R v Banda[2021] QCA 171

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment given by McMurdo JA.
2. [2]
   McMURDO JA:  On 15 February 2021, the applicant pleaded guilty of an offence of burglary and an offence of committing a sexual assault, committed in the same incident in January 2020.  On 19 March 2021 he was sentenced in the District Court to a term of imprisonment of three years for the burglary offence and two years for the sexual assault offence, to be served concurrently, and suspended for three years after serving 12 months.  He applied for leave to appeal against his sentences on the grounds that they were manifestly excessive.  At the conclusion of the hearing in this Court on 13 August 2021, the Court granted leave to appeal, allowed the appeal and reduced the sentences to concurrent terms of one year for the burglary and 18 months for the sexual assault, each to be suspended after six months for an operational period of two years.  The following are the reasons why I joined in those orders being made.
3. [3]
   The facts of the offences were set out in an agreed statement which was provided to the sentencing judge.  The applicant was aged 25 years at the time.  He lived in an apartment building in New Farm.  The complainant, a woman aged 21 years, lived in another apartment in that building.  The two were not known to each other.  In the early hours of 26 January 2020, the applicant entered the complainant’s apartment through the unlocked front door.  He had been drinking heavily.  He entered the complainant’s bedroom where she was asleep, naked but with a blanket covering her.  He got into bed with her and proceeded to kiss her neck and rub her body, placing his hands between her legs before she got up and walked to her bathroom.  He then left that room and went to another room in the house, where another, male, resident was sleeping.  The applicant got into that resident’s bed and began to rub his chest. After a short confrontation between them, the housemate pushed the applicant onto the balcony and locked the door to prevent him from leaving.  Police were called, and soon after, the applicant told them that he had been drinking that night.  The judge said that it was certain that the applicant was unfit to be interviewed immediately upon his arrest.
4. [4]
   The applicant was born in India and had lived, studied and worked in Australia for some years.  At the time of the offences, he had recently learnt that his mother was seriously ill with cancer, and he was sending her money for her treatment.  The judge accepted that his “distressing personal circumstances” had caused him to drink heavily.
5. [5]
   The judge noted that it was “submitted” that the applicant had entered the complainant’s apartment by mistake, due to his drunkenness.  That fact was not within those set out in the agreed statement, but it was advanced by the applicant’s counsel and not contested by the prosecutor.  Further, it was consistent with the particulars of the burglary charge.
6. [6]
   Originally, the indictment had charged the applicant with entering the complainant’s dwelling with an intent to commit an indictable offence in the dwelling.  However the indictment was amended, to charge him with being in that dwelling and with that intent.  Curiously, the circumstance that “the entry was by means of a break” was not omitted when that amendment was made.  But what matters was that the offence, as charged and admitted, was committed only once the applicant was inside the apartment.  Indeed the judge’s sentencing reasons show that he accepted that the intent to sexually assault the complainant was formed only after he was in the complainant’s bedroom and, perhaps, in her bed.  Consequently, the burglary offence was committed only in the moments immediately preceding the assault of the complainant.
7. [7]
   In those circumstances, it was the assault which was the more serious offence.  That offence was aggravated by the circumstances that it was committed at night, in the complainant’s residence by a person who was not entitled to be there, and upon a person who was all the more vulnerable from the fact that she was asleep.  The burglary offence, in substance, was a part of the same conduct.
8. [8]
   The applicant had no prior criminal history.  There was no premeditation involved in this offending.  He was remorseful and there were references speaking of his good character.
9. [9]
   In his sentencing reasons, the judge said that the decision which he found of most assistance in this case was R v Gesler^[1].  For many reasons, however, that was quite a different case.  That offender was convicted after a trial of an offence of burglary, an offence of sexual assault and an offence of supplying cannabis to the complainant who was then aged 17.  He was aged 48.  Some weeks prior to those offences, when that complainant had moved out of home into a flat, the applicant, whom the complainant had known as a family friend for some years, began to visit her, bringing alcohol and making sexual advances towards her.  This culminated in his going to her flat, breaking into it and assaulting her as she was asleep after she had been drinking heavily at a party.  His hand was under her underpants, and over her vagina, as she woke up.  At the same time he was masturbating himself.  Subsequently he continued to visit her flat, when he would apologise but, at the same time, suggest that they have sex.  On one such occasion he gave her a cigarette which she realised contained cannabis once she began to smoke it.  He was sentenced to concurrent terms of four years for the burglary, three years for the sexual assault and 12 months for the drug offence.  This Court refused his application for leave to appeal.
10. [10]
    In the present case, the judge did recognise some differences between Gesler and the facts of this case.  He acknowledged that the applicant’s offending was less serious, and that Gesler’s offending involved “a level of persistence” not present in the applicant’s case.  The judge recognised that those sentences had been imposed after a trial, and Gesler had showed no remorse.  However the judge did not mention another critical difference, namely that there was no premeditation here and that the applicant had come to be in the complainant’s apartment, and in her bedroom, only by mistake.
11. [11]
    The sentencing judge recognised that the consequence of relevant provisions of the Migration Act 1958 (Cth) was that the applicant’s visa would be cancelled and he would be deported.  For that reason his Honour partially suspended the sentences, rather than fixing a parole release date.  Two days of pre-sentence custody were declared as time served.
12. [12]
    In my opinion the sentences were manifestly excessive.  The burglary offence warranted a lesser sentence than that to be imposed for the sexual assault.  The latter was an offence which was aggravated by the circumstances to which I have referred, and a period of actual custody was appropriate for it.  Nevertheless, having regard to the circumstances of which I have discussed, that sentence also was manifestly excessive.  For these reasons, I joined in the orders which reduced each sentence.
13. [13]
    MULLINS JA:  It is for the reasons given by McMurdo JA that I joined in the orders of the court made at the conclusion of the hearing.