R v Kane; Ex parte Attorney-General
[2022] QCA 242
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Kane; Ex parte Attorney-General[2022] QCA 242
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R v Kane; Ex parte Attorney-General[2022] QCA 242
R v Kane; Ex parte Attorney-General[2022] QCA 242
SUPREME COURT OF QUEENSLAND
CITATION: | R v Kane; Ex parte Attorney-General (Qld) [2022] QCA 242 |
PARTIES: | R v KANE, Joshawa Eric Lyle (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant) |
FILE NO/S: | CA No 95 of 2022 DC No 423 of 2022 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Appeal by Attorney-General (Qld) |
ORIGINATING COURT: | District Court at Brisbane – Date of Sentence: 19 April 2022 (Williamson KC DCJ) |
DELIVERED ON: | Date of Orders: 21 November 2022 Date of Publication of Reasons: 2 December 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 November 2022 |
JUDGES: | Mullins P and Dalton and Flanagan JJA |
ORDERS: | Date of Orders: 21 November 2022
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to one count of sexual assault – where the respondent was sentenced to 18 months’ imprisonment suspended after serving 282 days in custody for an operational period of three years and a presentence custody declaration was made in respect of the 282 days – where the Attorney-General appeals against the sentence – where the prosecutor before the primary judge submitted a head sentence of 18 months’ imprisonment was appropriate and the focus of the submissions before the primary judge was on the structure of the sentence – where the extent and nature of the assault made the offending significantly more serious than the offending in the comparable authorities relied on by the prosecutor before the primary judge – where the imposition of a sentence by the primary judge that accorded with the submissions made by the prosecutor does not preclude a successful appeal where those submissions caused an error of principle to be made – whether the primary judge erred in failing to have proper regard to the serious circumstances of the offence in relation to the maximum penalty – whether the sentence imposed is manifestly inadequate Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10, cited R v Bradford [2007] QCA 293, cited R v Brockfield [1993] QCA 348, cited R v CCU [2022] QCA 92, cited R v D [1996] 1 Qd R 363; [1995] QCA 329, cited R v Demmery [2005] QCA 462, cited R v Hopper; Ex parte Attorney-General (Qld) [2015] 2 Qd R 56; [2014] QCA 108, cited R v HX [2005] QCA 91, cited R v KU; Ex parte Attorney-General (No 2) [2011] 1 Qd R 439; [2008] QCA 154, cited R v Murray [2005] QCA 188, cited |
COUNSEL: | C W Heaton KC for the appellant P J Wilson for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent |
- [1]THE COURT: The respondent pleaded guilty to one count of sexual assault committed against the complainant on 15 November 2020. He was sentenced to 18 months’ imprisonment suspended after serving 282 days in custody for an operational period of three years. A presentence custody declaration was made in respect of the 282 days that he had spent in custody prior to the date of sentence. That enabled the respondent to be released from custody on the partially suspended sentence on the day he was sentenced.
- [2]The Attorney-General appeals against the sentence on two grounds. The first is that the learned primary judge erred in failing to have proper regard to the serious circumstances of the offence as regards the maximum penalty. The second ground is that the sentence imposed is manifestly inadequate.
- [3]At the conclusion of the hearing of the appeal, the Court made orders allowing the appeal, varying the sentence of the primary judge by substituting “three years’ imprisonment” for “18 months’ imprisonment”, and confirming all other orders of the primary judge. These are the reasons for the making of those orders.
Circumstances of the offending
- [4]At the date of the offence the complainant was 22 years old and the respondent was 26 years old. The complainant did not know the respondent. The complainant was walking through a park at around 7.00 am on the way to the train station, when she walked past the respondent who was sitting in the bushes. He said “Baby are you single?”. The complainant ignored the respondent and continued walking. The respondent then said “Hi” to which the complainant replied “Hello” and continued walking. The respondent began following her. The complainant reached into her handbag for her phone, as she felt uncomfortable. The respondent then grabbed the complainant from behind and lifted her off the ground and said “Why are you ignoring me I was calling you repeatedly”. The complainant said “Please leave me, please leave me, I will call the police”. The respondent carried the complainant towards the clubhouse of a cricket club, even though the complainant struggled against the respondent to break free. The respondent dragged the complainant under the clubhouse. The respondent pushed the complainant to the back corner of the clubhouse. Using one hand around her throat applying pressure, the respondent began touching the complainant on her breasts. He undid the top button of her pants and placed his hand inside her pants under her underwear and pressed his finger against her anus. The complainant was crying and shouting for help. The respondent placed his hand over her mouth to stop her from yelling. A passerby heard the complainant yelling out “Let me go! Leave me alone!”. The passerby walked towards the clubhouse and the respondent let the complainant go. She ran towards the passerby. The respondent walked away. The passerby called 000 and police attended at the scene.
