R v Cox[2011] QCA 277

SUPREME COURT OF QUEENSLAND

1. FRASER JA: I agree with the reasons for judgment of McMeekin J and the order proposed by his Honour.

2. MARGARET WILSON AJA: The application for leave to appeal against sentence should be dismissed.

3. I agree with the reasons for judgment of McMeekin J, subject only to this comment.

4. The sentencing judge recognised that the plea of guilty was particularly significant in that it saved the complainant from the trauma of giving evidence, and she made allowance for it both in fixing the head sentence and in fixing the parole eligibility date. The resulting sentence was accordingly more generous to the applicant than would have been warranted by the objective facts of the offending alone.

5. McMEEKIN J: The applicant seeks leave to appeal against a sentence imposed on 10 December 2010 on the basis that it was manifestly excessive. 

6. On 15 July 2010 the applicant pleaded guilty to two counts of assault occasioning bodily harm and four counts of rape, all of which occurred in the course of an attack on the complainant that occurred on 7 May 2009.

7. The learned sentencing judge sentenced the applicant to seven years imprisonment in respect of each count of rape and three years imprisonment in respect of the counts of assault occasioning bodily harm with a parole eligibility date set at 28 months.  The sentences were to be served concurrently.  149 days pre-sentence custody was declared pursuant to s 159A of the Penalties and Sentences Act 1992.

The Factual Background

8. The complainant and the applicant were known to each other. They agreed to meet on the evening in question for the purpose of engaging in sexual intercourse. They had had what was described as “a casual relationship” some years previously.

9. After meeting the complainant at his workplace – an industrial shed - at night time the applicant commenced to verbally abuse the complainant and then engaged in the various acts which constitute the offences charged. The acts of rape included digital and penile rape as well as two acts of fellatio. The complainant was subjected to considerable violence. She was punched, she thought, on more than 15 occasions, slapped, and threatened with a knife. At one time the knife was held to her nose touching her skin and a threat made to cut off the complainant’s nose. On another occasion the applicant threatened to cut the complainant’s throat. At the time she was choking and believed that she was going to die. She was pulled by the hair from one room to another such that handfuls of hair were pulled from her head. The ordeal lasted some two to three hours. The complainant suffered physical injuries. Her statement records that as a result of the repeated punching she suffered “a lot of bruising on my body, a black eye, swollen and painful neck and lumps on my head.” There were other injuries. Unsurprisingly the complainant records that the emotional impact on her she found “hardest to deal with.” She considered that she had been in love with the applicant and felt substantially betrayed. At the time of giving her statement, 16 months after the offences were committed, she continued to suffer both emotionally and economically due to the impact on her mental health.

10. Following what can only be called this vicious attack the applicant called a taxi and gave the complainant $50.

11. The applicant claims to have been heavily intoxicated and not to recall much of the offending conduct. Hence no explanation was offered for his conduct.

12. The applicant was aged 43 years at the time of the offences and 45 years at sentence having been born on 9 September 1965. The complainant was aged 40 years at the time of the offences.

13. The applicant made no admissions in a record of interview. A committal was held and the complainant cross-examined. The matter was listed for trial but a plea indicated the week before the trial was to take place. The prosecutor described the plea as a late one.

Submissions on Sentence

14. The prosecutor’s submission at sentence was that imprisonment for a period of eight years was warranted, the range being seven to ten years. She described the circumstances, accurately, as “a serious example of a rape with violence whilst armed”.

15. The applicant’s counsel submitted to the sentencing judge that “seven years imprisonment was appropriate in the circumstances, with a parole eligibility date to reflect his remorse”. That was precisely the sentence imposed. It is now submitted that a sentence of five to six years imprisonment ought to be imposed with a parole eligibility date after 20 months to two years.

16. As Keane JA observed in R v Hutchinson,^[1] in circumstances where the sentence imposed largely reflects the defence submission below it is “very difficult to accept the contention that the sentence which was imposed is ‘manifestly excessive’.”

17. The only significant matters mentioned in mitigation were that the applicant had an alcohol problem and suffered from a back injury and early onset Parkinson’s disease. No evidence was led to suggest that imprisonment would be more difficult for the applicant than the ordinary person. It was submitted that the applicant had been diagnosed as suffering from depression subsequent to the relevant events and was receiving appropriate treatment. None of this remotely excuses or even explains his conduct. Counsel did not suggest otherwise.

18. Various certificates of attainment were tendered that the applicant had obtained after the offences had been committed. References were tendered from friends and members of the household where the applicant lived. They suggested that the offences were out of character. The applicant’s criminal history was dated but contained one prior assault charge.

The Sentencing Judge’s Approach

19. The learned sentencing judge described the circumstances of the offending conduct as “insulting”, “degrading”, “prolonged and very unpleasant”. She considered that the effects that the complainant had spoken of in her victim impact statement as “real”.

20. Her Honour took into account the importance of the plea of guilty acknowledging that the complainant would have had to suffer more if she had been forced to give evidence.^[2]  Her Honour said that whilst the plea could not be said to be an early one the lateness might be explained by the claimed absence of any recollection of the offences.  She considered that she was entitled to find some level of remorse given not only the plea but as well the applicant’s behaviour on the night of calling of the cab and the giving of money to the complainant.  These comments, if anything, were generous to the applicant.

