SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  On 25 March 2008 the applicant was convicted on his own plea of eight offences which occurred on the night of 21 December 2006 when he broke into the home of the complainant and subjected her to assaults and repeated acts of rape.  He was sentenced to an effective term of 12 years imprisonment with 397 days of pre-sentence custody being declared to be time served under that sentence.

[2] The applicant seeks leave to appeal against the sentences which were imposed upon him on the ground that they were "manifestly excessive in all the circumstances".  I will consider the argument advanced in support of this ground after first summarising the circumstances of the offences, the applicant's personal circumstances, and the approach of the learned sentencing judge to the sentencing of the applicant.

The circumstances of the offences

[3] The complainant is a grandmother.  On the evening in question, she celebrated her 64th birthday at her home with a small group of friends.  She went to bed after her friends had gone.  She was awakened some time later, with the applicant standing over her.  She did not know him.  He had broken into her house.  This was the evidence relating to count 1 on the indictment, the offence of burglary. 

[4] The applicant put his hand across her mouth, and told her to be quiet and that he was not going to harm her.  She began to cry and he told her not to cry.  He said that he had been watching her for a long time, and that he had been "wanting to do this for a long time".  He said:  "Once I've done it, I cut."  The complainant understood that statement to be a reference to a knife and feared that the applicant was armed.  This incident constituted assault with intent to rape and was the subject of count 2 on the indictment.

[5] The applicant then licked the complainant's vagina and inserted his fingers into her vagina.  This incident constituted sexual assault and was the subject of count 3 on the indictment.

[6] As to the first of four counts of rape, the applicant then straddled the complainant's chest and pushed his penis into her mouth, saying "Suck on me."  This incident was the subject of count 4 on the indictment.  He said that she did not "seem to be enjoying it", and complained that he was unable to get an erection because he had drunk a couple of bottles of whiskey.  The complainant was unable to detect the smell of alcohol on him.  The complainant suggested that they stop, and he said that she would probably "just take off".

[7] As to the second of the counts of rape, and count 5 on the indictment, the applicant told the complainant to turn onto her side.  He then inserted a finger into her anus at which point she suffered an involuntary bowel movement.  He allowed her to get up to go to the toilet.

[8] The applicant then used a pillowcase to blindfold the complainant and turned on a light.  He then began to lick the complainant's vagina while masturbating.  He told the complainant to masturbate herself while he rubbed some cream or lotion around her vagina.  He then put one of the complainant's legs in the air and penetrated her vagina with his penis.  He moved his penis in and out of her quickly and forcefully causing her pain.  This incident constituted the third count of rape which was count 6 on the indictment.

[9] The applicant ejaculated over the complainant's stomach and breast.  He told her to "Put it in your mouth and make sure you swallow."  He then put his penis into her mouth and ejaculated into her mouth.  She swallowed the ejaculate as he ordered her to do.  This incident constituted the fourth count of rape which was count 7 on the indictment.

[10]  The applicant then told the complainant that he was going to take the bed sheets away as he did not want to leave any evidence behind.  He pushed the complainant to the ground so that he could remove the sheets from the bed.  He put the complainant into the shower which was nearby and ordered her to have a "good scrub", adding that if she did not, "I'll do it for you."

[11]  After the complainant had showered, the applicant took her back to the bed and blindfolded her once more.  He asked her for a nail brush so that he could scrub his nails.  He told her to keep her eyes covered.  He then smoked a cigarette.  He asked her if she was going to call the police and told her to wait for half an hour before she did so.  These events were the subject of count 8 on the indictment.  The applicant suggested that they could become girlfriend and boyfriend.  He told her that he would check when he passed her house to see if there were any notes for him.

[12]  The applicant gave the complainant a great deal of misinformation about himself, clearly with a view to avoiding apprehension.  Thus, for example, he told her that he had to get back to the coast, whereas he lived nearby.  He left the complainant's residence at about 4.30 am.  A short time later, the complainant telephoned friends who lived nearby.  The police were called.

[13]  After making some enquiries, the police went to the applicant's home.  He ran off into the bushland at the approach of the police.  The police waited in vain for his return.

[14]  On 23 December 2006 the applicant presented himself at a local police station.  He denied any involvement in the attack upon the complainant.  He told police that he did not know the complainant and had never been to her home.  He said that he had fled from the police because he had cannabis plants growing on his property.  He provided a sample of his DNA for analysis.  This sample was found to match DNA found at the crime scene.

[15]  On 16 February 2007 the applicant was again interviewed by the police.  He was informed of the positive match of DNA material, but continued to deny any involvement in the attack on the complainant.  He told police that, on the night in question, he had gone for a drive and, after a while, had stopped and fallen asleep in his car.  His response to the disclosure of his DNA link to the crime scene was to assert that the police must have planted his DNA.

