R v Turnbull[2013] QCA 154

SUPREME COURT OF QUEENSLAND

CHIEF JUSTICE:  I now invite Justice Mullins to deliver the first judgment.

MULLINS J:  The applicant applies for an extension of time in which to apply for leave to appeal against the sentences imposed on him in the District Court on 7 June 2002 for one count of sexual assault (count 1), one count of assault occasioning bodily harm, two counts of assault with intent to commit rape, one count of attempted rape, three counts of rape (counts 5, 8 and 10), one count of robbery with aggravation, and one count of sexual assault with aggravation.

The applicant pleaded guilty after a full hand up committal and was legally represented at the sentence.  Although he was aware in a general sense that he could appeal the sentences, he was never given any advice by his lawyers about the sentences that were imposed or the availability of an appeal.  He was also discouraged by another prisoner who informed him that his sentence could be increased on appeal. The first time that the applicant received legal advice about his prospects of appeal was via his family after they made their own inquiries in January 2013.  The application for an extension was filed on 11 March 2013.

Concurrent sentences were imposed and in respect of each count he was declared to be convicted of a serious violent offence (SVO).  His effective sentence was 20 years’ imprisonment, which was imposed for each of counts 8 and 10.  The applicant now seeks to apply for leave to appeal against sentence on the basis that the sentences imposed, particularly in relation to the counts of rape, were manifestly excessive and that convictions and SVO declarations were not available in relation to counts 1, 8 and 10.

As the applicant has been in custody from 15 June 2001 and had the benefit of a pre-sentence custody declaration from that date, he has served fully the sentences for the offences, except the sentence of 16 years’ imprisonment for count 5 and the sentence of 20 years’ imprisonment for each of counts 8 and 10.

The applicant cannot show that there is good reason for the delay of over 10 years before making this application, but the Court still must consider whether it is in the interests of justice to grant the extension:  R v Tait [1999] 2 Qd R 667, 668.

The applicant was aged between 24 and 26 years at the time of the offending and was 28 years at the time of sentencing.  He had no relevant prior criminal history.

The first two offences were committed on 6 October 1998 when the applicant approached and then followed a woman who had alighted from a train.  He attacked her before being scared off by her screams.  He ran off and was chased and caught.  He was arrested, granted bail, but absconded.  The remainder of the offences were committed whilst on bail for the first offending.  The second episode of offending occurred on 21 January 2001 when the applicant followed a woman and attacked her from behind, but was scared off by two people who came upon them.  The third episode occurred on 11 May 2001 when the applicant followed a woman who was walking home from work and grabbed her handbag.  When she followed him to retrieve it, he raped her (count 5) and took money from her handbag.  This was an escalation in the seriousness and violence of his offending.

There was a further escalation in the offending for the fourth episode, committed on 15 June 2001.  The applicant followed a woman as she walked in the inner city in the early morning.  He attacked her from behind, pressing a piece of wood against her throat and forcing her into some nearby bushes.  The applicant repeatedly struck the complainant with the piece of wood, including a number of blows to her head, and threatened to kill her.  The applicant broke her jaw and forced her to perform oral sex (count 8) and then raped her (count 10).  Passers-by alerted police, who chased the applicant and caught him.

The applicant was interviewed by psychiatrist Dr Grant for the purpose of providing a report for the sentencing.  The report dated 4 March 2002 and an addendum report dated 14 May 2002 were before the learned sentencing judge.  The sentencing judge quoted from the initial report:

“This pattern of a particular recurring sequence of events, and increasing violence and sexual assault is of concern, as it is the kind of pattern seen in serial sexual offenders.

…

While his background would explain some personality vulnerabilities and anti-social behaviour, it does not really explain why he has committed such serious offences on women.

…

From the psychiatric diagnostic point of view Mr Turnbull would be seen as having a serious substance abuse problem involving alcohol and a range of drugs, and in addition I would be concerned that he has a serious sexual deviancy with sadistic traits.”

For the purpose of the addendum report, the applicant gave a more fulsome description of his problems with using illicit substances and the breakup with his girlfriend that resulted in his increased use of drugs.  The sentencing judge quoted from Dr Grant’s addendum report about the applicant’s insight into the effects of drug and alcohol upon his life, but that there was no insight as to why he chose to offend in the way that he did and that the fact that the offences were repetitive and similar in form, with increasing violence and sexual assault remained a concern.

The sentencing judge described the applicant as “a dangerous sexual predator with a propensity to violence” and that there was “a substantial risk that you will commit similar offences on your release from prison”.

The applicant submits that the appropriate starting point for the offending ought to have been 15 to 16 years on the basis of R v Robinson [2007] QCA 349 at [27], with some reduction for the guilty pleas.

The respondent submits that the decision of R v Burley [1998] QCA 98 demonstrates that a sentence of 20 years’ imprisonment was within range and that Robinson can be distinguished as the offences were committed against a single victim.

Although Robinson involved a single victim, the offender had entered the victim’s house and committed repeated rapes.  The offender, who was 33 years old, a carrier of hepatitis C and who previously had committed another rape for which he had been sentenced to 12 years’ imprisonment, was convicted after trial.  The offender in Burley who offended when aged 17 and 18 years and pleaded guilty committed a series of four offending episodes, the first of which involved an attempted rape and the other three involved rapes.  The offences were committed over a period of eight months and the offender used a knife and submitted his victims to serious threats and degrading and painful treatment.

The sentence of imprisonment for 20 years for rape imposed on the applicant after guilty pleas puts him in the category of offenders who have committed sexual violence at the more serious end of the range, but his series of offending was arguably not as serious as that in Burley.  To the extent the sentencing remarks suggest that the sentencing was addressing the risk that the applicant would commit similar offences on his release from prison, rather than sentencing the applicant for the offences he had committed, it is arguable there may be an error in the sentencing that affected the result.  On the basis of the material made available for this application, it is in the interests of justice that at this late stage the applicant be given the opportunity to apply for leave to appeal against the sentences imposed for the rapes (counts 5, 8 and 10) which are the sentences that he is still serving.

The applicant raised a technical argument based on the error in the margin of the indictment for counts 8 and 10 that showed the relevant provision of the Criminal Code 1899 (Qld) for the offence of rape as s 347 when it should have been s 349.  The indictment by the words of the charge identified the offence of rape that existed when it was committed by the applicant and the error in the margin of the indictment is inconsequential.

I would make the following orders:

1.Application for extension of time within which to apply for leave to appeal against the sentences for counts 5, 8 and 10 is granted, limited to the ground that the sentences are manifestly excessive, but the application is otherwise refused.

2.The time for applying for leave to appeal against the sentences for counts 5, 8 and 10 is extended to 11 March 2003.

CHIEF JUSTICE:  I agree, adding that there is, in my view, a substantial argument that the learned sentencing judge should have made a clearer and more obvious reduction in the sentences to reflect the pleas of guilty.

GOTTERSON JA:  I agree with the reasons of both Mullins J and the Chief Justice.

CHIEF JUSTICE:  The orders of the court are those expressed by Mullins J.