R v Cosh[2007] QCA 156

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  The applicant was charged with 11 offences on one indictment, namely torture (count 1), deprivation of liberty (count 2), two counts of assault occasioning bodily harm (counts 3 and 4), one count of rape involving penile penetration (count 5), one count of rape involving penetration with the tongue (count 6), one count of rape involving digital penetration (count 7), one count of rape involving fellatio (count 8), one count of attempted anal rape (count 9) and a further count of rape involving penile penetration (count 11).  A further count of rape (count 10) was withdrawn by the prosecutor during the trial. 

The applicant pleaded not guilty to all counts on 8 August 2006.  After a five day trial he was found not guilty on counts 1, 4, 7, 9 and 11 and guilty on the remaining counts, counts 2, 3, 5, 6 and 8.

The learned primary judge ordered that a pre-sentence report be prepared to include a psychological and/or psychiatric assessment and adjourned the sentence for that purpose, remanding the applicant in custody.  He initially appealed against his conviction but has recently abandoned that appeal. 

On 26 March 2006 he was sentenced on the rapes (counts 5, 6 and 8) to 12 years imprisonment and two lesser concurrent terms of imprisonment on counts 2 and 3.  Six hundred and fifty-seven days of pre-sentence custody was declared as time served.  The Judge also made a non-contact order under s 43C Penalties and Sentences Act 1992 (Qld) ("the Act"), preventing the applicant from having contact with the complainant for two years after he has served those sentences.

The sentences imposed on counts 5, 6 and 8 had the effect that they were serious violent offences under Pt 9A of the Act and his Honour so declared them to be.

The applicant contends that the sentences imposed on counts 5, 6 and 8, 12 years imprisonment, were manifestly excessive.

The applicant was 38 at the time of the offences and 40 at sentence.  He has an extensive criminal history.  It commenced in 1983 when he was convicted as a child for property offences.  He was convicted of further property offences as an adult in 1983 and 1984 and sentenced to non-custodial orders.  In 1985 he was convicted of further property offences and sentenced to four months imprisonment.  Later that year he was sentenced to further terms of cumulative imprisonment for property offences.  In 1986 he was convicted of traffic and driving offences and unlawful use of a motor vehicle and sentenced to six months imprisonment followed by three years probation.  He committed further, apparently relatively minor property offences for which he was sentenced to non-custodial sentences in 1998 and 1990.  In 1989 and 1992 he was convicted and sentenced to community based orders for offences of assault occasioning bodily harm.  In 1995 and 1997 he was sentenced to short terms or suspended terms of imprisonment for break and entering and house breaking offences.  In 1998 he was convicted of wilful damage and assault occasioning bodily harm and with breaching a suspended sentence order.  He was sentenced to three months imprisonment, ordered to pay compensation and restitution and the operative period of the suspended sentence was extended.   He was convicted and fined for drug offences in 1999.  In 2000 he was convicted of further break and enter offences and sentenced to nine years imprisonment suspended for two years.  In 2003 he was convicted and sentenced to one months imprisonment for breach of a domestic violence order.  He was also sentenced for breaches of the Bail Act 1980 (Qld) and for common assault.  He was sentenced for another count of common assault on 3 June 2004 to the rising of the court.  On 12 August 2004 he was convicted and sentenced to 104 days imprisonment followed by 18 months probation for an assault occasioning bodily harm and common assault.  He was therefore on probation for those offences of violence at the time of the present offences before this Court.  On 9 September 2005 he was convicted and sentenced to one months imprisonment for wilful damage. 

Sprinkled throughout his criminal history are convictions for breaching many of the community based orders to which he was sentenced.  All that can be said in his favour in respect of his criminal history is that he had no prior convictions for sexual offences.

The respondent rightly points out that the applicant has six prior appearances before Courts where he was dealt with for offences of assault and four breaches of domestic violence orders and notes that he had been sentenced to actual imprisonment on about 11 occasions and that he was on probation for offences of violence at the time he committed these offences.

