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R v RUJ[2021] QCA 114

SUPREME COURT OF QUEENSLAND

CITATION:

R v RUJ [2021] QCA 114

PARTIES:

R

v

RUJ

(appellant/applicant)

FILE NO/S:

CA No 179 of 2020

DC No 472 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Beenleigh – [2020] QDC 198 (Muir DCJ)

DELIVERED ON:

28 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2021

JUDGES:

Sofronoff P and McMurdo and Mullins JJA

ORDERS:

  1. Appeal against convictions dismissed.
  2. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – GENERALLY – where the appellant was convicted of rape and attempted rape – where the appellant appeals against the verdict on the ground that there has been a miscarriage of justice – where the appellant submitted that the trial judge erred by applying irrelevant considerations or incorrect facts to the determination of the appellant’s credibility and reliability – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted of rape and attempted rape – where the appellant was sentenced to a head sentence of four years’ imprisonment – whether the sentence was manifestly excessive

Criminal Code (Qld), s 615C, s 668D, s 668E

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, considered

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, considered

R v Keevers; R v Filewood [2004] QCA 207, considered

R v O'Dempsey [2018] QCA 364, discussed

R v Sailovic-Jeremic [2011] QCA 211, considered

R v Smith [2020] QCA 23, considered

COUNSEL:

B J Power for the appellant/applicant

M J Hynes for the respondent

SOLICITORS:

Robertson O'Gorman Solicitors for the appellant/applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  I agree with the reasons of McMurdo JA and with the orders proposed by his Honour.
  1. [2]
    McMURDO JA:  The appellant was convicted of the rape and attempted rape of a young woman, for which he was sentenced to concurrent terms of four years’ and two years’ imprisonment, suspended after 20 months.  He appeals against the convictions and seeks leave to appeal against the sentences.
  2. [3]
    The appellant was tried in the District Court by Muir DCJ, sitting without a jury.  The essential evidence in the prosecution case was that given by the complainant.  She was a friend of the appellant’s daughter, and was one of several people who were then sleeping in the appellant’s house after a birthday celebration.  In the early hours of the morning, she awoke to find that a man had entered the room in which she was sleeping (alone) and that man proceeded to digitally rape her and attempted to insert his penis into her vagina.  The complainant said that this man was the appellant.
  3. [4]
    The appellant gave evidence.  He denied being in the complainant’s room.  The trial judge rejected his evidence and accepted her evidence.
  4. [5]
    The convictions are challenged upon the basis that the judge “erred by applying irrelevant considerations or incorrect facts to a determination of the appellant’s credibility and reliability, which contributed to her Honour’s rejection of the appellant’s sworn denial of the offending.”  It is contended that a miscarriage of justice resulted, by which the convictions should be set aside as a miscarriage of justice within the third limb of s 668E(1) of the Criminal Code.
  5. [6]
    The sentences are challenged upon the basis that the term of four years’ imprisonment, for the offence of rape, is manifestly excessive.  It is submitted that the four year term should be reduced to one of three years, and each term should be suspended after 15 months have been served.
  6. [7]
    For the reasons that follow, the appeal and the application for leave to appeal should fail.

