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- Appeal Determined (QCA)
R v Conway QCA 142
SUPREME COURT OF QUEENSLAND
R v Conway  QCA 142
CA No 53 of 2012
DC No 103 of 2010
Court of Appeal
District Court at Rockhampton
1 June 2012
28 May 2012
Margaret McMurdo P, Muir JA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
1. The application for leave to appeal against sentence is granted.
2. The appeal is allowed.
3. The sentences imposed at first instance are set aside and instead on each count the applicant is sentenced to six years imprisonment and is eligible for parole on 5 March 2014.
4. The applicant is declared to have served a pre-sentence custody period of 87 days between 5 March 2012 and 1 June 2012, as imprisonment already served under the sentence.
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to two counts of rape on the morning of trial – where offences occurred in the house of the complainant – where the applicant knew the complainant was alone at her residence – where the complainant originally permitted applicant to enter – where the applicant had no prior criminal history and generally good antecedents – whether the sentencing judge erred by characterising the late pleas of guilty as reflecting less than a willingness to cooperate in the administration of justice – whether the sentencing judge erred in considering the offences to be aggravated by their occurrence in the complainant’s residence and by the applicant’s breach of trust – whether the sentencing judge erred in concluding the appropriate range was between seven and nine years – whether sentence imposed was manifestly excessive in all the circumstances
Penalties and Sentences Act 1992 (Qld), s 13(2)
AB v The Queen (1999) 198 CLR 111;  HCA 46, cited
R v Basacar  QCA 352, cited
R v Cox  QCA 277, cited
R v D  1 Qd R 363;  QCA 329, cited
R v Elzinga; ex parte Attorney-General (Qld)  QCA 128, cited
R v Q  QCA 421, cited
R v Stephens; ex parte Attorney-General (Qld) (1994) 76 A Crim R 5;  QCA 507, cited
R v Stirling  QCA 342, cited
J A Greggery for the applicant
J Phillips for the respondent
Anderson Telford Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
- MARGARET McMURDO P: The application for leave to appeal should be granted and the appeal allowed. Sentences of six years imprisonment with parole eligibility after two years should be substituted. I agree with the reasons and proposed orders of Henry J.
- MUIR JA: I agree that the application should be granted and the appeal allowed for the reasons given by Henry J.
- HENRY J: The applicant pleaded guilty in the Rockhampton District Court on 5 March 2012 to two counts of rape. On each count he was sentenced to seven years imprisonment with a parole eligibility date fixed after the service of 28 months (one third) of that term. He applies for leave to appeal on the ground that the sentence imposed was manifestly excessive.
- His counsel submits in particular that the learned trial judge erred by:
- characterising the applicant’s late pleas of guilty as reflecting less than a willingness to cooperate in the administration of justice;
- considering the offences were aggravated by their occurrence in the complainant’s residence and by the applicant’s breach of trust;
- concluding the appropriate range of sentence was between seven and nine years.
Circumstances of the offences
- The offences occurred at the home of the 28 year old complainant in Blackwater. The applicant was a friend of the complainant’s de facto husband who he had been drinking alcohol with earlier that night and whom he knew would not be at the complainant’s home. He arrived at the complainant’s home where she and her four children were asleep after 2.00 am on 20 February 2009.
- The complainant awoke and answered the door to the applicant, who she had met before. He entered and pushed her over the dining room table. She wriggled away and went to the verandah where he grabbed her, bent her over the verandah railing and pushed his groin against her backside. He shuffled her back into the house saying, “Just a quick one”. She unsuccessfully attempted to pull away from him. He pulled his penis out and masturbated in front of her continuing to proposition her but she told him, “No”. He left her briefly to check on a passing car and returned holding the complainant in a bear hug and forcing her over towards her dining room table.
- He held her arm, pushed her in the back and pushed her down on the table face first and tried to pull down her boxer shorts. He said, “Come on, it’s all right”, but she told him, “No you can’t do this”. He moved her boxer shorts to the top of her thighs and she felt his penis on her bottom. She struggled and ended up on her back on the table. He lifted her legs up and pushed his penis half way into her vagina despite her pushing him away and trying to shut her legs. He stuck his tongue into her mouth. She pushed him off her, smelling what she thought might be semen.
