SUPREME COURT OF QUEENSLAND

1. MUIR JA: I agree with the reasons of Mullins J and with the order she proposes.

2. FRASER JA: I agree that the application should be refused for the reasons given by Mullins J.

3. MULLINS J:  On 3 September 2008 the applicant pleaded guilty to 16 counts in the District Court at Cairns.  The sentence was adjourned to enable a pre-sentence report to be obtained.  The sentence proceeded on 21 November 2008.  On the most serious count on the indictment, count 13 for the offence of rape, the applicant was sentenced to 11 years’ imprisonment.  For each of three counts of attempted rape (counts 10, 11 and 14), he was sentenced to eight years’ imprisonment.  He was sentenced to two years’ imprisonment for count 9 (assault with intent to rape), count 12 (assault occasioning bodily harm) and each of two counts of enter dwelling with intent in the night (counts 2 and 8).  For each of the remaining counts on the indictment (apart from count 1) he was sentenced to six months’ imprisonment.  Count 1 was the offence of stalking and a cumulative sentence of 12 months was imposed for that offence.  The effective total period of imprisonment was therefore 12 years.  A pre-sentence custody declaration was made in respect of 259 days.  The learned sentencing judge recommended that the applicant be given the opportunity whilst incarcerated to attend drug and alcohol courses and a sex offender’s treatment program.

4. The applicant was legally represented at the sentence. The Aboriginal & Torres Strait Islander Legal Service assisted the applicant with preparing the form for the application for leave to appeal against the sentence. The ground set out in that application was that the sentence was manifestly excessive. At the hearing of the application, however, the applicant was unrepresented and appeared by video link. The only submission that he made in support of his application was that the sentence was too high.

Antecedents of applicant

5. The applicant was 24 years old at the date of sentence. The stalking and related offences were committed when the applicant was 21 to 23 years old. The rest of the offending was committed when he was 23 years old.

6. The applicant’s prior criminal history showed that he had difficulty complying with bail undertakings and probation orders. He was sentenced to three months’ imprisonment in New South Wales in December 2006 for three charges of assault occasioning actual bodily harm that were committed against his former de facto partner. He was dealt with on two occasions for possession of dangerous drugs in the Magistrates Court. He had convictions for assaults and enter premises and commit an indictable offence and break. He was placed on probation by the Magistrates Court on 24 April 2007 for 18 months for an assault occasioning bodily harm and two charges of common assault committed in November 2006. The victims were the applicant’s former partner and a relative of hers.

7. The applicant described himself to those who prepared the pre-sentence reports as a heavy user of alcohol and cannabis sativa. The applicant had a dysfunctional upbringing characterised by physical abuse inflicted on him by members of his extended family.

Details of offences

8. In relation to the stalking count, the complainant who was in her early thirties, lived in a unit with her two children. For two and one-half years between August 2005 and January 2008, she had a “peeping Tom” problem and felt terrorised as a result. The complainant did not know the applicant. She called police on about 10 occasions.  Counts 1 to 6 relate to this complainant.  Apart from the stalking, count 2 (enter dwelling with intent in the night) and count 3 (stealing) related to an occasion when the complainant was showering and she could feel herself being watched.  She then saw a man in her unit peering around the corner.  When she screamed and the man fled, she found a packet of cigarettes and a mobile phone missing.  On another occasion when the complainant was in the lounge of her unit, she heard sounds at the front of her unit and saw a man crouched near the window going to the lounge.  She told him to leave and as he did so he asked the complainant if she wanted to have sex.  On that occasion she found a mobile phone, an MP3 player and an adaptor device for the MP3 player missing from her car.  That resulted in count 4 (enter premises-a motor vehicle – and stealing). 

9. On another occasion the applicant appeared at a glass sliding door to the unit and licked his lips in a suggestive manner. The applicant poked a hole in the gauze of the screen on the window where the complainant’s daughter slept and asked her how old she was and whether they could have sex. This resulted in the charge of wilful damage (count 5). On another occasion the applicant ripped the complainant’s flyscreen which resulted in another wilful damage charge (count 6).

10. The 50 year old woman who was the complainant for count 7 (sexual assault) was walking in the street on 26 August 2007 while carrying three bags of groceries. She put them down to rest, when the applicant (whom she had previously observed riding on a bicycle past her) ran up behind her and touched her vagina with his finger through her clothes. The complainant turned around and saw the applicant’s penis hanging out of his pants. She threatened to call the police and the applicant ran away.

11. Counts 8 to 16 were committed on 5 February 2008 against the victim of the rape. These offences, count 7 and the latter acts of the stalking were committed whist the applicant was under the probation order imposed in April 2007.

12. The victim was 57 years old at the time of the rape and associated offences. She had fallen asleep on the couch in her townhouse. The front screen door was closed and locked. The applicant managed to open that door and enter the townhouse (count 8). The victim awoke with the applicant on top of her, kissing her lips. He put his hand over her mouth and pressed down forcefully. When the victim attempted to push out with her right arm, it was held by the applicant, as he pushed her face into the couch. He used his knees to pin her to the couch and she ended up with her right arm pinned and her mouth covered. The applicant pulled her pants down. She asked him not to touch her, as she had just had an operation and was bleeding. The victim told the applicant that she had cancer, and that he would burst all the stitches. The victim was hysterical and attempted to kick out with her legs. The applicant let go of her right arm and forced a cushion over her face, pushing her head backwards into the couch. That resulted in count 9 (assault with intent to rape). The victim had difficulty breathing. When the cushion was taken briefly from her face, the victim struggled again. Eventually she felt that the applicant might become more violent, if she did not stop struggling.