The evidence at the trial

  1. [8]
    The appellant’s daughter, whom I will call TR, had arranged to have a party at the appellant’s house to celebrate her recent birthday.  TR did not live with the appellant, and the frequency of her visits to his house became a matter of significance in the reasoning of the judge.  At least for most of the time, TR lived with her mother.
  2. [9]
    The complainant was one of TR’s friends who gathered at the house, intending to drink there before going to a bar in the Brisbane CBD.  The complainant then intended to return to the house to sleep there overnight.  But after drinking too much in the evening, the complainant was too drunk to accompany others to the CBD, and she fell asleep in one of the bedrooms.  It was in that room that the offences were said to have been committed, in the early hours of the following morning.
  3. [10]
    The appellant was at home on that evening, and went with the group to the CBD.  The complainant had not met the appellant prior to that night.  Her evidence was that when she arrived at the house, she was shown to the room, in which she later slept, by the appellant.  The appellant’s evidence was that this did not happen.  That became a factual issue, which one or both of the parties considered to be relevant as indicating the likelihood that the appellant would have known, on his return from the CBD, where the complainant was sleeping.
  4. [11]
    The appellant’s evidence was that before the group went to the CBD, he was with them for only half of the time that the celebrations were occurring at the house.  He said he did not take much notice of the complainant and only had a passing conversation with her.  Some of his friends were also at the party.
  5. [12]
    The appellant’s recollection was that the complainant was intoxicated.  He gave evidence that he had seen her vomit in the foyer area of his house and that she had earlier been drinking tequila from a bottle.  The complainant accepted that she became very intoxicated and, although she did not remember doing so, that she had vomited during the night.  She denied that she had also smoked cannabis on the night, but another guest who was at the party testified that he was certain that the complainant had done so.
  6. [13]
    The complainant had no memory of whether she required any assistance to get to the bedroom, where she went to sleep.  She recalled waking up at 4 am to go to the toilet, before returning to the room and going back to sleep.  She was then awoken when a man, whom she identified as the appellant, entered her room.
  7. [14]
    The complainant said that the bedroom door was open when the assault began, and it was by the light which she said was coming through the open door that she was able to identify the appellant.  TR and her boyfriend slept the night at the house, and had no recollection of a light being on.
  8. [15]
    The complainant detailed the extensive physical contact with the appellant, which she said occurred over a period of 15 to 20 minutes.  The complainant said that the assault ended only when she told the man that she was going to scream.  He then got off the bed, and she was able to “clearly make out his face” from which she was certain that the man was the appellant.
  9. [16]
    The complainant then remained in the room for “a bit” and texted three friends, disclosing the sexual assault by the appellant.  She then telephoned one of them and made further disclosures of the offence.  One of the friends organised an Uber ride, which took the complainant from the appellant’s house to where the friends were staying, at 4.42 am on that morning.  During that journey, a telephone conversation continued between the complainant and one of the friends, in which the complainant continued to relate what had happened.  The judge said that the friend’s evidence of this disclosure was largely consistent with the complainant’s testimony.  When she arrived at the friend’s house, there were further preliminary complaints which disclosed details of the offending.
  10. [17]
    The appellant’s evidence was that he had been careful not to drink too much at the house or at the CBD bar, because he was planning to work on the following morning.  However it was formally admitted that he arrived home at 3.46 am, and left the bar “near closing time”.  He said that when he arrived home, he changed into his pyjamas and went straight to sleep.  There was evidence from the appellant’s daughter that she recalled waking up and hearing her father come home.  She gave evidence that after falling asleep again, she awoke a second time and saw a figure walking down the hallway towards the area of the house where the complainant was sleeping, and she identified this figure as her father.  That evidence was strongly challenged at the trial, but it was accepted by the judge.[1]
  11. [18]
    I am about to discuss those parts of the appellant’s evidence which the judge considered to be damaging to his credibility.  Apart from them, it is unnecessary to discuss further the evidence at the trial, because it is accepted, in the appellant’s submissions, that it was open to the judge to be satisfied, beyond reasonable doubt, of the appellant’s guilt.

Rejection of the appellant’s credibility

  1. [19]
    Her Honour observed that the appellant’s version was largely consistent with that of the complainant, except where it implicated him as the perpetrator of the offences.  The judge said that she found the defendant gave evidence to bolster his story, attack the complainant and distance himself from the identification of him in the bedroom.[2]  Her Honour said that she found many aspects of his evidence to be “contrived, self-serving and most unconvincing”, which the judge qualified by noting his concession that “there was no one else at the party that looked anything like him”.[3]
  2. [20]
    What then followed were the paragraphs of the Reasons which are said to be the basis for this appeal.  It is necessary to set them out in full:

[118] Some aspects of the defendant’s evidence which I find did not reflect well on his credit included:

  1. (a)
    his evidence that TR was living with him ‘on and off’ as she went between the two houses. TR’s evidence was that she lived at her mother’s house and she could not even recall if she had a key to the house. The bedroom which was supposedly TR’s was bare, with no personal items and the defendant commented on its state of presentation.
  1. (b)
    he stated that he could confidently comment on how intoxicated the complainant was despite being in his room for half of the time and barely having any interaction with her;
  1. (c)
    he stated arrogantly and aggressively that he was not attracted to the complainant, “not one bit,”  and explained his agitation by forcefully stating he had “never been out with a girl that looks like her, ever, in my whole life.” That statement was then clarified to mean “someone of dark skin complexion.” It may be true that he was not attracted to the complainant, but the manner in which he delivered this statement suggested an overwrought attempt to distance himself from the complainant and consequently revealed an underlay of unreliability to the defendant’s evidence.