- He then put his hand up the leg of her shorts and pushed about two fingers hard into her vagina causing her pain. She again managed to push him off and he asked, while masturbating, “Well, can I lick you?” to which she again said, “No”.
- The complainant went out to the verandah and saw her de facto husband walking up the street. The applicant dressed and went out to meet his friend. The complainant left and went to her brother-in-law’s for help and a complaint was made to police that morning.
- When police interviewed the applicant he initially denied any sexual contact. When told the scene and his clothes were going to be forensically examined he indicated he wanted to change his version. He then admitted he “probably did finger her” and probably had his penis out once but denied putting his penis inside her.
- Traces of spermatozoa were found on the complainant but could not be profiled for comparison.
- The offences had a devastating impact upon their victim who was shocked by the events occurring in her own home where her children were. Her de facto husband left her two days after the offence. As a result of the offences she had to move towns and houses and consequently had to pay higher rent. She attended counselling sessions with a psychologist. She became hypervigilent about the security of her home and children and stopped socialising and going out because she felt afraid.
The applicant’s personal circumstances
- The applicant was 27 years old at the time of the offences and 30 years old when sentenced. He had no criminal history.
- He is the father of nine children from two relationships and at the time of sentence was the sole carer for five children. He was a longstanding employee of Queensland Rail, holding the position of team leader, and was well regarded by his supervisors. He coached a local football team for two years. He had been on anti-depressants for the five years leading up to the date of the sentence.
- The matter proceeded in the Magistrates Court by way of a two day committal proceedings with cross-examination, including cross-examination of the complainant.
- The applicant was committed for trial.
- The indictment presented against him contained two counts of rape and four counts of sexual assault, all of which were alleged to have occurred on the same date.
- The matter was listed for trial. On 5 March 2012, the morning of trial, in the presence of the assembled jury panel, the prosecution discontinued the four sexual assault charges, prompting the presiding judge to observe, “I might say that having read the material that has been provided to me before the trial, that seems to me to be a practical and commonsense approach to this matter.” The prosecutor amended the date of the alleged commission of the two rape offences, presumably correcting a typographical error that had been common to all the charges on the indictment. The applicant was then arraigned and pleaded guilty.
Sentences submitted for at first instance
- In the course of submissions on sentence below, the learned Crown Prosecutor submitted that the applicable range was seven to nine years imprisonment and contended that a sentence of eight years imprisonment was called for.
- Defence counsel at first instance submitted a head sentence of up to seven years was appropriate and submitted for the fixing of a parole eligibility date after the expiration of less than one third of that term, given his absence of criminal convictions prior to and since the offences.
- The head sentence actually imposed is therefore within the range contended for by defence counsel below. This detracts from the force of the applicant’s complaint the sentence imposed was manifestly excessive.
The sentencing remarks
- The learned sentencing judge noted the offending has had tragic consequences for the victim and her family and to a lesser extent for the applicant and his family. He noted the long term emotional consequences upon the victim and her children as a result of the offences. He noted her need to attend counselling, her fear of living in her own home, her nightmares, her over-protective behaviour towards her children and her concern at not being able to enter into another relationship again. He also noted the financial impact of the offences upon her.
- His Honour observed the applicant exploited knowledge he had from a friend who trusted him and went to the complainant’s house knowing her partner would not be present. He noted the late hour of the attendance at night as an aggravating feature and observed the applicant exploited the fact he was known to the complainant, making it likely she would open the door to him.
- The learned sentencing judge noted the applicant’s use of force and his physical superiority over the complainant and the escalation of force he used against her through the incident. However, his Honour also noted the applicant did not use a weapon or punch the complainant or physically harm her beyond the immediate effect the penetrations involved.
- His Honour observed rapes are plainly more serious when they are committed against a woman in her own home, particularly when that woman is alone. His Honour regarded it as an aggravating circumstance that the complainant’s children were asleep in the kitchen at the time. He noted the applicant’s sexual contact with the complainant was unprotected.