The applicant met the female complainant about six months prior to the commission of the offences.  During the afternoon of 30 April 2005 she saw him at the Melbourne Hotel at West End where she was drinking with friends and said hello to him.  During the afternoon she became intoxicated and the bar staff refused to serve her.  She agreed to his suggestion to have dinner.  They went to the Boundary Hotel where they drank together for about an hour.  She believed they were leaving the hotel to go to a nearby Chinese restaurant but her next recollection is them arriving at his one-room flat on Hampstead Road, Highgate Hill.

The applicant opened some sparkling wine which had been bought along the way.  The complainant drank some.  They conversed for about half an hour.  When the subject turned to the applicant's ex-girlfriend he became agitated and suddenly turned and punched her in the head with a number of blows.  This constituted count 3.

She started to cry.  He told her to stop snivelling.  She noticed blood on her hand which had apparently come from her nose.  She said she wanted to go home.  He replied, "You're not going anywhere.  Shut the fuck up and lay down.  Just take your clothes off."  She was terrified and complied.  He threw her clothes across the room.  She covered herself with a sheet.  She said she needed to go to the toilet.  He grabbed her by the back of her hair and walked her down a corridor and a flight of stairs.  He thrust her into the bathroom.  Her nose bled profusely on to the toilet seat.  She stated the obvious, "There's blood everywhere."  He dragged her to the basin, turned the tap on and splashed water on to her face.  She was sobbing loudly and screaming at him.  He began to hit her again.  When she had finished in the toilet he made an effort to clean up the blood.  She attempted to escape but he held her around the waist and prevented it.  He then grabbed her hair and marched her back up the stairs.  She tripped onto her knee.  She was hysterical and shouting.  He forced her back to the flat where he pushed her on to the bed and told her to lie down.  She sat on the bed.  He came back from the kitchen with a knife which he held to her throat and moved it back and forth.  He said, "I'll cut you up so badly you'll wish you never came here."  She was by this time, understandably, sobbing and hysterical.  He removed his clothes and got into bed with her, lay on top of her and penetrated her vagina with his penis, count 5. 

When he withdrew he told her, "You don't say anything."  Ten minutes later he began to fondle and caress her breasts and vagina with his hands and lips penetrating her vagina with his tongue, count 6.

After about 10 minutes he pushed her head on to his penis and told her to suck it.  She resisted because her mouth was sore.  He kept pushing her and compelled her to perform oral sex on him.  He did not ejaculate.  This episode went on for no more than 10 minutes, count 8.

After a while she again asked to be allowed to go home.  He replied, "No.  You need to get some sleep and go home in the morning."  He gave her Panamax tablets for pain.  She was too frightened to move because she feared he would hit her again.  In the morning he continued to refuse to let her leave.  This repeated refusal to allow her to leave constituted count 2. 

He said, "I think I hit you too hard.  You used to be pretty." 

He stripped the bed linen from the bed because it had blood on it.  He arranged for another person to call a taxi for her.  She discovered she did not have money in her purse.  He offered her some but she refused.  He asked her if she wanted to go to hospital.  She said she wanted to go home.  He asked her to call him when she got home otherwise he would come around.  She did not have his phone number and he did not know her address.  She went to a friend's place where she made a complaint.  Friends took her to hospital and the police were contacted.

The applicant was interviewed by police on the evening of 1 May 2005.  He denied acting improperly and claimed that she had arrived at his home already assaulted or injured in some way, apparently by another person.  He then cared for her and cleaned her up.  She did not want to go to hospital.  He gave her some Panamax and they lay down and kissed and cuddled.  He finally conceded that he had had sex with her in the form of vaginal intercourse, performing oral sex on her and receiving fellatio from her. 

Clearly the jury rejected his version of events in respect of the offences of which he was convicted.