[119] I accept the Crown submission that the defendant’s evidence was underpinned by a number of crucial prior inconsistencies which demonstrate his largely self-serving narrative. Such inconsistencies included the matters discussed at paragraphs [47], [56] and [118] of these Reasons together with:

  1. (a)
    the defendant’s evidence about the clothing he was wearing on the night. In his interview with police on 2 October 2016 the defendant stated he was wearing a shirt and jeans. In his evidence on 28 July 2020, he stated he was wearing a jacket over a shirt. When questioned on the point he re-affirmed that he was wearing a black jacket over a black shirt and went on to explain why that was not inconsistent. It is instructive too that PJ[4] said the defendant was wearing a Ralph Lauren polo shirt when he arrived at the party, but his evidence was that the defendant was in the shower when he [PJ] left the party – and PJ did not see the defendant again that night.
  1. (b)
    the defendant’s inconsistent version about getting changed into pyjamas. To police he stated he collapsed onto the bed. In evidence he made it clear that he got changed into not only pyjamas, but specifically that he wore shorts and a shirt. In cross-examination he accepted he really didn’t know which version was correct or what his evidence was.”

(Footnotes omitted.)

Submissions

  1. [21]
    That reasoning is challenged, point by point, as follows.  As to paragraph [118](a), it is said that the trial judge did not put the appellant’s evidence on this subject in context, and overlooked the fact that his evidence in this respect was not challenged by the prosecutor when cross-examining him.  In cross-examination of the appellant, there were questions and answers as follows:

“Q: But [TR] … didn’t live at your house at that stage, did she?

A: No. She was … living on and off. … she goes between her mother’s place and my place.

Q: And that was back in 2016 [the relevant time]?

A: Yes. Correct.”

The subject was not taken further by the cross-examiner.

  1. [22]
    The evidence of the appellant’s daughter was that she stayed at the appellant’s house on occasions, but did not live there full time.  She was asked, in examination-in-chief, “what was the living arrangement between living at your mum’s place and living at your dad’s place?”  She answered by saying that “I would visit dad occasionally, but for – mostly living with mum.”  In cross-examination, she agreed that her father’s house was her “second home away from home, almost”.  After that answer, she agreed with the suggestion that because she wanted her guests to be comfortable, she would have shown the complainant the bedroom, by taking her down the hallway to it.  As to her Honour’s comment that the room “which was supposedly [the daughter’s] was bare, with no personal items”, it is argued that the judge overlooked evidence from the complainant that the room may have been furnished differently at the time from what was depicted in photographs, and that in any event, nothing had been made of this in the prosecutor’s final address.
  2. [23]
    As to paragraph [118](b), it is submitted that this statement overlooked the evidence of nearly every witness (including the complainant) that the complainant was very intoxicated, so that it would be unremarkable that the appellant would have observed her intoxication, although he was in his room for about half of the time that the party was occurring at the house.
  3. [24]
    As to paragraph [118](c), it is submitted that her Honour overlooked the fact that this evidence came in cross-examination, meaning that this was not something which the appellant had set out to say in his evidence, so that the judge was wrong to interpret it as an attempt to distance himself from the complainant.
  4. [25]
    The appellant’s submissions take issue with the reasoning in paragraph [119](a).  The effect of the argument is that there was no inconsistency between the appellant’s evidence and that of the witness PJ, and that in any case, these were not “crucial prior inconsistencies”, which could be said to “demonstrate his largely self-serving narrative.”
  5. [26]
    As to paragraph [119](b), it is submitted that this evidence was of no consequence, and that the appellant had accepted that he could not remember whether or not he had changed into his pyjamas.
  6. [27]
    Each of these submissions, as to paragraphs [118] and [119] of the Reasons, is challenged by the submissions for the respondent, which are to the effect that in no respect was there an error by the judge.
  7. [28]
    In summary:
    1. (a)
      the appellant’s argument is that the process, by which his evidence was rejected, was flawed, such that there was a miscarriage of justice although the outcome was open to the judge on the evidence.
    2. (b)
      the respondent’s argument is that the appellant must demonstrate that there was no evidence to support the judge’s findings, or that the evidence was all one way for which the respondent cites R v O'Dempsey.[5]
  8. [29]
    To explain why neither of those arguments should be accepted, it is necessary to discuss the nature of the appeal against a conviction, after a trial by a judge without a jury.

