SUPREME COURT OF QUEENSLAND

[1]  FRASER JA: I agree.

[2]  MACKENZIE AJA: I agree.

[3]  DUTNEY J: Norman John Richards seeks leave to appeal against a sentence of eight years' imprisonment imposed upon him by a Judge of the District Court at Rockhampton on the 31st of January 2008.

[4] Mr Richards was charged with 1 count of burglary in the night with violence while armed; 1 count of assault with intent to rape; and 1 count of rape.

[5] He pleaded guilty to these offences on the 17th of October 2007 and was sentenced on the 31st of January 2008.  The offences were committed on the 24th of January 1999.  At the time of the commission of the offences the complainant was 27 years of age.  She had only recently separated from her husband and was living alone with her 22 month old daughter in a ground floor unit in North Rockhampton.

[6] Although the complainant stated that she had no knowledge of Mr Richards prior to the commission of the offences, Mr Richards alleged that he had met her casually in the street on one previous occasion.

[7] Just after midnight on the 24th of January 1999, Mr Richards entered the complainant's unit, he made his way into the complainant's bedroom, jumped on to of her and pushed a pillow into her face.

[8] He wore a brown stocking to disguise his appearance and was carrying a knife.  Mr Richards threatened to slit the complainant's throat if she moved.  He proceeded to pin her down and rip off her underwear.

[9] The complainant pleaded with Mr Richards to stop, expressing particular concern for the well being of her 22 month old daughter who was in the room at the time.  Mr Richards continued to threaten the complainant with the knife and then raped her.

[10] During the rape of the complainant the complainant's daughter became upset and moved to the side of the complainant's bed.  It was at this point that Mr Richards told the complainant he would stop.

[11] Mr Richards then left the house.  The complainant rose from her bed to use the telephone at which stage she discovered that her thumb had been cut during the ordeal and, significantly, that her phone line had been disconnected. 

[12] The complainant drove to a friend's house and then to the police station to report the incident.

[13] Mr Richards was not arrested for the offences until the 21st of March 2006 when he was identified through the use of DNA.  Upon being arrested Mr Richards pleaded guilty to the offences relatively early and the matter proceeded by way of a full hand up committal.

[14] At the time of committing the offences Mr Richard was 23 years of age, he was married and had 24 hour care of his son, who suffered cerebral palsy and epilepsy.  Psychologist's report dated the 31st of January 2008 was obtained from Dr Shelley Keane for the purposes of the sentence.

[15] The report disclosed that Mr Richards suffered physical abuse as a child at the hands of his stepfather.  Dr Keane expressed the opinion that at the time of the offence Mr Richards suffered from major depressive disorder, adjustment disorder with anxiety and borderline personality disorder.

[16] Dr Keane suggested that Mr Richards continued to suffer from major depressive disorder and borderline personality disorder at the date of sentencing.  Dr Keane indicated, and the sentencing Judge accepted, that Mr Richards was remorseful and was willing to participate in rehabilitative programs such as the sex offender course.

[17] At the time of the commission of the offences Mr Richards had a number of convictions for dishonesty and had served a short period of imprisonment in 1995.  In 2005 Mr Richards was convicted on 2 counts of breaching a domestic violence order.

[18] He was convicted of the more serious offence of unlawful stalking on the 14th of June 2007 and was sentenced to nine months' imprisonment which was wholly suspended for a period of 18 months.

[19] At the sentencing hearing, the Prosecutor submitted that having regard to the seriousness of the offending, the appropriate sentence was a period of nine years' imprisonment with a serious violent offender declaration.

[20] Because Mr Richards had served a period of 11 months on remand which could not be declared time served the Prosecutor submitted that the undeclared time could be reflected by a reduction of the head sentence to eight years.

[21] Defence counsel submitted that the appropriate sentence was seven to eight years with no serious violent offender declaration and a reduction by one year to reflect the undeclared time served on remand.  After hearing argument the sentencing Judge declined to make a serious violent offender declaration but otherwise accepted the Prosecutor's submissions.

[22] Before this Court, counsel for the applicant accepts that a head sentence of nine years' imprisonment was within range.  He submitted, however, that the reduction of the sentence by one year to reflect the time served on remand did not properly compensate the application for the undeclared time as the sentencing Judge had intended.

[23] Had the applicant not served the additional time on remand and been sentencing to a period of nine year's imprisonment he would have been eligible for parole after the expiration of four and a-half years of the sentence.  The effect of the sentence imposed was that the applicant is not eligible for parole until he has served four years of the sentence actually imposed.  When the additional year is taken into account it has the effect that his eligibility for parole has been postponed until he has served a total of five years.

[24] Counsel for the applicant also submitted that on top of the reduction of the non parole period to three and a-half years the applicant was entitled to a further discount to reflect his plea of guilty.

[25] Section 13 of the Penalties and Sentences Act 1992 (Qld) requires the sentencing Judge to discount the sentence to reflect a plea of guilty or to give reasons why no such discount has been given.  No such reasons were given in this case.

[26] The discount for a plea of guilty is ordinarily reflected in a reduction of the time before the prisoner is entitled to apply for parole.  Counsel for the respondent submitted before us that any reduction for the plea of guilty is reflected in the absence of a serious violent offender declaration.

[27] Unfortunately this is not the way the sentencing Judge approached this issue.  In his sentencing remarks the sentencing Judge dealt with and rejected the arguments advanced in favour of the serious violent offender declaration before turning to the appropriate period of imprisonment.

[28] In my view it seems reasonably clear that the sentencing Judge intended that the sentence equate to a period of nine years' imprisonment and that the failure to address the parole eligibility date has caused this intention to miscarry.

[29] I should note that defence counsel did not address the sentencing Judge on this issue.  Before us it was submitted that if leave to appeal was granted a higher sentence should be imposed.  At page 17 of the record the Prosecutor said - and I quote:  "In relation to the term of imprisonment the Crown submits that a term of imprisonment of 9 years' imprisonment is appropriate in this particular case.  In relation to dealing with ranges for this sort of offending behaviour the Court of appeal has quite clearly indicated that where someone is raped by a stranger in a public place the range is 7 to 10 years.  Where someone is raped by a stranger in their home you can expect another 2 years on top of that range, taking it to 9 to 11 years.  And further, the Court of Appeal has held that where there are significant acts of violence then greater terms of imprisonment, up to 15 years, can be made in relation to offenders who have no previous conviction for violence for these sorts of offences."

[30] That analysis is both logical and supported by authorities, including those referred to before us.  While a higher sentence may have been sought and may have been within range, nine years here does not seem to be so inadequate as to justify interference.

[31] Since a head sentence of nine years was sought by the Prosecutor and I don't regard the sentence of nine years' imprisonment as outside the permissible range, I grant leave to appeal and allow the appeal to the extent of fixing a parole eligibility date.

[32] The starting point is three and a-half years so that eligibility is at the midway point of the total period of imprisonment including the undeclared time.  I would also discount the period to reflect the plea of guilty.  In this case although there was a full hand up committal and the complainant was spared the ordeal of cross-examination, that position only arose after the committal proceedings had been adjourned twice, with the complainant having to prepare herself for the ordeal of the Courtroom on each occasion.

[33] Prosecution case was also a strong one.  I would fix the parole eligibility date after the applicant has served three years of the sentence of eight years.  For the reasons I've given this effectively requires him to serve four of nine years before becoming eligible for parole and reflects the apparent intention of the sentencing Judge together with some discount for the plea of guilty.

[34] The orders I would make are as follows; I would grant the applicant leave to appeal and allow the appeal to the extent only of fixing a parole eligibility date at the 15th of June 2010.