R v Postchild[2013] QCA 227

SUPREME COURT OF QUEENSLAND

[1] CHIEF JUSTICE:  I am grateful to Holmes JA for setting out, in her reasons for judgment, the relevant circumstances and analysis of other relevant sentencing situations.

[2] I am not persuaded that the sentence of six years imprisonment for the offence of rape (with parole eligibility as at 5 June 2015) was manifestly excessive.

[3] The sentencing Judge reasonably described the offence as involving a brutal act in which the applicant treated the complainant as an object for his own sexual gratification.  The brutality was distinctively illustrated, even apart from the consideration that the applicant proceeded in the context of the complainant’s vehemently expressed objection, by his gagging and binding her with tape, and injuring her.  He was on parole at the time.

[4] Allowing also for his substantial previous criminal history, which included a six month suspended sentence for carnal knowledge (which he was subsequently ordered to serve although given immediate parole), and property offences which attracted approximately a year’s imprisonment fully suspended, I consider that his Counsel at the sentencing was right to acknowledge that an appropriate range of imprisonment extended to six years.

[5] I repeat two observations from previous cases:

1. “The circumstance that the sentence which was imposed accorded with the submission put to the sentencing judge on the offender’s behalf means that an assertion that the sentence imposed was manifestly excessive could be upheld only in circumstances which are sufficiently exceptional to warrant relieving the applicant from responsibility for the conduct of his case at first instance”:  R v Flew [2008] QCA 290, para 28, per Keane JA;

2. “To succeed the applicant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed.  There is no one ‘right’ penalty in any case.  There is always a range of permissible sentences.  Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of fact or law”:  R v Jackson [2011] QCA 103, para 25, per Chesterman JA.

[6] I would refuse the application.

[7] HOLMES JA:  The applicant was convicted by a jury of the rape of his girlfriend, Ms A, and was sentenced to six years imprisonment.  He seeks leave to appeal against the sentence as manifestly excessive.  It was admitted at the trial that he and Ms A had had intercourse at the time in question and that he had used duct tape to bind her wrists; the issue was whether the intercourse was consensual.

The offence

[8] Ms A, the complainant, was 20 years old, while the applicant was 24.  They lived together in a country town with Ms A’s toddler son.  On 10 May 2012, they took the child to his father in another town for an access visit, and Ms A spent a good deal of time talking to her former boyfriend while the applicant waited outside in the car for her.  On their return journey, she and the applicant argued about her relationship with the child’s father, the applicant saying he would kill both her and himself if she were to return to the man.  That evening, the topic was reprised.  Ms A told the applicant that she was still in love with her former boyfriend.  The applicant said he was going out; Ms A went to bed early, at about 7.30 pm.  She was wearing a T-shirt, underwear and long pants.

[9] Ms A woke at about 9.00 pm or 9.30 pm, to find the applicant rubbing her breasts and putting his hand into her pants; as she put it, “hitting [her] up for sex”.  She told him to “fuck off” and leave her alone.  She moved away from him on the bed and lay on her side facing away from him.  He complained that she did not love him because she did not have sex with him.  Ms A continued to tell him in emphatic terms to leave her alone.  The applicant appeared to become angry.  He straddled her and pushed her onto her back, removed her top and used duct tape to tie her hands to the slats of the bed head.  Ms A asked what he was doing, and he said that he was going to have sex with her.  He removed her pants and underwear, undressed himself and proceeded to penetrate her vagina with his penis.  She screamed and told him to get off, trying to move him off with her body.  In response, the applicant applied more duct tape to her mouth.

[10] Ms A said that while having sex with her, the applicant pulled her body down, hurting her left hip.  After the applicant had intercourse with her, he untied one arm and then the other, which had started to lose circulation.  The whole incident took five or 10 minutes.  At the end of it, the applicant observed that Ms A was crying and asked if he had hurt her, before going to sleep beside her.  Ms A was left with some bruising to and pain in her left wrist.