- [5]The respondent was arrested on the date of the offence. He was released on bail the next day. His bail was revoked on 28 April 2021 after a failure to appear and he surrendered into custody on 12 July 2021.
- [6]The respondent was committed for trial by registry committal on 21 October 2021. The indictment was presented on 3 March 2022 and listed for sentence at the second review.
The respondent’s antecedents
- [7]The significant prior entry in the respondent’s criminal history was a sentence of three years’ imprisonment for robbery with actual violence whilst armed that was imposed on 23 October 2015. He robbed a console operator at a petrol station in the early hours of the morning of 3 June 2014, using a replica gun to threaten the console operator. The respondent stole money from the console operator. The respondent had 228 days in presentence custody that was declared to be imprisonment already served under the sentence and was given a parole release date fixed as the date of the sentence.
- [8]Whilst on parole, the respondent committed the offence of possession of a knife in a public place or school for which he was fined $200. He also committed two charges of wilful damage (domestic violence offence) on 1 January 2017 for which he was fined $600. He had punched the windshield of his former partner’s car and punched holes in the walls of her house.
- [9]The respondent’s parole had ended before he committed the subject offence.
- [10]The respondent is the father of three young children with whom he has contact organised through his former partner. At the date of the sentence, he had completed two years of an apprenticeship in spray painting and had been employed in that field for about three years. The respondent’s counsel at the sentence (who does not appear for him on this appeal) submitted that the respondent had a problem with alcohol that informed his criminal history in terms of the earlier offending and the subject offence. This was not disputed by the prosecution.
Sentencing submissions before the primary judge
- [11]Unfortunately, the primary judge was not assisted by the fact that both the prosecutor who appeared on the sentence (who does not appear for the appellant on this appeal) and the respondent’s counsel at the sentence were agreed at the outset that an appropriate head sentence for the respondent was 18 months’ imprisonment and the focus of their submissions to the primary judge was on the structure of the sentence to reflect the guilty plea.
- [12]In fact, the prosecutor before the primary judge referred to the authorities of R v Murray [2005] QCA 188, R v Demmery [2005] QCA 462 and R v Bradford [2007] QCA 293 as supporting a range of imprisonment of 12 to 18 months for similar offending where there was with no violence and that was the basis for the prosecutor’s submission that imprisonment for 18 months was the appropriate head sentence for the respondent.
- [13]The ultimate submission of the prosecutor to the primary judge was that a sentence of 18 months’ imprisonment should be imposed and it could be suspended after the time in presentence custody or, if the primary judge considered some supervision was required, then a parole eligibility date could be ordered as of the date of the sentence.
- [14]The respondent’s counsel did not cavil with a sentence for the respondent of not more than 18 months, but submitted that it should be suspended on the basis that the respondent had already served at least nine months in custody. Although that would result in the respondent’s being released unsupervised, it was submitted that an operational period of up to three years for the partially suspended term would require the respondent to answer to the Court for any offending committed within three years from the date of the sentence. It would have the effect of putting the respondent in jeopardy of being returned to custody over a longer period of three years, than the period that would apply to him, if he were paroled with less than nine months remaining of a sentence of 18 months. It was therefore submitted that the only real way of giving effect to the guilty plea was to structure the sentence to allow the respondent to be released on the date of the sentence.
Sentencing remarks
- [15]The primary judge noted the maximum penalty for the offence of sexual assault was 10 years’ imprisonment and that the guilty plea was an early one. After reciting the agreed facts, the sentencing remarks included the following. The sexual assault was protracted, unprovoked and persistent. The respondent used physical force to overpower the complainant. It commenced in a public park and moved to private property and the respondent did not desist until a bystander had come to the aid of the complainant. It was a cowardly, disgusting act committed against a woman who was vulnerable on her way to catch a train. The attack would have been terrifying and distressing for the complainant.