13. The applicant climbed onto the victim and commenced rubbing his penis on her vagina. He attempted to insert his flaccid penis into her vagina (count 10). The victim then commenced masturbating the applicant out of fear. The applicant then told her “your mouth then” and pushed the victim back onto the lounge and tried to guide his penis to her mouth. The victim clamped her mouth, moving her head from side to side, so that he could not push it in (count 11). The applicant then told the victim that he was going to get the knife.

14. As the applicant moved away slightly, the victim made an attempt to get her phone, but the applicant grabbed her leg and the victim fell to the floor. The applicant straddled her and covered her mouth again with his hand, pushing her head back towards the floor. When the victim tried to raise her head, she was pushed backwards into a glass cabinet and the applicant then bit her on the face, latching on near the side of the victim’s mouth and shook his head from side to side, causing considerable pain to the victim (count 12).

15. As the applicant was biting the victim, he pulled aside her pants, before inserting a number of fingers into her vagina. The victim attempted to wriggle her legs around and felt the applicant trying to reinsert his fingers a number of times and that he did so twice (count 13). The applicant let go of the victim’s face and lowered himself, attempting to penetrate the victim with his penis, but he was unable to do so (count 14). He became extremely angry and told the victim that he was going to get a knife and was going to kill her. When the applicant went to the kitchen, the victim ran towards the front door. The applicant lunged towards her as she ran out (count 15 – common assault). The victim went to a neighbouring residence and was able to get inside. The applicant followed her part of the way and then fled taking the victim’s mobile phone with him (count 16 – stealing). During her struggles with the applicant, the victim recalled also being head-butted. On the same evening, the victim’s daughter was woken by a telephone call from her mother’s mobile phone and when the daughter wanted to know why the man had her mother’s telephone, he told her: “You don’t want to know just trust me you don’t want to know”.

Sentencing

16. At the sentencing hearing the prosecutor relied on R v Wark [2008] QCA 172 (Wark) and a number of other Court of Appeal authorities to submit that the appropriate sentence for the rape was between 12 years and 14 years.  The prosecutor submitted that the sentence imposed for stalking should be cumulative.  Defence counsel submitted that there were sufficient factual differences between the applicant’s offending and that in Wark to distinguish Wark and that the appropriate head sentence for the rape was nine years and a cumulative sentence for stalking should be no more than 12 months.

17. The probation and parole officer who prepared the pre-sentence report expressed concern about the lack of remorse about the offences which he observed when he interviewed the applicant. The pre-sentence report included an assessment by psychiatrist, Dr Woolridge, who expressed the view that the applicant was remorseful, but that his remorse was “very poorly articulated”. Dr Woolridge expressed concern that over time the amount of violence involved in the applicant’s offending appeared to have escalated and that, on the basis of the applicant’s account, alcohol and marijuana appeared to have had a major disinhibiting effect on the applicant’s behaviour and that under the influence of those substances, it appeared that the applicant became “predatory and dangerous”.

18. The sentencing judge accepted that the applicant’s pleas of guilty were early pleas. The sentencing judge noted that, although the applicant did not make full admissions when first interviewed by the police, the applicant did accept the schedule of facts prepared by the prosecution for the purpose of the sentence. The sentencing judge accepted Dr Woolridge’s opinion that the applicant did show some insight into the effect of his behaviour, when interviewed by Dr Woolridge. The sentencing judge noted that the applicant’s behaviour was “extremely violent” and that it involved the invasion of the victims’ homes, physical violence to the rape victim that was considerable and resulted in physical injury, and that the applicant’s sexual offending had escalated to a very concerning level. The sentencing judge had regard to Wark in determining the head sentence of 11 years for the rape committed by the applicant.

Was the sentence too high?

19. In Wark the offender’s sentence in respect of each of five counts of rape was reduced on appeal to 12 years.  The offender was 51 years old when he committed the offences.  He pleaded guilty to an ex officio indictment for the five counts of rape and associated offences.  The offender had given the complainant a lift in his car, but took her to his home where he held her captive.  He tied her hands with rope and to the bed head.  He forced her to perform oral sex on him four times and inserted something into her anus (the fifth rape).  The offender held the complainant captive for a few hours, until she managed to escape.  He had a limited prior criminal history for drug offending.  Each of the members of the Court made observations to the effect that, although generally penile penetration will attract a higher sentence than rape cases involving digital or oral penetration, the appropriate sentence in the case of non-penile penetration will turn on the circumstances of the case (at paragraphs [2], [13] and [37]). 

20. Although the applicant was considerably younger than the offender in Wark, the applicant had a more serious criminal history and the totality of his offending, for which he was being sentenced, was committed over a period of time.  It was a particularly aggravating circumstance of the applicant’s offences against the victim of the rape that he persisted with his violent attempts to perform sexual intercourse with her, after being informed by her of her medical condition.  Despite the factual differences of the offending in Wark, it was an appropriate decision for the sentencing judge to consider in the course of deciding the applicant’s sentence, in conjunction with the other authorities to which the judge was referred.  The effective sentence of 12 years’ imprisonment in the circumstances of the applicant’s offending and history is consistent with a sound exercise of the sentencing discretion.

21. The application for leave to appeal against sentence must be refused.