A victim impact statement was tendered at sentence.  The complainant stated that she has been unable to work as she did before the offences were committed.  She suffers from panic attacks and is prescribed sleeping tablets and anti-depressants.  She has scars and lumps on her face and some of her teeth have been dislodged and become loose.  Her nose was broken in the attack and she was at sentence waiting to have corrective surgery.  She has been diagnosed as suffering post-traumatic stress disorder.  During the offences she, understandably, feared that she would be murdered.  The offences have had a dramatic detrimental impact on her life.

Photographs that were tendered at the trial have been viewed by this Court and they demonstrate the viciousness of the physical attack upon her.

The pre-sentence report prepared by psychologist Janine McEvoy suggested a likelihood of recidivism on the applicant's part and referred to his lack of insight into his offending and his lack of remorse.

After referring to cases including R v S [1997] QCA 287 and R v Rankmore; ex parte A-G (Qld) [2002] QCA 492, the prosecutor at sentence submitted that a sentence of 12 years imprisonment was the appropriate penalty. 

Defence counsel at sentence sought to distinguish those cases.  He emphasised that the applicant had no prior convictions for sexual offences.  Whilst on remand he had taken part in appropriate courses in the prison so that he had some prospects of rehabilitation.  He submitted that a sentence of less than 10 years imprisonment was warranted without a declaration under Pt 9A of the Act.

The learned sentencing judge determined on the balance of probabilities that the applicant did use a knife in the way described by the complainant in her evidence.  On any view, he noted, she would have been terrified.  The offences were violent assaults upon the complainant and in many ways constituted degrading conduct, compounded by holding her captive well past the time when the last of those offences was committed.  The initial blows he rained upon her were powerful and designed to ensure she submitted to his will.  His Honour referred to the photographic exhibits which demonstrated the enormity of her physical injuries caused by the applicant to the complainant that night.  His Honour considered that the appropriate range was between 10 and 12 years imprisonment.  Having regard to the pre-sentence reports prepared for the court, the judge considered the applicant had little insight into the consequences of his actions and that he may be a significant risk to members of the community when released.  It was therefore appropriate to impose a sentence at the higher end of the range taking into account the need to protect the public.  The applicant had no prior convictions for sexual offences but he had convictions for assaulting a female and for other offences of violence.  The applicant was now a mature man who could no longer expect mitigation for his unhappy dysfunctional childhood.  His Honour noted the applicant's attempts at rehabilitation whilst in custody and also that he had committed a further offence whilst in custody which was recorded in the pre-sentence reports.

The applicant, who appears for himself in this application, contends that lesser sentences have been imposed on others for more serious offences but he was unable to refer us to any particular comparable sentences to support that claim.

He also referred to some matters in the pre-sentence report which he stated were errors but it does not seem that these were of any particular consequence and do not seem to have been matters actively relied on by the sentencing judge in determining the penalty.

The offences the applicant committed were serious examples of deprivation of liberty, assault occasioning bodily harm and rape.  The complainant was seriously physically hurt.  She was also threatened with a knife.  She was, understandably, terrified and feared for her life.  These offences have had long-term detrimental consequences for her.  The applicant was a mature man.  He showed no remorse.  He did not have the benefit of co-operation with the administration of justice.  He had a lengthy criminal history and although it does not contain convictions for sexual offences, it does contain convictions for offences of violence, including offences of violence against women, and shows a prolonged disregard for others, their property and for authority.  Indeed, he was on probation at the time he committed these serious offences.  The reports ordered by the court to assist in the sentencing process do not suggest he has promising prospects of rehabilitation.  To the contrary, they suggest that he may present a real risk of recidivism and lacks insight into his offending.

Whilst there are obvious differences between the present series of offences committed by this applicant and the comparable cases of 'S' and Rankmore, those cases do show that the learned sentencing judge was correct in stating that the appropriate range here was between 10 to 12 years imprisonment.  The judge was also correct in imposing a sentence at the higher end of that range.  It was not manifestly excessive.

The application for leave to appeal against sentence should, in my view, be refused.

FRYBERG J:  I agree.

PHILIPPIDES J:  I also agree.

THE PRESIDENT:  The order is the application for leave to appeal against sentence is refused.