R v Gogouk[2006] QCA 320

SUPREME COURT OF QUEENSLAND

McPHERSON JA:  I will ask Justice Wilson to deliver her reasons in this matter.

WILSON J:  On 27 April 2006 a jury found the applicant guilty of rape.  The next day he was sentenced to a term of imprisonment of six years seven months with a declaration that he had committed a serious violent offence.  He seeks leave to appeal against that sentence on the ground that it is manifestly excessive.

The offence was committed at about 10 p.m. one Wednesday evening in the Queen Street Mall.  The complainant, a young woman aged 19, had been at a nightclub, The Basement, in the Wintergarden complex which fronts the mall.  After spending time there with other young people, talking, drinking and listening to music, she was feeling a little tired and sick and so she went out on to the mall for some air.  She lay down on a bench positioned in the centre of the mall and fell asleep.  When she woke up she was lying on her back and the applicant was sitting on top of her with a leg on either side of her. She felt something in her vagina.  The applicant then got up and moved away.  By its verdict, the jury accepted that the applicant had inserted his penis into her vagina to some extent. 

The applicant was born in Sudan and was aged about 26 at the time of the offence.  His parents were both killed in the civil war there - his father before he was born and his mother when he was about five years old.  The applicant grew up mostly as an orphan at the mercy of his carers.  He suffered physical abuse and deprivation and from an early age was witness to terrible violence. He was first recruited into an army at the age of 12 and over the ensuing years he worked as a labourer until he was captured and tried and convicted as a traitor and sentenced to death.  He escaped to Kenya where he remained in a refugee camp before coming to Australia with his brother in 2003 when he was 25.

In Australia he lived in hostels and was unable to find work.  He was illiterate, had limited English skills, and no occupational skills.  He abused drugs and alcohol and became involved in minor offending before committing this offence on 27 October 2004.  In the opinion of Dr William Kingswell, a forensic psychiatrist, he was suffering post traumatic stress disorder at the time of the offence.

The sentencing Judge said:

"I consider that an appropriate period of imprisonment which reflects both the seriousness of the offence on the one hand, but on the other hand your particularly difficult personal background, and the lack of violence other than the act of rape itself, to be eight years. 

I make a declaration of serious violent offending.  I do so in view of the location and nature of the crime and the matters disclosed in the report of Dr Kingswell." 

The third matter on which her Honour relied was apparently something that the applicant said to Dr Kingswell, namely, "Maybe I was on top of her but I didn't fuck her." 

Her Honour then noted that the applicant had served 519 days, that is 17 months, in pre-sentence custody which could not be declared time served under the sentence because it was not solely attributable to this offence.  She reduced the eight years for that period of 17 months and ordered imprisonment for six years and seven months with a serious violent offence declaration. 

The effect of the declaration was to fix the point at which the applicant would first become eligible to apply for post prison community based release at 80 percent of the term of imprisonment, as opposed to the halfway point which would apply in the absence of such a declaration. 

On the hearing of this application it was common ground that her Honour made an arithmetical error.  In order to achieve the outcome she intended, that is, that he would serve 80 percent of eight years, she ought to have imposed a term of six years and five months with the declaration.

Rape is one of the offences which the Legislature has classified as a serious violent offence.  See section 161A of the Penalties and Sentences Act and the schedule to that Act.  In the case of an offence in relation to which such a declaration might be made, the making of a declaration is a component part of the sentence.  So the Court has to look at the question of whether eight years with the declaration was manifestly excessive.

Counsel for the respondent referred to the three matters upon which the sentencing Judge had relied.  So far as the location of the crime was concerned, he submitted that the fact the crime had been committed in a public place showed just how dangerous this applicant is to the public.  As to the nature of the crime, he submitted that the applicant had penetrated an orifice of the complainant's body with attendant risks of pregnancy and sexually transmitted disease, and that he had taken advantage of a vulnerable woman who was intoxicated. He submitted that those were matters warranting the declaration of a serious violent offence.  He did not make any submissions in support of the third matter (what the applicant had said to Dr Kingswell) being supportive of such a declaration.

The crime was opportunistic and brazen.  The applicant was drunk.  He shamelessly violated a vulnerable young woman in full public view.  In fact he was suffering from syphilis although medical tests showed that this was not transmitted to the complainant.  Abhorrent as the crime was, it did not involve physical violence, actual or threatened, apart from the rape itself.

In R v Q [2003] QCA 421 a jury found the appellant guilty of entering the dwelling of a young woman backpacker in the night with intent to commit an indictable offence, namely stealing, and the rape of the young woman.  Early in the morning she woke to find the appellant, who was aged 40, having sexual intercourse with her.  There was no accompanying force or violence.  He was sentenced to four years imprisonment for the burglary and eight years for the rape.  The sentences were ordered to be served concurrently but cumulatively upon six other sentences imposed at the same time for burglaries in the same area.  The sentencing Judge also activated some suspended sentences but allowed the appellant to serve the activated terms concurrently with his other sentences.

He appealed against conviction and sentence unsuccessfully. Justice Helman, who delivered the principal judgment, noted that the appellant was a persistent predator on those occupying cheap tourist accommodation in the area and concluded there was no merit in the sentence appeal.  There was no declaration of the commission of a serious violent offence in Q's case. 

In my view, the facts of this case, while dreadful, are not quite as bad as those in R v Q and I can see no warrant for imposing eight years and a declaration.  Counsel for the applicant conceded that eight years without a declaration was an appropriate starting point for the sentence. 

I have come to the conclusion that the sentencing Judge imposed a sentence which was manifestly excessive. 

It falls to this Court to re-sentence the applicant.  In doing so, it must apply the provisions of the Penalties and Sentences Act as amended by the Corrective Services Act 2006 which commenced to operate at the beginning of this week.  Under section 160D of the Penalties and Sentences Act this Court may fix the date on which he is eligible for parole.  If it does not do so, he will be eligible after serving 50 percent of the sentence:  Corrective Services Act section 184.  The period the applicant has served in custody pending determination of the appeal will count as part of any term this Court imposes:  Criminal Code section 671G subsection (2).

I think this Court should impose a sentence which achieves the effect of the applicant being eligible for parole after serving half of eight years.  When I say "after serving" I am referring to time actually served.  That is, I mean to include the 17 months in custody before the original sentence was imposed. 

Thus, I would grant the application for leave to appeal, set aside the sentence and in lieu thereof impose a term of six years and fix the parole eligibility date as 28 November 2008.

McPHERSON JA:  I agree.

HOLMES JA:  I agree.