R v Rogan[2021] QCA 269

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  The applicant pleaded guilty to one count of indecent assault.  Farr DCJ sentenced him to 12 months imprisonment to be suspended for an operational period of two years after the applicant has served two months.  The applicant was also ordered to pay the complainant $2,000 compensation.  He seeks leave to appeal against his sentence on the ground that it was manifestly excessive insofar as he was required to serve two months actual incarceration.
2. [2]
   The applicant and the complainant had known each other for about three years and saw each other infrequently.  On 18 July 2020 they attended a party at the home of a mutual friend.  At about 3.00 am the party was coming to an end and several of the guests, including the applicant and the complainant, decided to spend the night there.  The two of them were given pull-out sofa beds in the lounge room.  The applicant had drunk a lot of alcohol that night and was very drunk.  After the two of them had lain down, the applicant asked the complainant to “come here” and he grabbed her hand.  She took her hand away and turned from him, but he persisted.  The complainant felt very uncomfortable, and she texted the host for help but got no reply.   The applicant straddled himself over the complainant’s body as she lay on the sofa.  He forced open the top button of her dress and pulled out her breast and sucked on it.  He licked her face and inserted his tongue into her mouth.  The complainant said, “Don’t do this.  Don’t do this to Kylie [the applicant’s partner]”.  She tried to push him off, but he was too big and heavy.  He began to touch her under her dress and between her legs over her underwear.  He unzipped his jeans and put his penis onto the complainant’s pelvic area.  The complainant said, “Don’t”.  Finally, she screamed, and the host came into the room and saw the applicant fall to the floor beside the complainant.  The complainant said, “Peter tried to have sex with me”.  In the afternoon of that day the applicant texted the complainant with an apology although he said that he could remember nothing.
3. [3]
   After the applicant learned that the complainant had reported the assault to police, he told his friend, the party host, that he had been drunk, that he thought that the complainant had been flirting with him and that “once she said stop [he] did”.  He asked his friend to ask the complainant to withdraw her complaint.  The complainant made a pretext call to the applicant.  He made implicit acknowledgements of his offending.
4. [4]
   The complainant suffered a shocking and distressing physical assault.  The applicant put her in a position in which she was physically restrained and within his power while he groped her in a way which she must have found revolting and frightening.  The applicant only stopped what he was doing because people came into the room in answer to the complainant’s scream.  The offence has driven her to need psychological counselling with its unavoidable emotional upheaval.  The applicant’s assault has affected her attitude towards men and has affected her relationships with men.  In her daily life she now fears for her safety.
5. [5]
   The applicant has had psychological counselling.  At his first session he reported that he had been accused of sexual assault by a female friend at a party when they were both intoxicated.  He reported that he had been in a “real low mental state” at the time.  He said that he had given up drinking alcohol.  The criminal proceedings had caused stress, depression and anxiety.  He partner had left him.  He had been compelled to sell possessions in order to pay his lawyers.  The psychologist has opined that he is very unlikely to reoffend having regard to his insight, his avoidance of alcohol and the shock of the criminal charge and the prospect of going to prison.
6. [6]
   In a letter to the sentencing court, the applicant spoke of his shame and his disappointment in himself at having caused upset and distress.  He has stressed how deeply he has felt the consequences that his actions can have on another person.  He explained the various ways in which he has sought to learn from his current circumstances.  Two of his friends furnished references in which they each describe the applicant as a decent person who has, by his actions in the past, exhibited compassion for others.  The applicant’s current partner and mother have both expressed their belief in his fundamental decency.  At the sentence hearing the applicant offered to pay $2,000 by way of compensation for the complainant’s out of pocket counselling expenses.
7. [7]
   The applicant has no criminal history.  He has an excellent employment history.  Before he committed this offence he was in a stable relationship and, since this charge was brought, he has established another stable, seemingly long-term, relationship with a woman who supports him in the face of this criminal proceeding and who has, as I have said, tendered a character reference.