- [16]The primary judge accepted the submission that the respondent’s underlying problem with alcohol was the cause of his offending. Given the respondent’s criminal history did have an entry for violence (which was a “little dated”), personal deterrence was of some importance and general deterrence and denunciation were also important. The only true way that the guilty plea could be reflected was by suspending the sentence from the date of the sentence. The primary judge acceded to the respondent’s counsel’s invitation to fix an operational period of three years for the sentence. The primary judge was cognisant that serving a period in custody during COVID had been difficult for the respondent and that had been taken into account in deciding to suspend the sentence.
Approach to appeal against sentence by the Attorney-General
- [17]The starting point for any appeal against sentence by the Attorney-General is that the appeal should succeed only if it is brought to establish some matter of principle to avoid manifest inadequacy or inconsistency in sentencing standards: Everett v The Queen (1994) 181 CLR 295, 300 and Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [62]. It is a relevant consideration that the sentence imposed by the primary judge accorded with the submissions made by the prosecutor, but that does not preclude a successful appeal by the Attorney-General, where those submissions caused an error of principle to be made by the primary judge: R v KU; Ex parte Attorney-General (No 2) [2011] 1 Qd R 439 at [100].
- [18]It is also a relevant consideration on an appeal by the Attorney-General that the offender may have already been released from custody: Green v The Queen (2011) 244 CLR 462 at [43]. That may affect the exercise of the recognised residual discretion on an appeal against sentence by the Attorney-General that the Court may decline to return to custody a person who was released from custody pursuant to the sentence at first instance, even though the sentence imposed at first instance may been manifestly inadequate: R v Hopper; Ex parte Attorney-General (Qld) [2015] 2 Qd R 56 at [37]-[42].
Was there an error of principle?
- [19]As the following analysis of the authorities relied on by the prosecutor before the primary judge shows, they could not be characterised properly as yardsticks against which to examine the proposed sentence for the offending to that committed by the respondent: Barbaro v The Queen (2014) 253 CLR 58 at [41].
- [20]In Murray, the offender pleaded guilty and was successful on appeal in having the sentence of two and a half years’ imprisonment with a recommendation for consideration for post-prison community-based release after serving nine months for one count of indecent assault reduced to a sentence of 15 months’ imprisonment. He had served 240 days in presentence custody at the date of the sentence. He had been sentenced at the same time for a stealing offence committed on 18 February 2004 where he took $100 from a 16 year old female who had been drinking with the group of people which included the offender. The indecent assault was committed on 27 June 2004 which was nine days after the offender was released from custody. He was intoxicated, crossed the road and confronted the complainant. He made a lewd comment to her and then unexpectedly reached down and with some force rubbed his hand against her vagina on the outside of her jeans. As the complainant tried to force the offender’s hand away, he pushed her vagina more forcefully with his hand and then slid it up and squeezed her left breast forcibly. The offender was 23 years old when he committed the offence and had a prior criminal history primarily for dishonesty offences and offences associated with consumption of alcohol. At the age of 20 years, he was imprisoned for 12 months for an assault occasioning bodily harm. The indecent assault was committed in breach of a probation order and during the operational period of a suspended sentence of three months’ imprisonment. The court noted (at [16]) that the respondent relied on R v Brockfield [1993] QCA 348 which involved a sentence of imprisonment of two years and three months for an indecent assault which was a much more serious assault than committed by Mr Murray. The Court observed (at [18]) that a global sentence of 18 months’ imprisonment was the appropriate starting point to reflect the offender’s criminality for all offending for which he was being sentenced, but because of the length of the presentence custody he had served, the only way the sentence could be moderated to reflect the matters in mitigation was to reduce the head sentence to 15 months’ imprisonment. The offending in Murray was not preceded by violence and the assault was committed by touching on the outside of the complainant’s jeans. The incident involving Mr Murray did not persist for the length of time over which the incident during which Mr Kane committed the subject offence took place. The offending in Murray was therefore less serious than the subject offence.
