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R v JAF[2022] QCA 105

SUPREME COURT OF QUEENSLAND

CITATION:

R v JAF [2022] QCA 105

PARTIES:

R

v

JAF

(applicant)

FILE NO/S:

CA No 117 of 2021

DC No 97 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton – Date of Sentence: 30 April 2021 (Clarke DCJ)

DELIVERED ON:

14 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

11 May 2022

JUDGES:

McMurdo JA and Boddice and Crow JJ

ORDER:

Leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 17 counts of attempt to procure rape, nine counts of distributing intimate images and three counts of supplying a dangerous drug – where the applicant was sentenced to four years for each count of attempt to procure rape, nine months for each count of distributing intimate images and three months imprisonment for each count of supplying dangerous drugs – where those sentences were to be served concurrently – where the applicant seeks leave to appeal against the sentences imposed for each count of attempt to procure rape – where the conduct involved a significant breach of trust in a domestic violence context – whether the sentencing judge appropriately balanced aggravating and mitigating features – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9

R v Gill, Ex parte Attorney-General (Qld) (2004) 146 A Crim R 12; [2004] QCA 139, cited

R v Goodwin; Ex parte Attorney-General (Qld) (2014) 247 A Crim R 582; [2014] QCA 345, cited

R v Hughes [2000] QCA 16, cited

R v J [2002] QCA 48, cited

R v Kanaveilomani [1995] 2 Qd R 642; [1994] QCA 193, cited

R v McNamara [1996] QCA 433, cited

R v Parks; Ex parte Attorney-General (Qld) (2002) 136 A Crim R 141; [2002] QCA 533, cited

R v Savins [1996] QCA 513, cited

COUNSEL:

K M Hillard for the applicant (pro bono)
P J McCarthy QC for the respondent

SOLICITORS:

Ashworth Lawyers for the applicant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    McMURDO JA:  I agree with Boddice J.
  2. [2]
    BODDICE J:  On 30 April 2021, the applicant pleaded guilty to 17 counts of attempt to procure rape, nine counts of distributing intimate images and three counts of supplying a dangerous drug.  All but the supplying a dangerous drug counts were domestic violence offences.
  3. [3]
    The applicant was sentenced to four years imprisonment for each count of attempt to procure rape, nine months imprisonment for each count of distributing intimate images and three months imprisonment for each count of supplying a dangerous drug.
  4. [4]
    All sentences were to be served concurrently.  Three days in pre-sentence custody was declared as time served for those sentences.  A parole eligibility date was set at 27 August 2022, some 16 months from the date the applicant went into custody.
  5. [5]
    The applicant seeks leave to appeal the sentences of imprisonment imposed for each count of attempt to procure rape.  Should leave be granted, the applicant relies on the following grounds:

“1. The sentence imposed was manifestly excessive in all the circumstances.

  1. The sentencing judge erred in failing to have regard to:

a. The principles set out in R v Parks.

b. The comparable cases relied on at sentence as being applicable wrongly distinguishing them as not applying.

c. The Applicant’s drug use and addiction in mitigation of sentence.

d. The Applicant prospects of rehabilitation.

e. The Applicant’s plea of guilty to counts where the offence pleaded was not strong one.

f. The break in the period of the offending.

g. That the Applicant desisted the conduct before the complainant was aware of same.

h. The Applicant’s remorse.

i. The Applicant plea of guilty to the circumstance of aggravation of being a domestic violence offence when not readily established on the offence as pleaded.

j. The complainant’s inability to work was not attributed solely to the Applicant she having had period of inability to work prior to the offending.

k. The presentence custody period to be declared failed to include the time that the Applicant was held prior to his release on bail.

  1. The sentencing judge erred in taking into account that the children were at risk of harm.
  2. The sentencing judge made an error of fact in:

a. Considering the conduct was sustained when there was break in same.

b. The presentence custody period to be declared failed to included the Applicant time held prior to his release on bail.

c. That the complainants inability to work was attributed to the Applicant.”

