R v RBG[2022] QCA 143

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  I agree with the orders proposed by Davis J.
2. [2]
   The offending in this case was quite serious.  The complainant and the applicant were in the process of ending their marriage, but still living in the matrimonial home.  The complainant’s evidence as to the circumstances of the offending was:

“…  We had a fight over – I actually don’t remember the exact details of what it was, but we were fighting.  It got into the old ground of he didn’t want us to break up and I just kept saying it was over, it was done, I didn’t want to be here, ‘I want the divorce.  I’m out.’  And he kept pushing and pushing and pushing and eventually I said – and I don’t remember if I said, ‘I kissed Anthony’ or ‘Anthony kissed me.’

…

…  He came in, and he was furious.  And I knew that by telling him that I’d kissed another man it would – I was hoping it would be proof point enough that – stop it.  Just – he would not agree to sorting out finances.  He had me trapped in this house; I couldn’t get out.  And he reacted.  And he reacted angrily.  And somehow or other he ended up on top of me on the bed.  I remember him on top of me.  I remember him saying – saying things like, ‘Where’s Anthony now?’ or, ‘Do you want a threesome?  Is this what you want?’  Putting his hands down – trying to put his hands down my pants – putting his hands down my pants.  And trying to hold my legs together.  Trying to force him off, but I couldn’t.  And eventually, somehow, he was trying to – trying to stick his hands all the way – hand all the way in.  And eventually, somehow or other, with all of the scratching and pushing and whatever that went on, he managed to straddle me.  And he came up on top of me.  And I remember his penis slapping my face.  And I couldn’t move, and a couldn’t get him off.  All I could do was turn my head from side to side to try and stop it.  And he was trying to stick it in my mouth, and I had my teeth clenched.  And I was crying.  I remember saying, ‘Get off.  Get off.’  And because I – and I couldn’t – my hands – I couldn’t get him off.  He started masturbating in my face.  I could hear – I can still hear it.  And he’s like, ‘This is what you want.’  And when he came, he came on my face.  And I don’t how – how it ended.  He managed to get off, or I got him off.  I don’t know how it ended.  …”

3. [3]
   The complainant’s description of the offending may explain the jury’s rejection of the Crown’s allegation of oral rape (count 4), although the jury must also have had a reasonable doubt that the applicant was attempting to put his penis into the complainant’s mouth.  The primary judge sentenced on the basis that, “In relation to count 4, her evidence about this was that you were trying to stick your penis in her mouth.  The jury was satisfied that you touched her mouth with your penis.”
4. [4]
   Whether or not the applicant put his penis in the complainant’s mouth in the course of this assault is not, in my view, of major factual significance in sentencing.  Because the jury found he did not put his penis in the complainant’s mouth, the offending can be described as “non-penetrative”, but I would endorse the remarks of Morrison JA, for the Court of Appeal, in R v Smith.^[1]  Those remarks were made on a related topic, the significance of different types of penetration in assessing the criminality of offending.  Morrison JA said that, rather than relying on formulaic “compartmentalisation” of offending, “[i]n each case ‘it is the particular circumstances which will determine the level of criminality and together with other facts the sentence to be imposed’”.^[2]
5. [5]
   In R v Smith, the complainant was a vulnerable, intoxicated woman who went to sleep having consumed alcohol, cannabis and Valium.  The defendant in that case was the complainant’s friend and, with her consent, was sleeping in the same bed as her, although he knew that she did not want to have sex, or a sexual relationship with him.  The defendant took advantage of the complainant’s sleeping state to kiss her; put his fingers in her vagina, and place her hand on his penis until he ejaculated.  He also touched her breasts.  The primary judge sentenced him to three years imprisonment.  This Court set that sentence aside and sentenced him to two and one-half years imprisonment.  This Court suspended the sentence after the six and one-half months which Smith had served at the time the appeal was heard.
6. [6]
   The offending in Smith was different to the offending in this case, it involved penetration, but did not involve the anger, violence, and arguably the humiliation which characterised the offending in this case.  Smith was immediately remorseful.  He apologised at the time; he apologised in writing the next day; he made a full confession to police, including confessing to more detail than the complainant was able to give police.  He entered an early plea.  The primary judge accepted that he was “genuinely stricken by guilt”.  There was no remorse shown in this case.
7. [7]
   Were it not for the fact that the applicant not only has no criminal history, but has also not re-offended in the 10 years subsequent to this offending, my view would be that a head sentence of two and one‑half years was warranted by comparison with Smith.  A question would then arise as to whether or not the sentence imposed by the learned primary judge (three years) was manifestly excessive.  The specific error contended for by the applicant in relation to Siganto v The Queen^[3] would assume importance.
8. [8]
   However, having regard to the applicant’s age, lack of criminal record, and the fact that he has not committed any offences since the offending with which this Court is dealing, it seems to me that the sentence imposed by the learned primary judge was manifestly excessive.  The conduct here appears to be an aberration in a specific, stressful context: the breakdown of a marriage; the parties attempting to live separately under one roof, and associated sexual jealousy.
9. [9]
   DAVIS J:  The applicant seeks leave to appeal one of several sentences imposed upon him in the District Court on 11 October 2021.
10. [10]
    The indictment contained five counts which were all alleged to have arisen from one episode where the applicant assaulted his wife on 12 February 2012.
11. [11]
    The counts charged on the indictment were:

Count 1: Unlawful and indecent assault^[4]

Count 2: Attempted rape;^[5] alternatively, unlawful and indecent assault

Count 3: Unlawful and indecent assault

Count 4: Rape;^[6] alternatively, attempted rape; alternatively, unlawful and indecent assault

Count 5: Unlawful and indecent assault.

12. [12]
    All the offences were alleged on the indictment to be domestic violence offences.^[7]
13. [13]
    In 1994, the complainant and the applicant married.  The relationship bore two children, a son born in 2002 and a daughter born in 2007.  By late 2011, the marital relationship had broken down and they were living separately under the one roof.
14. [14]
    On 12 February 2012, an argument developed while the complainant was lying on a bed.  The applicant attempted to climb on top of the complainant and kiss her, but she pushed him away.  That incident constituted count 1 on the indictment - unlawful and indecent assault.
15. [15]
    While the applicant was on top of the complainant, he slid his hands down her pants and attempted to force a finger inside her vagina.  Penetration was not achieved but the attempt constituted count 2 - attempted rape.  If the Crown could prove touching of the vagina, but could not prove an attempt to penetrate, then the applicant would be guilty of the alternative count of unlawful and indecent assault.
16. [16]
    Again while on top of the complainant, the applicant exposed his penis and slapped the complainant’s face with his penis.  That constituted count 3 - unlawful and indecent assault.
17. [17]
    By this point, the applicant was masturbating and he attempted to put his penis in the complainant’s mouth.  This constituted count 4.  The complainant gave evidence that the applicant’s penis passed her lips and touched her teeth.  It did not otherwise enter her mouth as she kept her teeth clenched.  This would constitute rape.  If the Crown could not prove penetration of the complainant’s mouth, but could prove an attempt to penetrate her mouth, then the Crown would have proved the first alternative charged, being attempted rape.  If the Crown could not prove any particular intention, but could prove the touching or attempted touching of the complainant’s mouth, then the Crown would prove the second alternative - unlawful and indecent assault.
18. [18]
    The applicant continued masturbating and ejaculated onto her.  That constituted count 5 - unlawful and indecent assault.
19. [19]
    The marriage completely broken down.  In due course, the parties found the financial capacity to live in separate houses.
20. [20]
    In August 2019, the complainant made complaint to police.
21. [21]
    The applicant was tried in the District Court over four days commencing on 5 October 2021.  The jury returned the following verdicts:

Count 1: Guilty

Count 2: Guilty of attempted rape

Count 3: Guilty

Count 4: Not guilty of rape

Not guilty of attempted rape

Guilty of unlawful indecent assault

Count 5: Guilty.

22. [22]
    Sentences were imposed as follows:

Count 1: Three months imprisonment

Count 2: Three years imprisonment

Count 3: nine months imprisonment

Count 4: nine months imprisonment

Count 5: 12 months imprisonment.