Nature of the appeal

  1. [30]
    Section 615C(1) of the Code provides that “in a trial by a judge sitting without a jury:
    1. (a)
      the judge may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury; and
    2. (b)
      any finding or verdict of the judge has, for all purposes, the same effect as “a finding or verdict of a jury.”
  2. [31]
    Section 615C(2) provides that chapter 67 of the Code applies, “with all necessary changes, in relation to a person tried by a judge sitting without a jury in the same way as it applies to persons tried by a judge sitting with a jury”.  Sections 668D and 668E of the Code, adapted as required for the absence of a jury, are thereby engaged.
  3. [32]
    Section 615C(3) provides that the judgment of the trial judge sitting without a jury must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.
  4. [33]
    Under s 668E(1), the possible grounds of an appeal against a conviction are that:
    1. (a)
      the verdict of the [judge] is unreasonable or cannot be supported having regard to the evidence;
    2. (b)
      the verdict should be set aside on the ground of a wrong decision of any question of law; or
    3. (c)
      on any ground whatsoever, there was a miscarriage of justice,

provided that the Court may dismiss the appeal if it considers that there is no substantial miscarriage of justice which has actually occurred.[6]

  1. [34]
    The application of the so called common form provision for criminal appeals (such as s 668E(1)), where a conviction has resulted from a trial by a judge without a jury, was explained by the High Court in Filippou v The Queen.[7]
  2. [35]
    As already noted, the appellant’s argument expressly disavows a reliance upon the first of those grounds, it being conceded that it was open to the judge to be satisfied of the appellant’s guilt.  It is also accepted that the second ground within s 668E(1), namely that there was a wrong decision on a question of law, does not apply to this case.  The appellant here must establish the ground under the third limb, namely that there was a miscarriage of justice.
  3. [36]
    The appellant’s case is that there are identifiable errors in the Reasons, more particularly in paragraphs [118] and [119], which involved a failure of the required “process” of a criminal trial.  The argument seeks to liken this case to a fault in the process of fact finding which availed the appellant in Fleming v The Queen.[8]
  4. [37]
    In Fleming, an accused was convicted by a judge alone on charges relating to the aggravated indecent assault of a teenage girl.  The trial was required to be conducted under the requirements of s 33(2) and (3) of the Criminal Procedure Act 1986 (NSW).  Section 33(2) was an equivalent provision to s 615C(3) of the Code.  Section 33(3) provided that if any Act or law required a warning to be given to a jury in any such case, the judge was to take the warning into account in dealing with the matter.  The High Court said that whilst they were differently framed, the requirements of s 33(2) and (3) were expressed in terms of legal imperatives, and that a failure to observe either or both of them was to make a wrong decision on a question of law within the second limb of the common form provision.[9]  Their Honours added:

“Such failure may also mean that justice has miscarried, within the meaning of the third limb, because justice according to law, to which the accused was entitled, included compliance with the mandatory requirements of s 33.”[10]

It was further said that the obligation imposed by s 33(3), “to take the warning into account”, was not only to be discharged, but also to be seen to be discharged, meaning that the warning had to be included in the judge’s reasons for judgment as one of the principles of law which had been applied by the judge.[11]  Because the required warning[12] was not given, there was a failure to observe the requirements of s 33(3), engaging the second (and probably also the third) limb of the common form provision.[13]  The High Court added that there was considerable force in the appellant’s submission that the trial judge had not given the complainant’s evidence “the sufficiently careful scrutiny which the required warning, carried into effect, would have required.”[14]  On the evidence in that case, certain findings of the judge were described by the High Court as apparently illogical, which their Honours observed, emphasised the importance that the warning both be stated and acted upon.[15]

