R v Benjamin[2012] QCA 188

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P: I agree with Henry J’s reasons for concluding that the sentence imposed below of 11 years imprisonment for the offence of rape was manifestly excessive in all the circumstances, and that a sentence of nine years imprisonment should now be substituted.  I do not, however, consider that the offence should be declared a serious violent offence under s 161B(3) Penalties and Sentences Act 1992 (Qld).

[2] Unquestionably, a significant term of imprisonment was warranted to punish the applicant; to deter him and others like him from such behaviour; and to express the court’s disapprobation.  Our community rightly expects that women can exercise in the early evening in pleasant outdoor recreational areas without being physically or sexually assaulted.  Henry J’s review of the authorities demonstrates that a nine year term of imprisonment was entirely appropriate in light of the exacerbating and mitigating features. 

[3] This Court in R v McDougall and Collas,[1] discussed the circumstances supporting a declaration that a conviction is a serious violent offence under s 161B(3) and (4) Penalties and Sentences Act.  Declarations are usually reserved for more serious examples of offences of that type or where there is some other feature justifying the requirement that the offender serve 80 per cent of the sentence before parole eligibility.  A declaration may be made where there is good reason to postpone the date of eligibility for parole because of the circumstances which aggravate the offence.  A declaration may also be made where circumstances suggest that the protection of the public or adequate punishment requires a longer period of actual custody before eligibility for parole.  The Court noted that:

“the exercise of the discretion will usually reflect an appreciation by the sentencing judge that the offence is a more than usually serious, or violent, example of the offence in question, and, so outside ‘the norm’ for that type of offence.”[2]

[4] As in almost all rape offences, the present offence involved a degree of actual violence and the infliction on the complainant of physical bodily harm with psychological after-effects.  But there was no threat to kill or maim, no use of a weapon and no permanent physical injury, features which are all too commonly associated with offences of rape.  Nor was there any aggravating feature of revenge[3] or sadistic cruelty.  The applicant’s criminal history was limited and his good work record does not presently suggest that his parole release date need be delayed beyond 50 per cent in order to protect the community.  He is 27 years old.  He seems to have the support of his partner and his family.  He cooperated with the administration of justice by supplying DNA for testing which led to his arrest and by his early plea of guilty.  These matters in combination suggest he may be a suitable candidate for parole and rehabilitation.  Whilst the applicant has committed a most grave offence, there is nothing about it that takes it into the more serious examples of rape offences warranting a declaration.

[5] I agree with the orders proposed by Henry J save that, for the reasons I have given, I would not declare the applicant to be convicted of a serious violent offence.

[6] NORTH J: I gratefully adopt Henry J’s summary of the facts and the sentencing hearing.  I agree with his Honour that the learned sentencing Judge did not err when he said, “The nature of the offence involved gratuitous violence of a significant degree”.  His Honour’s reasons explain why this statement was justified.

[7] The circumstance of the applicant’s attack upon the complainant called for a punishment of a lengthy period of imprisonment so that, if considered without regard to precedent, I would not have concluded that the sentence imposed was manifestly excessive.  Nevertheless his Honour’s careful review of the comparable decisions in this Court within the last eighteen years persuade me that the sentence of eleven years’ imprisonment was manifestly excessive and I agree, for the reasons given by his Honour, that a sentence of nine years should be substituted.

[8] I agree with Henry J that a declaration should be made that the applicant be convicted of a serious violent offence[4].  The violence perpetrated upon the complainant by the applicant as a means to fulfil his end amply justifies the declaration.[5]

[9] I agree with the orders proposed by Henry J.

[10] HENRY J: The applicant pleaded guilty in the District Court, Townsville on 11 August 2011 to one count of rape.  He was sentenced on 29 November 2011 to 11 years imprisonment.

[11] He applies for leave to appeal on the ground that the sentence is manifestly excessive.  He submits not only that the sentence was beyond range but also that the sentencing Judge erred in concluding the offence involved gratuitous violence of a significant degree.

Circumstances of the offence

[12] The complainant, a 19 year old female university student, went jogging at about 7.00 pm on 15 February 2010 in Townsville.  She was running on Riverway Drive in Condon in the vicinity of the Riverway complex.  She had earlier noticed a person near the toilets at the complex.  It transpired this person, who was a stranger to her, was the applicant.  During her run she was returning towards the Riverway complex as it started to get dark and was on a section of pathway obscured from public view when she heard somebody jogging behind her. 

[13] She felt herself being hit from behind and only has patches of memory from that point.  She recalls screaming and asking her attacker, “Why me?”.  Her attacker, the applicant, replied, “Because you were the only one out here”.  She felt something going into her vagina and asked the applicant if he had HIV to which the applicant responded that he did not.

