R v Gesler[2016] QCA 311

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  I agree with the reasons for judgment of Henry J and the order proposed by his Honour.
2. PHILIP McMURDO JA:  I agree with Henry J.
3. HENRY J:  The applicant was convicted by a jury in the Rockhampton District Court of the following offences and sentenced to the following concurrent terms of imprisonment:

Count 1 burglary by break–four years imprisonment;

Count 2 sexual assault–three years imprisonment;

Count 3 supplying a dangerous

drug (cannabis) to a minor–12 months imprisonment.

His parole eligibility date was fixed at 25 November 2017, halfway through the head sentence.

4. He seeks leave to appeal his sentence on the ground it is manifestly excessive, contending the head sentence ought to have been three rather than four years imprisonment.

Facts

5. The complainant and applicant both lived in Longreach.  She was aged 17 and he was 48.
6. The complainant had known the applicant as a family friend for some years, he being the father of her brother’s best friend.  After she moved out of home into a flat the applicant visited her on an increasingly regular basis, sometimes bringing around alcoholic drinks which they shared.  The complainant noticed that when the applicant became more comfortable in her presence he would sometimes make sleazy remarks towards her, calling her sexy and telling her how beautiful she was.  He showed some sexual interest in her, telling her that if he was closer to her age he thought he and she could be together as a couple.  She laughed off such comments, apparently not taking them seriously.  She considered the applicant and her were “quite close” friends.
7. On the night of the commission of the burglary by break and sexual assault the complainant attended a party with friends where she drank alcohol.  This caused her to be “slightly more than tipsy but nowhere near paralytic”.  On arriving home she went to the bathroom and vomited, apparently from the effects of alcohol.  She then went to bed, falling asleep wearing the clothes she had been out in, namely a singlet, bra, shorts and underpants.
8. Some time later she awoke with a start, feeling that someone was touching her.  She saw the applicant lying in bed beside her.  He had his hand down the front of her shorts which he had undone and pulled down a little.  His hand was under the front of her underpants, resting over her vagina, cupping it.  At the same time he had his shirt lifted up and his pants down about his knees and was masturbating himself.
9. She screamed at him to get out of her bed and out of her house.  He stood up, turning the light on and pulling his pants up.  He repeatedly apologised.  The complainant kept screaming at him to get out of her apartment.  She felt nauseous and vomited onto her bed.  He approached and rubbed her back, purporting to reassure her that she would be okay and suggesting he needed to stay because she was sick.  Again she told him to leave.  After she believed he had left the house she went downstairs to make coffee and discovered he was waiting out the front of her flat.  He asked if he could come in to have a coffee and she told him no, shutting the door.
10. The complainant had locked the front door to the flat on her return from the party.  While the back door had been locked, it would sometimes fail to lock properly, a problem the applicant was aware of.  The prosecution case, which the jury obviously accepted, was that the applicant had broken into the unit via the faulty back door.^[1]  The case was litigated on the basis that the indictable offence the applicant intended to commit when entering the complainant’s dwelling was the offence of sexual assault.
11. The complainant did not complain to authorities at first.  About a week after these events the applicant returned to the complainant’s flat and apologised to her, telling her he thought “it” should stay their secret because they were friends.  He thereafter recommenced visiting her, though not as frequently as before.  While he would sometimes bring up the incident and apologise for it, he would also tell her he would often think about her when he was lying in bed masturbating and wished he could have sex with her just once so he could know what it was like and would not have to wonder any more.  He would sometimes ask to stay the night, saying he did not want to sleep alone and wanted cuddles.  She always told him no.
12. The complainant agreed to an invitation to attend the applicant’s home to join him and a couple of friends to play pool.  However when she arrived there were no other visitors.  They had a couple of drinks and played pool.  He then gave her a rollie cigarette.  Once smoking it she realised that it contained cannabis.  She finished smoking it, felt light-headed and vomited.  He invited her to go and lay down at his house but she refused and he took her home.  This activity attracted the charge of supplying cannabis to a minor.
13. The complainant’s mother subsequently enquired of her whether or not the applicant had done anything to her and a disclosure to her mother was then followed by the making of a complaint to police.
14. The defence position suggested at trial was that the events attracting the charges simply did not occur.  However the prosecution case went unanswered by any evidence from or for the defendant.

