366 days from 18 February 2004 to 18 June 2004 and from 27 June 2004 to 21 February 2005 was declared as time served.  On the indecent assault charge, he was sentenced to two and a half years’ imprisonment with a recommendation for consideration for post-prison community based release after serving nine months.  Pre-sentence custody of 240 days from 27 June 2004 to 21 February 2005 was declared as time served.  The applicant was convicted, but not further punished, in relation to the offences of committing a public nuisance and consuming liquor in public.

[2] On 21 February 2005, the applicant was also dealt with in relation to the three months’ suspended term of imprisonment imposed by the Magistrates Court on 10 September 2003.  The three months’ suspended sentence was activated and ordered to be served in full.

[3] All the sentences imposed were ordered to be served concurrently.  The applicant now seeks leave to appeal against the sentence imposed for the indecent assault on the grounds that it is manifestly excessive.

The circumstances of the offences

[4] The stealing offence occurred on 18 February 2004.  The applicant had been drinking with a group of people including the complainant, a 16 year old female, in Queen's Park, Ipswich.  After the complainant left the group, the applicant approached her and asked her for money.  She took $100 from her purse.  The applicant took that money, put it in his wallet and ran off.  He was apprehended shortly thereafter.  He remained in custody until 18 June 2004.

[5] The indecent assault occurred on 27 June 2004 which was only nine days after the applicant's release.  The applicant was intoxicated.  He was observed by police on a safe city monitor drinking from a wine cask bladder on the footpath outside Players Nightclub in Brisbane Street, Ipswich.  He was seen to be intoxicated and to be deliberately standing in front of pedestrians impeding their progress.  In company with another man, he crossed Brisbane Street and confronted a woman walking in the opposite direction.  The applicant asked the woman how big her prominent earring was and she replied that it was 12 mm.  The applicant responded:

"Is that the size of your other hole?  We can go home and test it".

The applicant then unexpectedly reached down, and with some force, rubbed his hand against her vagina on the outside of her jeans.  As the complainant tried to force the applicant's hand away, he pushed her vagina more forcefully with his hand and then slid it up and squeezed her left breast quite forcibly.  He was arrested shortly thereafter.

The applicant's circumstances

[6] The applicant was born on 17 November 1980.  He was 23 years of age at the time of these offences and 24 years of age when sentenced.

[7] The applicant has a lengthy criminal history, particularly for offences of dishonesty and offences associated with the consumption of alcohol.

[8] The present offences were committed in breach of a two year probation order as well as the three months’ suspended sentence.  The probation order and the suspended sentence were imposed on 10 September 2003 for burglary, breaking and entering and drug offences.

[9] In June 2002, the applicant was imprisoned for 21 months for property and motor vehicle offences.  In April 2001, he was imprisoned for three months for the unlawful use of a motor vehicle, aircraft or vessel.  In December 2000, he was imprisoned for 18 months for property offences.

[10]  On 11 May 2000, the applicant was imprisoned for 12 months for an assault causing bodily harm.  This offence was committed eight days after the applicant was sentenced to an intensive correction order for unlawfully using a motor vehicle.  That offence was, in turn, committed within weeks of his release from a four month term for an earlier offence of unlawfully using a motor vehicle.

[11]  In September 1998, the applicant was gaoled for six months for property offences.

[12]  In 1995 he was convicted for an indecent act for which he was sentenced to six months’ probation.

The reasons for the sentence

[13]  At the hearing below, the Crown prosecutor submitted to the learned sentencing judge that the appropriate penalty for the indecent assault was 12 to 18 months’ imprisonment.  The learned sentencing judge did not accept that submission.  Her Honour did not consider that such a sentence would adequately reflect the seriousness of the offence.  Her Honour described the indecent assault as "quite bad … because it involves assaulting a woman in a public place".  Her Honour went on to say:

"It must have been incredibly distressing for her.  It wasn't momentary, as she resisted and you persisted.  So, that is a very serious offence, in my view."

[14]  The learned sentencing judge referred to the applicant's criminal history and to the failure of suspended sentences to deter the applicant from reoffending.

[15]  Counsel for the applicant referred to decisions of this Court to support a submission that a head sentence of two and a half years imprisonment is significantly in excess of the upper end of the range, which is of the order of 18 months[1] and that this offence did not warrant more than 12 months’ imprisonment.  It was further submitted that such a notional head sentence of 18 months would be moderated substantially to reflect the applicant's early pleas of guilty. Based on the approach of the learned sentencing judge of taking into account all of the applicant’s offending in fixing a global head sentence for the most serious offence of indecent assault, it was submitted that the global head sentence, before moderation, should not have exceeded 18 months.  As the application for leave to appeal the sentence was being heard after the applicant had served more than 15 months (taking into account all the pre-sentence custody), counsel for the applicant submitted that the sentence for indecent assault should be varied to time served.   

[16]  Counsel for the respondent relied on the decision of this Court in R v Brockfield[2] which confirmed a sentence of two years and three months’ imprisonment for an indecent assault to support the sentence imposed by the learned sentencing judge.  That was a much more serious assault than committed by the applicant.  It involved the offender tackling the complainant, struggling with her and causing a 4 cm scratch to her vagina, as he attempted to insert a finger into her vagina. 

[17]  Even allowing for the aggravating feature that the applicant committed the assault in a public place and persisted after the complainant tried to push him away and the applicant’s unenviable history of offending, the decisions cited on behalf of the applicant bear out the prosecutor’s submission before the learned sentencing judge that the range was 12 to 18 months’ imprisonment.  The applicant has therefore shown that the sentence of two and a half years was manifestly excessive.

[18]  Deterrence was an important factor in the sentencing of the applicant.  Adopting the approach of determining a global head sentence for the indecent assault to reflect the applicant’s overall criminality, a sentence of 18 months’ imprisonment is an appropriate starting point.  As the applicant’s history makes a suspended term of imprisonment unfeasible, the only way that that sentence can be moderated to reflect the matters of mitigation is by reduction in the head sentence.  The applicant should be sentenced for the indecent assault to a term of 15 months’ imprisonment.  Taking into account the pre-sentence custody, the applicant has passed the time where he is eligible for conditional release under s 76 of the Corrective Services Act 2000 (Qld).  That is a matter that can be dealt with by the application of that Act.     

Conclusion

[19] The following orders should be made:

1.Application for leave to appeal against sentence granted
2.Appeal allowed

3.Set aside the sentence imposed in the District Court at Ipswich on 21 February 2005 for the offence of indecent assault

4.In lieu of that sentence impose the sentence of 15 months’ imprisonment and pursuant to s 161 of the Penalties and Sentences Act 1992, declare that 240 days spent in pre-sentence custody from 27 June 2004 to 21 February 2005 be deemed time already served under the sentence.