[11] A couple of days later, on 12 May, Ms A held a birthday party for the applicant. They were still not on good terms, however; she ignored him and he was rude and abrupt.  In the early hours of the following morning they had another argument. She decided that the relationship was over; she could no longer dissemble about her feelings for her child’s father, with whom she wanted to resume a relationship. Having decided to “kick him out”, she asked the applicant to leave her house.  He was initially reluctant, but left the following day.  A few days later, Ms A reported the rape to the police; she had been uncertain as to whether she would be believed and whether it was possible to make such a complaint against someone with whom she had been in a relationship.

The applicant’s antecedents

[12] The applicant was 25 years old at sentence.  He had a long criminal history, mostly acquired when he was 17 to 18 years old, which consisted in the main of public nuisance and property offences dealt with in the Magistrates Court, usually by fines, probation and good behaviour bonds.  However, in 2006, he was sentenced for carnal knowledge of a 13 year old girl, said to be his girlfriend, to whom he also supplied cannabis.  The applicant was 18 years of age, and said that he thought the girl was 15.  He was placed on probation and given a six month suspended sentence.  His criminal history records that he was dealt with soon after for “breach of suspended sentence”; although, mysteriously, the offence which presumably attracted the operation of s 147 of the Penalties and Sentences Act 1992 does not appear on the history.  At any rate, he was ordered to serve the sentence, but was given immediate parole.

[13] In January 2010, the applicant was dealt with by way of an intensive correction order for two counts of entering premises and committing an indictable offence and one count of attempting to enter premises with intent.  He breached that order by failing to comply with reporting requirements under the Child Protection (Offender Reporting) Act 2004 (the result of his carnal knowledge conviction).  The order was revoked, and instead, he was sentenced to 343 days imprisonment, fully suspended for two years.  In September 2011, the applicant was ordered to serve the sentence because of a further breach of reporting requirements.  However, on this occasion he was given immediate parole release, and was on that parole when he committed the rape offence.  He was arrested for the rape on 17 May 2012, the day that Ms A made her complaint.  His parole was immediately suspended and he was required to serve the three months then outstanding of the 12 month sentence.  By the time he was sentenced for the rape, he had served the three months and had been in custody for 170 days on remand solely for the rape.

The sentence hearing

[14] The Crown prosecutor submitted that the applicant should receive a sentence in the order of seven years imprisonment, without any recommendation for parole.  She relied on three decisions of this court: R v M,[1] R v Wood[2] and R v Hunt.[3] Defence counsel argued, without reference to authority, for a sentence of between five and six years, with a parole eligibility date at somewhat less than halfway because of the additional three months that the applicant had spent in custody.

[15] The learned sentencing judge described the rape as a brutal act.  The applicant had treated Ms A as an object for his own sexual gratification and had had no regard for her feelings, dismissing her statements that she did not want to have sex.  He had gone to the extent of gagging her, had caused her pain and discomfort and had shown no remorse.  The learned judge observed that he had been inclined to sentence the applicant to seven years imprisonment, but had reached the view that there were features of the authorities cited which distinguished them from the applicant’s case: the level of violence used, the fact that (in some of those cases) there was no long-standing relationship between the offender and the victim, and the criminal histories of some of the offenders.  Instead, he imposed the sentence of imprisonment of six years, declared the time served in pre-sentence custody and set the parole eligibility date at 5 June 2015, about six weeks before the halfway point of the head sentence.

The contentions on the application for leave to appeal

[16] The applicant argued that the sentence was manifestly excessive in comparison with other cases, given the circumstances and the relatively low level of violence used.  He was a young man who had been in a sexual relationship with the complainant for some months.  He had, on the day of the offence, had the upsetting experience of Ms A spending time with her former partner and then disclosing that she still loved the latter.  Although he had bound her arms, he had not used any gratuitous violence against her and asked afterwards whether he had hurt her, which was indicative of some level of remorse.  Four cases were relied on:  R v Stephens; ex parte Attorney‑General (Qld);[4]R v Pickup;[5]R v Gippo[6] and R v WAS.[7]  The Crown, maintaining that the sentence imposed was appropriate, referred the court to R v M[8] and R v Wood.[9]

The comparable decisions

[17] In R v M, the applicant and the complainant had separated.  The applicant was the subject of a domestic violence order preventing him from approaching the complainant.  He broke into the house where she lived with her two children, having cut the telephone wires.  He pulled her by the hair into the bedroom, punched her in the eye and ordered her to undress.  The complainant complied through fear.  The applicant tied her hands to the bed head with zip ties.  He forced her, at knife-point, to perform oral sex on him on two separate occasions.  In the course of those events, he waved the knife at her and said that if the police came, he would cut off her breasts and have anal sex with her.  He then raped her vaginally.  Although he refused to untie her, leaving her in that position while he slept, she eventually managed to free herself and escape the house with her children.

