R v Demmery[2005] QCA 462

SUPREME COURT OF QUEENSLAND

1. WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Jerrard JA and there is nothing I wish to add thereto.

2. JERRARD JA:  On 22 July 2005 Mr Demmery pleaded guilty in the District Court to a count alleging that on 14 November 2004 at Pomona he unlawfully and indecently assaulted one MK.  He was sentenced to two years imprisonment, to be suspended after he has served six months of that, with an operational period of two years within which he must not commit a criminal offence punishable by imprisonment to avoid being brought back and made to serve the balance of the sentence.  He applied for leave to appeal against that sentence on the ground that it is manifestly excessive; he was released on bail after serving 25 days of the sentence.  On 2 December 2005 his application and appeal were allowed, the head sentence reduced, and the sentence imposed was ordered to be suspended after the 25 days already served.  This Court undertook then to publish these reasons at a later date.

3. The circumstances of the offence were that MK, who was 16 years old, and Mr Demmery, who was then 27, had each independently gone to a 40^th birthday party in Pomona.  MK went there with her boyfriend.  Somewhere around 2.00 am he went off to sleep in his vehicle, while she remained awake and at the party.  Sometime later she recalled hearing Mr Demmery say to those present that he was going to the shops to get bread and other breakfast supplies, and since she wanted some cigarettes, she went with him.

4. She had consumed alcohol at the party and could recall that Mr Demmery’s behaviour during the drive was, in her opinion, “weird”, but recalls nothing else about the drive. She was oblivious to the subsequent commission by him of the indecent assault upon her, in the following circumstances.

5. Her boyfriend had woken up around 8.00 am and gone looking for her, and was told that she had last been seen drinking with Mr Demmery. Accordingly, the boyfriend searched for and located Mr Demmery’s green utility, and as the boyfriend approached he saw that Mr Demmery was in the back of it, naked and kneeling down facing the front. He then saw that Mr Demmery was in fact kneeling over the complainant, who was asleep, and whose skirt had been lifted up and her underwear pulled aside. Mr Demmery had an erection and the boyfriend could see fluid around the complainant’s vulva; her genitals and her anus were visible.

6. Mr Demmery said, perhaps unconvincingly, “Shit, it’s not what it looks like. I didn’t mean it”, before wiping what appeared to be semen off the back of the complainant’s thigh with his hand, and then pulling her underwear across and her skirt down. Later medical examination showed that the complainant’s genitalia was completely normal.

7. Mr Demmery pleaded guilty on the basis that he and MK had gotten into the back of the utility and lain down in it, after the return from the shops, kissed twice, and that she had then fallen sleep. He had pulled her underwear to the side and had then masturbated and ejaculated over her vulval area. She was asleep while he did that.

8. Mr Demmery had appeared in a criminal court once before, on 28 October 2003, when he was found guilty in the Brisbane Magistrates Court of an offence of soliciting for prostitution. No conviction was recorded. At the time of his sentence he was living with his parents, and employed with Australian Aerospace. Prior to that he had worked for seven years with the RAAF, training as an aircraft technician after he completed year 12 at school; after he qualified he remained with the RAAF for three years before moving to Australian Aerospace. He still lived with his parents, and had been unable until the day prior to being sentenced to tell his father what he had done. He could not tell his mother. His legal representative informed the learned judge that Mr Demmery had experienced great remorse for his behaviour.

9. The learned sentencing judge described the offence as another instance of a situation where a female in a very vulnerable situation had been taken advantage of for the self-gratification of a male, albeit by a person of generally good character and standing. That description is quite accurate, but the learned judge was not assisted by any reference to sentences imposed or approved by this Court in comparable situations.

10. In Marsh [1995] QCA 99, that applicant had pleaded guilty to one count of indecent assault with a circumstance of aggravation.  He was sentenced to two years imprisonment with a recommendation for parole after nine months.  He had gone to sleep in a unit in which he was a guest, and had subsequently performed cunnilingus on a female occupant who had gone to bed in her room while still fully clothed.  She had awoken when she felt her underwear being pulled, and became aware of what that applicant was doing.  He was aged 35, with a variety of prior convictions; two counts of stealing, one of unlawful assault, one of having goods in custody, one of wilful and unlawful destruction of property, one of possession of stolen property, some driving offences, one offence relating to a prohibited plant, and a breach of a domestic violence restraining order.  He also had a conviction nine years earlier for behaving in an indecent manner.  He did have a good work record.

11. The circumstance of aggravation to which that applicant pleaded guilty would have been the one then provided for in s 337(2)(b) of the Criminal Code, prior to that section being amended by Act No 3 of 1997 (the section was subsequently repealed by Act No 43 of 2000).  As in force in 1995, s 337(2)(b) provided for a maximum term of imprisonment of 14 years where an unlawful and indecent assault consisted wholly or in part in bringing into contact any part of the mouth (of the offender) with any part of the genitalia (of the victim).  Mr Demmery’s offence against s 352 of the Code, inserted by Act No 43 of 2000, carried a maximum penalty of 10 years imprisonment.

