SUPREME COURT OF QUEENSLAND

1. McMURDO P: The appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused for the reasons given by Muir JA.

2. MUIR JA: The appellant was convicted on 17 January 2008 after a trial in the District Court and sentenced as follows:  Count 1 (burglary with violence) 10 years imprisonment; Count 2 (deprivation of liberty) three years imprisonment; Count 3 (robbery with personal violence) seven years imprisonment; Count 4 (sexual assault) five years imprisonment; Count 5 (rape) 10 years imprisonment; Count 6 (rape) 10 years imprisonment; Count 7 (rape constituted by sexual intercourse) 15 years imprisonment; Count 8 (sexual assault) five years imprisonment.  The convictions for Counts 1, 5, 6 and 7 were declared to be convictions for serious violent offences.  Three hundred and twenty-two days spent by the appellant in pre-sentence custody were declared imprisonment served under the sentences imposed.

3. The appellant appeals against his conviction on the grounds that the convictions were unsafe and unsatisfactory. He also appeals against the sentences imposed on the grounds that they were manifestly excessive.

The evidence adduced at trial

4. The complainant, a 19 year old female student, gave evidence to the following effect. On 20 February 2007 the complainant was residing in a house at Wooloowin. She was expecting an electrician to call at the house that day. At 10.15 am she heard a knock on the door and expecting the electrician, she opened it. The man standing at the door said that he was looking for Louann Street and asked if she had a street directory.  She noticed that he had "very bad body odour" and detected a smell "slightly like marijuana".  She said she couldn't find the street directory and directed the appellant to a corner store.  She then locked the door behind her. 

5. The complainant had a shower, got dressed and was searching for her watch when she again noticed the smell which had earlier come from the person at the front door. She was then grabbed from behind by a person who held a hand over her mouth. She started to scream and was warned to be quiet. She was taken to her bedroom and told to lie on her stomach on the bed. She did so and the intruder tied her hands behind her back.

6. In the course of discussion which ensued, she asked the intruder not to sexually abuse her and was told not to worry, that "this is just a robbery". A little while later, the complainant was blindfolded with a pillow case and her hands were tied tightly behind her with an electrical cord. The complainant told the intruder that her money was on the kitchen bench and that she had about $250 in her wallet. She then heard footsteps going in the direction of the kitchen and returning.

7. The intruder turned the complainant onto her back, pulled her shirt down and commenced to rub her breasts roughly. Shortly afterwards he commenced to lead the complainant, it would seem, out of the house. She screamed for help and tried to escape from the house. After a struggle, the intruder commenced to strangle the complainant, who may have lost consciousness briefly. She recalls being back on the bed with the intruder lying beside her. He commenced to kiss her and out of fear, she kissed him and he put his tongue in her mouth. He asked her if she wanted to have sex, was told no, but nevertheless placed his penis in her mouth and pushed her head up and down. The complainant told the intruder that she was going to be sick. After a pause, the intruder continued his actions and the complainant tasted semen. The intruder then removed the complainant's underwear, spread her legs apart and placed his tongue inside her vagina. He then had penile intercourse with her. During this conduct, the complainant experienced a great degree of pain. Her hands were tied behind her back and she was forced to lie in awkward positions.

8. The intruder made the blindfolded complainant go to the bathroom where he showered her, washed her body, particularly her breasts, and then departed. After she was sure that the appellant had left the house, she freed her hands from the electrical cord, rang triple 0 and made a complaint of rape. She then rang her sister and her mother, also complaining of rape. Two hundred and fifty dollars was found to be missing from the complainant's purse. The sheets which had been on the complainant's bed prior to the intruder's entry into the house were also missing.

9. When the police arrived at the complainant's house at 12.13 pm, a length of black electrical cord was attached to her right wrist, a piece of green material was tied around her neck, she appeared to have been crying, she had wet hair and her breasts were covered with a towel. Security cameras recorded images of the appellant at the Eagle Junction Railway Station between 9.41 and 9.44 am on the day of the incident and at the Wooloowin Railway Station at 12.26 – 12.27 pm.