Background

  1. [6]
    The applicant was born in 1984.  He was aged between 35 and 37 years at the time of the commission of the offences.
  2. [7]
    The applicant had a past criminal history.  It contained entries for drug and other offending.  The applicant had no prior convictions for sexual offences, or for offences involving violence.
  3. [8]
    Each count of attempt to procure rape related to the same female complainant.  The applicant had been in a relationship with that complainant during the period of the offending, although for a time their relationship had broken down.

Offences

  1. [9]
    During the period between May to September 2019, the applicant contacted 11 males[1] via messaging apps in an attempt to arrange for that male to come to the house to have sex with the complainant.  On each occasion, the applicant was aware the complainant had not, and would not, consent to the proposed arrangement.
  2. [10]
    Each attempt involved specific reference to sexual acts.  On many occasions, there was reference to tying the complainant up and a continuation of the act notwithstanding resistance by the complainant.  On one occasion, there was specific reference to the use of violence on the complainant.
  3. [11]
    On several occasions, the applicant provided details of the complainant’s street address.  On one occasion, he provided the full address.  One male advised the applicant he had attended the complainant’s house and masturbated whilst he spied on the complainant.  The applicant’s response was to state that the male should have “gone in, covered the complainant’s mouth and had sex with her”.
  4. [12]
    Each of the image counts related to the sending of naked pictures of the same complainant.  The applicant sent other sexual images.
  5. [13]
    The supply counts related to offers to supply drugs to the male contact.
  6. [14]
    The applicant’s offending came to the attention of the authorities after the complainant accessed a mobile phone and saw the messages.
  7. [15]
    The applicant subsequently surrendered to police.  A pretext call undertaken the day after the complainant complained to police contained some admissions, although the applicant also sought to minimise his conduct.  The applicant did, however, enter pleas of guilty to each count, at an early stage.
  8. [16]
    At sentence, the Crown contended for an overall head sentence of four to five years imprisonment.  The defence contended for a sentence of two to three years imprisonment suspended after serving one third in actual custody.

Sentencing remarks

  1. [17]
    The sentencing judge recorded that he took into account the applicant’s pleas of guilty and substantially reduced the penalty by virtue of those pleas.  The sentencing judge noted that the offences were committed over a period of about three and a half months and were aggravated because they were domestic violence offences.
  2. [18]
    The sentencing judge observed that the applicant was a mature man with a criminal history consistent with a reliance upon drugs but with no prior or subsequent criminal history for violence or sexual offending.  The applicant also had a good work history, was raised in a supportive family environment and had suffered from depression some years previously.
  3. [19]
    The sentencing judge found that the applicant’s offending was disturbing, involving the encouragement of strangers to go to the house of his then partner to rape, defile, debase or abuse her.  The requests included the use of violence, the use of restraints, urination on her and sodomising her.  The applicant had also sent intimate pictures of his ex-partner to gain their interest.
  4. [20]
    The sentencing judge characterised the applicant’s offending as “simply appalling, disgusting and very troubling behaviour”, involving a substantial breach of trust which had an understandably devastating impact upon the complainant.  She had completely lost a sense of safety and security for herself and for her children.  The complainant was fearful of intruders.  The devastating impact upon her affected every aspect of her lifestyle.
  5. [21]
    The sentencing judge recorded that the applicant had, when confronted by the complainant, employed intimidation rather than express remorse.  The applicant had sought to blame his drug usage and had expressed concern for his own self-interest.  The sentencing judge did, however, record that the pleas of guilty entered constituted an acceptance and acknowledgement of responsibility for his offending behaviour.
  6. [22]
    The sentencing judge found there were no comparable yardsticks.  However, having regard to the relevant principles of sentencing, the fact that they were sexual offences and domestic violence offences, and the serious nature of the offending, a sentence as low as two or three years, partially suspended, would not reflect the applicant’s criminality.