[16]  A victim impact statement from the complainant showed that the complainant continues to suffer from the adverse consequences of the applicant's attack upon her.  At the time of sentence, she was still undergoing counselling.

The applicant's personal circumstances

[17]  The applicant was 39 years old at the date of the offences and 40 years old when he was sentenced.

[18]  The applicant has a lengthy criminal history which involves offending in four States.  He committed his first offences as a child when he was convicted of stealing.  He has committed many offences of dishonesty including an offence of burglary when he was 19 years old.  For that offence he was given a suspended sentence.  Thereafter he persisted in a life of what was essentially petty crime. 

[19]  At the time he was sentenced for the offences of present concern, he had been dealt with for burglary on six occasions.  The longest term of imprisonment to which he had been sentenced for burglary was a period of 12 months imposed on 25 March 1998 in Victoria.

[20]  The applicant has not previously been convicted of any sexual offence, although he has, on five previous occasions, been dealt with for offences involving personal violence.  He was twice convicted of robbery, once while armed.

[21]  The applicant was the subject of a report by a psychologist, Mr Robert Zemaitis.  From this report, it appears that the applicant has a long history of use of illegal drugs.  He told Mr Zemaitis that, on 21 December 2006, he was drinking after work when he was invited to the birthday party at the complainant's house.  He could not, however, remember going to her residence or leaving her residence.  He said that he woke up in his car.  The applicant told Mr Zemaitis that, over the five years prior to 21 December 2006, he had married and had been able "to get his life back on to a more positive track".

The sentence

[22]  The learned sentencing judge made it clear that he did not accept that the applicant had no recollection of his attack on the complainant.  His Honour had put the applicant's Counsel on notice in this regard in the course of Counsel's submissions in mitigation of sentence.  The applicant did not give evidence to contradict the inference, which his Honour was prepared to draw from the applicant's attempts to remove evidence of his DNA from the complainant's person, his disinformation, his flight from police, and his response to the information that his DNA had been found at the crime scene, that the applicant did recall his attack on the complainant.  To the extent that it was said that the applicant's false denials to the police were consistent with his lack of memory, that suggestion was rejected by his Honour.

[23]  The learned sentencing judge was, nevertheless, prepared to give the applicant some credit for his plea of guilty.

[24]  His Honour sentenced the applicant to 12 years imprisonment on the burglary count, (count 1 on the indictment), 12 years imprisonment on the last two counts of rape (counts 6 and 7 on the indictment), 10 years imprisonment on the first count of rape, six years imprisonment on the second count of rape, four years imprisonment on the counts of assault with intent to rape and sexual assault, and two years imprisonment on the count of deprivation of liberty.  All these terms were to be served concurrently.

[25]  The learned sentencing judge initially intended to impose a sentence of 13 years imprisonment for the burglary and the two most serious offences of rape.  His Honour said:

"Taking all of those matters into account, in my view the appropriate effective sentence is 13 years' imprisonment. The sentences will be these:

Count 1, 13 years;

Count 2, 4 years;

Count 3, 4 years;

Count 4, 10 years;

Count 5, 6 years;

Count 6, 13 years;

Count 7, 13 years;

Count 8, 2 years.

I order that all of the sentences be served concurrently with each other. I declare presentence custody from the 16th of February 2007 to the 20th of February 2007 and from the 28th of February 2007 to the 25th of March 2008, a total of 397 days as time served in respect of the sentences just imposed.

I order that convictions be recorded. I also record that I have taken into account the defendant's pleas of guilty in arriving at the head sentence which I have fixed and I do not consider that it would be appropriate to partially suspend those sentences or order that he be eligible for parole any earlier than the usual one-half of the sentence.

…

HIS HONOUR: I vacate the sentences I imposed in respect of counts 1, 6 and 7. I do so because I did not turn my mind to the fact that the sentences exceeding 10 years would automatically be deemed to be serious violent offences and the defendant would not be eligible for parole until he had served 80 per cent of those sentences.

I should have taken that fact into account in fixing the sentences. For that reason, I vacate those sentences and I impose sentences of 12 years in respect of each of counts 1, 6 and 7."

[26]  It is to be noted that his Honour did not declare the convictions in respect of counts 1, 6 and 7 to be convictions of a serious violent offence as part of the sentence.  In this regard, his Honour failed to comply with the requirements of s 161B(1) of the Penalties and Sentences Act 1992 (Qld) ("the Act"). 

The arguments on the application

[27]  In the argument advanced on behalf of the applicant, no point was taken about the learned sentencing judge's failure to comply with the requirements of s 161B(1) of the Act.  That was understandable, given that s 161B(2) of the Act provides that "the failure of the sentencing court to make a declaration as required under subsection (1) does not affect the fact that the offender has been convicted of a serious violent offence."  That having been said, however, it is important that sentencing courts should observe the requirements of s 161B(1).  The legislature's intention is that the significance of a serious violent offence should be made explicit as part of the sentence imposed on an offender in order to mark the community's strong denunciation of the offence in question. 