[18] The applicant in M went to trial and was convicted of burglary, rape, assault occasioning bodily harm, deprivation of liberty, and two counts of indecent assault with circumstances of aggravation and assault.  He was sentenced to nine years imprisonment.  Relevant here was the observation of McPherson JA, delivering the judgment of the court, that the applicant could not have expected a sentence of less than seven years imprisonment for the rape and associated indecent assaults, and an addition of two years for the remaining offences of burglary, assault and deprivation of liberty was warranted.

[19] In R v Wood, the applicant and complainant, having met a week previously, spent an evening together dancing and socialising.  They returned to the complainant’s flat together, the applicant having expressed his anxiety to make sure she reached home safely.  While waiting for some friends to arrive and collect him, they lay on a bed together, fully clothed.  The applicant tried to kiss the complainant and was rebuffed; he responded by getting on top of her, putting a blanket over her face and telling her, when she called for help, to shut up.  They struggled vigorously and fell on the floor; again, the applicant told her to “shut up” or he would kill her.  He removed and tore her clothing and had intercourse with her while she was crying.  She managed to escape from her flat and obtain help.  She was left with minor injuries and was sufficiently affected by the experience to feel she had to move out of her flat.

[20] That applicant was 21 years old at the time of the offence, but had a significant criminal history, including assault occasioning bodily harm of his former girlfriend, abduction of her in his car after she had obtained a domestic violence order against him and a later deprivation of liberty and unlawful use of her car when he intercepted her in her vehicle and made her drive at his direction.  When he committed the rape, he was the subject of a probation order.  He was sentenced to seven years imprisonment. The sentencing judge made a recommendation, as part of the sentence, that the parole board satisfy itself on “very firm” psychological and psychiatric evidence that he was not a risk to the community before releasing him.  The sentence was upheld, but that recommendation was deleted.

[21] It is worth mentioning R v Hunt, the third of the cases relied on by the Crown at first instance as supporting a sentence of seven years imprisonment.  The applicant there was 45 years old and had been convicted, after a trial, of two counts of rape, one of assault occasioning bodily harm and one count of indecent assault by anal intercourse.  He was sentenced to seven years imprisonment on the rape charges and lesser terms on the other counts.  He had a criminal history which included a conviction for assault occasioning bodily harm and being unlawfully in a dwelling house, which involved entering the home of a woman with whom he had a relationship and assaulting her.

[22] The applicant in Hunt had been in a de facto relationship with the complainant.  They had ceased cohabiting but remained in contact, and occasionally had sexual intercourse.  On the occasion in question, however, after a prior argument, the complainant had refused to let him into her house.  He forced his way in, and, as the complainant ran from the house, pushed her over and dragged her back inside by the hair.  He took the telephone off the hook, locked the back door and forced her into a bedroom where he threw her onto the floor and told her to get on all fours before inflicting anal intercourse on her.  He later raped her vaginally.  She was described as suffering injuries, bruises, abrasions and tenderness.  Delivering the leading judgment, Mackenzie J observed that there might be found to be mitigating circumstances in respect of some offences arising out of intimate relationships.  The circumstances of the offence in question however, were violent; had it involved strangers, a sentence of more than seven years might have been justified.  The application for leave to appeal against sentence was refused.

[23] In R v Stephens; ex parte A-G (Qld), the respondent had been convicted after a trial of two counts of rape and one of indecent assault on a young woman with whom he was in a de facto relationship and was sentenced to three years imprisonment with a recommendation for eligibility for parole after six months.  He was 21 years old and had a minor criminal record.  The relationship was one of intimidation.  On the day before the rapes, the respondent had pointed a gun at the complainant and threatened to shoot her if she left him.  The following evening, the young woman visited a neighbour before going home to bed.  The respondent came home later, demanded to know where she had been and accused her of sleeping with other people.  He assaulted her, made her perform oral sex on him and then had intercourse with her against her will.  He lost his erection and forced her to suck his penis once more before proceeding to have painful intercourse with her again while verbally abusing her.  After he had ejaculated, he made her sleep on the floor in his room.  She sustained some genital injuries, including a deep cut.