[14] At first instance the defence disputed the prosecution’s assertion the complainant lost consciousness as a result of the attack and tendered her witness statement, apparently to demonstrate she did not specifically refer to being knocked unconscious.  However, the statement specifically referred to her only having patches of memory after being hit from behind and referred to not remembering where she was when she “woke up” without her shorts and underpants on.

[15] As a result of the attack upon her she had cuts and bruises to her face, neck and elbows.  She had severe swelling to her cheekbones, her nose bled and her lip was badly split and swollen with a chunk missing from it.  She had abrasions to her hips and soreness to her face, jaw, neck, shoulder, hips and backside.  Some of her injuries required suturing.  She had a chronic headache.

[16] She was found crying and in a completely dishevelled state by a walker who shortly before had passed a man running away quickly. 

[17] A COMFIT photograph was created prompting the applicant’s employer, conducting paving work at Lavarack Barracks, to note a resemblance to the applicant.  The applicant came to police attention at his home in Cairns some three days later and ultimately a DNA sample was taken from him.  That sample was consistent with the DNA and semen found in the complainant’s vagina. 

[18] The applicant declined to be formally interviewed by the police about the offence.

[19] The victim impact statement of the complainant tendered on sentence disclosed the offence has had a significant adverse impact upon her.  Beyond the initial shock and physical damage resulting from the offence, it caused her to become terrified of being alone and paranoid about every male stranger near her.  She is no longer confident being out by herself at night.  She required counselling and was untrusting of personal sexual relationships.  She does not think she will ever again be the same person she was prior to the attack.

The applicant’s personal circumstances

[20] The applicant was 25 years old at the time of the commission of the offence and 28 at the time of sentence.  He has a good work history.  He has a partner with whom he had a young child in 2010.  His partner is standing by him, notwithstanding his history of domestic violence towards her. 

[21] The applicant has a criminal history and was imprisoned in 2011 for various offences including breach of domestic violence order in 2010 and common assault committed in 2011.  He had completed those terms of imprisonment by the time of his sentence in the present matter.

Litigation history

[22] It was submitted at first instance that the applicant had pleaded guilty at the very first opportunity.  This apparently followed his receipt of legal advice subsequent to the committal proceedings in respect of the incriminating nature of the DNA evidence.

Sentences submitted for at first instance

[23] At first instance, the learned Crown Prosecutor submitted the appropriate range was 10 to 14 years imprisonment and that the sentence should fall midway in that range to give credit for the applicant’s guilty plea. 

[24] Defence counsel at first instance submitted that the appropriate sentence range was in the order of eight to 10 years imprisonment and, apparently contemplating a sentence less than 10 years, submitted a serious violent offender declaration should not be made because the only violence involved was that necessary to overcome resistance to the commission of the offence.

The sentencing remarks

[25] The learned sentencing judge said he took the applicant’s plea of guilty into account and noted that his criminal history was not a matter of great significance.  He noted the applicant’s good employment history and the fact that he had a partner, a young child and the support of members of his family.

[26] However, he regarded the offence as a shocking act of personal violence and violation of an innocent woman in a public place, subjecting her to humiliating and degrading conduct that he described as callous and premeditated.  His Honour observed the applicant had “singled out and set upon a vulnerable woman” in a public area.  His Honour noted the vulnerability of females seeking to maintain their fitness and health by jogging in public areas and their right to go about their recreational pursuits in safety and without fear of physical assault or sexual interference. 

[27] His Honour told the applicant, “[Y]our conduct was random sexual violence for personal sexual gratification without your having any care for the welfare of the person whom you set upon”.  His Honour rejected the submission that the degree of violence perpetrated was merely that necessary to overcome resistance.  He noted there was no evidence of overt resistance and that the offence involved “gratuitous violence of a significant degree”.  He observed that no weapon was involved in the offence but nevertheless significant injuries were suffered by the complainant including bruising and lacerations and other marks and bits of missing skin from various parts of her body.  He was satisfied the attack adversely affected the complainant’s state of consciousness.

[28] His Honour emphasised the adverse impact of the offence upon the complainant, quoting a number of passages from her victim impact statement.

[29] His Honour indicated he had regard in assessing the overall sentence to the fact that it would automatically deem the applicant convicted of a serious violence offence, that is, that he would not be eligible for parole until serving 80 per cent of the sentence of 11 years imprisonment which his Honour then imposed.

Did the sentencing Judge err?

[30] The applicant submits the learned sentencing Judge erred in concluding “the nature of the offence involved gratuitous violence of a significant degree”.

[31] The prosecutor at first instance had submitted the matter was within that category of cases “described as a rape with serious violence” to support his submission the range was 10 to 14 years imprisonment.  As against this, defence counsel submitted the violence was not of that degree.  He submitted the violence was “simply used to overcome any resistance” and contended the range was eight to 10 years imprisonment without a serious violent offender declaration.

