SUPREME COURT OF QUEENSLAND

[1]  HOLMES JA:  The appellant appeals against convictions on counts of burglary, rape and stealing, although he entered pleas of guilty to them.  He maintains that those pleas were not freely entered because his lawyers misled him as to the prosecution evidence and refused to obtain other evidence he thought relevant.  He also seeks leave to appeal against concurrent sentences of imprisonment imposed on the three counts, the longest of which was 14 years, for the rape.

The offences

[2] In the early hours of 6 August 1999 an intruder broke into the house of an elderly woman who lived alone at Ipswich, and woke her at knife point.  He took the woman by the throat and restricted her breathing; when she tried to fight him off he punched her in the eye with a closed fist and proceeded to choke her again.  He repeatedly raped her anally, about five times in total, and forced her to perform oral sex on him.  As he was leaving he took the money she had in her purse and threatened to come back if she rang the police.

The investigation

[3] The victim did telephone police and was taken to hospital where she was examined and found to have bruising to her right eye, right cheek, left arm and hand and fissures, bruising and bleeding in the anal area, consistent with penetration.  Various items, including clothing, the knife used in the attack, and cigarette butts, were retrieved from her house and delivered to the Queensland Health Pathology and Scientific Services laboratory for testing.  Each item was given an identification number; in particular, the victim’s nightdress was numbered F20087-12, and two samples taken from it were numbered F20087-12-4 and F20087-12-5.  The male and female components in those samples (which contained spermatozoa) were separated and given DNA sample numbers.  The male components were numbered DNA#26220 and DNA#26221, the female components DNA#26335 and DNA#26336.  Those samples were tested in October 1999 and the resulting profiles compared, without result, with the profile of an individual, H, from whom a blood sample had been taken in August 1999.

[4] According to unchallenged submissions made at sentence, a DNA sample was taken from the appellant in 2003, when he was charged with an unrelated matter; but it could not be used in evidence because he had not given informed consent.  A further sample was obtained from him in November 2005 and delivered for comparison to the Queensland Health laboratory.  Ms Sharon Johnstone, a forensic scientist, reported on the results of the tests carried out in 1999 on the crime scene samples and the conclusions drawn from comparison with the appellant’s DNA sample.  The knife yielded only a profile from the victim.  Mixed DNA profiles were found on the cigarette butts; that combination was 950 million times more likely to occur as a mix from the victim and the appellant than from the victim and an unknown person.  Each of the tested nightdress samples, Ms Johnstone’s report said, produced a 9-loci DNA profile which was the same as the profile obtained from the appellant’s reference sample.

[5] After the appellant was charged, his solicitor procured a review of Ms Johnstone’s report by Ms Carol Mayne, a scientist described as a DNA consultant.  Ms Mayne expressed the result for the cigarette butts in more equivocal terms, saying that the appellant’s DNA profile could not be excluded as a contributor to the mixed DNA profile.  She identified some confusion as to one of the two male component samples from the nightdress.  Both DNA#26220 and DNA#26221 were tested on 18 October 1999; the profile from DNA#26221 was consistent with the appellant’s, but there was some leakage from the gel lane on which DNA#26220 was run.  A handwritten laboratory sample sheet from 22 October 1999 showed that DNA#26220 from sample F20087-12-4 was run again on that date.  The corresponding sample numbers appeared on a plot sheet, printed on 25 October 1999, showing the profile obtained; it also was consistent with the appellant’s profile.  But a later version of the plot sheet, printed for Ms Mayne in 2006, recorded the sample number as F20087-12-4 and the DNA sample number as DNA#29822.  The latter number appeared nowhere else in the documentation.  It might, Ms Mayne said in her report, be a printing error: more information should be obtained.  If no simple answer were forthcoming, an independent DNA profile should be obtained for the appellant.

[6] Ms Johnstone has sworn an affidavit for the purposes of this appeal, explaining that the 2006 printout of the DNA profile referred to a wrong DNA sample number.  It was, she says, a simple printing error.  The handwritten sample sheet recorded the correct DNA sample number and the correct sample ID number, as did the original   printout produced in 1999. 