[28]  The applicant accepts that the appropriate range of sentence for offending of this type is, as suggested by the decision of this Court in R v Newman,[1] between 10 and 14 years imprisonment.  It is submitted, however, that appropriate weight was not given to the applicant's pleas of guilty, bearing in mind that the effect of s 161A(a)(ii) of the Act in combination with s 182 of the Corrective Services Act 2006 (Qld) is that the applicant will be obliged to serve nine years and seven months before being eligible for release on parole.  It is submitted on the applicant's behalf that a sentence of 10 years imprisonment was appropriate to address the serious nature of the applicant's offending while giving appropriate weight to the applicant's plea of guilty.  Such a sentence would oblige the applicant to serve eight years in actual custody before becoming eligible for parole.  It is submitted that such a sentence affords proper recognition for the applicant's plea of guilty whereas the reduction of the effective head sentence from 13 years to 12 years is too niggardly a recognition of the applicant's plea of guilty.  It is said that the learned sentencing judge failed to recognise "the serious aggravating effect of the provisions in Part 9A [of the Act] on the sentence he imposed." 

[29]  It is, however, readily apparent from the passage set out above from his Honour's sentencing remarks that his Honour did indeed recognise that the applicant would be obliged to serve 80 per cent of the sentence he imposed in actual custody by reason of the sentences in excess of 10 years imprisonment.  His Honour expressly referred to this consideration in the penultimate paragraph of the remarks set out above.

[30]  On behalf of the respondent, Mr Fuller submitted that, while a sentencing judge may properly fix upon a sentence at the lower end of an appropriate range of sentences to make allowance for the effect of s 182 of the Corrective Services Act upon the period of actual custody which the offender must serve before becoming eligible for parole, the existence of the "serious violent offence" regime cannot be allowed to overwhelm other considerations relating to the fixing of a proper sentence or control the striking of a proper sentence.  In particular, a proper head sentence must be imposed having regard to the gravity of the offence.

[31]  In my respectful opinion, in this case it was open to the learned sentencing judge to regard the applicant's calculated, persistent and prolonged attack on an elderly victim in her own home as warranting a sentence which was distinctly not at the very bottom of the appropriate range.  It was important that his Honour give the applicant full credit for his plea of guilty; but it must be borne in mind that the range of sentences referred to in R v Newman itself reflects the benefit to an offender of a plea of guilty. 

[32]  It was open to his Honour to conclude that a proper sentence for the serious rapes committed by the applicant should not be less than 12 year imprisonment.  It must be borne in mind that the learned sentencing judge was entitled to regard the applicant's failure to accept responsibility for his crime by feigning a lack of recollection of his offending as matters of special concern.  That concern warranted sentencing the applicant on a footing which will afford adequate protection to the community against an offender whose failure to acknowledge his responsibility gives no reason for optimism as to his prospects of rehabilitation.

[33]  It may be noted that the sentence imposed in respect of the burglary count does not automatically become a serious violent offence under s 161A(a)(ii) of the Act because the burglary count did not include any circumstance of aggravation under s 419(3)(b)(i) or (ii) of the Criminal Code.  It is also necessary to note that the learned sentencing judge neglected to make the declarations required by s 161B(1) of the Act that the applicant had been convicted of a serious violent offence in respect of counts 6 and 7 on the indictment.  This Court should make those declarations.  No other order is necessary because the failure on the part of the learned sentencing judge to observe s 161B(1) of the Act did not affect the sentencing process or the sentence which was imposed.

Conclusion and orders

[34]  The applicant has not demonstrated that the sentence which was imposed on him was manifestly excessive.

[35]  The application for leave to appeal against sentence should be refused.

[36]  It should be declared that each of the offences the subject of counts 6 and 7 on the indictment was a serious violent offence. 

[37]  FRASER JA: I agree with the reasons of Keane JA and the orders proposed by his Honour.

[38]  FRYBERG J:  The applicant pleaded guilty at the end of his committal hearing.  Thereby he indicated a genuinely early plea, a good deal earlier than those of prisoners whose intention to plead guilty is not communicated until after an indictment is presented.  It demonstrated some willingness to cooperate in the administration of justice and relieved the complainant of the need to give evidence.  However there were several features of the case which showed that this willingness was limited.  The applicant fled from police who came to interview him; he falsely denied involvement when he was interviewed; he delayed the committal hearing by insisting on the preparation of a full Crown brief; and he persisted with a false claim to have no memory of the offences even at the hearing on sentence.  That persistence casts doubt on his claim to be remorseful.

[39]  In these circumstances I do not think the applicant’s submission that the sentencing judge failed to give appropriate weight to his early pleas of guilty can succeed. I agree with the orders proposed by Keane JA and with his Honour's reasons for them.