[32] In the course of his sentencing remarks, and before making the comments complained of, the learned sentencing Judge said:

“It was suggested to me in submissions that the degree of violence that was perpetrated upon this unfortunate lady was to overcome resistance, or at least had the appearance of such. I do not accept that. In my view, the violence was more than that, and more than as was associated with overcoming resistance. Indeed, there is no evidence of any overt resistance by the complainant.”

[33] Against that background it can be seen the learned sentencing Judge in later describing the violence as “gratuitous” was not intending to suggest the violence was done for the fun of it separately from the offender’s immediate aim of committing rape.  Rather, he meant that the degree of violence used exceeded the minimum force necessary to achieve his aim.  That his Honour was focussing on the degree of violence used was also made plain by the immediate context in which the word “gratuitous” was used, namely the words “gratuitous violence of a significant degree”.

[34] In the course of submissions on the appeal it became apparent the applicant’s submission that the violence was not of a significant degree relied upon a comparison with the degree of violence used in other rape cases.  Such a comparison may assist in assessing the appropriate sentence range but it does not demonstrate the factual error contended for.

[35] The applicant emphasised the applicant’s physical injuries, photographs of which have been viewed by this court, only met the definition of bodily harm as distinct from grievous bodily harm.  However, that does not mean the violence that caused her painful physical injuries was not significant.  In this application the prosecution speculated that the victim’s injuries illustrate there were multiple blows rendered by the applicant.  However, the learned sentencing Judge did not draw such a conclusion and nor should this Court.  The victim’s injuries are more consistent with the victim having been struck violently to the head from behind, falling dazed or unconscious face first to the ground and then being disrobed and raped, without any regard to her physical well being, upon hard ground.  Nonetheless, the fact the excessive aspect of the violence was concentrated at the beginning does not mean the degree of violence was not significant.

[36] The applicant apparently made a deliberate choice not to wait and see to what extent the victim would resist his purpose and moderate his force accordingly.  Instead he came at her from behind and, without warning, used completely overwhelming force upon her at the outset.  The applicant’s written outline properly acknowledged the applicant likely hit the victim to the back of the head and her ensuing patchy recollection was consistent with her lapsing in and out of consciousness or concussion.  The learned sentencing Judge was correct to describe the degree of force used as significant.

[37] The learned sentencing Judge did not err in his description of the nature and significance of the violence used.

Was the sentence manifestly excessive?

[38] The applicant submitted the sentence was manifestly excessive in that it was demonstrably outside the applicable range for an offence of rape of the circumstances of this case.

[39] The applicant submits, by reference to the past decisions of this Court, that the sentence imposed in this matter so far exceeds penalties imposed in past matters of a similar level of criminality as to demonstrate error.

[40] That submission necessarily involves comparing individual cases of rape.  This is not to diminish the objective seriousness of the offence of rape but, as with any crime, the circumstances of some rape cases may be comparably more or less serious than others.

Review of “comparative” cases

[41] The past cases referred to by the parties included the following cases, considered in chronological sequence.

[42] In R v Soper [1994] QCA 254 a sentence of 11 years imprisonment on pleas of guilty to the rape and indecent assault of a 17 year old school girl in a shower block of a caravan park was not disturbed.  Soper threw his victim against a tile wall several times causing the tiles to smash and aggravating the victim’s back problem.  He threatened to kill her, forced his penis into her mouth, raped her and threatened to come after her if she told the police.  There was evidence of significant victim impact.  There was a lack of genuine remorse exhibited.  After Soper’s denials to the police, he went to significant lengths to fabricate an alibi using a friend who eventually made a statement to the police withdrawing her support for his alibi.  He told another person that if he went to gaol and ever saw the complainant afterwards, he would kill her.  A psychiatric report indicated Soper would pose a considerable danger to society for many years to follow.  He had an extensive criminal record including a conviction for carnal knowledge against the order of nature.  He was 22 years old at the time of offending.  He was in a de facto relationship with a deaf woman with whom he had two children for whom he cared.  The learned sentencing judge regarded a 12 year sentence as appropriate but discounted it to 11 years to allow for mitigating circumstances. 

[43] McPherson JA observed:

“My initial impression was the sentence might be excessive.  Having, however, heard the matter argued, I have been persuaded that although at the higher end of the range, it is not so severe as to attract the intervention of this Court.”

That matter involved features not present here of forced oral sex, threats to kill, an adverse psychiatric assessment and a more serious criminal history.

[44] In R v Adcock; ex parte the Attorney-General [1994] QCA 525 a sentence of 11 years imprisonment with a recommendation for parole eligibility after three and half years imposed for pleas of guilty to disabling with intent to commit rape and rape was not disturbed on an Attorney’s appeal.  The 15 year old victim was walking home at night when the respondent, having earlier failed in advances towards her, caught up with her and pushed her down an embankment.  He almost choked her into unconsciousness before digitally penetrating her and, ignoring her request to use a condom, then raped her.  There was evidence of significant victim impact.  The respondent had a substantial criminal history including for assault occasioning bodily harm but had not previously served a term of imprisonment.  He had a stable family relationship with a young wife and two children. 

