SUPREME COURT OF QUEENSLAND

1. McMURDO P:  The application for leave to appeal against sentence should be refused for the reasons given by Mackenzie AJA.

2. FRASER JA:  I agree with the reasons of Mackenzie AJA and the order proposed by his Honour.

3. MACKENZIE AJA:  This is an application for leave to appeal against sentence.  The applicant, who was 22 and 23 years old at the time of commission of the offences, pleaded guilty to charges in four indictments. 

The Indictments

4. The first contained a count of burglary with circumstances of aggravation, two counts of indecent assault, one count of rape, one count of assault with intent to rape and one count of assault occasioning bodily harm. The brief facts were that at about 2 am on 29 March 2006, the applicant climbed into a dwelling house through a window in the complainant’s mother’s bedroom, proceeded to the complainant’s bedroom and, having told her that he was hiding from the police, indecently assaulted and digitally raped her. He threatened to stab her, although there is no evidence he was actually armed, and when she resisted him, punched her in the head several times.

5. During the course of the incident, the complainant’s mother woke up. When the applicant heard her coming towards the bedroom, he leapt through a closed window to escape. He was apprehended a short time later. Identification of him as the offender was confirmed by DNA evidence in swabs taken from under his fingernails.

6. There was some evidence of premeditation and attempts to make identification difficult. Prior to entering the house, he had removed the globes of the security lights. He was seen by the complainant to be wearing a condom during the sexual incidents. He tried to wipe his saliva from her breast after he had sucked it.

7. He was sentenced to concurrent sentences of eight years for rape, five years for burglary, three years for assault with intent to rape and two years for indecent assault and assault occasioning bodily harm. One of the issues he raised in oral submissions was the length of the sentence for rape.

8. The second indictment related to events prior to that incident. It concerned his stalking of a counsellor whose client he had been while in a correctional facility for reasons which will be referred to later. After a few months he began to write letters to her expressing sexual desires in respect of her. After he was released, he sent crude sexually explicit messages to her by telephone. These incidents happened from October 2005 to March 2006. He was given an 18 month concurrent sentence for this offence.

9. The third indictment charged him with two offences, one committed about two weeks prior to the incident in the first indictment and the other the day before it. One was a count of stealing a mobile phone from a patron’s handbag in a hotel and the other a count of entering a dwelling house and stealing a mobile phone, for which he was sentenced to concurrent sentences of six months and three years respectively.

10. The fourth indictment concerned an assault on a Corrective Services Officer about three months later, while he was on remand for the offences in the first three indictments. There had been an altercation with staff which resulted in Corrective Services Officers coming to his cell to restore order. The assault consisted of spitting on the complainant officer’s face and clothing. Some spittle went in his eye and on his mouth. For this, the sentencing judge imposed a sentence of 12 months imprisonment cumulative on the sentences on the first three indictments. The applicant told us that he had lost control of himself and that what he had done was out of character and culturally inappropriate.

11. At the time of all the offences previously mentioned, the applicant was subject to a suspended sentence imposed on 13 January 2006 for a variety of offences including assaults and offences of dishonesty. At the time of commission of those offences he already had a signifcant criminal history including convictions for rape and grievous bodily harm, for which he had been sentenced to six years detention, since he was a child when he committed them. On 13 January 2006, he was sentenced to two years six months imprisonment suspended for three years after serving one year. The whole of the suspended portion of the sentence was activated, to be served concurrently with the effective nine years sentence imposed in the proceedings under review.

12. His parole eligibility date was fixed at 29 April 2009. By the time of sentence he had served 712 days in pre-sentence custody which was taken into account in fixing that date.

The Applicant’s Submissions

13. The written grounds of the application for leave to appeal against sentence complain that the sentence imposed was manifestly excessive because the primary court, when applying the usual principles in recommending an eligibility date for parole, had failed to consider the inability of the applicant to make an application for parole by 29 April 2009 and had failed to consider the likelihood of the applicant being granted parole at that time.  It was also alleged that the sentencing judge had erred in imposing a cumulative sentence.

14. The applicant’s oral submissions attributed his frequent offending to an upbringing that was far from desirable and to his consequent use of a wide variety of dangerous drugs. He told the court that he has realised that, unless he can break the cycle of drug use and offending, he will spend lengthy periods in prison. As previously mentioned, he sought a reduction in the sentence for rape, stressing that it was digital, not penile, rape.

The Merits

15. There is no substance in the argument that a cumulative sentence should not have been imposed for the offence of assaulting the Corrective Services Officer. It was a discrete offence, unconnected with the others, committed about three months after them and while he was in lawful custody. That is a kind of situation where it is entirely appropriate to impose a cumulative sentence. It was not disputed by his counsel at sentence that a cumulative sentence was an available sentencing option.

16. With regard to the argument that the sentence of eight years was manifestly excessive for the digital rape, the Crown Prosecutor submitted below that the range of sentences for the criminality involved in the offences was from 10 to 12 years. If it was below 10 years, a serious violent offence declaration ought to be made.  After analysis of authorities relied on by the prosecution,^[1] the first four of which he regarded as generally worse than the present offence, the sentencing judge concluded that it was not a case where it was appropriate to sentence within the range proposed by the Crown, but that the appropriate range was six to eight years.  It was not a case where the discretion to make a serious violent offence declaration should be exercised. 

17. The applicant referred to R v M [2001] QCA 166, where a sentence of nine years was imposed in a case with worse features, and relied on R v Viliafi [2005] QCA 12, where a sentence of seven years was held not to be manifestly excessive in a case where there were some similarities, but which did not involve intrusion into a home of a victim who was a stranger; also, the reasons for judgment do not refer to the offender having any criminal history.  Other authorities referred to by him were not directly relevant.

18. I am satisfied that the sentence of eight years for the rape was not manifestly excessive in the circumstances. Nor does an effective sentence of nine years imprisonment render the applicant’s sentence manifestly excessive having regard to the overall criminality of the offending, and to the totality principle.

19. Contrary to the argument that the sentencing judge had failed to consider the inability of the applicant to make an application for parole by 29 April 2009, or the risk that he would not get it on that date, the record shows amply that the sentencing judge, both during submissions and sentencing remarks, adverted to the possibility that the applicant would not necessarily get parole at that date. The effect of what the sentencing judge said was that the Parole Board would need to satisfy itself that it was safe to release the applicant, having regard to the nature and circumstances of the present offences and his prior offending. The possibility that he might not achieve parole on the eligibility date was clearly in the sentencing judge’s mind.

20. In a case with the features of this one, assessment by the Parole Board of the applicant’s suitability for parole at the time the application is made is of special importance. From what he told us, he now has insight into the need to modify his behaviour so that he can eventually return to the community and not commit further offences. There was no evidence before the sentencing judge that, in the 12 months after sentence until eligibility would occur, he could not undertake steps that might improve his chance of obtaining a favourable outcome of his application. Nothing apart from a generalised concern about availability of courses in a timely way was relied on in submissions in this court. The case is plainly one where an order for suspension of the sentence instead of release on parole would be inappropriate because of the applicant’s history and his need for support when released.

Conclusion

21. There was no error in the sentencing judge’s approach. The application must therefore fail. I would dismiss the application for leave to appeal against sentence.