  1. [38]
    The High Court then considered a further ground of appeal, which was that the conviction should be set aside, and the appellant be acquitted on the charges, upon the basis that it was not open to the judge to convict him.  The High Court rejected that ground in this passage:[16]

“In dealing with the ground of appeal upon which the appellant succeeds, we have found fault with the process by which the trial judge came to that conclusion.  However, with respect to the grounds of appeal to the effect that the appellant is entitled to an acquittal, it has not been established, that in the light of the whole of the evidence, it was unreasonable to believe the complainant or that the majority of the Court of Criminal Appeal erred in rejecting the submission that the nature of quality of the evidence at the trial was such that, acting reasonably, the trial judge ought to have had a doubt as to the guilt of the appellant.”

(Emphasis added.)

  1. [39]
    The appellant’s argument fastens upon the words which I have emphasised, and says that this is a description which can be applied to the present case.  It is argued that by misinterpreting some of the evidence, and overlooking other evidence, the “process” by which the trial judge here rejected the defendant’s evidence failed, so that this case is within the third limb of s 668E(1).
  2. [40]
    The fault of process in Fleming was of a kind which was described by Gleeson CJ in Nudd v The Queen.[17]  Gleeson CJ there said that in the context of the common form provision, “the concepts of justice and miscarriage of justice bear two aspects: outcome and process.  They are different, but related.”[18]  The Chief Justice quoted this passage from the judgment of the High Court in Davies and Cody v The King:[19]

From the beginning, [the English Court of Criminal Appeal] has acted upon no narrow view of the cases covered by its duty to quash a conviction when it thinks that on any ground there was a miscarriage of justice, a duty also imposed upon the Supreme Court of Victoria (Crimes Act 1928). It has consistently regarded that duty as covering not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.”

  1. [41]
    Gleeson CJ observed that the common from provision “covers matters of both outcome and process, referring to jury verdicts which are unreasonable or cannot be supported having regard to the evidence, to wrong decisions (of a judge) on any question of law, and to any other ground for concluding that there was a miscarriage of justice”.[20]  He continued:

[6]  Even though it is impossible and undesirable to attempt to reduce miscarriages of justice to a single formula, there is at least one circumstance in which a failure of process cannot be denied the character of a miscarriage of justice on the ground of the appellate court's view of the strength of the prosecution case. That is where the consequence of the failure of process is to deprive the appellate court of the capacity justly to assess the strength of the case against the appellant. There may be other circumstances in which a departure from the requirements of a fair trial according to law is such that an appellate court will identify what occurred as a miscarriage of justice, without undertaking an assessment of the strength of the prosecution case. If there has been a failure to observe the conditions which are essential to a satisfactory trial and, as a result, it appears unjust or unsafe to allow a conviction to stand, then the appeal will be allowed.

[7] The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error. Process is related to outcome, in that the object of due process is to secure a just result. Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose. An unjust conviction is one form of miscarriage. Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just. Another is a failure of process which departs from the essential requirements of a fair trial.”

(Emphasis added.)

  1. [42]
    Nudd was an appeal against a conviction from a jury trial; nevertheless the judgment explains the aspect of process, and a failure of process, as an aspect of a miscarriage of justice as a ground of appeal under the third limb of s 668E(1).  The “fault with the process” which was found by the High Court in Fleming involved “a failure of process” of that last mentioned kind.  It involved a departure from the essential requirements of a fair trial, as prescribed for that case by s 33(3) of the Criminal Procedure Act 1986 (NSW).
  2. [43]
    The errors in this case, according to the appellant’s argument, were not ones which went to the process to be followed to secure a fair trial and a just outcome.  There was no legal principle which governed the judge’s fact finding which was not applied.  The errors (if any) were in the interpretation and assessment of the evidence and its significance.  In a case involving “no failure of process” in the relevant sense, the only ground for disturbing a conviction after a judge alone trial, upon the basis of incorrect factual findings, could be if they had resulted in an outcome which was not reasonably open.  As I have said, that ground of appeal is disavowed.
  3. [44]
    What I have said is sufficient to explain my reason for concluding that the appeal against conviction should be dismissed.  However, something should be said about the respondent’s argument, which seeks support from R v O'Dempsey, where Sofronoff P said:[21]

The Court of Appeal does not sit in judgment on factual findings made by trial judges on voir dire or on preliminary rulings. https://www.queenslandjudgments.com.au/caselaw/qca/2018/364 - _ftn31Nor is an appeal under s 668D of the Criminal Code an appeal by way of rehearing. The Court sits to correct error and, in the case of errors of fact, an appellant must show that there was no evidence to support the finding or that the evidence was all one way.https://www.queenslandjudgments.com.au/caselaw/qca/2018/364 - _ftn33

(Footnotes omitted.)

