SUPREME COURT OF QUEENSLAND

[1] de JERSEY CJ: I have had the opportunity of reading the reasons for judgment of Fraser JA.  I agree that the application should be refused for those reasons.

[2] FRASER JA: On 14 December 2007 the applicant was convicted on his pleas of guilty to eight offences: in ex officio indictment 270 of 2007, deprivation of liberty and three counts of rape, all on 2 January 2003, and unlawful use of a motor vehicle on 20 December 2004; in indictment 679 of 2007, two counts of rape on 24 February 2007 and a further count of rape on 20 March 2007.  He was sentenced in the District Court to 12 months imprisonment for the deprivation of liberty offence, four years imprisonment for each of the rape offences in the ex officio indictment, and he was sentenced to the rising of the court for the unlawful use of a motor vehicle.  The applicant was sentenced to 10 years for each of the rape offences committed in 2007.  Ten days pre-sentence custody (24 November 2007) were declared to be time served as part of the sentence.  He was also ordered to serve 11 months and one week, being the unexpired portion of a term of 12 months imprisonment imposed by way of an intensive correction order on 25 May 2005 for attempted armed robbery.  All of the sentences were ordered to be served concurrently. 

[3] On 26 November 2008 the applicant filed an application dated 19 November 2008 for an extension of time within which to appeal against his sentence.  The applicant requires an extension of time of some 10 months.  The ground of the proposed appeal is that the sentence is manifestly excessive in all of the circumstances. 

[4] The applicant's explanation for his delay is that his solicitor did not give him legal advice concerning an appeal despite the applicant repeatedly conveying that he wanted to appeal, he was initially in close detention, he was depressed and he gave up the idea of appealing as a result until, several weeks before lodging his appeal, an uncle told him that the court might accept a late appeal.  These matters do not provide an adequate explanation for the applicant's failure to initiate his application for leave to appeal in time.  Nevertheless, the ultimate question is whether it is in the interests of justice to grant the applicant the extension of time which he seeks.  In that respect a significant question is whether or not the proposed application is viable: R v Tait [1999] 2 Qd R 667 at 668.  With that in mind I have considered the merits of the proposed application for leave to appeal against sentence.

Circumstances of the offences

[5] On 2 January 2003 the complainant, a 14 year old girl, and others were socialising with people including the applicant (until then a complete stranger to the complainant) who was then 15 years old.  While the complainant's female companion was talking to another member of the group, the applicant dragged the complainant into a demountable shed in a railway yard: the deprivation of liberty offence.  The applicant then forcibly ripped off the complainant's clothes before penetrating her genitalia with his penis: the first rape count.  The applicant forced a bottle into the complainant's genitalia: the second rape count.  The applicant again penetrated the complainant's genitalia with his penis and had intercourse with her until ejaculation: the third rape count.  The applicant threatened to kill the complainant if she told anyone of the offences. 

[6] The complainant was hospitalised and she contracted a sexually transmitted disease from the applicant.  The sentencing judge referred to the complainant’s victim impact statement in which she referred to her deep and abiding distress, her humiliation and embarrassment, and the effects of the sexually transmitted disease.  She dropped out of school, she had since self-harmed and become violent and angry, and she used drugs and alcohol.

[7] Count 5 on the ex officio indictment charged unlawful use of a motor vehicle, which was taken from a park and ride facility and found a couple of weeks later at a different location, and in which the applicant agreed he had been riding. 

[8] The offences in the indictment 679 of 2007 were committed against two girls, aged 15 and 13 respectively.  Counts 1 and 2 related to the 15 year old girl.  On 24 February 2007 the applicant, who was then 19 years old, approached the 15 year old girl at about 8.20 pm.  The applicant, again a complete stranger to this complainant, was holding a beer bottle and he asked the complainant for water which, the sentencing judge inferred, was a trick to enable the applicant to get inside the complainant's house.  The complainant felt obliged and walked to her house with the applicant and gave him a glass of water.  When the complainant denied the applicant's request to have sex with her, the applicant followed her into her bedroom, closed the door and turned off the light, slapped the complainant, striking her on the left hand side of her face, and told her to be quiet.  The applicant forced the complainant to take her clothes off, forced her onto a bed and threatened to kill the complainant and her family if she told anyone.  The applicant removed the complainant's clothes and attempted to penetrate her vagina.  After the complainant begged the applicant to use a condom he put one on and penetrated the complainant vaginally, while she cried.  The applicant later had anal intercourse with the complainant to ejaculation and continued to threaten her whilst he did so.  The applicant also obtained the complainant's phone number, again as a result of his threats. 