- His Honour noted there was a committal proceeding at which the complainant was cross-examined and that the plea of guilty, on the morning of trial, was late. He also observed that when interviewed by the police the applicant was not frank. Nonetheless, his Honour indicated the applicant was entitled to some benefit for his plea of guilty. His Honour noted that, had the matter gone to trial, guilty verdicts were not inevitable and accepted that the applicant was remorseful.
- His Honour took into account that the two offences arose out of one incident. He also took into account that the offending behaviour was out of character and that the applicant had not offended subsequently, indicating his rehabilitation. His Honour noted the applicant’s good antecedents and that the sentence to be imposed would cause hardship for the five children for whom the applicant was the sole carer.
- His Honour concluded the appropriate range for offending of this nature was seven to nine years imprisonment. He indicated his approach was a starting point of eight years with allowance made for matters in mitigation by the reduction of that head sentence to seven years, in addition to the fixing of a parole eligibility date after one third of that time.
Late pleas of guilty
- The first error alleged by the applicant’s counsel is that the learned trial judge characterised the applicant’s late pleas of guilty as reflecting less than a willingness to cooperate in the administration of justice, however his Honour did not so characterise the applicant’s late pleas of guilty. His Honour did remark to the applicant in sentencing him “…your plea of guilty was on the morning of the trial, so it is a late one”. His Honour went on to observe:
“So while you may receive less benefit than in cases where there has been an early plea of guilty, and full cooperation with the authorities and the criminal justice system, you are nonetheless entitled to the benefit of the plea.”
- The learned sentencing judge was correct to characterise the pleas of guilty as late, coming as they did on the morning of the listed trial. In determining the extent to which he would reduce the sentence he would otherwise have imposed had the applicant not pleaded guilty, the learned trial judge was entitled, in accordance with s 13(2) of the Penalties and Sentences Act 1992 (Qld), to have regard to the time at which the applicant pleaded guilty or informed the prosecution of his intention to do so.
- This was not a case in which it was suggested the applicant indicated at some earlier time an intention to the prosecution to plead guilty. While the prosecution did discontinue four charges on the morning of trial, it was not a case in which it was suggested the applicant had at an early stage conveyed an intention to plead guilty to the two charges of rape if the prosecution discontinued the other charges. Further, while the date of the two charges to which the applicant did plead guilty on the morning of trial was amended before his pleas of guilty were entered, it is not suggested the change of the date alleged in the indictment was material to the applicant’s change of position. The matter is therefore distinguishable from Cameron v The Queen where the appellant could not have been expected to plead guilty before the charge was amended in a material way.
- There was no error of approach in respect of the significance of the late pleas of guilty.
- The second alleged error is said to be that the learned sentencing Judge considered the offences were aggravated by their occurrence in the complainant’s residence and by the applicant’s breach of trust
- As to the offences occurring in the complainant’s home his Honour observed rapes are plainly more serious when they are committed against a woman in her own home. In doing so, he emphasised the entitlement of the woman to feel safe and secure in her own home and not be robbed of that sense of safety and security as had occurred in the present case. Those observations were uncontroversial.
- As to the alleged breach of trust, his Honour did not expressly categorise the conduct in that way. He said:
“What happened on this occasion, and why I see your offending as so serious, is that you exploited knowledge that you had from a friend, who trusted you, in order to put yourself in the position where you committed this offence. …you knew … he would not be home with her that evening when you called on the house at about 2 am, or shortly after that time.”
- Those comments are consistent with his Honour taking the uncontroversial view that in committing the rapes the applicant was knowingly exploiting the vulnerable position the complainant was in and his knowledge her partner was not nearby to protect her.
- His Honour went on to say:
“The time at which this offence occurred, while she was alone in the house, as you knew she would be, in the night-time, is itself an aggravating factor of this case.
