R v Choomwantha[2014] QCA 115

SUPREME COURT OF QUEENSLAND

[1] MUIR JA:  After a 10 day trial, the 46 year old applicant was convicted of abducting and raping the five year old complainant.  He was sentenced to 10 years imprisonment for the rape and to a concurrent term of five years imprisonment for the abduction.  His application for leave to appeal was in respect of both sentences but only the appeal against the sentence imposed for the rape offence was pursued on the hearing of the appeal.

[2] The applicant, who had no criminal history, had a good work history and was providing financial support to his children and mother.

[3] The applicant, who knew the complainant’s family, attended a birthday party at a house in Springfield on 13 November 2010.  The complainant and her family were present.  Between 9.00 and 10.00 pm that evening, the applicant took the complainant from the yard of the house to behind a car parked on the side of the road opposite a neighbour’s house.  He there told the complainant to lie down and penetrated her vagina with his finger.  The complainant said that the finger was inserted “really hard” and caused her pain.  She could hear her name being called but for a while the applicant would not let her go and held her tight.  He eventually released her and she ran off.  When she emerged from behind the car, she was seen by her parents who noticed that she was bleeding between the legs.  She suffered a five to seven millimetre laceration to her labia majora, bruising to her hymen and a tear of her posterior fourchette.

[4] The sentencing judge found that the applicant created the opportunity to commit the offences by engaging with the complainant that night and that he took her away to fulfil his purpose.

[5] In arriving at the sentence imposed for the rape, the sentencing judge had particular regard to R v D[1] and R v Stoian.[2]

[6] In R v D, the applicant’s sentence of 12 years imprisonment for rape was set aside and a sentence of 10 years was substituted.  The applicant was about 40 years of age and had a lengthy criminal history.  The offending occurred in the following circumstances.  The complainant’s mother went inside her house leaving the five year old complainant playing in the yard with other children.  At the time she observed the applicant sitting in his backyard drinking and listening to music.  When the mother checked on the children about 15 minutes later, she noticed that the complainant was missing and that the applicant was no longer sitting in his yard.  She knocked on his door.  Receiving no answer, she entered the house and found the complainant naked on a bed in a bedroom with the applicant leaning over her, touching her vaginal area while holding down her legs.  The complainant refused to tell her mother what had happened, apart from saying that she had not responded to her calls because of threats made by the applicant.

[7] Medical inspection revealed that the complainant’s hymen was bruised and haemorrhaging of the hymen was evident.  The medical evidence was to the effect that the injuries were consistent with digital penetration but that penile penetration was unlikely.  The victim impact statement revealed that the complainant’s behaviour had changed since the offending; she was sleeping with her mother on most nights, her sleep was interrupted and she was wary and distrustful of strangers.

[8] Stoian was 50 years of age when he accosted the nine year old complainant in the street; took her to a hotel room, threatened her with a knife and forced her to suck his penis.  The offending caused lasting trauma to the complainant and her father.  Stoian’s limited criminal history included a conviction in 1982 for indecently dealing with a nine year old girl.  His sentence of 12 years imprisonment for the rape of the nine year old complainant imposed on 18 May 2011 was not disturbed on appeal although McMurdo P observed that the sentence was high.

[9] Counsel for the applicant submitted that R v Lee,[3] R v RAH[4] and R v AAD[5] were also comparable sentences.

[10] Lee’s application for leave to appeal against a sentence of three and a half years imprisonment with parole eligibility fixed at the halfway point imposed after a trial for the rape of a seven year old girl was refused.  Lee was 35 at the time of offending and had a lengthy criminal history which did not include convictions for any sexual offences.

[11] Lee, who was previously unknown to the seven year old complainant and her family, visited their house on the day the offending occurred.  During the evening, when he and the complainant were together in a bedroom, he placed her on a mattress beside him, put his hand under her underpants and inserted a finger inside her vagina.  The complainant, who was hurt and upset, left the bedroom limping and crying.  A medical examination that evening revealed that the entrance to the complainant’s vagina was “abnormally red”.  Her hymen was very red, her vulva was tender and there was a linear abrasion wound to her genital area consistent with recent injury.

[12] In her reasons White JA, the other members of the Court agreeing, observed that the nature of the complainant’s injuries and the resulting distress suggested that “this was no ‘mere’ digital penetration but a severe assault”.

[13] In RAH the applicant’s application for leave to appeal against a sentence of two and a half years imprisonment with parole eligibility after serving 15 months imposed after a trial for the rape of his eight year old granddaughter was dismissed.  The offending conduct occurred when the complainant was sleeping with her sister on a mattress in the lounge room of the 67 year old applicant’s house.  He came into the room, “pulled her pants down and put his finger in her private part and it hurt”.[6]  The applicant had criminal history which included a conviction for exposing three different children under the age of 12 to indecent written matter.  Not surprisingly, White JA described the sentence as “a very lenient one in view of the gross breach of trust by the child’s grandfather”.[7]

[14] In R v AAD, a sentence of five years imprisonment with a serious violent offence declaration under s 159A of the Penalties and Sentences Act 1992 (Qld) imposed on the 30 year old offender for the digital rape of the complainant, then almost seven, was set aside and a sentence of imprisonment for four years was substituted.  The serious violent offence declaration was left undisturbed.  The applicant was in a de facto relationship with a woman who had informally adopted the complainant.  He had a criminal history including convictions for indecent assault and rape.