[9] The complainant’s victim impact statement referred to her physical injuries, which included internal and external bruising and tears in both the vaginal and anal areas.  The victim impact statement referred also to her fear of being alone, that she experienced nightmares both during the day and the night and flashbacks, and that the offences seriously adversely affected her schooling and studies. 

[10] The applicant committed the third rape offence charged in indictment 679 of 2007 some three weeks later, on 20 March 2007.  The 13 year old child was in a park looking for friends at about 5.30 pm on 20 March 2007.  The applicant followed her over a footbridge over the Pacific Motorway, and he then threatened her he would get vicious unless she followed his instructions to go towards a bikeway.  He grabbed her singlet straps at one shoulder and forced her to walk between the fence and himself.  The applicant forced the complainant into bush up to a fence, attempted to kiss her, forced her legs apart and forcibly penetrated her vagina digitally.  He threatened that he could bash her if he wanted to.  After that the complainant ran off.  As in the previous offences, the applicant was a complete stranger to the complainant.

The applicant's personal circumstances

[11] The sentencing judge referred to a report by a psychologist which set out the applicant's personal circumstances in detail.  The applicant had endured a very traumatic childhood.  The psychologist expressed the opinion that since the sexual abuse to the applicant suffered during childhood, as well as witnessing his mother being raped and quite seriously abused over a number of years, the applicant had been suffering from a post-traumatic stress disorder.  He continued to have nightmares and flashbacks of those abusive episodes.  He self-medicated by abusing alcohol and illicit drugs and he suffered alcohol, cannabis and amphetamine dependency disorders.  He hailed from a very abusive and dysfunctional family with multiple carers from a very young age.  There had been little stability in the applicant's life.  He appeared to be projecting a lot of blame onto his mother and he generalised that anger to women.  He also had some anti-social traits in his personality, severe depression and anxiety and a strong suicidal ideation.  The psychologist recommended that the applicant undergo immediate psychiatric treatment to assess his suicidal risk and his need for psychotropic medication.

[12] The psychologist expressed the opinion the applicant required psychological counselling as well as a drug rehabilitation program whilst in prison and follow up care when released.  The applicant was a man of low intelligence and a user of alcohol and drugs.  Those things, combined with his anger towards women, resulted in an inability to gain insight into the consequences of his offending.  In the psychologist's opinion, however, there was a window of opportunity to change the direction of the applicant's life.  The applicant was highly remorseful for his offending behaviour and stated that he had poor memory of the events of many of the offences.  This was submitted to be consistent with the applicant's drug and alcohol abuse.  The psychologist expressed the view that there would be a commensurate reduction in the likelihood of the applicant re-offending with appropriate counselling, abstinence of drug and alcohol abuse and his continued motivation to change the direction of his life.

[13] The applicant had a criminal record.  The sentencing judge was informed that in September 2002 when the applicant was 15 years old, the applicant committed a sexual assault.  The applicant was also sentenced on 25 May 2005 for an attempted armed robbery offence and one count of burglary and stealing. 

Sentences

[14] At the hearing of the application, the applicant, who represented himself, acknowledged that he deserved the sentences imposed upon him.  He argued for a sentence which would give him some hope of an earlier release, although he was unable to articulate any argument in support of his application. 

[15] In sentencing for the rape offences charged in the ex officio indictment, which the applicant committed when only 15 years of age, the sentencing judge was required by s 144(2) of the Juvenile Justice Act 1992 to have regard both to the fact that the applicant was a child when he committed the offences and to the sentence that might have been imposed if the applicant had been sentenced as a child.  The sentencing judge did take those matters into account.  The four year term of imprisonment imposed by the sentencing judge for those offences was within the range of three to five years stipulated in R v PZ; ex parte Attorney-General [2005] QCA 459 for a 15 year old offender who committed a similarly appalling and brutal sexual offence.  The applicant's counsel at sentence made it plain that he could not argue against the penalty submitted by the Crown (which included between three and five years imprisonment for these offences).  This part of the sentence could not be regarded as excessive.

[16] At the sentence hearing the applicant's contention was that the overall head sentence should be nine years with no declaration that the applicant committed a serious offence.  The focus on the proposed application for leave to appeal is necessarily then on the sentence of 10 years, with the automatic declaration, for each of the three counts of rape committed by the applicant as an adult in February and March 2007.  Defence counsel submitted to the sentencing judge that the sentence suggested for the Crown, in the range of 10 to 12 years, which would bring an automatic declaration that the offence was a serious violent one so that the applicant would be required to serve 80 percent of the head sentence, would be crushing.  Defence counsel stressed the applicant's remorse, referred to in the report of the psychologist and repeated by defence counsel at the hearing, the applicant's pleas of guilty, the fact that the offences committed as an adult were the subject of a full hand up committal, and that there was in defence counsel's submission strong prospects of rehabilitation.  Defence counsel also stressed the applicant's youth, his terrible dysfunctional childhood and positive steps he had taken in prison to rehabilitate, including undertaking various courses and expressing a willingness to undertake the sexual offenders' treatment program. 