The appeal against conviction

[7] The appellant has lodged an appeal setting out these grounds:

“1.I was misled by my legal representative and convinced to plead guilty.

2.I continually requested certain evidence & witnesses to appear and I was refused each time.

3.I believe there was a mix up in the DNA samples.

4.A individual DNA sample was requested by Carol Mayne yet never taken.

5.The alleged knife used in the attack did not have my DNA or fingerprints on it.

6.The crown states they received a mixed DNA reading.

7.Her Honour stated in sentencing that she believes I was only pleading to my DNA and not the rape yet I was sentenced for rape.

8.I believe I was totally misled by my legal representative into pleading guilty.  I always maintained my innocence & truly believe this would be proven before a jury yet I was told to plead guilty.”

[8] The appellant elaborated on those grounds in written and oral submissions.  When he was first charged, he was represented by a solicitor from the Aboriginal and Torres Strait Islander Legal Service, who did not take the steps he considered appropriate to obtain evidence.  In late 1999, his house had been searched; he thought that the police might then have taken his de facto wife’s nightdress, using it as the source of the DNA samples; but despite his instructions, his solicitor had declined to subpoena his de facto wife in the hope that she might identify the garment.  Although he believed he had given DNA samples only twice, in 2000 and 2005, he had seen reference to a 2003 sample, an anomaly which should have been explored.  He had asked his solicitor to insist that a magistrate involved at some stage of the proceedings (it was not clear when) disqualify himself, because he had appeared for the appellant some years earlier.  Nothing had been done to satisfy that request. 

[9] There were discrepancies, the appellant said, between the victim’s description of him in her statement as a man with “dark coloured skin, olive complexion … about 40 years of age, medium build and about 175 cm tall” and a police officer’s note that the victim described the person to her as a “half-caste aboriginal, olive complexion, medium build, in his 40s and short” (He considered the latter description fitted him; the former did not).  However, the appellant said, although he raised matters such as these with his solicitor as requiring investigation, the latter failed to take any action.  Instead, the solicitor advised him, wrongly, that his “DNA was everywhere” at the victim’s house.  Thus misled, and disheartened by his solicitor’s inaction, he pleaded guilty.

[10]  In fact, the transcript shows that on 12 February 2007 (after the receipt of Ms Mayne’s report) the appellant entered pleas of guilty to the rape and break and enter charges, but when arraigned on the stealing charge, answered, “Not guilty on that”.  His counsel expressed some surprise and asked for an opportunity to speak to him, after which he confirmed the plea of not guilty.  Consequently, the allocutus was administered only in respect of the rape and break and enter charges, and the stealing count was listed for mention.  The sentences in respect of the two matters to which the appellant had pleaded guilty were adjourned to enable the defence to obtain a psychiatric report.  When the matter came back before the Court on 31 May 2007, the appellant was re-arraigned on the stealing charge and pleaded guilty.

[11]  The Crown relied on an affidavit from Mr Michael Kely, a solicitor with Legal Aid Queensland.  He had been allocated the matter on 1 May 2007, the Aboriginal and Torres Strait Islander Legal Service having represented the appellant at the February arraignment.  Mr Kely took extensive written instructions from the appellant, which he exhibited to his affidavit.  In those instructions (signed on each page by the appellant), the appellant confirms his understanding that he could apply to have his pleas of guilty vacated, but would need to establish that it would be a miscarriage of justice to sentence him on those pleas.  In doing so, he would lose the benefit of an early plea.  The details of the complaint against him are set out in considerable detail.  The document refers to the taking of DNA samples from the appellant in 2003 and 2005, the 2005 samples matching the staining on the complainant’s nightdress.  In particular, the appellant says that he has read the prosecution brief of evidence and accepts the allegations made in it. He continues:

“I understand that the prosecution allege that because my DNA was found on the complainant’s nightie, the nightie she was wearing when she was assaulted and that I was the person who assaulted the complainant as per her statement. I instruct that I accept that allegation and understand that I will be sentenced on that basis”.

The appellant says that he understands his counsel’s advice to be that he will receive a sentence between 12 and 15 years and concludes by saying the instructions are given “of my own free will, free from any threat, inducement or promise”. 

