R v Smallwood[2012] QCA 263

COURT OF APPEAL

HOLMES JA

FRASER JA

McMEEKIN J

CA No 121 of 2012

DC No 85 of 2012

DC No 112 of 2012

DC No 145 of 2012

DC No 148 of 2012

DC No 149 of 2012

DC No 150 of 2012

THE QUEEN

v

SMALLWOOD, GiovanniApplicant

BRISBANE 

DATE 26/09/2012

JUDGMENT

HOLMES JA:  Mr Smallwood, the Court has looked at the matter and could not see any basis to allow the application.  I'll ask Justice Fraser to give his reasons.

FRASER JA:  On 23 April 2012, the applicant was found guilty by a jury on two counts of rape committed on 22 August 2010.  On 27 April 2012, the applicant pleaded guilty and was convicted of wilful damage, relating to his breaking of the complainant's mobile phone. He was then also convicted, on his own pleas, of grievous bodily harm committed on or about 24 December 2010, burglary and stealing committed on 4 February 2011, burglary and stealing committed on 21 September 2010, enter premises and commit an indictable offence on 11 October 2010, unlawful use of a motor vehicle, to facilitate the commission of an indictable offence on 11 October 2010, and entering premises with intent to commit an indictable offence on 12 October 2010. He was also convicted, on his pleas, of four summary offences, which it is not necessary to detail.

The applicant was sentenced to seven and half years imprisonment for each count of rape, three years imprisonment for the grievous bodily harm offence, and 18 months imprisonment for each other indictable offence except the wilful damage offence, for which he was given two months imprisonment. He was convicted and not further punished for one of the summary offences and sentenced to one month imprisonment for the others. All periods of imprisonment were ordered to be served concurrently.  413 days which the applicant had spent on remand was taken into consideration but was unable to be declared as pre-sentence custody. The applicant has applied for leave to appeal against his sentence on the ground that it is manifestly excessive.

The sentencing judge, who was the trial judge, referred to the two counts of rape as arising out of one incident, with one offence pertaining to penile anal rape and the other penile vaginal rape. The applicant used only limited force in the brief episode, the complainant having complied through fear.  No weapon was used and no threats were articulated but it was a very frightening event for the complainant. The applicant committed the offences in the early hours of the morning.  The complainant was a complete stranger to the applicant.  The sexual contact was unprotected.  The complainant was very distressed after the event.  Her victim impact statement disclosed that she suffered not insignificant emotional problems for some time after the offences and she occasionally still suffered anxiety in certain situations.

The circumstances of the other offences are set out in a schedule of facts.  In the grievous bodily harm offence, the applicant wrongly thought that the 16 year old complainant had told the applicant's girlfriend that the applicant was cheating on her.  About a week after the applicant had threatened to break that complainant's jaw, the applicant twice punched him to the left side of his jaw, breaking his jaw and knocking him unconscious.  The complainant underwent surgery to have a metal plate permanently fixed to his jawbone.

In the burglary and stealing offence on 21 September 2010, the applicant broke into a house and stole $8,900 in cash from a safe.  On 11 October 2010, the applicant and a co-offender broke into a day care centre, but were unable to open a safe.  Using keys they found in the centre, they took the day care bus to retrieve some tools.  They returned to the day care centre and unsuccessfully attempted to open the safe with a crowbar.  The applicant subsequently forced open the back door of a nearby business but he and the co-offender left when they found nothing of interest.

In the burglary and stealing offence on 4 February 2011, the applicant and a co-offender entered the elderly complainant's residence through an open door as she was mowing the lawn.  They stole $100 from her purse and fled when confronted by the complainant.

The applicant was 19 and 20 years old when he committed the offences and he was 21 years old when he was sentenced.  He had no previous convictions for sexual offending but he had what the sentencing judge described as a “bad history for violence”, particularly for one so young.  He had four convictions of offences of assaulting police, for which he was fined or ordered to serve community service. He had been fined or given probation for other offences involving property and nuisance, and he had breached community based orders. On 13 January 2009, he was sentenced to 12 months probation for an offence of armed robbery with actual violence in company committed in December 2007 when the applicant was 17 years old. The applicant and other co-offenders chased a man walking along the street, causing the man to fall to the ground.  A broken bottle was held to his head and the applicant and his co-offenders stole the man's wallet and mobile phone.

On 10 November 2009, the applicant was convicted of common assault and assault occasioning bodily harm whilst armed.  In June 2008, the applicant and a co-offender were arguing with a female complainant.  The applicant forced the complainant backwards then punched her face twice and also punched her stomach. The complainant ran away followed by the co-offender, who punched her to the eye.  When the complainant found a metal jack in the back of a utility, the applicant picked up a plank of wood and ran at the complainant.  The complainant dropped to the ground and held her hands over her face in defence, and the applicant swung the plank of wood over his head and struck the complainant on her right leg.  He then fled. For those offences, the applicant was sentenced to 18 months probation.  He was subject to that probation order when he committed the subject offences.

The sentencing judge took into account the aggravating feature that the applicant committed the offences whilst on probation.  In the applicant's favour, the sentencing judge took into account his pleas of guilty in respect of the offences other than the rape offences, observing that the pleas of guilty had saved the State time and money. The sentencing judge found that the applicant was not genuinely remorseful for that offending and that he had also shown no remorse for the offences of rape.

The sentencing judge had regard to the applicant's youthfulness but also observed that the applicant had shown no sign of rehabilitation despite the sentencing options which had been adopted to assist him in the past.  The judge considered that both personal and general deterrence were important factors in the determination of the sentence and that the community was entitled to be protected from the applicant. The sentences imposed were expressly said to reflect the applicant's overall criminality in each of the offences.

The contention that the sentence is manifestly excessive cannot be reconciled with this Court's decision in R v Dowden [2010] QCA 125, in which the Court set aside a sentence of nine years imprisonment and resentenced that applicant to eight years imprisonment.  He was 19 years old when he committed the offence. He had previously been in prison for property offences, but had no prior conviction for sexual offending.  By the time of the trial, that applicant was 31 years old and had by then again been in prison for property offences. Whilst the 30 year old complainant was walking home late at night, the applicant grabbed her, pushed her to the ground and told her that he had a knife.  She felt something against her temple but it was not sharp.  The complainant was compliant through fear and the applicant was able to effect penile penetration of her vagina without further violence.

This is a worse case because the applicant committed two offences of rape in the one episode and there is the aggravating feature that the applicant was then subject to probation. When it is also borne in mind that the seven and a half year sentence of imprisonment imposed on the applicant reflected his criminality not only in the rape offences but in the other serious offences for which he was then sentenced, there can be no serious contention that the sentencing range did not extend to seven and a half years imprisonment.

The sentencing judge did not make any parole eligibility order, so that the applicant will be eligible to apply for parole after he has served 50 per cent of the seven and a half year term.  That approach was also within the sentencing discretion, particularly bearing in mind the features already mentioned, including that the applicant was not remorseful.

The applicant made no submissions in support of his application, and it has no merit.

I would refuse the application.

HOLMES JA:  I agree.

McMEEKIN J:  I too agree.

HOLMES JA:  The application is refused.  So, Mr Smallgood, that means that the Court has decided there was nothing in the application.  It's been refused.  So your sentence remains as it is.