You also exploited the fact that if you knocked on the door, that because she had met you about a month previously, and that you were a friend of her separated partner, that she was likely to open the door to you, which she eventually did. And then after she had opened the door, you used force against her to push her into the house, and use your physical superiority to gain your way with her…”
He later observed:
“While this case is not one of an intrusion into the room of a sleeping woman, it is nonetheless an intrusion into the house of a woman…”
- It was submitted this breached the principle in R v D, that a sentencing judge must not take into account circumstances which would establish a separate offence, of which an offender has not been convicted, consisting of or including conduct which did not form part of the offence for which the person is be sentenced.
- The applicant’s written submission was to the effect his Honour’s remarks were tantamount to a finding the applicant intended to commit the offences prior to his arrival. That was effectively a submission his Honour had found as an aggravating circumstance that the applicant had committed an uncharged act of burglary. Considered in context it appears the above-mentioned remarks were referable to his Honour’s subsequent attempt to draw an analogy in seriousness as between this case and cases where the rapist enters the bedroom of a sleeping woman. The remarks also fall to be considered in light of the fact the initial entry into the home, which involved no force, was followed by the subsequent re-entry when the applicant was shuffling the complainant. The subsequent re-entry occurred at a time when the use of force to overcome the complainant’s lack of consent was already underway. Taking the applicant’s by then obvious intent to rape into account could not offend the principle in R v D. So far as the initial consensual entry is concerned, his Honour’s remarks did not go so far as to take that entry into account as an uncharged act of burglary.
- In the course of oral submissions the applicant’s counsel focussed upon a different uncharged act, namely a sexual assault on the verandah, consisting of the applicant bending the complainant over and pushing his groin against her backside.
- This activity was clearly described in the schedule of agreed facts tendered with the consent of the defence on sentence. It was included in that part of the schedule that purported to describe the facts relating to the first count of rape. It was taken into account by his Honour in his description of the force used by the applicant. But was that a breach of the principle in R v D?
- This court observed in R v D that:
“…common sense and fairness determine what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing purposes.”
- By the time of the events on the verandah, the applicant had already pushed the complainant over the dining room table and she had wriggled away. The application of force without the consent of the complainant on the verandah was inextricably part of the progressive physical overwhelming of the complainant to eventually overcome her lack of consent. As a matter of fairness and commonsense it was conduct which formed part of the offence of rape. The learned sentencing Judge did not err in taking it into account.
- The third error contended for by the applicant’s counsel was that the learned sentencing judge erred in concluding the appropriate range of sentence was between seven and nine years.
- The parties referred in this application to the following cases, considered chronologically, in support of their submissions on the appropriate sentence range.
- In R v Stephens; ex parte Attorney-General (Qld)  QCA 507 the 22 year old respondent was convicted after a trial of two counts of rape and one of indecent assault upon his de facto partner to whom he was regularly violent and who at the time of the offence was occupying a separate bedroom from the respondent. In the course of the episode of offending he assaulted and caused minor injury to her genital area. The sentencing Judge wrongly took a view that rapes within existing relationships ought be treated leniently and only imposed three years imprisonment with a parole recommendation after six months. On the Attorney’s appeal this Court substituted the sentence with one of five years imprisonment with a recommendation for parole eligibility after two years. This case is of limited utility given its age.
- In R v Stirling  QCA 342, the applicant was convicted of rape after trial and pleaded guilty to indecent assault. He was sentenced to concurrent terms of imprisonment of nine years and two years respectively. In the aftermath of a group from neighbouring units socialising in the complainant’s unit the complainant went to bed at a time when the applicant was still there. She awoke to discover the applicant licking her genitals. She told him to get out but he held her, said he would finish what he had come for, tore her underpants and raped her. He was on parole at the time. The court concluded the nine year sentence was manifestly excessive and a sentence of seven years was substituted. Thomas J noted the absence of significant violence and of injury and observed:
“…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.”
- Those observations provide strong support for the applicant’s submission that the appropriate range in the present case did not extend to nine years.