The sentence below

15. The applicant was 51 years old by the time of sentence.  His only criminal history was for minor offences committed in his late teens and early twenties.
16. Information placed before the Court about the impact of the offending upon the complainant showed the offending had had a significant impact upon her.  She is now less trusting of other persons and finds it difficult to deal with intimacy.  She decided to leave Longreach due to the stress of continually having to see the applicant and fearing locals would think that she was to blame for what had occurred.
17. The Crown Prosecutor below referred the Court to a number of decisions in which a head sentence of three years had been imposed.  Defence counsel urged a sentence “about the three year mark” upon her Honour.
18. In passing sentence the learned sentencing Judge noted the applicant had become obsessed with the complainant who had not returned his romantic interest and had been trusting of him.
19. Her Honour noted that rather than having the courage to be more direct with the complainant and give her the opportunity to reject him, the applicant decided to help himself, breaking into her home in the early hours of the morning whilst she slept.  Her Honour described what occurred as being a terrible shock for the complainant, being “violated in the sanctity of her own bed, when she was most vulnerable, by a person that she had trusted so much”.
20. The learned sentencing Judge noted that after the offending the applicant had lingered, pressing her to stay silent about what had occurred and, encouraged by her failure to report the offences, the applicant had begun to openly fantasise about the complainant.
21. Her Honour concluded the supply of cannabis to the complainant, a minor, while not involving an intent to stupefy, was intended to make the complainant more receptive to the applicant’s advances and had involved deception by him about the contents of the cigarette.
22. Her Honour noted the complainant presented in the witness box as still traumatised by the applicant’s crimes.  Her Honour observed the complainant now struggles with intimacy and trust issues and considered it reasonable to expect that the offences would impose substantial long-term psychological effects upon the complainant.
23. The learned sentencing Judge noted the applicant had no relevant criminal history and had a reasonable work record, but observed, having gone to trial, he was not entitled to any discount for cooperation with the administration of justice or for remorse.
24. Her Honour emphasised people are entitled to sleep safely in their own beds and said the sexual burglary offences represented a “gross betrayal of trust of a vulnerable victim”.