Applicant’s submissions

  1. [23]
    The applicant submits that an effective head sentence of four years imprisonment was manifestly excessive.  The applicant did not, on each occasion, provide the address of the complainant’s residence and expressly disregarded the complainant’s consent or resistance.  There was also a wholly implausible aspect to some messages.  The images provided by the applicant included images of himself and others.  There were also significant mitigating factors aside from the pleas of guilty, including drug use, a history of depression, exemplary references and long-term relationships.  The applicant submitted that having regard to comparable authority,[2] a sentence of three years imprisonment, partially suspended, properly reflected the applicant’s overall criminality and mitigating factors.
  2. [24]
    The applicant further submitted that the sentence was infected by specific errors.  Not all of the counts were as serious; there was an error of fact in failing to have regard to a break in the period of offending; the risk of harm to the children was wrongly considered as there was no threat to them nor any presence of them for the relevant counts; there was a failure to have regard to a further three days of pre-sentence custody; desistence in the offending was not considered; and there was improper regard to an inability of the complainant to work and post-offence conduct not expressing his remorse.  There was also a failure to have regard to the applicant’s pleas of guilty having accepted the existence of a domestic violence relationship where that relationship was “barely established” on the evidence.

Respondent’s submissions

  1. [25]
    The respondent submits that the effective head sentence of four years imprisonment was not manifestly excessive.  The applicant’s offending involved 17 occasions of contacting 11 different men through text communications, always without the knowledge of the female complainant, knowing that the complainant had not, and would not, consent to the proposed arrangements.  The arrangements included graphic identification of sexual conduct, including the use of restraints and violence in the event of resistance.  The sentencing judge properly recognised that although the conduct did not, on any occasion, result in a person physically committing an act upon the complainant, there was at least the potential for one of these men to have followed through placing the complainant at peril.
  2. [26]
    The respondent further submits there was no error in the exercise of the sentencing discretion.  The sentencing judge properly recognised that the applicant’s use of illicit drugs provided context but did not excuse the offending.  Further, a break in the relationship during the offending period did not detract from the offending properly being described as protracted over a period of months.  The fact that the applicant attempted to procure strangers to enter the complainant’s family home also raised the potential for the complainant’s children to be at risk and there was no proper basis to conclude there had been a voluntary desistance from the offending behaviour.  The sentencing judge also properly had regard to the impact of the complainant’s fear on her ability to work; to the applicant’s initial response to the complainant’s accusations and to the fact that the offences were domestic violence offences.