[15] The reasons in R v AAD contain the following analysis of comparable sentences:[8]

“In R v NH [2006] QCA 476, the 51 year old offender was a married teacher with no prior convictions. On three occasions, he fondled the vulval region of an eight year old daughter of his friends and on another occasion digitally penetrated her vagina. He was in a position of trust and threatened to tell others about her father’s imprisonment if the complainant disclosed his conduct. Sentences of two and a half years on each count were substituted for the three year sentences imposed at first instance [after a trial].

The applicant, in R v PAA [2006] QCA 56, was a man in his mid to late 70s who was sentenced to terms of imprisonment [terms of imprisonment totalling four years][9] with a recommendation for post-prison community-based release after 18 months, on three counts of rape, four counts of indecent treatment of a child under 16 and one count of indecent treatment of a child under 12. All the offences were committed over a two year period by the applicant on grandchildren. The three counts of rape involved digital penetration of a six year old girl’s vagina on three separate occasions. One of the counts of indecent treatment involved the applicant procuring the complainant to fondle his penis. Another occurred when the applicant lay naked on top of a young grandson and began moving his body. In reducing the parole eligibility date, the Court took into account the applicant’s age,[10] his remorse, the fact that he would be required to serve sentence in Australia rather than in his home country, New Zealand and early pleas of guilty.

In the R v BBE [2006] QCA 532, the 22 year old applicant was sentenced [after pleading guilty] to four years imprisonment on each of two counts of rape involving digital penetration, one count of rape involving tongue penetration and one count of indecent dealing with his five year old niece. The offences occurred over a short period of time and came to light when the applicant confessed to his sister after ceasing his offending behaviour. He suffered from some intellectual impairment and cooperated fully with authorities. The sentences for rape imposed at first instance were set aside on appeal and substituted with sentences of three years’ imprisonment, suspended after six months with an operational period of five years.”

[16] Counsel for the respondent identified the following features of the applicant’s offending which were said to make R v D and R v Stoian of particular relevance.  The offending was late at night after an abduction; sufficient force was used to cause immediate pain and injury; and the offending had and would continue to have significant adverse psychological consequences for the complainant.

[17] The applicant, who was 46 years of age, exhibited no remorse and would cause the Court concern as to the future risk of his reoffending.  A serious violent offence declaration was appropriate.[11]

[18] R v D and R v Stoian were both cases which involved rapes, respectively digital and oral, after abduction.  The abduction in this case, however, was not comparable to the taking of a child from a yard or street into a room in a building in which the offender has the child at his mercy and is free to pursue his objectives without fear of detection.  The complainant was taken only a few metres from a yard into a location only partly obscured from view.

[19] In R v D and R v Stoian, unlike this case, the offending was accompanied by the threat of violence and the offenders each had a criminal history.  In R v D it was lengthy but included no sexual offending.  Stoian’s criminal history included a sexual offence.  There was the aggravating circumstance that the penetration was penile rather than digital and the threat was to use a knife which was actually held to the complainant’s neck.  On appeal, the sentence in Stoian was described as high.

[20] It is difficult to reconcile R v D and R v Stoian with the other cases referred to above but recognition of the following matters assists in the drawing of useful comparisons.  In R v RAH and R v Lee this Court’s function was to decide whether the sentence imposed was manifestly excessive, not whether it was appropriate in all the circumstances.  This Court did re-sentence in R v AAD, R v NH, R v PAA and R v BBE.  R v BBE is of little assistance because of the youth and intellectual impairment of the offender who also benefited by cooperating with authorities.  The sentences imposed in R v D, R v AAD, R v PAA, R v NH and R v BBE were imposed after guilty pleas.

[21] In my respectful opinion, the sentence imposed on the applicant for rape was manifestly excessive.  The sentencing judge said in her sentencing remarks, “taking a young child away to commit an offence is a serious form of aggravation which draws a much more significant penalty than the cases such as AAD”.  As a general proposition, those observations are unexceptionable but her Honour failed to appreciate that there was a marked difference in degree between the applicant’s abduction of the child and that in R v D and R v Stoian.  The other distinguishing matters identified above and in particular: the threat of violence in R v D; the use of a knife in R v Stoian; and the criminal histories of the offenders in those cases suggest that they are not truly comparable.

[22] The applicant’s offending was grave.  His five year old victim was physically injured and suffered pain and emotional distress.  Any sentence must accommodate the need for both personal and general deterrence.  It should also demonstrate the community’s abhorrence of the use of small children for the purposes of sexual gratification.  Moreover, the applicant does not have the benefit of any circumstances of mitigation.

[23] Counsel for the respondent submitted that a serious violent offence declaration was warranted.  Reliance was placed on R v Bielefeld.[12]  In that case, the question for the Court was whether the imposition of the declaration made the sentence manifestly excessive.  The Court held that it did not.  Helman J, with whose reasons the other members of the Court agreed, concluded that a combination of circumstances warranted the making of the declaration.  They were: the complainant was nine years of age; she was abducted; and “subjected simultaneously to suffocation and violation in both anus and vagina”.  The vaginal penetration was digital, the anal penetration was penile.  In this case, the insertion of the finger caused pain and injury as described earlier.  Nevertheless, it did not, consistently with the principles articulated in R v McDougall and Collas,[13] call for the making of the declaration sought.

[24] Having regard to the authorities discussed above, I would order that:

1. Leave to appeal against the sentence of 10 years imprisonment imposed for the offence of rape be granted.

2. The appeal be allowed.

3. The sentence of 10 years imprisonment and the serious violent offence declaration in respect thereof be set aside and a sentence of eight years be imposed in its place.

[25] GOTTERSON JA:  I agree with the orders proposed by Muir JA and with the reasons given by his Honour.

[26] JACKSON J:  I agree with the reasons for judgment of Muir JA and the orders proposed by his Honour.