[17] The sentencing judge acknowledged that there was some weight in the submissions but in the end did not accept that they justified the sentence proposed for the applicant.  It weighed heavily with the judge that the most recent offences were very serious, one involving penile vaginal rape and penile anal intercourse with a 15 year old girl, followed just a month later by digital rape of a 13 year old girl.  The sentencing judge characterised the level of violence in the rapes as violence which, though not necessarily gratuitous, involved the infliction of violence and threats of violence to achieve the applicant's ends.

[18] The sentencing judge noted also that the penalty for these later rapes had to take into account the brutal and appalling circumstances of the applicant’s rape offences as a juvenile as well as the applicant's criminal history.

[19] It may have been open to the sentencing judge to attribute relatively more weight to the mitigating factors advanced by defence counsel, but the judge took those matters into account and ultimately it was for the judge to determine how they should find expression in the sentence imposed, provided of course that the sentence imposed fell within the range of sentences open to his Honour.

[20] Of particular significance here are the facts that the applicant committed two rape offences during his attack upon one complainant and another rape offence against a second complainant, the youthful age of those complainants, who were only 15 and 13 years old respectively, that the rapes of the 15 year old complainant were so brutal as to leave her with external and internal physical injuries, the predictably severe consequences for both complainants, and the threats to kill the 15 year old complainant and her family and that he could bash the 13 year old complainant.  Furthermore, although the applicant did not break into the 15 year old complainant's house he obtained entry into it by deceit.  In addition to the manifest importance of general deterrence as a factor in this sentence, the applicant's criminal history including a prior sexual offence and the fact that he had, some four years earlier, committed serious rape offences as a juvenile underlined the importance of personal deterrence.  It is especially disturbing that his offending in 2007 bears in some respects a striking similarity to his offending four years earlier.

[21]  The sentence of 10 years is at the top of the range of seven to 10 years said in R v Basic [2000] QCA 155 to be the appropriate range for a rape offence which was not in the most violent category, where the complainant's physical injuries were not serious, no weapon was used, and there was an early plea of guilty.  The Court there refused an application for leave to appeal against a sentence of eight years imprisonment with a declaration that the applicant was convicted of a serious and violent offence, for a penile anal rape which was not in the most violent category.  That 31 year old offender, like this applicant, had suffered a serious abusive childhood and had a criminal record involving violence.  The rape was upon a 19 year old woman who was alone in a public place, and although she was not bashed, the offence was humiliating, degrading and terrifying, having the expected effect of making the complainant fearful of going out alone in public. 

[22] The applicant was of course much younger than Basic.  That is a significant point of distinction, and the issues of the applicant's youthfulness and rehabilitation were here important ones for the sentencing judge.  But the applicant's offending itself was notably more serious and persistent than the offending in Basic, involving as it did repeated offences in the form of the brutal anal and vaginal rapes of a 15 year old girl and his subsequent digital rape of a girl as young as 13 years old.

[23] The President’s analysis of authorities in R v Mallie [2000] QCA 188 at 5-6 suggests that where a higher degree of violence is used (such as the repeated punches to the face of the complainant by that 20 year old offender) the range extends significantly above the sentence of 10 years imprisonment with an automatic serious violent offence declaration.  That decision, and the range suggested in Basic for offending of this character, were referred to with approval in R v Bolton [2005] QCA 335 at [18]-[19].  The 10 year sentence here is in line with the 10 and a half year term of imprisonment not disturbed on appeal in R v Flew [2008] QCA 290.  That offender was older, he was 28 at the time of the offence, and he produced a knife, but he did not have this applicant's relevant criminal record and he did not commit multiple rapes or repeated rapes of young girls.

[24] We were referred also to R v Wark [2008] QCA 172, but it was a significantly more serious matter, as is reflected in the sentence of 12 years imprisonment imposed by this Court when re-sentencing. 

[25] In my opinion the sentence imposed by the sentencing judge, whilst a heavy one, cannot be characterised as manifestly excessive such as to indicate an error in the exercise of the sentencing discretion.

[26] I would refuse the application.

[27] P LYONS J: I have read the reasons for judgment of Fraser JA and agree with the order proposed by his Honour and his reasons.