[45] The overall sentence, taking into account the recommendation for early parole, was described as being at the lower end of the appropriate range.  But for the fact the victim in that case was still a child there is little separating the level of criminality in that matter from the present.  The forms of violence used were each different but each severe.  However that sentence was more lenient than the present, notwithstanding that both involved 11 years imprisonment, because Adcock’s sentence also included a recommendation for early parole eligibility, an option which is no longer available for such sentences.[6]

[46] In R v Costello [1997] QCA 93 the applicant pleaded guilty to rape, disabling with intent to commit rape, four counts of indecent assault and assault occasioning bodily harm.  A sentence of 13 years with a non-parole period of half that time, cumulative upon other terms being served, was not disturbed on appeal.  The 24 year old applicant raped a 14 year old who was walking home from a skating rink, tackling her from behind as she walked along the bank of a creek.  He suffocated her for a substantial period, punched her in the face several times and told her he had a knife.  He performed oral sex on her, inserted his fingers into her vagina, forced her to rub his penis and felate him and then raped her.  He had a lengthy criminal history and was on parole for robbery with personal violence whilst armed.  He suffered from some psychological disorders. 

[47] The circumstances of that case, which included offending on parole, were somewhat more serious than the present.

[48] In R v O'Brien [1998] QCA 80 the applicant pleaded guilty to assault occasioning bodily harm, indecent assault with circumstance of aggravation, rape and attempted rape.  A sentence of 11 years imposed at first instance was varied on appeal to the extent of adding a recommendation for parole after four years.  A 33 year old woman was taking an early morning walk near a local park when seized from behind by O'Brien, dragged to a toilet block and then to an area of bushland.  Her head was bashed against the ground and punched a number of times.  She was frogmarched down a gulley towards a river bank.  O'Brien squeezed her left nipple hard, inserted his finger in her vagina, forced her to walk for a further distance and then forced her face down to the ground and threatened sodomy before raping her, notwithstanding being told she was pregnant.  He told her he might keep her, threatened to tie her up and threatened to shoot her if she moved.  He tried to flee but was caught by passers-by.  He was intoxicated and when interviewed did not deny the events, but denied a memory of them.  The complainant suffered multiple bruises and abrasions and ongoing headaches.  The evidence of significant victim impact included her decision to abort the child she had been carrying.  O'Brien’s criminal history included a conviction for a burglary and indecent assault upon the occupant of a house.  O'Brien, who was 28 at the time of the offences, was supported by his wife notwithstanding the existence of a domestic violence order.  The sentencing judge accepted the applicant was remorseful. 

[49] In concluding an early parole recommendation ought be added Fryberg J observed:

“It seems to me difficult to reconcile the giving of proper weight to the factors in the applicant’s favour to which I have referred with the head sentence having been adequately reduced.”

The offending conduct in that matter was somewhat more serious than the present by reason of the prolonged ordeal for the victim, including the threats and persistence despite her pregnancy.

[50] In R v Basic [2000] QCA 155 a sentence of eight years imprisonment with a serious violent offence declaration was imposed on the 31 year old applicant who pleaded guilty to assault with intent to rape, indecent assault with a circumstance of aggravation and rape.  A 19 year old woman was walking to work early near a residential unit block in bushland and grabbed from behind by Basic who placed a hand over her mouth and another hand around her waist telling her to be quiet or he would hurt her.  He dragged her into bushland and inserted a finger into her vagina and raped her anally, causing pain.  He told her if she called the police he would find out where she lived and hurt her.  The complainant’s physical injuries were not serious but there was evidence of significant victim impact.  The applicant who lived nearby fled the jurisdiction as suspicion closed around him but was detained at Perth.  He pleaded guilty at an early stage.  He had previous convictions and had served a period of imprisonment for trafficking in heroin. 

[51] The President observed of a number of past cases she had considered:

“These comparable sentences demonstrate that the sentence imposed in this case was within the appropriate [range] of seven to 10 years.”

Her Honour observed that in imposing a sentence at the lower end of the sentencing range and deciding to declare the defendant to be convicted of a serious violent offence, the sentencing judge had correctly adopted the approach set out in R v Bojovic [1999] QCA 206 and leave was refused.  The circumstances of that matter involved a less significant level of violence than the present.

[52] In R v Mallie [2000] QCA 188 the applicant pleaded guilty to burglary, stealing, two counts of assault occasioning bodily harm, sexual assault and rape.  A sentence of 10 years imprisonment was not disturbed.  Mallie broke into the home of a 37 year old woman who was asleep in bed.  He punched her about five or six times, made her masturbate him, raped her and again punched her five or six times before she managed to kick him and he fled.  The complainant suffered significant injuries including gross swelling around the eyes, a cut to the left eye requiring suturing and some teeth were knocked out.  There was evidence of significant victim impact.  The applicant was identified as the offender through fingerprint and DNA evidence and pleaded guilty to an ex officio indictment.  He was affected by amphetamine and alcohol in committing the offences and claimed to have no recollection of them but expressed remorse for them.  The applicant was 20 at the time of the offending and only had a limited criminal history. 