- [21]The offender who was 27 years old and the complainant who was 16 years old in Demmery were at the same birthday party. The complainant had attended the party with her boyfriend. She accompanied the offender to the shop around 2.00 am, as she wanted to buy cigarettes. On the return to the party, the complainant got into the back of the offender’s utility, they kissed twice and she fell asleep. Her boyfriend went looking for her and found her in the back of the utility with the offender kneeling over her. The offender had pulled the complainant’s underwear to the side and had masturbated and ejaculated over her vulval area while she remained asleep. He was sentenced to two years’ imprisonment suspended after serving six months for an operational period of two years. He was released on bail after serving 25 days of the sentence. He had one prior entry in his criminal history for soliciting for prostitution. He successfully appealed against the sentence for the indecent assault. The sentence was reduced to 12 months’ imprisonment suspended after 25 days for an operational period of 12 months. It was an aggravating factor that the offending in Demmery was committed against a sleeping woman, but the offending otherwise did not exhibit the violence and persistence of Mr Kane’s offending and was therefore less serious than the subject offence. Mr Demmery’s very minor criminal history also could be distinguished from Mr Kane’s criminal history.
- [22]The offender in Bradford who was 29 years old at the date of the offence pleaded guilty to three counts of indecent assault committed against his 18 year old female relative. The first offence was committed whilst the offender was driving the complainant. After she refused to expose her breasts, he reached across, placed his hand under her shirt and bra and touched her left breast. The offender then committed the second offence by putting his hand between the complainant’s legs, rubbed in the area of her vulva outside her pants, making sexually suggestive remarks at the same time. About nine months later, the offender directed sexual banter to the complainant. He wrestled her to the bed, saying they could engage in sexual intercourse, and she refused. He followed her into the bathroom, switched on an electric razor and committed the third offence when he placed it against the complainant’s left breast outside her clothes. The offender had no prior criminal history and his guilty plea was entered immediately after the prosecution discontinued another count on the indictment. The offender was sentenced to 12 months’ imprisonment on each count with parole eligibility after serving five months in custody. On appeal, the sentence was varied to be suspended forthwith (which was after having served just over three months of the sentence). The offending in Bradford was far less serious than Mr Kane’s offending and Mr Bradford had no prior criminal history.
- [23]The offender in Brockfield had seen the complainant at a nightclub where they had both been drinking. They were unknown to each other. When the nightclub closed, the complainant was walking home and passed the offender at a bus stop who mumbled something. The complainant felt uneasy and started to run and the offender followed her, tackling her near a vacant allotment and pushing her to the ground. In the struggle, the offender put his hand up the complainant’s skirt and attempted to insert a finger into her vagina. He caused a 4 cm scratch along the lip of her vagina which bled. A bystander responded to the complainant’s screams and the offender ran off. The maximum penalty for indecent assault at the time the offence was committed by Mr Brockfield was seven years’ imprisonment. In addition, the offender who appeared for himself on the application after being found guilty at trial did not challenge the sentence of imprisonment for two years and three months, but did challenge the recommendation made by the sentencing judge to the appropriate authorities unless and until they were satisfied on proper material that the offender was “psychiatrically and psychologically suitable for such release” and that he not be recommended for release until the authorities were “comfortably satisfied” that the offender was no longer a danger to women. The Court noted that there was nothing to suggest that the head sentence imposed by the sentencing judge was inappropriate, but there were circumstances that favoured some recommendation for early release. The offender was 20 years old at the time of the offending, had a reasonable work history and his prior convictions were relatively minor and none involved violence or indecency. He had been on bail for 16 months before being offered a trial and nothing had occurred during that period that supported the observations of the sentencing judge. The seriousness of the offending in Brockfield is similar to that committed by Mr Kane. Its use as a comparable authority is diminished by the fact that the focus of the application for leave to appeal against the sentence were the comments of the sentencing judge that jeopardised the offender’s parole application. Little weight should therefore be given to the observation of the Court of the appropriateness of the length of the sentence imposed after trial when it was not the subject of submissions.