[24] Counsel in Stephens had conceded on the appeal that if it had been a rape between strangers, the appropriate range would have been between five and seven years.  The court observed that the existence of a de facto relationship might have a significant bearing on the court’s decision as to an appropriate sentence.  There was, however, in the circumstances of the case, no reason to distinguish it from one in which the parties were strangers.  The court substituted a sentence of five years imprisonment, with, because of the respondent’s youth and lack of previous convictions, a recommendation for eligibility for parole after two years.

[25] In R v Pickup, the applicant was convicted on pleas of guilty of three counts of rape. He had been living in a de facto relationship with the complainant.  She told him that she wanted to end the relationship and began sleeping in a spare room in their unit.  One afternoon, he offered her money for oral sex and anal intercourse, which she refused, and later demanded sex with her.  Over her protests, he had vaginal intercourse with her and then moved her into another room and forced her face‑down onto a bed, put a pillow over the back of her head and committed a painful anal rape on her.  To escape the pain, she offered to and did perform fellatio on him, under the threat of his resuming anal intercourse if she stopped.  He ejaculated into her mouth.  There was then a prolonged incident of vaginal intercourse during which the complainant was extremely distressed and the applicant made her promise not to tell anyone of his conduct.  The complainant left the unit the next morning, feigning unconcern so as not to provoke the applicant into any more violence, and made a complaint.

[26] That applicant was 26 years old and had convictions for possession of drugs, breach of a domestic violence order, assault and malicious act with intent, during the last of which he drove a car at his father and attempted to strike him with a pick handle.  The offence was committed during the operational period of the suspended sentence for that event.  At first instance he was sentenced to five years imprisonment, while also being required to serve 12 months of the two and a half year balance of the suspended sentence of imprisonment.  A parole eligibility date was set halfway through the resulting six year period.

[27] This court, in refusing leave to appeal against sentence, observed that the offending was protracted, painful and distressing, and the applicant’s conduct was calculated to degrade the complainant and demonstrate his domination of her.  She continued to suffer emotional and psychological difficulties as a result.  The sentencing judge had moderated the period of imprisonment to reflect the applicant’s guilty plea by requiring him to serve only one year of the balance of the suspended sentence.  The sentence imposed was within the range suggested by earlier decisions.

[28] In R v Gippo, the applicant was convicted after a trial of two counts of raping his former girlfriend, on separate occasions.  The complainant, who described the applicant as aggressive, violent and controlling, had sought a domestic violence order.  Before it was obtained, and seven days after the complainant had given birth to a child, the applicant came to her house.  He put her onto a bed and forced his penis into her mouth, moving it in and out despite her struggles, and sat on her waist and began to masturbate,  before returning his penis to her mouth and ejaculating.

[29] Some weeks later, after the complainant had obtained a domestic violence protection order, the applicant returned to her house saying that he wanted to stay for a few days.  She found him going through the contents of her mobile phone.  Despite her demands that he leave, he locked her bedroom door and removed his clothing, ordering her to give him a “head job”.  She refused.  He held her face down on the bed, removed her underwear and penetrated her vagina with his penis.  She slept in the same room as he did because she was too frightened to leave.

[30] The applicant was in his mid 40s at the time of the offences and had a criminal history extending over 17 years, including a conviction for attempted rape and two breaches of domestic violence protection orders.  By way of mitigation, it was put that he had been born in a traditional setting in Papua New Guinea, and on coming as a teenager to Australia, had been sexually abused.  He had a good reference relating to service in the Army Reserve.  He was sentenced to four years imprisonment for the oral rapes and six and a half years imprisonment for the penile rape, with parole eligibility after three years.  The date was set earlier than halfway to take into account a period in custody which could not be declared.  The application for leave to appeal against sentence was refused.  Given the applicant’s lack of remorse and co-operation with the authorities, the seriousness and persistence of the offending, and its detrimental effect on the complainant, this court said, the sentence imposed was within an appropriate range.