[53] The President observed the cases to which the Court was referred supported a submission that the range was 10 to 14 years imprisonment and said:

“The sentence imposed was at the bottom end of that range and gives proper weight to the applicant’s plea of guilty, a fact especially important in cases of this type.  Although the case against him was overwhelming, his plea saved the complainant from having to relive her dreadful experience in the witness box.”

The application was refused.  The use of violence in that case was more prolonged than the present matter and the offending occurred in the aggravating context of a burglary.

[54] In R v Bolton [2005] QCA 335 a sentence of 10 years imprisonment for rape and a concurrent term of six years imprisonment for grievous bodily harm, after pleas of guilty, was not disturbed.  Bolton’s 24 year old victim was a university student who was walking alone near the edge of a wooded area at Rainbow Beach.  The applicant grabbed her from behind and forced her to the ground, telling her to shut up.  She grabbed the knife he was wielding and injured three fingers of her hand which required later surgery to repair.  The applicant dragged her into bushes and pushed her to the ground again.  She bit him on the hand but he was too strong for her.  He pushed a cloth into her mouth, took off her clothing, put the knife to her neck, spread her legs and inserted his penis into her vagina.  He acknowledged on the complainant’s inquiry that he was not wearing a condom.  In addition to the grievous bodily harm injury to her fingers, the complainant was left with fine linear abrasions to the throat and neck consistent with the blade of the knife being drawn across her skin.  The prosecution case, which included DNA evidence, was overwhelming.  The sentencing judge rejected a claim of remorse, noting there was an initial false denial and false alibi.  However, it was acknowledged the applicant’s early plea of guilty meant the complainant was not required to return from her home country of Japan to Australia to give evidence.  There was no evidence of the psychological victim impact but there was evidence the complainant was left with a mild disability limiting movement in her hand.  Bolton was 18 years old at the time of the offence and without previous convictions.

[55] The aggravating features of the use of a knife and the consequent infliction of grievous bodily harm involved in that case are not present here.  However, a countervailing consideration is that in that matter the offender was only 18 years old and without previous convictions whereas in the current matter the applicant is of more mature years and has a criminal history sufficiently serious to have resulted in his imprisonment in the past.

[56] In R v Kahu [2006] QCA 413 a sentence of eight and half years imprisonment imposed after Kahu was convicted by jury verdicts of three counts of rape of a 15 year old girl was not disturbed.  When the victim was walking away from a hotel at night, Kahu approached her and pulled her by the hair up some steps onto a raised platform where she landed on her hands and knees.  He raped her vaginally and then effected part penetration about five times of her anus with his penis.  He then forced his penis into her mouth and ejaculated.  He was identified as a suspect through DNA evidence and manufactured an account of consensual sex.  The complainant was left with bruises to her knees and left elbow.  The applicant was 20 years old at the time of offending and received a cumulative activation of a four month suspended sentence for offences of a different character. 

[57] No submissions were advanced in support of the application for leave to appeal against the sentence, which is unsurprising given its apparent leniency against the background of the offender having gone to trial.  Keane JA observed:

“In R v Basic, McMurdo P, with whom McPherson JA and Mackenzie J agreed, reviewed the decisions of this Court relating to the range of sentences for the rape of a young woman alone in a public place where there has not been a brutal bashing of the victim, and where the offender had no like prior convictions.  This review of the authorities demonstrated that the range is between seven and 10 years where the offender has pleaded guilty.” (emphasis added)

While the sexual interference in that matter was somewhat more extensive than the present, it involved a lesser level of force in overwhelming the victim than the present matter did.

[58] In R v Newman [2007] QCA 198 a sentence of 13 years imprisonment imposed after pleas of guilty to rape, grievous bodily harm, robbery with violence, burglary and deprivation of liberty was not disturbed.  Newman broke into the home of a 60 year old married woman who lived next door to his grandmother at night and raped and attacked her with such force as to leave the victim with a broken jaw and a fractured rib, extensive bruising around the temple, face and buttocks and extensive muscle tenderness along the lumbar spine consistent with soft tissue injury.  There was profound evidence of victim impact including admission to a private psychiatric hospital and ongoing psychiatric treatment.  The applicant was 17 at the time of the offence and 18 at the time of sentence and he had no previous criminal convictions.  His fingerprints were found at the scene, though he initially denied involvement before a later interview in which he made full and frank admissions.  He was not genuinely remorseful.

[59] That matter is of a different type than the present and objectively more serious however it is relevant by reason of Williams JA’s observation of past pronouncements to the effect that the range for an offence of such seriousness was 10 to 14 years:

“In my view … that is the appropriate range particularly where rape and grievous bodily harm are involved.”

