R v LU[2007] QCA 62

SUPREME COURT OF QUEENSLAND

JERRARD JA:  On the 9th of November 2006, LU pleaded guilty to one count of unlawful and indecent assault, and one of unlawful assault doing bodily harm.  Those offences were committed on 25 October 1997, and the victim was his then 16 year old stepdaughter.  Mr LU was sentenced to six years imprisonment for each offence, to be served concurrently, and the learned sentencing Judge fixed a parole eligibility date of 8 November 2008. 

Mr LU has applied for leave to appeal against each sentence contending each is manifestly excessive.  Both those offences provided for in s 337(1)(a) and s 339(1) of the Criminal Code respectively, carried a maximum of 10 years imprisonment as at October 1997.

The circumstances of the two offences were that, as at 24 October 1997, Mr LU had been in a de facto relationship with the complainant's mother for a period of approximately 11 years, and the family, then consisting of Mr LU, the complainant's mother, the complainant and her three brothers, were all staying at a motel in Cairns.

The complainant went to bed at about 9.45 that night, and Mr LU went to bed in the room he shared with the complainant's mother at about 10.30.  The complainant's mother went to bed herself a little later, and Mr LU was already asleep.

In the early hours of the next morning, the complainant awoke in the room in which she was sleeping by herself to find that the bedroom light was on and that Mr LU was sitting astride her thighs, and that his penis, which was in a flaccid condition, was hanging over the front of his shorts.  She was lying on her back and he was facing her with his legs on either side of her, and his hands between her legs with his palms down.

She found that she was unable to move, and she opened her mouth to scream, and on seeing that, Mr LU quickly placed one hand over her mouth, effectively preventing her screaming.  A struggle ensued, and, again, she found she could barely move.

Mr LU was also obstructing her nostrils by squeezing them together, and she fought to breathe.  Mr LU then put a pillow over her face and held it down with both hands.  She could not get air, and almost passed out, but continued to struggle and fell on to the floor.  Mr LU also fell off the bed, and he then forcibly pushed her head onto the floor.

She managed to inhale some air, and screamed out to her mother, and Mr LU then put his finger in her mouth in an apparent attempt to silence her.  She bit his finger and continued to resist, calling out, still, to her mother.  Mr LU removed his finger from her mouth, let her go, and ran out of the room.  He left the resort, driving away in the complainant's mother's car, and simply never returned to the family.  He was finally apprehended in April 2004, some six and a half years later.  The complainant's family had, in the meantime, left Australia for New Zealand, because the complainant, particularly, feared Mr LU's possible return.

There were some disturbing matters found in the room and bed in which the complainant was attacked.  A t-shirt had apparently been intentionally rolled up and placed against the door, perhaps to muffle sound, or to restrict access to the room.  A red coloured rope had been tied around the bed, in the middle, and that would have helped restrain the complainant.  That rope had last been seen in Mr LU's motor vehicle, and he had obviously brought it into the room and tied it around the bed.

The complainant was taken to the Cairns Base Hospital, where minor injuries were identified, including scratches to each cheek and some bruising and superficial lacerations to her lip.  She also had a graze to the left side of her face near the eye.

Mr LU had left behind his driving licence, his credit cards, and Medicare card details, and was seen again, only once, and, fleetingly, by the family.  His counsel informed the learned sentencing Judge that Mr LU was "a heavy drug user" at the time of the offences and that he had no recollection of the events at all.  Counsel also told the learned Judge that Mr LU was in, what Mr LU called, a destructive relationship with the complainant's mother, and that Mr LU complained that he was physically assaulted by her.  For that reason, Mr LU said, he was using whatever drugs he could obtain.

His counsel added that Mr LU had been living at Airlie Beach and working as a fisherman out of Bowen since 1999, and had had to undergo numerous checks with respect to his vessel and his licences in that period.  It was only in April of 2004 that one routine check revealed that there was an outstanding warrant for his arrest taken out in 1999.  Counsel also informed the sentencing Judge that Mr LU had injured his back in a work related accident in September of 2005, and had been married for the last four years.

Mr LU had a short record of prior convictions, which included one for stealing in May of 1986; some minor drug offences in that same year; a conviction for aggravated assault of a female, and for unlawful assault committed in January of 1987; a conviction for stealing in 1991; and another drug offence committed in August of 2004.