23. [23]
    All sentences were ordered to be served concurrently.  The four days which the applicant spent in custody between verdict and sentence were declared time served on the sentences.
24. [24]
    The effect of the sentences was to impose a period of imprisonment of three years.  It was ordered that be suspended after serving 18 months for an operational period of four years.
25. [25]
    The applicant only seeks leave to appeal the sentence imposed on count 2 which set the effective head sentence.
26. [26]
    The applicant was born on 30 October 1972.  He was therefore 39 years of age at the time of the offending and 49 years of age at the time of sentence.  He had no prior criminal history and in the decade between the offending and conviction for these offences he suffered no convictions.
27. [27]
    The offending was violent and disgusting.  However, it gave rise to the applicant’s only convictions.  The offending occurred against the context of a marital break-up and the heightened emotions which that brings.  While that is by no means any excuse for the offending, it gives force to the applicant’s submission that this offending was an aberration by a person who had otherwise established good character over a long period.^[8]
28. [28]
    A victim impact statement was provided by the complainant.  There, she spoke of damage to her self-confidence, of being embarrassed and ashamed having to give evidence and of being concerned of retribution from the applicant.  The learned sentencing judge mentioned in her sentencing remarks that much of what was said in the victim impact statement seemed to relate to the effects of a bad marriage rather than the actual offending.  Her Honour did conclude that the conduct contributed to the impacts described by the complainant.
29. [29]
    Otherwise, the sentencing judge mentioned:

1. the offending was serious;
2. an aggravating circumstance was that the offending occurred in the complainant’s own home;
3. the applicant had not offended before the current offences and had not offended since;
4. having gone to trial, the applicant had not shown any remorse.

30. [30]
    Two grounds of appeal are raised:

Ground 1: The sentence is manifestly excessive

Ground 2: The sentencing discretion miscarried because the learned sentencing judge impermissibly took into account the distress occasioned to the complainant by giving evidence.

31. [31]
    Ground 2 is founded upon a statement made by her Honour when sentencing the applicant; “She^[9] was cross-examined and some of it about deeply personal matters.  Her distress in the witness box was palpable”.  The applicant submitted, based on the well-known principles in Siganto v The Queen,^[10] that an accused is entitled to maintain his innocence and insist on a trial.  It follows that an accused could not be punished for any consequences flowing from the exercise of that right.
32. [32]
    Her Honour’s comment followed from findings about the victim impact statement and a conclusion by her Honour that the complainant had suffered emotional consequences of the offending.  Viewing the sentencing remarks as a whole, her Honour’s comment probably meant nothing more than she accepted that the complainant was emotionally damaged by the offending.  However, as the sentence imposed is manifestly excessive and the appeal should be allowed, it is not necessary to consider ground 2 further.
33. [33]
    We were referred to various comparatives as was the sentencing judge.  These were R  v Rogan,^[11] R v De Silva,^[12] R v Demmery,^[13] R v Marsh,^[14] R v Harper,^[15] R v Keevers; R v Filewood^[16] and R v Smith.^[17]
34. [34]
    Most of the comparatives concerned circumstances bearing little resemblance to the present case.
35. [35]
    In the course of argument on the appeal, Mr Wallis, who appeared for the Crown, conceded that there was no case which did not involve penetration where a sentence of three years or more had been imposed.
36. [36]
    Of some assistance is R v Smith.^[18]  The applicant there was only 23 years of age and pleaded guilty.  However, the offences there were five counts of sexual assault and two counts of rape constituted by digital penetration.  Those offences were committed upon a sleeping woman who awoke to find the offender’s fingers in her vagina.  On appeal, he was sentenced to two and a half years imprisonment suspended from the date of judgment on the appeal.  By that point, he had spent six and a half months in custody.
37. [37]
    The applicant concedes that a substantial custodial sentence is called for.  He submits that should be one of two years.
38. [38]
    The lack of remorse in the present case should deny the applicant the benefit of release before serving half of the sentence.  However, the head sentence is manifestly excessive given the nature of the offending and the mitigating circumstances.
39. [39]
    I would order:

1. The application for leave to appeal is granted.
2. The appeal is allowed.
3. The sentence on count 2 is set aside.
4. The applicant is sentenced to two years imprisonment on count 2 suspended after he has served 12 months for an operational period of four years.

40. [40]
    KELLY J:  I agree with the reasons of Dalton JA.  I also agree with the reasons of, and the orders proposed by, Davis J.