[60] In R v Wark [2008] QCA 172 the applicant pleaded guilty to an ex officio indictment charging five counts of rape, five counts of sexual assault, one count of assault with intent to commit rape, one count of assault occasioning bodily harm while armed and one count of deprivation of liberty.  A first instance sentence of 13 years imprisonment was reduced on appeal to 12 years.  The victim, a woman in her 30’s, was walking along a highway in North Queensland and accepted a lift from Wark who persuaded her to go to his home promising he would drive her to her destination after he had some tea.  When she tried to leave he struck her about the head with a piece of wood, dragged her inside and forced her on the bed, removing her clothes.  He thereafter tied her up and subjected her to a violent array of sexual degradation.  She managed to escape around daybreak.  She had lacerations and swelling on the head, bite marks on her chest, abrasions to the wrists consistent with rope burns, multiple abrasions and bruises to her arms, knees and buttocks and a small tear to her perianal region.  The applicant was 51 and had a minor drug related criminal history. 

[61] This Court concluded, had Wark not pleaded guilty, a sentence of 15 or 16 years could have been imposed.  The Court concluded that the sentence of 13 years did not make adequate allowance for the plea of guilty and the associated remorse and substituted a term of 12 years imprisonment.  While that matter involves a higher level of prolonged criminality than the present case, it is an illustration of this Court’s approach in a case where mitigation on sentence can only be reflected by an appropriately proportionate discounting of the head sentence.

[62] In R v Flew [2008] QCA 290 a sentence of 10 and a half years imprisonment, imposed after pleas of guilty to deprivation of liberty, three counts of sexual assault with circumstance of aggravation and one count of rape, was not disturbed.  Flew’s victim was a 26 year old woman walking by herself along the footpath of the Gold Coast Highway in the night-time.  He approached her, put his arm around her shoulder and placed a knife under her shirt and said to come “with him”.  He forced her to walk to a nearby toilet block pushing her and causing her to fall to the ground.  He used his knife to remove her clothing.  He put her hand on his erect penis, making her masturbate him and then raped her.  He afterwards told her to lick his penis and ejaculated near her mouth, rubbing his penis around her face and chin.  He was identified through DNA evidence about a decade after the offending behaviour.  He was 28 at the time of the offences but 39 at the time of sentence.  In the meantime he had served various terms of imprisonment in New South Wales.  The complainant was cross-examined at the committal proceeding however the applicant pleaded guilty in a timely way in the District Court and the sentencing judge was prepared to accept he had shown some remorse.  The victim impact was significant and continued to the time of sentence. 

[63] Keane JA observed:

“The applicant asserts that he did not receive sufficient recognition for his plea of guilty.  Reference to the earlier decisions of this Court in R v Basic and R v Mallie shows that this assertion is groundless.  ...In each of these cases a sentence of 10 years imprisonment was recognised as being within the proper range.  The more recent decision of this Court in R v Newman confirms that, in cases of violent rape where the offender is entitled to the benefit of a plea of guilty, the range of appropriate sentences is between 10 and 14 years imprisonment.” (emphasis added)

The sentence of 10 and a half years imprisonment was described as very substantial but not manifestly excessive.  The level of sexual degradation was more extensive in that case than in the present.  That case also involved the use of a knife although that is counter-balanced by the greater level of actual violence inflicted here.

[64] In R v Dowden [2010] QCA 125, the appellant/applicant was convicted of rape after a trial.  A sentence of nine years imprisonment was reduced by this Court to eight years.  Dowden’s 30 year old victim was walking home alone from a nightclub.  She was grabbed from behind and pushed to the ground.  The applicant told her he had a knife and held a cold object against her temple, but she felt it and it did not feel sharp.  He pulled her shirt up over her face and pulled her jeans down instructing her to roll over onto her hands and knees, after which she felt him at the back of her body on her inner thigh.  Despite the absence of direct evidence of penetration, spermatozoa with a DNA profile matching the appellant’s were found on swabs taken from the victim’s vagina.  On examination there was a scratch detected to her left palm and another scratch on her right leg.  The victim impact statement spoke of her anxiety awaiting HIV testing and her ongoing apprehension when alone at night.  The appellant was 19 years old when he committed the rape but 31 years old when sentenced.  In the meantime he had been in New South Wales and committed various offences resulting in terms of imprisonment. 

[65] Holmes JA, with whom Fryberg and Applegarth JJ agreed, referred to Basic in addition to a number of other cases.  Her Honour went on to conclude that the learned sentencing judge erred in accepting the prosecutor’s submission that Basic established a range of seven to 10 years for rape of a stranger without violence.  A sentence of eight years imprisonment without any declaration of parole eligibility was substituted on appeal.  The use of overwhelming violent force at the outset of the offence in the present matter marks the level of offending as more serious than that in Dowden.