8. [8]
   At sentencing the Crown submitted that three factors justified, but did not mandate, a sentence that would require the applicant to serve a period of actual custody.  These were the persistence in the face of the complainant’s physical resistance and verbal objections, his attempt to have a friend cajole her into withdrawing her complaint to police and the enduring effect upon the complainant of his assault upon her. 
9. [9]
   The applicant’s counsel submitted for a wholly suspended sentence of imprisonment of six to 12 months.
10. [10]
    Farr DCJ concluded that a sentence that did not involve a requirement for the applicant to serve a period of imprisonment would be an inadequate sentence because it would not reflect the seriousness of the offending.  His Honour therefore imposed a term of imprisonment of 12 months to be suspended after the applicant had served two months.
11. [11]
    The question is whether that conclusion was right.  In my respectful opinion, it was not.
12. [12]
    The objective facts of the offending called for a sentence of imprisonment by way of general deterrence and denunciation.  That much was common ground between the parties, however, the real questions were these.  First, did the applicant’s own circumstances raise a reason why he ought to serve actual custody?  Second, did the objective circumstances of the offending, its “seriousness”, require it?
13. [13]
    The evidence established that the applicant’s criminal acts were wholly uncharacteristic for him.  The unchallenged evidence was that, apart from this offence which he committed when he was 36 years old, the applicant has been a man of good character, with a work history as a useful and productive member of our community, who is capable of forming and maintaining stable relationships, both of an intimate kind and of a social kind and is capable of gaining the justifiable trust of those in his circle.
14. [14]
    His expressed remorse must be accepted as genuine.  Emphasis has been placed upon his attempt to have the complainant withdraw her complaint.  There is no evidence that he pursued this impulsive object.
15. [15]
    His remorse, his past good character and his present and future prospects as described by his psychologist, lead to the conclusion that he is not likely to reoffend.
16. [16]
    A very short term of imprisonment can have large effects.  Apart from the stigma which imprisonment carries, it may affect present and future employment, housing arrangements and all kinds of financial arrangements.  The effects of prison extend to whatever experiences are undergone in prison, which may occur even within a short period.
17. [17]
    Consequently, the imposition of a very short term of imprisonment is not just a matter of the loss of liberty for a particular period.
18. [18]
    In my respectful opinion, previous cases such as R v Owen^[1] and R v Demmery^[2] show that a sentence that includes an actual period of imprisonment is not always required in cases like the present, in which an offender’s criminal acts are out of character, in which there is real remorse, and in which there has been a timely plea of guilty.  In my respectful opinion, the question is what identifiable benefit is gained by the community by the imposition of such a sentence.  If personal deterrence and rehabilitation as factors are put to one side, as they must be on the evidence in the present case, there remain, relevantly, the factors listed in s 9(3) of the Penalties and Sentences Act 1992 (Qld) insofar as they address general deterrence and denunciation.  General deterrence is largely met by the head sentence, as has been the sentencing practice in Queensland.  When considerations of denunciation arise, as they have here having regard to his Honour’s remarks about the seriousness of the offending conduct, there also arises for consideration, as a counterweight, the degree of remorse evidenced by the offender for the reasons given in R v O'Sullivan and Lee; Ex parte Attorney-General (Qld).^[3]
19. [19]
    In this case, there was evidence of real remorse, acknowledgement of wrongdoing and insight, as well as the timely plea of guilty which was entered as soon as the Crown entered nolle prosequis on two of the original three counts.  There was, in my view, no factor left which justified the serious step of actually imprisoning the applicant.
20. [20]
    In my view, in the circumstances of this case, there was no benefit to the community to be served by the applicant’s having to serve a further period of actual incarceration and, for these reasons, I joined in the orders made at the conclusion of the hearing of this application.
21. [21]
    McMURDO JA:  The judgment of the President explains the reasons why I joined in making the orders of 6 October 2021, by which the term of imprisonment was suspended immediately.
22. [22]
    WILLIAMS J:  I agree with the reasons of Sofronoff P for the orders made on 6 October 2021.