His plea of guilty was entered only after the complainant had travelled from New Zealand to give evidence, and the victim impact statement that was presented to the Court disclosed that the assaults had had a significant effect on her and on the other family members.  She had been too frightened to remain living in Australia, and, for that reason, had moved to New Zealand with the family, a country with which the family was not in the least familiar.  Her brothers had had to leave their schools and school friends in Australia behind, and the family had been in continually poor financial circumstances in New Zealand.  The complainant describes herself as having had a difficulty with relationships as an adult woman, and said that she still slept with the light on and the door open.

Mr LU's counsel particularly relied on the decisions of this Court in R v Murray [2005] QCA 188, and R v Demmery [2005] QCA 462.  In the latter case the judgment of the Court quotes from the decision in R v Murray, and, from the prosecutor's submission made to the learned sentencing Judge in that matter, namely, that the range of sentence appropriate for the offence of indecent assault was between 12 to 18 months' imprisonment. 

In R v Demmery, counsel for the Director had submitted for the same range as a head sentence.  The offender in Demmery had pulled aside the underwear of a sleeping female, masturbated, and ejaculated over her vulval area while she remained asleep.  The learned sentencing Judge in that matter had described the offence as another incident or example 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.

In Demmery, this Court considered that a number of other cases where male offenders had engaged in sexual acts with sleeping females; namely, R v Marsh [1995] QCA 99;  R v Hill [1995] QCA 450;  R v Hatch [1999] QCA 495;  and R v Keevers; R v Filewood [2004] QCA 207 and, also, other examples of unlawful and indecent assault on wide awake complainants, such as R v Murray [2005] QCA 188, and R v Harper [2002] QCA 107.  The general level of sentence established by those decisions was well below the sentence that was imposed in this matter.

This case, however, does have some aggravating features, which were identified by the learned sentencing Judge.  They include that a rope had been tied around the bed, and a shirt placed near the door, indicating a degree of pre-meditation, and a plan to overcome expected resistance, just as Mr LU did in fact attempt to do.  It is important, however, that Mr LU be sentenced for the offences he admitted by his pleas, not those he may have intended to commit, but of which he was not convicted.

That said, his conduct was a gross breach of trust in his role as a stepfather, and it had involved quite determined violence to overcome resistance.  He had shown no remorse, waiting to see if the complainant came to Australia for the trial before finally pleading guilty.  Additionally, his conduct had caused significant financial and psychological consequences for the victim and for the rest of the family, all of whom, he essentially abandoned.

Even with those aggravating features, the sentence imposed does appear manifestly excessive, and it reflects a level of sentence which might have been considered if Mr LU had been convicted of attempting to rape the complainant.

I note that the Director referred this Court on the appeal to a sentence of five years imprisonment, upheld in a matter of R v Biddle CA No 137 of 1990, 25 March 1991.  That offender was convicted after a trial of the attempted rape of a comatose 13 year old who was severely adversely affected by alcohol.  He had hit his victim, and so, also used some violence, and that offender had a long criminal history.

In the circumstances, in this case, I would allow the application in the appeal, set aside the sentence imposed, and order instead that Mr LU be sentenced to three and a half years imprisonment, with a parole eligibility date of 8 January 2008.

THE PRESIDENT:  I agree.  I would emphasise that, in my view, the especially aggravating feature in this case is that the applicant had been the 16 year old complainant's stepfather for most of her life.  His premeditated, bizarre violent sexual attack on her has understandably caused her long term emotional distress, and, also, has caused financial and emotional distress to her family.  Fortunately, her physical injuries were relatively minor.

The applicant should, however, be given credit for his late plea of guilty, and that his previous and subsequent behaviour suggests his commission of this serious offence was out of character and an aberration.

For the reasons given by Justice Jerrard - the sentence of six years was manifestly excessive, and that which Justice Jerrard now proposes to substitute, adequately balances the competing considerations.  I agree with the order proposed by Justice Jerrard.

KEANE JA:  I agree with the reasons of the President and Justice Jerrard and with the order proposed by Justice Jerrard.

THE PRESIDENT:  The orders are as proposed.  Thank you.