- In R v Elzinga; ex parte Attorney-General (Qld)  QCA 128 the respondent pleaded guilty to rape and deprivation of liberty. He was sentenced to concurrent terms of imprisonment of five and two years and there was a recommendation for parole after two years. The respondent and complainant were acquaintances from the same residential unit block. They were amongst a group at a nightclub at a time when the respondent showed interest in her. On returning to their unit block she declined his persistent requests to go to his flat but fell into its doorway. The respondent dragged her inside, inserted his finger into her vagina and, despite her wearing a tampon and repeatedly telling him to stop, he raped her. He threatened to kill her if she told anyone but was also apologetic. The police attended later that night and he admitted the offences and expressed regret. The complainant was not required to give evidence. He was on probation for a breach of Domestic Violence Order. Influenced by R v Stephens; ex parte Attorney-General, the Court did not interfere with the sentence but emphasised it was low and barely within range.
- In R v Q  QCA 421 the 40 year old applicant was convicted after trial of burglary and rape and sentenced to concurrent terms of imprisonment of four and eight years respectively. After consuming alcohol the complainant fell asleep fully clothed in the bedroom of the backpacker hostel at which she was staying. She awoke to discover a male intruder had removed her underpants and was having carnal knowledge of her. She pushed him off and fled to the lavatory. She was left with a bruised thigh and tenderness to the vagina. The applicant’s eight year sentence was cumulative upon concurrent sentences of three years for six other burglaries and a suspended sentence was also activated. The Court refused the application. Helman J observed two cases to which the Crown referred, R v Raymond and R v Press, established “a range for offences of the kind in question beginning at imprisonment for seven years”. The kind of offences to which his Honour was there referring was that kind of rape offending which is achieved by intruding into the home or bedroom of the victim without her knowledge or consent. The present matter is not of that kind.
- The applicant in R v Basacar  QCA 352 was convicted after trial of two counts of rape and sentenced to eight years imprisonment. He occupied a room in a shared accommodation facility where the complainant and her boyfriend occupied another one of the rooms where there was a double decker bed. The complainant fell asleep on the bottom bunk and awoke lying side on with a male she assumed was her boyfriend lying behind her. He digitally penetrated her and inserted his penis into her vagina twice for about 15 seconds each time. She rolled back towards him and realising it was not her boyfriend pushed him away and yelled. He ran off. He was a 42 year old father of two young daughters and carer to his wife who had physical and mental problems. He had no previous convictions. While Jerrard JA regarded the sentence as too high in the absence of the use of a weapon or threat of physical injury and would have substituted a sentence of seven years imprisonment, the majority did not disturb the sentence. Mullins J observed the authorities could not be reconciled with precision but observed they supported “a sentence of at least seven years for a rape committed by an offender who enters a complainant’s bedroom uninvited”. Holmes JA agreed that “as a general proposition, sentences for rapes of this type can be expected to fall within seven and nine years imprisonment”. The kind of offending involved in R v Basacar was the kind of offending discussed in R v Q, namely rape offending which is achieved by intruding into the home or bedroom of the victim without her knowledge or consent than the present matter.
- The applicant in R v Cox  QCA 277 pleaded guilty to two counts of assault occasioning bodily harm and four counts of rape. He was sentenced to concurrent terms of imprisonment of three years on the former counts and seven years on the latter and a parole eligibility date was set after the expiration of 28 months (one third) of the head sentence. The applicant and complainant knew each other and met at the applicant’s industrial shed at night in order to engage in sexual intercourse. However, the applicant abused the complainant and committed the offences as part of a prolonged violent attack involving violence and threats to use a knife and left the complainant with a variety of injuries. The complainant was cross-examined at the committal proceedings and the guilty pleas were only indicated the week before the trial was due to commence. The sentencing Judge inferred some level of remorse. The applicant had a dated criminal history and had a back injury and early onset Parkinson’s disease. McMeekin J with whom Fraser JA agreed, quoted the above comment by Thomas J in R v Stirling and observed that on the authorities, but for the guilty plea, her Honour would have been fully justified in imposing nine years imprisonment. The sentence was not disturbed. That case involved more serious offending than the present, although the sentence was obviously lenient.