[12]  Here, the appellant did not cavil with what was contained in Mr Kely’s affidavit but rather complained of his previous solicitor’s conduct and said that he believed once he had entered the pleas of guilty they could not be altered.

[13]  In Meissner v R,[1] the High Court said this:

“A Court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea”.

[14]  The appellant does not suggest any compulsion or threats.  His complaint seems to be that his former solicitor overstated the case against him by saying that his DNA was found everywhere.  As to that, it is clear from the material before the Court that the appellant’s DNA was, to an extremely high degree of probability, found on the nightdress.  Ms Johnstone’s affidavit establishes, by an explanation which is consistent with the copies of the relevant records, that the mistake as to the DNA sample number in the 2006 printout was purely typographical.  Ms Mayne did not suggest any error in the conclusion that the DNA profile of the semen staining on the victim’s nightdress matched the appellant’s.  It is not surprising that his solicitor saw little value in a theory that his client’s wife’s nightdress might have been misrepresented as the victim’s.  According to Ms Mayne’s report, the female component samples from the nightdress produced DNA profiles consistent with the victim’s, a feature difficult to explain if the garment were not hers; and as counsel for the respondent here pointed out, that theory suffered from the further disadvantage that when the nightdress was initially provided for testing in 1999, comparisons were made with H’s blood sample, suggesting that the police were then investigating an entirely different suspect. 

[15]  Since the appellant’s DNA sample subsequently used for comparison was taken from him in 2005, whether an earlier sample was taken from him in 2000 or in 2003 is irrelevant.  The reference in the appeal grounds to the sentencing judge’s ‘belief” that the appellant “was only pleading to [his] DNA and not the rape” is shortly explained.  The learned judge said that she accepted in the appellant’s favour that any apparent lack of remorse was at least partly explicable by the fact that he did not remember the offences, but pleaded guilty on the basis of the DNA evidence.  It is not clear whether the magistrate who according to the appellant had previously represented him presided at the committal or on some other occasion, but his involvement could have had no bearing on how the matter proceeded once on indictment.

[16]  The differences in description, as between the victim’s statement and the police officer’s notes, are not marked and, if anything, tend to suggest an omission of a relevant detail from the victim’s statement.  In any event, the significance of the victim’s description paled beside the DNA evidence.  Whether or not the appellant’s solicitor overstated its extent, it was compelling evidence, pointing strongly to a conclusion of guilt. 

[17]  Most importantly, there is nothing to suggest that the appellant was not fully aware of what he was doing when he entered pleas of guilty.  It seems unlikely, given his extensive criminal history, that he was under any misapprehensions about court procedures or the significance of guilty pleas; and, to do him credit, he does not suggest that he was.  Instead, his submission is, in essence, that he pleaded guilty because he was discouraged about his prospects, which does not mean that his choice to do so was not a free one.  In any case, his refusal initially to plead guilty to the stealing charge suggests that he felt well able to assert himself against the advice of his solicitor.  Thereafter the instructions exhibited to Mr Kely’s affidavit make it clear that he understood the implications of the existing guilty pleas and chose to maintain them, and to change his not guilty plea on the stealing.  Given the effect of the DNA evidence, the guilty pleas were eminently rational ones, entered by a defendant who was clearly capable of exercising, and did exercise, the choice to make them.  There is no basis on which to allow the appeal against conviction.

The appeal against sentence

[18]  The appellant did not identify any grounds for his application for leave to appeal against sentence, nor did he make any submissions as to why the head sentence of 14 years imprisonment was unwarranted.  He was 33 years old at the time of the offences, and 41 years old at the time he was convicted and sentenced.  At the time the offences were committed, in August 1999, he had a lengthy criminal history dating back to 1988 for offences of dishonesty, including a number of break, enter and steal charges, and assaults, including assault occasioning bodily harm.  He had been sentenced to imprisonment on 18 separate occasions, generally for periods ranging between two and 12 months, but on one occasion for two years.  Between the commission of these offences and his being charged with them, he was sentenced to actual imprisonment on another four occasions, the longest sentence being 12 months imprisonment, for offences mostly consisting of assaults and breaches of domestic violence orders. 