  1. [45]
    The President there cited R v O'Donoghue,[22] and R v Bennetts.[23]  Each of those cases involved a challenge to a finding of fact by a judge on a voir dire.  Similarly, O'Dempsey was a challenge to a finding of fact, which was relevant to the application of s 93B of the Evidence Act 1977 (Qld) in the consideration of whether certain evidence should have been admitted.
  2. [46]
    Nevertheless, as Sofronoff P said in that passage, an appeal against conviction, under s 668E(1), is not by way of rehearing.  It is an appeal which may be brought only on one of the grounds there prescribed, adapted to a judge alone trial as explained in Fleming and in Filippou.  As Fleming exemplifies, a miscarriage of justice may be demonstrated, by which a conviction must be quashed, in a case where there is a failure of process in the fact finding of the trial judge, without the appellant having to establish that the finding itself was incorrect, and that there was no evidence to support the finding or that the evidence was all one way.

The appellant’s sentence

  1. [47]
    At this point, it is necessary to detail the acts which constituted the offences.  The appellant went to the room where the complainant was sleeping, and began pulling the blanket off her.  He was wearing no pants, and he grabbed her hand and placed it upon his erect penis.  She pulled her hand away and he moved her onto her back.  Against her struggles, he persisted in pulling down her underwear.  He then pushed her onto her side and pushed his penis into her buttocks.  He then rolled her onto her back and penetrated her vagina with two fingers.  She was frantic and telling him to stop.  He fondled her breasts, pulled her legs further apart and began trying to insert his penis into her vagina.  She was scared and telling him to stop, but he persisted.  It was only when she said she was going to scream that he stopped and left the room.  The judge said that this would have been a frightening experience for her and there was evidence that the complainant had cut herself with a knife and was very distressed afterwards.  Her Honour described this as serious, predatory, persistent offending committed on a vulnerable young woman.
  2. [48]
    The offences were committed on 30 September 2016, but for matters beyond his control, the appellant’s trial was delayed and he was not sentenced until 19 August 2020.  He had spent 25 days in pre-sentence custody.  The judge said that he had no relevant criminal history and enjoyed “family support” although he had not seen five of his six children since 2016.  Her Honour said that he was a person who was otherwise of good character, and had always been gainfully employed.  She remarked that it was clear that “alcohol was involved in this case.”
  3. [49]
    Her Honour said that she had taken into account the decisions of this Court in R v Smith[24] and R v Sailovic-Jeremic.[25]
  4. [50]
    In Smith, the applicant had pleaded guilty to five counts of sexual assault and two counts of rape upon a woman with whom he was in a platonic relationship.  The complainant had made it clear to him that she did not want a sexual relationship with him.  On the night in question, the applicant and the complainant had consumed alcohol and smoked cannabis, and the complainant had taken a Valium, after which the complainant went to sleep.  When she awoke she felt “paralysed”, and became aware that the applicant was kissing her.  She did not become fully awake and what then occurred was revealed by what the applicant had told police, which included the applicant inserting his finger into the complainant’s vagina.  The offending resulted in an aggravation of an existing physical condition of the complainant, and some deterioration in her mental health, affecting her ability to work, socialise and trust men.  This Court reduced sentences of three years’ imprisonment for the rape offences to terms of two and a half years, suspended after a period of six and half months which the applicant had already served.  The applicant was aged 23, as compared with the present appellant, who was aged 40 at the time of the offences.  That applicant had pleaded guilty and his disclosure of his offending was a mitigating factor according to AB v The Queen.[26]
  5. [51]
    In R v Sailovic-Jeremic, the applicant was convicted after a trial of rape and attempted rape of a 17 year old complainant, who was heavily intoxicated when she came to the apartment where the offences were committed.  The applicant was one of a number of men who raped her on that night.  His sentence of five years’ imprisonment was not disturbed on appeal.  Of course, this outcome does not suggest that this was the highest sentence which could have been imposed.
  6. [52]
    The appellant cites R v Keevers; R v Filewood[27] to support his argument.  Those two applicants were convicted, after a trial, of the rape and unlawful and indecent assault of a woman who had been dining and drinking with her boyfriend before returning to the unit where he lived.  After they had fallen asleep, the two applicants (one of whom also lived there) came into the bedroom and assaulted her, by fondling her breasts and digitally penetrating her vagina.  One applicant, who was aged 24 at the time of this offending, was sentenced to two and half years’ imprisonment, suspended after nine months.  In the case of the other applicant, who had kissed the complainant and fondled her breasts, a sentence of 12 months’ imprisonment, suspended after 21 days, was varied so that it was suspended forthwith (by which time he had served one week).  They were younger offenders, being aged 23 and 24.
  7. [53]
    The sole basis for the proposed appeal against sentence here is that the four year term was manifestly excessive, and it is submitted that this Court should substitute a term of three years’ imprisonment for the offence of rape, and suspend each of the sentences after 15 months.
  8. [54]
    I am unable to accept that the sentence of four years, suspended after 20 months, was so high that it indicated that some error had been made by the judge.  The appellant could well have been given a lighter sentence, because of the absence of any significant criminal history and his otherwise good character.  However he was a mature man, who took advantage of a vulnerable woman who was asleep in his house and recovering from being heavily intoxicated.  He persisted in his attempts to have penile intercourse with her, notwithstanding her struggles and protests, over a period of some time.  He did not have the mitigating circumstances of someone who had admitted his offending, pleaded guilty and thereby demonstrated remorse.