[66] In R v Purcell [2010] QCA 285, the applicant was convicted by a jury of rape and assault occasioning bodily harm.  A sentence of 12 years imprisonment was reduced on appeal to 10 years imprisonment.  The 36 year old victim left a bowls club intoxicated at about 7.30 pm.  As she was walking, she was grabbed from behind and forced to cross the street and enter dense vegetation where she was forced to the ground.  Her jeans were ripped open and pulled down to her ankles, her arms held above her head and the offender put his penis into her vagina.  Each time she called out he struck her in the face with his fist telling her to shut up.  She thought she may have passed out after he fled.  Her jaw was swollen, bruised and painful.  There were bruises behind her ear and scratches and bruises to other parts of her body.  A DNA sample taken from the applicant was found to match DNA detected on vaginal, vulval and perianal swabs from the complainant.  After initial denials the applicant admitted a sexual encounter at trial but claimed it was consensual.  The applicant had a substantial criminal history and had served terms of imprisonment. 

[67] Cullinane J, with whom McMurdo P and Jones J agreed, noted the circumstances did not involve any weapon but did involve a violent attack upon the complainant to stop her from crying out.  His Honour observed that while the applicant was not entitled to the benefit that a plea of guilty would have afforded, the cases to which the Court was referred nonetheless led to the conclusion that the sentence of 12 years imprisonment was excessive.  A sentence of 10 years imprisonment was substituted.  That case involves a similar level of criminality as the present, however, there are two distinctions between the cases.  On the one hand, Purcell went to trial and the present applicant pleaded guilty.  On the other hand, the judgment in Purcell is silent as to evidence of victim impact beyond the immediate circumstances of the offending, whereas in the present case there is evidence of significant adverse impact upon the victim.  This is not to suggest the sentence in Purcell did not allow for the impact on the victim of such an offence - the inevitably adverse impact of the offence of rape is implicitly allowed for in the general severity of the sentences that this offence attracts and that it attracted in Purcell.  However, evidence of the personal circumstances of the victim will be of particular relevance on sentence.[7]

Discussion

[68] On analysis none of the above reviewed cases, which are the most relevant of those referred to by the parties, support the sentence of 11 years imprisonment imposed here.

[69] The reviewed cases that attracted sentences greater than 11 years imprisonment, namely Costello, Newman and Wark, are all more serious than the present matter.

[70] Of the reviewed cases that attracted sentences of 11 years imprisonment, the same penalty as here, Soper and O'Brien are more serious than the present case.  Furthermore, O'Brien involved an objectively lesser sentence than here by reason of a recommendation for early parole.  Adcock involved a generally similar level of criminality, save that the victim was a child, however that sentence of 11 years imprisonment was also an effectively lesser sentence than the present because it also attracted a recommendation for early parole.

[71] The reviewed cases that attracted lesser sentences than the present case but which are somewhat more serious than the present case are Mallie (10 years), Bolton (10 years) and Flew (10 and a half years).

[72] Of the remaining three reviewed cases, Basic involved a sentence of eight years with a serious violent offence declaration but was less serious than the present case.  Kahu involved a generally similar level of seriousness as the present case yet only attracted a sentence of eight and a half years imprisonment after a trial.  However, no submissions were advanced in support of that unsuccessful application and it is therefore of less reliable assistance than the other reviewed cases.

[73] On the other hand, the final reviewed case of R v Purcell is of assistance.  It was a successful application for leave to appeal and involved a generally similar level of seriousness to the present.  A 12 year sentence of imprisonment was reduced to one of 10 years.  As highlighted above, in Purcell there was no express reference to evidence of victim impact beyond the immediate circumstances of the offending whereas in the present case there is evidence of significant adverse impact upon the victim.  Had there been such evidence specifically referred to in Purcell a sentence of 11 years might have been regarded as within range.  However, Purcell went to trial. The 11 year sentence imposed here, where the offender pleaded guilty, is obviously inconsistent with that imposed in Purcell.

[74] In Wong v The Queen[8] Gleeson CJ observed in respect of the exercise of the sentencing discretion that the administration of justice “should be systematically fair, and that involves, amongst other things, reasonable consistency”.  However, in Hili v The Queen; Jones v The Queen[9] the plurality explained the consistency that is sought is not numerical equivalence but consistency in the application of the relevant legal principles.  It endorsed the observations of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa[10] regarding the use of past sentences:

“As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned".”[11] (citations omitted)

[75] In this application, as at first instance, the parties particularly emphasised statements of principle about a sentence range of seven to 10 years in cases such as Basic and Kahu and a sentence range of 10 to 14 years in cases such as Mallie, Newman and Flew.

[76] As the earlier emphasised observations of Keane JA in Kahu and Flew illustrate, the material difference in the two ranges is the presence and extent of any physical violence inflicted upon the victim additional to the act of physical violation constituting the rape.  That difference will be obvious in some cases, particularly where there are other aggravating features.