[19]  A psychiatric report was obtained for the purposes of sentencing.  The appellant gave the psychiatrist some personal history: his mother, who was aboriginal, had died in 1985 and he had had no contact with his biological father since he was 11.  He had worked in various trades but was on a disability support pension because of a back injury.  Until 2005 he had suffered from alcoholism.  He maintained to the psychiatrist that he was “only pleading guilty to the DNA”.  The reporting psychiatrist considered that the appellant had a severe and longstanding anti-social personality disorder with some psychopathic personality traits. 

[20]  The learned sentencing judge described the offences, accurately, as “very serious offending on a frail old lady … [involving] significant personal violence and humiliation”.  She noted that the appellant had a long criminal history, although it did not contain any previous sexual offences, and took into account the plea of guilty, while observing that it was not an early plea.  The appellant’s lack of actual recollection of the offences was possibly explained by the fact that he had been a very heavy drinker.  In sentencing, her Honour had regard to three decisions of this Court involving offences of comparable criminality: R v Edwards,[2] R v Mason[3] and R v Jerome.[4]

[21]  In Edwards, the applicant was sentenced to 15 years imprisonment for three counts of rape, and to lesser sentences for other sexual assaults and burglary.  Edwards was 33 years old and had a bad criminal record.  He had broken into the house of the complainant, who was pregnant.  He had vaginal intercourse with her, performed oral sex on her and made her perform oral sex on him.  When she began to bleed and feared that she was miscarrying, he forced her to have a bath and tried to flush her vagina out.  As he left, he threatened to come back and kill her if she told anyone what had happened.  His application for an extension of time within which to appeal was refused on the basis that there was no prospect of success. 

[22]  In Mason, the applicant was sentenced to varying terms for assault occasioning bodily harm, disablement to commit an indictable offence, robbery and rape; the longest term being 14 years imprisonment for the rape.  The applicant was 35 years old and had a relevant criminal history which included some offences of violence.  He was an acquaintance of the complainant and unexpectedly assaulted her during a visit to her.  He pressed a knife against her throat and told her not to scream, threatening that he would stab her or slit her throat.  He raped her and then made her shower.  Afterwards he repeatedly choked her with a tea towel, threatening to kill her if she did not give him drugs or money.  When he left, he threatened again to kill her if she did not leave town.  She found that he had cut the telephone line.  He was an aboriginal man who had had problems with alcohol and drug addiction.  Like the appellant here, he pleaded guilty only after DNA evidence implicating him was obtained.  His application for leave to appeal against sentence was dismissed.

[23]  In Jerome, the applicant was sentenced to concurrent terms, the longest of which was 14 years imprisonment for offences of burglary, rape and indecent assault; but those sentences were imposed cumulatively on a five year term of imprisonment for attempted rape and indecent assault.  Jerome had a substantial criminal history, principally for offences of dishonesty and driving offences, dating some 20 years from when he was a juvenile.  He was on parole for attempted rape and indecent assault of an elderly female relative at the time the offences the subject of the application for leave to appeal against sentence were committed.  They involved a planned and premeditated rape on an elderly woman whom he knew because his wife occasionally cleaned her house.  He turned off the power and broke into the house where he raped the victim.  He threatened her that if she told anyone he would make it the worse for her.  However, the next morning he became remorseful, apologised to the woman, confessed to his wife and gave himself up to police.  The Court considered that the learned sentencing judge had erred only in failing to make a fresh recommendation for parole which the legislation required him to do; it therefore set an eligibility date at the mid-point of the term of imprisonment.

[24]  In the present case, having regard to the vicious and callous nature of the attack on a vulnerable, elderly woman, the very doubtful quality of any remorse, the appellant’s long previous history of offending, and the lack of any obvious redeeming features, I do not think the sentence of 14 years imprisonment imposed for the rape count imposed can be said to be manifestly excessive; and it is consistent with the three comparable matters I have outlined.

Orders

[25]  The appeal against conviction and the application for leave to appeal against sentence should be dismissed.

[26]  FRASER JA:  I agree with the orders proposed by Holmes JA and her Honour's reasons for those orders.

[27]  DAUBNEY J: I agree with the reasons for judgment of Holmes JA and with the orders proposed.