10. Medical examination revealed injuries to the complainant's right wrist, bruising and abrasions to her elbows and knees, a suction bruise and three other bruises on her left breast, many other small marks and bruises to the thighs, limbs and back, and a tiny shallow split at the back of the vagina. Near the split or "laceration in the mucosa" was a one centimetre area of intense localised redness. The split and redness were consistent with an injury having been caused by penetration by a penis. A vulval swab taken from between the complainant’s inner and outer labia was found to contain semen and spermatozoa. The DNA profile extracted from the latter was consistent with the appellant's DNA profile, which was also found on a perianal swab and on the inside crotch of the complainant's underpants. On examination the complaint's outer labia were seen to be reddened and swollen and a "sticky, wet secretion" was observed on her inner and outer labia.

The appellant's version of events

11. The appellant did not give evidence. The version put to the complainant in cross-examination was to the following effect. The appellant first met the complainant outside a shop near the Wooloowin train station on 19 February 2007 at about 12:30 pm. The appellant and the complainant had a mutual friend and the appellant approached the complainant and asked if she was "Sarah". They then spoke generally. The appellant went to her house at about 10 am on 20 February where the two smoked a joint of marijuana and conversed. The appellant asked the complainant to have sex with him and she acquiesced on his agreeing to give her "half a gram of speed". The complainant and the appellant then engaged in oral sex in the course of which the appellant ejaculated down the front of the complainant's body. There was no vaginal intercourse.

12. Before leaving the complainant's house the appellant took back the "speed" and removed two boxes of morphine from the complainant's bathroom. The complainant made false complaints because of her anger at the taking of her drugs. The complainant refuted all of these assertions.

Consideration of the appellant's argument

13. It was plainly open to the jury to be satisfied on the whole of the evidence of the appellant's guilt beyond reasonable doubt.

14. The appellant called no evidence on his behalf. The appellant's version of events put to the complainant in cross-examination, was rejected by her. It was also inherently improbable.

15. The complainant's evidence was unshaken in any material respect by cross-examination. She made a very prompt complaint and the reports and observations of those who had dealings with her immediately after the incident were entirely consistent with the account she gave of it. The extensive bruising and abrasions reported by the medical practitioner who examined the complainant at about 2.15 pm on 20 February 2007 were consistent with the complainant's evidence but inconsistent with the appellant's version of events.

16. The senior constable who went to 17 Kent Road on 20 February 2007 at about  12.13 pm recalled that the complainant's eyes were red and swollen, that she looked very distressed and that, when she informed him that she had been tied up and raped, she broke down.  He noted the absence of bed sheets. 

17. The female constable who accompanied the senior constable described the complainant as having hair which "appeared to be quite untidy or dishevelled sort of looking". She said that the complainant had red eyes and appeared to be very upset and distressed. She observed a computer cord still tied round her right wrist and a piece of material tied around her neck.

18. The prosecution case was thus very strong. The DNA and medical evidence made it perfectly plain that the appellant had had unprotected sexual intercourse with the complainant, as she alleged and he denied. The appellant who was self-represented, argued that the fact that DNA testing failed to detect traces of his DNA in the complainant's vagina supported his contention that the semen on the complainant's body resulted from his ejaculating on the front of her body after oral sex. He contended also that the presence of this semen made it improbable that he had ejaculated in the complainant's mouth and that she had swallowed the ejaculate.

19. The complainant's evidence was not that the appellant, as a result of an orgasm, had ejaculated in her mouth. She described a taste, which she attributed to ejaculate throughout the time the appellant had his penis in her mouth. She said:

"The oral sex continued and then after a while, I tasted ejaculate very strongly. Like, throughout the whole time that I was performing oral sex, I could taste it and that's why I felt like I was going to be sick, but towards the end, it was very strong and just disgusting."

20. The appellant's DNA in the material obtained by swabs taken from between the complainant's inner and outer labia, the complainant's perianal region and from the inside crotch of her underpants and the other evidence referred to in paragraph [9] above demonstrate that the failure to detect the appellant's DNA in the vaginal swabs signified only that the appellant may not have ejaculated in the complainant's vagina. It did little, if anything, to contradict the complainant’s evidence.

21. For the above reasons I would order that the appeal against conviction be dismissed.

Appeal against sentence

22. The appellant was 42 years of age at the time the offences were committed and had Hepatitis C. He had a lengthy criminal history which consisted of over 140 offences including 20 convictions for housebreaking, eight for entering a dwelling with intent, three for attempting to break and enter a dwelling with intent and a number for entering premises with intent.  He had been convicted of three armed robberies and had been imprisoned on 19 occasions.  The subject offences were committed during the term of a suspended sentence imposed for a drug-related offence. 