21. Her Honour then compared and distinguished the cases that had been suggested were comparable. No error is shown in her understanding of the cases. In setting the head sentence her Honour expressly referred to the guilty plea. She set the non parole period at the one-third mark usually taken as appropriate for an early plea. It was lenient in the context of a late plea but plainly her Honour was very much alive to the importance of the plea not only because it saved the complainant the ordeal of giving evidence but also because of the factors mentioned in cases such as Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 where it was said:

“It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence.  In Siganto v The Queen^[3]it was said:

‘[A] plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case.’

It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty.  The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.”

Arguments on Appeal

22. Counsel for the applicant submitted that the following features merited a more lenient sentence:

1. the complainant was not a stranger;

2. the complainant was not a child;

3. there was only one count of penile rape and the rape lasted only a short time;

4. there was no significant prior criminal history;

5. there was no break-in to the complainant’s home;

6. the applicant paid for the cab fare home;

7. the applicant suffered from health difficulties.

23. The submission was made in the context of an analysis of several decisions of this Court.

24. The prosecution submitted that the sentence was in line with the range established by previous sentences imposed.

Discussion

25. It should be immediately observed that references to decisions where this Court does not intervene but merely refuses to interfere in the decision below are of limited utility. An inability to find error is not the same as an endorsement that the sentence imposed below would be one that the members of the Court might have imposed. Hence the references to the factual circumstances and the sentences imposed in R v West [2007] QCA 347, R v Faifuaina [2004] QCA 262, R v M [2003] QCA 451, R v Williams [2002] QCA 211, R v B [1996] QCA 076, R v Shaw & Haslett [1995] QCA 294 and R v Hunt [1994] QCA 440 where applications for leave to appeal against sentence were refused, do not assist greatly.  Indeed in Shaw & Haslett McPherson JA commented that a higher head sentence could have been imposed. 

26. Williams is of some assistance in that the Court mentioned there that a range of seven to nine years imprisonment as appropriate “for the offence of rape with similar features to the circumstances here.”  Those features included threats, a 16 year old complainant, the holding of a knife by the applicant immediately before the rape, a significant disparity in age, no remorse and the giving of a false account.  However there was no evidence of injury or any permanent sequelae, or any actual violence beyond the perpetration of the rape.  I observe that here the sentence falls at the lower end of that range and substantial violence and injury were significant aggravating features

27. A further difficulty is that no two cases are truly on all fours. Thus in R v Stirling [1996] QCA 342, to which reference was made, Thomas J, as his Honour then was, said that the sentencing patterns of the Court had often been discussed in the cases and “there is little point in restating the position”.  Nothing has changed in the intervening period.  There this Court reduced a sentence from nine years to one of seven years imprisonment following a trial and where the offender committed the rape when on parole for an eight and one-half year sentence imposed for offences of armed robbery, deprivation of liberty and break, enter and steal.  But in that case there was no violence, beyond that implicit in any charge of rape, or injury.  Thomas J said:

“Suffice it to say that a nine-year sentence seems more appropriate for those cases where specially serious factors operate such as the infliction of injury or the use of serious threats, possession of a weapon or some factor of a particularly aggravating kind.”^[4]

28. I observe that here each of those aggravating factors were present - the infliction of injury, the use of serious threats and the possession of a weapon.

29. In R v Taiters [2001] QCA 324 this Court reduced a sentence of ten years imprisonment to eight years.  The offender was convicted, following a trial, of one count of rape, two counts of indecent assault, and one of indecent assault with a circumstance of aggravation.  Two of the counts of indecent assault would now be termed rape.^[5]  The offender there subjected the complainant to significant violence and degrading conduct over a prolonged period, caused some injury, had a significant prior criminal history involving offences of violence and had demonstrated no remorse.  While the violence might arguably have been worse – and that is difficult to judge – the offender did not arm himself with a knife but a belt.  The higher head sentence imposed reflects the aggravating features of that case.  As well here there were four counts of rape as well as the two assault charges.  An increased sentence would be justified here to reflect the added gravity that parliament plainly intended by the amendment of the definition of rape in s 349 to include those acts that were formerly termed indecent assaults with circumstances of aggravation.

30. Again in R v McIlvaney [1997] QCA 016 a sentence of ten years was reduced to one of eight years imprisonment for an offence of rape following a trial.  It was said that force was used resulting in abrasions, bruising and soreness, threats were made, and the complainant suffered a post traumatic stress disorder.  There was a minor criminal history.  Significantly there was no use of a weapon.  Again there was a charge of assault with a circumstance of aggravation which today would be charged as rape.  The use of the knife and the prolonged nature of the attack in the present case are worse features than in McIlvaney.  As well, the applicant here faces four counts of rape.

31. Those three decisions were the only three to which we were referred in which this Court has set aside the sentence below and imposed its own sentence. To my mind the decisions in Stirling, Taiters and McIlvaney each confirm the sentencing judge’s approach.  But for the plea of guilty her Honour would have been fully justified in imposing a nine year sentence of imprisonment consistently with those cases.

32. Here the significant violence inflicted, the use of the knife, the threats, the extreme fear that the applicant intended be caused and did cause, the prolonged nature of the complainant’s ordeal, the injuries suffered and their ongoing sequelae all justify the sentence imposed. The plea of guilty was amply allowed for. The various matters that the applicant points to seem to me of little moment.

33. I would refuse the application.