- The applicant submits his Honour erred in his conclusion as to the appropriate range of sentence in this case. His Honour said:
“I have come to the conclusion that the appropriate range for offending of this nature is seven to nine years’ imprisonment.”
- His Honour’s conclusion was obviously influenced by observations as to range in so called rape by stealth cases such as R v Stirling, R v Q and R v Basacar. He observed of such authorities, as reviewed in R v Basacar, that “collectively, by analogy, they support the range that I have indicated today”. However, those cases were not analogous to the present matter in that the rapes in those cases were preceded by an offender’s initial entry without consent into the bedroom of a sleeping victim. In contrast, the applicant in the present case initially entered the premises with the consent of the conscious complainant. As already discussed his offending was not aggravated by his initial entry amounting to a burglary.
- Further, this case did not involve an aggravating feature of the kind identified by Thomas J in R v Stirling. The learned sentencing Judge appeared to recognise as much in noting the absence of a weapon or physical injury. In the circumstances, a range as high as nine years was inappropriate for a case such as this. Further, the cases referred to did not support a conclusion that the lower limit of an appropriate range for a case of this kind was as high as seven years.
- In considering whether a passage in sentencing remarks discloses error warranting appellate intervention, care must be taken not to over-scrutinise individual passages in isolation and to have regard to the whole of the remarks. Caution must also be taken not to intervene because of an inconsequential error which cannot have made any material difference to the result. In the present context, particular regard must be had to his Honour’s conclusion that his starting point for the sentence to be imposed was eight years. His Honour did not ultimately conclude the case warranted a sentence as high as nine years however his starting point of eight years was at the upper extremity of an appropriate range. But for the error his starting point would have been at least a year lower. The error as to the appropriate range did make a material difference to the sentence actually imposed.
- It follows that leave should be granted, the sentence imposed below must be set aside and the sentencing discretion exercised by this Court afresh.
Sentence to be imposed
- The consequences of the offending for the victim were serious. The circumstances of the offending were serious, although the duration of the actual sexual contact was not prolonged and there was no gratuitous violence or infliction of injury.
- The victim was cross-examined at a committal and the applicant’s pleas of guilty were very late. In the normal course late pleas of guilty, unless earlier offered and rejected, would not, in the absence of persuasive other mitigating circumstances, warrant a parole date fixed after the expiration of as low as one third of the head sentence. However, there are other mitigating circumstances that in combination with the guilty pleas warrant such an approach here, in conjunction with the imposition of a moderate head sentence. The applicant was remorseful. More particularly he was a first offender of otherwise good character, sole carer to five children and in the almost three years since the offences had by his non-offending demonstrated progress towards rehabilitation.
- In all the circumstances of the case I would impose a head sentence of six years imprisonment with a parole eligibility date fixed after one third of that term.
- It has not been submitted that the duration of the sentences ought be different as between the two counts and the offences are so closely connected that they should attract the same sentences.
- I would make the following orders:
- The application for leave to appeal against sentence is granted.
- The appeal is allowed.
- The sentences imposed at first instance are set aside and instead on each count the applicant is sentenced to six years imprisonment and is eligible for parole on 5 March 2014.
- The applicant is declared to have served a pre-sentence custody period of 87 days between 5 March 2012 and 1 June 2012, as imprisonment already served under the sentence.
 See R v Frame  QCA 9 at ; R v Hutchinson  QCA 22 at .
 (2002) 209 CLR 339.
  1 Qd R 363.
 Ibid at 403.
 Ibid at 9.
  QCA 441.
 QCA 7.
 Ibid at 10.
 Ibid at .
 Ibid at .
 See R v Burke  NSWCCA 353 at , cited with approval by Keane JA in R v KAC  QCA 39.
 AB v The Queen (1999) 198 CLR 111 at 160.
 See, R v D’Arcy  QCA 325 at .
- Published Case Name:
R v Conway
- Shortened Case Name:
R v Conway
 QCA 142
McMurdo P, Muir JA, Henry J
01 Jun 2012