Consideration

  1. [27]
    An effective head sentence of four years imprisonment for multiple counts of attempting to procure rape, committed over a protracted period, in the context of multiple counts of distributing intimate images of the same female complainant, was not manifestly excessive.
  2. [28]
    The applicant was a mature man who engaged in abhorrent behaviour over a period of months.  His criminality involved contacting strangers in an attempt to procure them to engage in sexual acts with his then partner, knowing she would not consent to those acts.  The applicant encouraged persistence in the sexual activity, notwithstanding resistance.  He also encouraged the use of restraints and, on one occasion, violence.  The applicant sent explicit images of the complainant to these men.
  3. [29]
    Such conduct was properly described by the sentencing judge as involving an appalling breach of trust.  It impacted adversely on the complainant.  It also placed her and others in her household at risk.  There was the potential that one or more of these men may carry out the applicant’s request.  Some of the applicant’s messaging included an acknowledgement that children may be in the house at the time the male stranger attended the complainant’s residence.
  4. [30]
    The sentencing judge correctly acknowledged that there were no comparable yardsticks.  The authorities relied upon by the applicant are materially different, both as to the offence and in involving single incidents.  They were also dated and did not concern domestic violence offences.
  5. [31]
    The sentencing judge properly recognised that an exercise of the sentencing discretion, therefore, was to be undertaken having regard to relevant sentencing principles.  The sentencing judge did so, balancing the aggravating and mitigating features.  Such an approach was consistent with authority.[3]
  6. [32]
    A consideration of the applicant’s criminality, including the multiplicity of contacts with multiple male strangers and the nature of the suggested sexual acts with the use of restraints and violence to overcome any resistance, was such that notwithstanding the applicant’s pleas of guilty and other mitigating factors, an effective head sentence of four years imprisonment was neither plainly unjust nor unreasonable.
  7. [33]
    There is also no substance in the applicant’s contentions that the sentences involved specific error.  The sentencing judge had regard to the fact that none of the intended conduct actually transpired but properly observed that the applicant’s criminality involved contacting multiple male strangers on multiple occasions in an attempt to procure them to commit non-consensual sexual acts on his then partner, including the use of restraints in the event of resistance.  Those observations went specifically to the objective of the conduct whilst allowing for the fact that each count constituted an attempt.[4]
  8. [34]
    A consideration of the sentencing remarks also supports the conclusion that there was no basis upon which the sentencing judge was properly to conclude that the applicant had voluntarily disclosed his criminality, thereby warranting a further discount for cooperation, or that he had voluntarily desisted in his offending conduct.  There is also no basis to conclude that the sentencing judge disregarded the fact that there was, in the total period of offending, a period in which the applicant was not in a relationship with the complainant.  That matter was hardly a matter in mitigation.  If anything, it was an aggravating feature that the applicant had continued on with his abhorrent offending conduct thereafter.
  9. [35]
    There is also no basis to conclude that the sentencing judge failed to have regard to the varying nature of the counts and improperly had regard to the post-offence conduct.  The applicant did seek to minimise his offending conduct initially.  The sentencing judge acknowledged relevant mitigating factors such as the cooperation and remorse shown by the early pleas of guilty and that the offending occurred whilst the applicant was using drugs in circumstances where the applicant had no prior similar offending and otherwise had a good work history and was well regarded in his community.
  10. [36]
    Further, the sentencing judge did not err in having regard to the fact that the relevant offences were domestic violence offences.  That properly was regarded as an aggravating feature of the applicant’s offending conduct.[5]  Similarly, the impact of the applicant’s criminality on the complainant’s life, including her work, was properly a relevant matter considered at sentence.
  11. [37]
    Finally, it is correct that the sentencing judge did not declare three days of presentence custody served by the applicant between his arrest and appearance in court.  The failure to do so was a consequence of the pre-sentence custody certificate provided at sentence only referring to a later period of pre-sentence custody, which was the subject of a declaration.
  12. [38]
    The applicant accepted, that leave to appeal ought not to be given, if that be the only established error, as a consequence of a grant of leave to appeal to correct that matter would be to enliven a reexercise of the sentencing discretion.  The respondent also submitted that in such a circumstance leave to appeal ought be refused, observing that there may be other avenues open to an applicant by way of a re-opening of the sentence to correct any declaration as to pre-sentence custody.
  13. [39]
    Having regard to those concessions, and the risk that a re-exercise of the sentencing discretion could result in a harsher sentence, it would not be appropriate to grant leave to appeal.

Orders

  1. I would refuse leave to appeal.
  1. [40]
    CROW J:  I agree with Boddice J.

Footnotes

[1]  The Statement of Facts nominates 13 separate contacts.

[2]R v Hughes [2000] QCA 16, R v Gill; Ex parte Attorney-General (Qld) [2004] QCA 139, R v J [2002] QCA 48, R v Savins [1996] QCA 513, R v McNamara [1996] QCA 433, R v Kanaveilomani [1994] QCA 193.

[3]R v Goodwin; Ex parte Attorney-General (Qld) [2014] QCA 345 at [37].

[4]R v Parks; Ex parte Attorney-General (Qld) [2002] QCA 533.

[5]Penalties and Sentences Act 1992, s 9(10A).

Close

Editorial Notes

  • Published Case Name:

    R v JAF

  • Shortened Case Name:

    R v JAF

  • MNC:

    [2022] QCA 105

  • Court:

    QCA

  • Judge(s):

    McMurdo JA, Boddice J, Crow J

  • Date:

    14 Jun 2022

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC97/2130 Apr 2021Date of sentence (Clarke DCJ).
Appeal Determined (QCA)[2022] QCA 10514 Jun 2022-

Appeal Status

Appeal Determined (QCA)

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