12. In Marsh, this Court held that the sentence imposed on that offender, who faced a higher maximum penalty and who had a considerably more significant record of prior court appearances, was manifestly excessive.  It set aside the two year term with the parole recommendation, and substituted a sentence of four months imprisonment.  That sentence was settled upon because it would result in that applicant’s almost immediate release.  

13. In R v Hill [1995] QCA 450 that applicant had a sentence of 18 months imprisonment with a recommendation for consideration for release on parole after six months reduced by this Court to a sentence of 12 months imprisonment suspended after three months, with an operational period of two years.  Mr Hill had been convicted of the indecent assault of a 10 year old girl, meaning that that was an indecent assault with a circumstance of aggravation.  He was extremely drunk when the offence was committed, and had no relevant previous convictions of a similar nature, but did have a number of drug related offences.  He pleaded guilty.

14. The circumstances of the offence were that he had attended a barbeque, and was one of a number of people who stayed the night at the host’s residence. He ended up sleeping in the same bedroom as the 10 year old complainant, who awoke during the night and felt him pulling down her pants and then licking her anus. After that he rubbed his penis against her buttocks for about five minutes, until a loud noise caused him to go back to his bed. Some minutes later he returned to the child’s bed and placed his hand under her shorts, and again onto her buttocks; she swiped his hand away and then went to another adult and complained. The circumstance of aggravation that the victim was a child makes his offending worse than Mr Demmery’s.

15. In R v Hatch [1999] QCA 495 this Court dismissed an application for leave to appeal from an 18 months sentence imposed after a trial for a conviction for unlawful and indecent assault.  That applicant was 25 years old when he offended, by assaulting that complainant in her bedroom in a flat in which that applicant was a visitor, allowed to sleep in a different bedroom.  The complainant in that case woke up to find the applicant on top of her, and despite her protests he inserted a finger or fingers inside her vagina, and then forcibly groped her breast, despite more complaints by her.  Before he left the premises he said “If I want to sleep with you I will sleep with you.  If I want to fuck with you I will deal with it.”   At the trial he set up an alibi which the jury rejected.  He gave evidence in support of it, which he conceded to be false, and the trial judge referred the papers to the Attorney-General. 

16. That applicant had plainly demonstrated no remorse at the time of the commission of the offence, nor by the time of the trial. It is not quite clear from the remarks of this Court in Hatch, when dismissing his application, whether the offence he committed carried a maximum penalty of life imprisonment because it included digital penetration of the vagina (s 337(3)(a) imposed that penalty at the relevant time for offences committed after 1 July 1997).  Whether or not that applicant faced a significantly more severe maximum penalty than Mr Demmery did, the sentence Mr Demmery received was considerably longer than that applicant’s, and Mr Demmery’s sentence appears excessive compared to that imposed in each of Hatch and Marsh.

17. In R v J [2002] QCA 48 this Court upheld, as not out of line with authority, a sentence of 12 months imprisonment to be suspended after that applicant had served four months, with an operational period of two years, imposed for an offence of indecent assault to which that applicant pleaded guilty.  The circumstances were that J and the complainant were aged about 32, and had previously had a de facto relationship.  After it broke up, and when he was attempting to persuade her to reconcile with him, he visited her home – not at her invitation – at night, and she let him in.  There was a conversation then in which he asked her for a second chance, which was refused, and then for sex, which was refused; he then assaulted her, clearly enough with the intention of committing rape.  He succeeded in forcing her onto a bed and removing her underwear, and achieving contact between the outside of her vulva and his penis.  Eventually he masturbated himself until ejaculation.  He had a prior criminal history that did not include any offences of sexual assault.  I respectfully observe that that sentence was consistent with the earlier decisions of this Court described herein. 

18. In R v Harper [2002] QCA 107 this Court dismissed an application for leave to appeal against a head sentence of 12 months imprisonment, imposed after pleas of guilty to six separate counts of sexual assault.  That applicant was 32 years old with a minor criminal history for offences of stealing and possession of a dangerous drug prior to his commission of the offences of assault.  He had been educated to year 12 and had a reasonable employment history.

19. Four of the offences of assault were committed against two 18 year old female employees at a hotel, each of whom was “groped” by that applicant when the respective complainants were collecting glasses from the public area of the hotel. The applicant’s modus operandi was to approach the complainants from behind and place his hand on either an upper thigh or the complainant’s vulval area.

20. Another offence, committed a month later, involved that applicant masturbating himself in the presence of a nine year old female child, when in a garage on a farm which he was visiting. He and the child were facing each other and it appears that his penis was exposed to the child’s view. Six days later he committed his sixth offence, when he stood behind an 18 year old female in the same hotel in which he had committed the first four assaults, trapping that complainant between himself and a machine, with his hand inside his shorts and apparently masturbating. This Court noted that the offence involving the nine year old girl carried a 14 year maximum penalty, and was the most serious of the offences, and held that while the 12 months imprisonment imposed was arguably towards the top of the range, it sufficiently reflected the early plea of guilty. That applicant’s conduct was certainly more persistent than Mr Demmery’s, and the latter’s sentence appears excessive compared to Mr Harper’s.