Orders

  1. [55]
    I would order as follows:
  1. Appeal against convictions dismissed.
  2. Application for leave to appeal against sentence refused.
  1. [56]
    MULLINS JA:  I agree with McMurdo JA.

Footnotes

[1]R v RUJ [2020] QDC 198 [58] (“Reasons”).

[2]Reasons at [15].

[3]Reasons at [117].

[4]PJ was at the party as a friend of the appellant.

[5][2018] QCA 364 at [112] per Sofronoff P (Gotterson JA and Brown J agreeing).

[6]s 668E(1A).

[7][2015] HCA 29; (2015) 256 CLR 47 at 52-55 [6]-[15] per French CJ, Bell, Keane and Nettle JJ.

[8][1998] HCA 68; (1998) 197 CLR 250 (“Fleming”).

[9][1998] HCA 68; (1998) 197 CLR 250 at 262 [27].

[10]Ibid.

[11][1998] HCA 68; (1998) 197 CLR 250 at 263 [32].

[12]According to Longman v The Queen (1989) 168 CLR 79.

[13][1998] HCA 68; (1998) 197 CLR 250 at 264 [34].

[14][1998] HCA 68; (1998) 197 CLR 250 at 265 [40].

[15][1998] HCA 68; (1998) 197 CLR 250 at 266 [43].

[16][1998] HCA 68; (1998) 197 CLR 250 at 267 [46].

[17][2006] HCA 9; (2006) 80 ALJR 614.

[18][2006] HCA 9; (2006) 80 ALJR 614 at 617 [3].

[19](1937) 57 CLR 170 at 180 per Latham CJ, Rich, Dixon, Evatt and McTiernan JJ.

[20][2006] HCA 9; (2006) 80 ALJR 614 at 617-618 [6].

[21][2018] QCA 364 at [112].

[22](1988) 34 A Crim R 397 per Hunt J.

[23][2018] QCA 99 at [12] per Bowskill J with whom the President and Mullins J agreed.

[24][2020] QCA 23.

[25][2011] QCA 211.

[26](1999) 198 CLR 111.

[27][2004] QCA 207.

Close

Editorial Notes

  • Published Case Name:

    R v RUJ

  • Shortened Case Name:

    R v RUJ

  • MNC:

    [2021] QCA 114

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, McMurdo JA, Mullins JA

  • Date:

    28 May 2021

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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