[77] However, there will inevitably be some overlap between the two ranges.  There are two reasons for this of particular relevance in the present case.  Firstly, there may be cases where there is a significant degree of additional violence but it is not as extreme as in the cases tending to attract sentences in the upper half of the 10 to 14 year range.  Secondly, those cases may involve a plea of guilty, resulting in a lowering of the sentence that would otherwise be imposed after a trial.  Head sentences in cases of that kind might well commence marginally above the intersection point of 10 years common to both ranges but after discounting to allow for a guilty plea might finish marginally below that point.

[78] The learned sentencing Judge in the present matter did not expressly indicate what starting point he discounted down from, to allow for the timely guilty plea, in arriving at 11 years imprisonment.  The respondent suggests the starting point would likely have been 13 years but, if so, such a starting point would have been too high.  The degree of additional violence, while significant, was not so extreme as to lift the starting point for this case significantly above the lower end of the 10 to 14 year range.  Using past cases as a yardstick, if the applicant had been convicted after a trial he ought not have received a sentence materially greater than the sentence that was actually imposed at first instance here.  It follows there must have been inadequate discounting of the head sentence to allow for the timely plea of guilty and or the discounting was from too high a starting point.  Either way the inevitable conclusion is that the sentence is manifestly excessive and the sentencing discretion has miscarried.

Sentence

[79] In the circumstances the application should be allowed, the sentence set aside and this Court should sentence the applicant afresh.

[80] The applicant’s counsel submitted that if a sentence less than 10 years were to be substituted a declaration that the applicant has been convicted of a serious violent offence should not be made.  Such a declaration would, if made, have the consequence the applicant must serve at least 80 per cent of his prison term before being eligible for potential release on parole.  The applicant’s submission was seemingly premised on this Court concluding the violence used was “at a low level”.  However, the offending involved the use of a significant degree of violence.  As explained above, the applicant apparently made a deliberate choice not to wait and see to what extent the victim would resist his purpose and moderate his force accordingly.  Instead he came at her from behind and without warning used completely overwhelming force upon her at the outset.  This occasioned loss of consciousness of some varying degree and painful injuries, over and above the devastating impact of the act of rape.  It was a matter of chance that the victim was not more seriously injured.  It is this aspect of the case that places it at the starting point, before discounting for the plea of guilty, into the lower end of the 10 to 14 year range discussed above.  The circumstances warrant the making of a declaration pursuant to s 161B of the Penalties and Sentences Act 1992 (Qld) that the applicant has been convicted of a serious violent offence.

[81] The fact that the applicant must serve at least 80 per cent of his sentence before having any prospect of parole is a matter to be borne in mind in the integrated process of determining a just sentence.[12]  However, this does not materially alter the guidance as to range provided by those of the above cases handed down after the introduction of the regime of declaration of serious violent offences in 1997.  For those cases involving 10 or more years imprisonment the consequence of the automatic declaration of conviction of a serious violent offence was an integral aspect of the process of determining the appropriate sentence.

[82] The declaration of conviction of a serious violent offence also has the consequence that such discounting of the sentence as is appropriate to take into account the timely plea of guilty[13] can only be implemented by moderation of the head sentence.  There can be no formula as to how significant the discounting of the head sentence ought be.  It will inevitably be influenced by the individual circumstances of each case.  While the guilty plea here appears to have been borne of a realisation of the strength of the prosecution case, there ought be some amelioration of the sentence given the beneficial consequences of the timely plea of guilty[14] for the administration of justice, the community and most importantly the victim.

[83] Further, it is strongly in the interests of complainants in rape cases yet to be determined that those guilty of rape plead guilty and thus spare the complainant the ordeal of giving evidence.  That will be less likely to occur if rapists when prosecuted perceive there will be no difference in penalty regardless of whether they plead guilty or “chance their hand” and go to trial.

[84] Nevertheless, the plea of guilty is not the primary consideration in determining the appropriate sentence.  This offence involved the violent, premeditated attack and rape of a defenceless member of the community innocently exercising in a public place, with devastating consequences to her.  Because of the use of violence primary regard must be had to the considerations in s 9(4) of the Penalties and Sentences Act 1992 (Qld). Community safety recurs as a consideration in s 9(4) and is of particular importance in a case such as this.  A lengthy prison term is required so as to not only punish the applicant but to protect the community and deter the applicant and other persons from committing such offences.

[85] In all of the circumstances a sentence of nine years imprisonment, accompanied by a declaration the applicant is convicted of a serious violent offence, should be imposed.

[86] I would make the following orders:

1. The application for leave to appeal against sentence is granted.

2. The appeal is allowed.

3. The sentence imposed at first instance is set aside and instead the applicant is sentenced to nine years imprisonment.

4. The applicant is declared to be convicted of a serious violent offence.