21. In R v Keevers; R v Filewood [2004] QCA 207 those two appellants were convicted after a trial, Keevers of unlawful and indecent assault, and Filewood of rape.  Both appealed their conviction.  Keevers had been sentenced for the unlawful and indecent assault to 12 months imprisonment, suspended after 21 days for an operational period of 18 months; his application for leave to appeal against that sentence was allowed because of the view held by this Court that there was no utility in requiring a comparatively young first offender (Mr Keevers was 23) to return to custody to serve a further two weeks imprisonment (he had served seven days before getting bail).  The Crown had submitted on his application that the term of imprisonment should have been fully suspended, and this Court accepted that submission.

22. In that matter the two appellants had sexually abused the complainant while she was sleeping next to her boyfriend in a unit which her boyfriend shared with Mr Keevers. His indecent assault consisted in his fondling the complainant’s breasts. Mr Filewood’s act of rape consists of digital penetration of the complainant’s vagina. His application for leave to appeal against his sentence, of two and a half years imprisonment suspended after nine months for an operational period of three years, was dismissed. The complainant was found on medical examination to have suffered tears at the back of her vulva, a graze on a hymeneal remnant, and a tear on the perineum. Quite significant force would have been necessary to produce the tears at the back of the vulva, and when dismissing Mr Filewood’s application for leave to appeal his sentence, the Chief Justice described Mr Filewood’s rape as involving substantial digital force committed upon a sleeping woman in her own bed; and the conviction followed a trial. Mr Filewood’s conduct in offending was considerably more serious than Mr Demmery’s, and Mr Demmery pleaded guilty. Those circumstances strongly suggest that there should have been a much greater difference in the sentences imposed on each.

23. Finally, there is the matter of R v Murray [2005] QCA 188.  That applicant pleaded guilty to one count of stealing, one of indecent assault, and one of committing a public nuisance.  He was sentenced to 12 months imprisonment for stealing and two and a half years imprisonment, with a recommendation for consideration for post-prison community based release after serving nine months, on the indecent assault charge.  He was convicted but not further punished in relation to the commission of a public nuisance.  Various periods of pre-sentence custody were directed to be taken into account.

24. His stealing offence was committed on 18 February 2004, when he stole $100 from a young woman whom he had approached and asked for money. He was arrested soon after, and held in custody for four months. The indecent assault offence was committed nine days after his release, when he approached a woman in a street in Ipswich when intoxicated, and rubbed his hand against her vulva on the outside of her jeans. When she attempted to force his hand away, he pushed her vulva quite forcefully, and then squeezed her left breast, also quite forcibly. He had a lengthy criminal history, and the offences of stealing and indecent assault were each committed in breach of a two year probation order, as well as in breach of a three month suspended sentence, both imposed on 10 September 2003 for burglary, breaking and entering, and drug offences.

25. This Court accepted that decisions cited on that applicant’s behalf bore out the prosecutor’s submission made to the learned sentencing judge, that the range of sentence appropriate for the offence of indecent assault was 12 to 18 months imprisonment. This Court referred to R v J [2002] QCA 48, R v Harper [2002] QCA 107, and R v AQ [2003] QCA 479.  Because of the necessity to determine a global head sentence this Court considered that a sentence of 18 months imprisonment was an appropriate starting point for the indecent assault, but that should be reduced to a 15 months head sentence because of the futility of suspending a term of imprisonment for that particular applicant.  Accordingly, the sentence for the offence of indecent assault was set aside and a sentence of 15 months imprisonment imposed, accompanied by a declaration that 240 days in pre-sentence custody was time already served.  That offence involved a fully alert complainant, as did the indecent assaults committed in Harper, but that circumstance does not explain why the appropriate range was 12 to 18 months imprisonment in Murray but significantly higher in this matter. 

26. On this appeal counsel for the Director submitted that the appropriate range for a head sentence was 12 to 18 months imprisonment, and I respectfully agree. He also submitted it would have been appropriate for the learned sentencing judge to suspend either the whole of that sentence, or most of it, after up to four months had been served; and did not oppose the applicant’s request that it be suspended after serving 25 days. That concession was made expressly because of concern at returning to jail a person with a good prior history.

27. By comparison with the cases cited, the sentence imposed on Mr Demmery was manifestly excessive. That sentence was set aside on 2 December 2005 and a sentence of 12 months imprisonment ordered, suspended after Mr Demmery had served 25 days, with an operational period of 12 months within which Mr Demmery must not commit an offence punishable by imprisonment to avoid being dealt with under s 146 of the Penalties and Sentences Act 1992 (Qld).  The 25 days served before bail was granted was declared time served under the sentence.

28. CHESTERMAN J:  I agree with Jerrard JA.