Discussion

25. Counts 1 and 2 involved serious offending, warranting a significant term of imprisonment.  The sexual assault was committed upon a woman asleep in the bedroom of her home by a man who had broken into her home with the intention of sexually assaulting her.  Without in any way gainsaying the seriousness of the sexual assault in its own right, its seriousness was compounded by the violation of the complainant’s sense of security and safety in her own home, so valued at law that the maximum penalty for the applicant’s burglary by break was life imprisonment.  That the applicant offended further in supplying cannabis to the complainant in the hope of making her more receptive to his advances was less serious but displayed a disturbing lack of insight into the inherent seriousness of his earlier offending.
26. The applicant’s counsel acknowledged the seriousness of the offending and accepted no apparent error in discretion could be discerned.  However he submitted “the sentence imposed was unreasonable and plainly unjust” and therefore “manifestly excessive”.  Appellate intervention is sought on the basis the difference in result arrived at here, as compared to in other cases, is so marked as to compel the conclusion there must have been some misapplication of principle, even though the error is not apparent from the sentencing remarks.^[2]
27. The applicant placed particular reliance upon R v Troop.^[3]  Troop was sentenced to three years imprisonment with no order as to parole eligibility after being convicted at trial of breaking and entering a dwelling with intent in the night time and indecent assault.  The sentencing Judge also activated a two-month suspended sentence that was ordered to be served cumulatively.  The complainant and Troop each worked at a hotel on Thursday Island.  They had been drinking together with others prior to the offence and she had declined Troop’s invitation to go out with him and others to a nightclub.  After falling asleep in her room at the hotel she was awoken by her pants having been taken off and Troop touching and licking her vaginal area.  She challenged him and he left.  His claims of consenting sexual activity were rejected at trial.  This Court concluded the sentences imposed were within range and refused the application for leave to appeal the sentence.  The applicant submitted Troop was objectively a more serious matter than the present in that licking of the genitalia was worse than an assault involving touching with the hand.  That does not present as a material distinction for present purposes, bearing in mind the present applicant’s touching of the complainant was accompanied by him having his pants down and masturbating at the same time.  At best, Troop illustrates that a head sentence of three years in the present matter would not have been beyond the appropriate range.  It does not however illustrate that a sentence of four years was beyond range.
28. The Court was taken to two other cases referred to in Troop, R v Billy^[4] and R v Forrester.^[5]
29. In R v Billy the applicant pleaded guilty to entering a dwelling house with intent and indecent assault.  He was sentenced to four years imprisonment on each count.  The complainant had awoken in her flat to the naked applicant lying on top of her, trying to kiss her.  He began pulling down her pants saying, “I want to kiss your clit.  Don’t scream.  I have a knife”.  She screamed and he decamped, dropping his knife nearby.  He subsequently admitted the offending.  He had a criminal history of some substance, having previously been in prison for aggravated assault and stalking, as well as having been previously convicted for breaking and entering a dwelling house with intent.  The sentencing Judge in Billy indicated that the plea of guilty had been taken into account in tempering the head sentence, which McPherson JA observed would make the sentence “a rather high one”.  His Honour went on to say, “The sentence could not have gone very much higher than four years, perhaps even if the applicant had pleaded not guilty and gone to trial.”  Pincus JA, in agreeing, considered the sentence was “at least towards the upper end of the possible range”.  Billy’s criminal history and the fact he was armed are considerations suggesting his case was more serious than the present.  However those considerations are counter balanced by the fact his sexual assault did not progress as far as the applicant’s here and that, unlike the present applicant, Billy pleaded guilty.  R v Billy suggests the present sentence is towards the top of an appropriate range but does not demonstrate manifest excess.
30. In R v Forrester the applicant pleaded guilty to a number of offences including one count of burglary and stealing and one count of indecent assault.  There the complainant awoke in her bedroom to find the applicant, a stranger, rubbing her vagina.  She jumped in response and the applicant fled, apparently having stolen her mobile phone and wallet.  The offending had a significant adverse emotional effect upon the complainant.  Forrester was sentenced to three and a-half years imprisonment at first instance.  A psychiatrist’s report referred to a history of mental health problems and diagnosed substance induced psychosis or schizophrenia.  There was error at first instance in that improper regard had been had to an uncharged offence.  In sentencing afresh this Court imposed a head sentence of three and a-half years imprisonment with parole eligibility fixed after one-third of that time to recognise the applicant’s distinct personal circumstances.  Forrester was on probation and on bail when he offended.  On the other hand, in contrast to the present applicant, he was only 21, had mental health issues and pleaded guilty.
31. The applicant’s counsel, in casting Billy and Forrester as more serious cases than the present, submitted that offending of this kind attracts more significant sentences when committed by a stranger to the victim.  No such trend is obvious from the cases to which this court was referred.  That is unsurprising.  Elevating such a singular consideration to such a determinative level would be to overlook the variability of relevant considerations on sentence, even as between generally similar cases.  Such considerations include the physical or emotional harm done to the victim,^[6] whether acquainted with the offender or not.  It was submitted offending of the present kind when committed upon a stranger, warrants greater weight being placed on community protection and deterrence than where the victim is known to the offender, because a broader proportion of the community need to be protected from the former type of offender than the latter.  Such a submission might carry some force in respect of a serial offender.  However, it is misconceived as a means of distinguishing Billy and Forrester from the present case given that each involved one sexual assault burglary victim.  Further, bearing in mind this applicant broke in and assaulted a sleeping victim the fact that he knew her hardly seems a logical basis to assume he poses any less a degree of danger to the community and deterrence is any less important than would be the case if he had not known her.
32. The applicant also placed reliance on R v Ramm.^[7]  Ramm pleaded guilty to offences including break and enter a dwelling with intent at night with actual violence used and assault with intent to commit rape.  There the complainant was awoken during the night by the applicant, who lived in the same unit block as her, trying to open her door.  He asked her to have sexual intercourse with him and was duly rejected.  Half an hour later the applicant, dressed only in his underpants and work boots, smashed in the French doors to the complainant’s living room, entered the unit and physically attacked the complainant.  She screamed and tried to fight him off.  When other residents to the complex attended he desisted and left.  Ramm, who was 25 years old, had a moderately more serious criminal history than the present applicant and his offending involved a higher degree of violence.  However, again unlike the present applicant, he entered an early guilty plea.  His application for leave to appeal his head sentence of four years imprisonment was successful to the extent of this court adding a recommendation for parole eligibility after serving one third of the head sentence.  That outcome, tempered as it was by this court, at least shows the present sentence must be near the top of an appropriate range.  But is it so at odds with Ramm as to bespeak error?
33. The variables in play in comparing the above discussed cases to the present illustrate why the systematic fairness with which the sentencing discretion is to be exercised requires reasonable consistency,^[8] not numerical or mathematical equivalence.^[9]  Those cases show the sentence imposed was a heavy one in the circumstances.  However, bearing in mind the variability of relevant circumstances, the outcomes of those cases, including R v Ramm, are not so markedly different from the present as to compel a conclusion of error.
34. The application for leave to appeal sentence should be refused.
35. I would order:

Application for leave to appeal against sentence refused.