23. Counsel for the respondent argued that the sentences imposed for rape were supported by decisions of this Court in R v Mallie^[1], R v Price^[2] and R v Robinson^[3].  The applicant in Mallie was 20 years of age at the time of the offence.  He had a good work history and pleaded guilty to an ex officio indictment.  He had a minor prior criminal history which did not include any sexual offences.  His victim was a 37 year old woman.  She was alone in her home in the evening lying naked on her bed with the lights on when the applicant entered the dwelling.  She awoke to find him crouched at the bottom of her bed.  He punched her five or six times, had forcible intercourse with her and then punched her another four or five times in the face.  The complainant fought back and the applicant left taking with him the complainant's handbag.  The complainant suffered a cut to the left eye which required stitching, a cut to her lower lip, various abrasions, gross swelling around the left eye and bruising.  Some of her teeth were knocked out, she was left with a scar on her lip and has suffered depression and post traumatic stress disorder.  As a result of the attack the complainant was unable to work and lost her job. 

24. In her reasons, with which the other members of the Court agreed, McMurdo P noted that the applicant had reasonable prospects of rehabilitation. The application for leave to appeal against the sentence of 10 years was dismissed.

25. The applicant in Price was 29 years of age when he raped the 66 year old complainant.  He had a reasonably extensive criminal history involving offences of dishonesty, assault and minor drug offences.  The applicant pleaded guilty and it was accepted that he showed some remorse.  He broke into the complainant's home at night, punched her in the face with great force four or five times and then raped her.  He was unable to effect complete penetration, got off the complainant and paced up and down the room saying "Why did I do this for?  What have I done?" 

26. The complainant suffered severe bruising to the left side of her face and left upper arm. She had some bruising in the genital area and suffered great emotional distress. The applicant's sentence of 12 years was found not to be manifestly excessive.

27. The appellant in R v Robinson was sentenced to 16 years of imprisonment for three counts of rape, to 10 years imprisonment on another three counts of rape and to other terms of imprisonment for burglary, deprivation of liberty and stealing.  The appellant was 33 years of age and his victim was 57 years of age.  He had a bad criminal history including an offence of rape for which he had been sentenced to 12 years imprisonment.  The appellant knew that he suffered from Hepatitis C at the time of the offence, he did not exhibit any signs of remorse and the Court, on appeal, concluded that there were no evident prospects of rehabilitation. 

28. The appellant entered the complainant's townhouse in the early hours of a morning and raped her digitally, orally and through penile-vaginal intercourse. The latter was unprotected. The complainant did not suffer significant physical injuries in the attack.

29. In declining to disturb the rape sentences appealed against, Keane JA with whose reasons the other members of the Court agreed, rejected the submission that decisions of this Court do not support a range of sentence beyond 14 years of imprisonment. His Honour pointed out that in R v Coghlan^[4] and R v Mason^[5], sentences of 14 years imprisonment were upheld even though the offender had pleaded guilty and was thus entitled to a substantial discount.  His Honour held the fact that the appellant suffered from Hepatitis C which was readily transmissible to be a serious aggravating factor.  The same aggravating circumstance exists here.

30. The complainant underwent a prolonged, degrading, painful and terrifying experience. She feared for her life. She experienced panic attacks for some months after the attack, felt depressed and contemplated suicide. She also displayed symptoms of post traumatic stress disorder. Her relationships with friends have been adversely affected. She was understandably frightened of contracting Hepatitis C or some other sexually transmissible disease. She still fears the appellant.

31. The learned sentencing judge remarked on the appellant's lack of remorse and concluded that his "prospects of rehabilitation [were] relatively low". His conclusions in this regard were not challenged on appeal. When regard is had also to the grave and distinctive circumstances of the offence, the appellant's disease, his mature age, his prior criminal history and the impact of the offences on the complainant, I am unable to conclude that the sentence imposed for count 7 was manifestly excessive. Although at the higher end of the permissible range, it is supported by the sentences discussed above. No complaint was made in the course of the hearing in respect of the lesser sentences imposed. Indeed, on the hearing of the appeal the appellant refrained from making any submissions in support of his appeal against sentence.

32. I would refuse leave to appeal against sentence.

33. MACKENZIE AJA: I agree with the reasons of Muir JA and with the orders he proposes.