- [24]Apart from relying on Brockfield, the respondent also relied on R v HX [2005] QCA 91. The offender was found guilty after trial of one count of deprivation of liberty and two counts of rape. The offender had met the complainant at a nightclub. She rejected his advances. The complainant was walking to her car. The offender walked with her and tried to kiss her which she again rejected. She unlocked her car and was pushed in the upper back and fell forward. The offender sat down in the passenger’s seat and held her tightly and locked the driver’s door from the inside. That was the subject of the deprivation of liberty count. He pulled her jeans and underclothing off, spread her legs and inserted his tongue into her vagina which was the first count of rape. He then put a finger followed by two fingers into her vagina which was the second count of rape. She then succeeded in unlocking the door and getting away. He was sentenced to imprisonment for one year for the deprivation of liberty count and three years’ imprisonment on each rape count with all sentences to be served concurrently. The offender was 27 years old with no previous convictions. On the offender’s application for leave to appeal against sentence, it was observed (at [20]) that the sentence was “well within the range of sentence appropriate for those offences and the circumstances and manner in which they were committed”. The respondent relies on the sentence in HX for the more serious offence of rape where the offending otherwise had broad factual similarity to the subject offence, as being consistent with the comparable authorities put before the primary judge.
- [25]The fact that the respondent can locate the sentence in HX for more serious sexual offending that resulted in a sentence of three years’ imprisonment which was found on appeal not to be outside the range of sentence appropriate in that case for a first offender does not meet the appellant’s argument that an error of principle was made by the primary judge in accepting that the authorities relied on by the prosecutor for the offence of sexual assault were relevant to the exercise of the sentencing discretion in respect of the subject offence.
- [26]Care is required in considering the facts of Mr Kane’s offending to take into account all the circumstances of the offence, but not to punish him for acts or circumstances which might technically constitute a separate offence: R v D [1996] 1 Qd R 363 at 403-404 and R v CCU [2022] QCA 92 at [47]-[49]. The commencement of the incident with Mr Kane grabbing the complainant and moving her forcibly to the secluded area under the clubhouse were background facts relevant to the assessment of the seriousness of the sexual assault that was then committed by Mr Kane.
- [27]When account is taken of Mr Kane’s conduct in targeting a woman walking by herself in a public place, removing her to a secluded area to commit the assault, putting his hand inside her pants to press his finger against her anus (as well as squeezing one breast), overcoming her resistance and protests, and not desisting until a passerby approached, the extent and nature of the assault made the offending significantly more serious than the offending in the comparable authorities relied on by the prosecutor before the primary judge. As Mr Heaton of King’s Counsel submitted on behalf of the appellant, the circumstances of the subject offence, including the respondent’s prior history for offending which included the use of violence, was such that community protection and denunciation warranted a significant penalty that had to be determined in the context of an offence. The appellant succeeded in showing that the sentence that was imposed by the primary judge failed to reflect the seriousness of the subject offence in relation to the maximum penalty and having regard to the circumstances of the respondent and was therefore also manifestly inadequate. A sentence of imprisonment of at least three years was called for in respect of Mr Kane’s guilty plea. Mr Kane’s criminality and the relevance of his criminal history were not reduced in any way by his problem with alcohol.
Exercise of the discretion to intervene
- [28]It is important for this Court on appeal to intervene where the appellant has shown that such an error of principle was made by the primary judge. The appellant bears the onus of showing that the residual discretion should not be invoked. It was a compelling consideration that, when the appeal was heard, it was over seven months since the respondent had been released into the community and it would be undesirable to return him to custody immediately with the potential of disrupting his reintegration into the community.
- [29]Conformably with the structure of the sentence imposed by the primary judge and to give recognition to the length of time since the respondent had been released into the community, a sentence of three years’ imprisonment could still be suspended after the presentence custody that had been served to the date of sentence, as the operational period for the suspended sentence imposed by the sentencing judge was three years from the date of sentence. By varying the sentence to imprisonment for three years instead of 18 months, if Mr Kane now commits an offence during the operational period of the suspended sentence, he will risk being required to serve the balance remaining of a term of imprisonment of three years which is a little over two years and two months.
- [30]That is why at the conclusion of the hearing of the appeal the Court made the orders to the effect of maintaining the sentence structure imposed by the primary judge, but ensured that if Mr Kane were not successful with his rehabilitation and were to commit another offence punishable by imprisonment during the operational period of the partially suspended sentence, the balance of the sentence that he may be ordered to serve could be up to three years (less the presentence custody of 282 days) which means the sentence now more closely reflects the serious features of his offending without interfering with his rehabilitation that commenced with his release from custody. The orders that were made were:
- Appeal allowed.
- The sentence of the primary judge is varied by substituting three years’ imprisonment for 18 months’ imprisonment.
- All other orders of the primary judge are confirmed.