[31] R v WAS concerned two counts of rape and one of administering a stupefying drug with intent to commit an indictable offence, committed by the applicant on his wife.  They had decided to separate at the time the offences were committed.  The applicant had sought sex from the complainant, who refused.  He put three crushed sleeping tablets in her food and that night raped her by anal penetration with his penis and digital penetration of her vagina.  He was sentenced to seven years imprisonment with a parole eligibility date fixed after two years and three months.

[32] The odd feature of the case was that after the couple separated for about six months, they reconciled and lived together for another 18 months.  After the final separation, the applicant formed a new relationship, married and started a new family.  He also underwent psychiatric treatment, including medication, in relation to his sexual behaviour.  The complaint was not made until some time after the final separation, so that it was six years between the offences and the applicant’s sentence.  This court noted the serious feature of the use of stupefying drugs for the purposes of rapes, which indicated premeditation and planning.  Against that, the consideration of the applicant’s rehabilitation over the protracted period since the offences were committed had not been properly taken into account.  The court substituted a sentence of six years imprisonment with parole eligibility after 20 months.

Discussion

[33] The learned judge was plainly correct in distinguishing, because of their greater gravity, the decisions put before him.  However, notwithstanding the concession by the applicant’s counsel that the range could go as high as six years, it was, in my view, an error to sentence at that level in the circumstances of this case.  It involved a single incident, in contrast with all of the other cases, which, with the exception of Wood, involved multiple counts.  The actual offence was of short duration, five or 10 minutes.  It was not a protracted exercise in humiliation; it did not involve the acts of forced fellatio or anal sex designed to degrade and hurt victims in other cases.  There was no element of intrusion into the complainant’s premises, and no weapon was used.

[34] Importantly, the offence did not occur in a context of fear or intimidation.  The applicant did not threaten or strike Ms A.  He was not a stranger to her; their relationship was still on foot at the time of the event.  Unlike the circumstances in Stephens, in which the court did not consider there was a basis from distinguishing offending in a de facto relationship from rape by a stranger, there is a case here for differentiation because of the existing relationship and its nature.  Ms A does not seem to have been in any fear of the applicant or to have been overborne by him.  There is no suggestion that he had on any other occasion inflicted violence on her.

[35] A friend of Ms A said,  when cross-examined at the trial, that she had been on good terms with both the applicant and Ms A and had not observed any sign of the applicant’s dominating Ms A or of her being afraid of the applicant.  Ms A was, she said, herself a rather dominant personality.  Certainly Ms A’s response to what occurred appears to demonstrate that she was a strong-minded young woman who was left humiliated and angry by what occurred, but not terrified.  She was forthright in her reactions and able to eject the applicant from her life when she decided that the relationship had ended.  There was no evidence of lasting psychological harm to her.

[36] The cases cited suggest that seven years would not be a remarkable sentence for protracted and degrading rapes committed in the context of a relationship already brought to an end.  The five year sentences imposed in Pickup and Stephens were certainly at the lenient end of the spectrum.  But this offence was not within that spectrum, and, assessed against the gravity of the conduct in the cited cases, could not warrant a six year sentence.  The applicant’s previous sexual offence was a consideration against him, as was the fact that this offence was committed on parole.  On the other hand, he was a relatively young man, who had no convictions for any violent offence, and despite his poor record of compliance with reporting requirements and orders, had never previously served any time in custody.  That history does not suggest that personal deterrence required a particular increase in the sentence, or that there is any reason now to depart from the learned sentencing judge’s approach to parole eligibility.

[37] I would grant the application for leave to appeal, allow the appeal, and vary the sentence imposed at first instance by substituting in place of the first and third orders respectively an order that the applicant be imprisoned for five years and an order that he be eligible for parole on 5 December 2014.  The declaration of time served in pre-sentence custody would remain.

[38] GOTTERSON JA:  I, too, am not persuaded that the sentence imposed was manifestly excessive.  I respectfully adopt the observations of the Chief Justice and agree that the application should be refused.