R v Smith[2022] QCA 55

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment of Morrison JA and the order proposed by his Honour.
2. [2]
   MORRISON JA:  The applicant pleaded guilty to two offences of rape, perpetrated on the same complainant.  Both offences occurred in the same set of circumstances on 25 January 2020.
3. [3]
   The applicant was sentenced as follows:

   1. (a)
      Count 2 – imprisonment for three years;
   2. (b)
      Count 3 – imprisonment for eight years.
4. [4]
   No parole eligibility date was set.  A total of 343 days spent in pre-sentence custody was declared to be time served under the sentences.
5. [5]
   The applicant now seeks to challenge the sentences imposed upon him on two grounds, namely the sentences are manifestly excessive, and that the applicant did not get the opportunity to present psychiatric records to the Court.
6. [6]
   The offending conduct was the subject of an agreed schedule of facts.^[1]  They revealed that the applicant was 37 years old at the time of the offences and the complainant (G) was 21.  The applicant and G were unknown to each other and met only on the night of the offences.
7. [7]
   On the evening of 24 January 2020 G travelled from Beenleigh to Burpengary by train, arriving at the Burpengary train station at about 12.20 am.
8. [8]
   She got off the train and walked towards her car which was parked on a corner a few hundred metres from the train station.  At the time, G was staying at a youth hostel across the road from where her car was parked.  The hostel had a 10.00 pm curfew, at which time the front doors were locked.  Consequently, she planned to sleep in her car that night.
9. [9]
   As G walked towards her car, the applicant approached her and asked if she was okay.  G said that she was upset because she had to sleep in her car that night.  The conversation continued and a short time later the applicant asked, “Do you wanna smoke a joint?”, she agreed.
10. [10]
    G and the applicant walked towards her car.  The applicant instructed G to move her car to where he was standing at a kindergarten nearby.  G did so and parked her car on the grassed area next to the kindergarten.
11. [11]
    The applicant got into the passenger seat, pulled a joint from his pocket, and smoked it with G.
12. [12]
    The applicant and G continued to talk.  The applicant asked G multiple times if she was intoxicated, to which she said, “no” each time.  G told him that she was 21 years old.  They exchanged numbers when G asked the applicant how she could get more cannabis.  During the conversation, G asked the applicant if he was on any other drugs and he said that he was on “Ice” and that he had just sold his last bag.
13. [13]
    G felt drowsy and had trouble keeping focused.  The applicant put the joint away and put his hand around G’s neck.  He rubbed the back of her neck before pulling her towards him swiftly.  He pushed his tongue into her mouth and held her head so that she was unable to move.  When the applicant took a breath, G said, “Stop.  I don’t want to do this”.
14. [14]
    The applicant chuckled and looked out the window for a short time.  He turned back to G, put his hand around her neck and kissed the left side of her neck.  The applicant moved quickly in doing so.
15. [15]
    The applicant pulled G’s bra and singlet down over her left breast, tickled her nipple, and moved his tongue around her nipple for five to ten seconds.  G was scared that the applicant would physically assault her if she resisted.
16. [16]
    A short time later, the applicant said, “Lets go on the bonnet now [G]”.  G complied and walked to the front of the car.  The applicant grabbed her left arm above the elbow and pulled her towards the bonnet.  He directed G to lie on her back and leaned over the top of her, with a hand on either side of her body.
17. [17]
    A number of cars drove passed the area where the car was parked, and the applicant told G to get on the ground.
18. [18]
    Before G got on the ground, the applicant pulled her shorts down, and removed her underwear.  When the applicant moved G’s singlet up slightly, she removed her singlet and bra.
19. [19]
    G said she had a tampon in.  The applicant reached to pull it out, however changed his mind and directed G to do so.  She removed the tampon and threw it onto the ground nearby.
20. [20]
    G lay on her back on the ground.  She was completely naked.  The applicant asked if she had ever done “doggy style” and G responded that she didn’t know what that meant.
21. [21]
    The applicant instructed G to move onto her knees, which she did.  He said, “Go lower.  Get on your elbows.  Keep your bum in the air and put your face closer to the ground”.  G resisted and said, “I am afraid of you putting your penis inside my bum”.  The applicant confirmed that he would not do that and took his shorts off.
22. [22]
    The applicant grabbed G’s hips and rubbed his penis against her vaginal area with some force.  G felt the applicant’s penis rubbing against her legs and groin area.  The applicant said, “I have a problem with my penis” and told G to lie on her back.
23. [23]
    The applicant penetrated G’s vagina with his finger.  He moved his finger in fast circles and pushed G back into position if she moved.  She tried to push his hand away but was unable to.  When G rolled onto her side, the applicant moved her legs back to either side of his body, looked at her sternly and continued to penetrate her vagina with his fingers.  He did not stop when the complainant said, “that hurts.  Can you stop?” he moved her legs to either side of his body.^[2]
24. [24]
    The applicant touched his penis, and inserted it into G’s vagina.^[3]  He moved his hips back and forth multiple times.  After the applicant’s penis fell out of the complainant’s vagina, he again inserted his fingers.  He switched between inserting his penis and his fingers, a few times.  The complainant repeated, “it hurt”.^[4]
25. [25]
    On one occasion when the applicant removed his finger from G’s vagina, he placed it in his mouth and sucked it.  On another occasion, the applicant wiped the discharged from his finger onto G’s shoulder.  The applicant also moved his tongue around G’s right nipple at one stage.
26. [26]
    Eventually the applicant stopped and asked G to give him a, “blow job”.  G responded, “I’ve never done that.  I don’t want to”.  The applicant commented on the pain in his knees, stood up, and said, “I am finished”.  He pulled up his pants and followed G back into her car.
27. [27]
    For a short time, the applicant spoke to G as if nothing had happened.  He asked what time it was, and she told him, after checking the clock in the car.
28. [28]
    The applicant took a ring off his finger and gave it to G.  He said, “this is for you”.  He continued, “sorry it wasn’t a good experience for you.  See ya”.  He collected his bicycle and left.
29. [29]
    G sat in her car for a few minutes, waiting until she was sure the applicant had left the area.  She called triple zero and reported the offence.  Police arrived a short time later and transported G to the Royal Brisbane and Women’s Hospital for assessment.
30. [30]
    G realised she had received two text messages and a hang-up call from the applicant.
31. [31]
    At approximately 6.00 am on 25 January 2020, police attended the applicant’s address and arrested him.  A short time later, a crime scene was declared at the address and a search was conducted.  They located clothing similar to that which the applicant was depicted wearing in CCTV from the Burpengary train station.
32. [32]
    The applicant was transported to the Redcliffe Hospital for the purposes of a forensic examination.  Whilst there, the applicant told police that the sex with G was consensual.  The applicant declined to participate in a formal interview.  He was transported to the Redcliffe Watchhouse and remanded in custody.

Forensic analysis

33. [33]
    Preliminary examinations located the applicant’s fingerprints on the following places of G’s car:

    1. (a)
       outside the passenger door;
    2. (b)
       outside the driver’s side door window; and
    3. (c)
       inside the front passenger window.
34. [34]
    The applicant’s DNA was located on:

    1. (a)
       G’s left neck area (saliva);
    2. (b)
       G’s left nipple (saliva);
    3. (c)
       G’s right nipple (saliva);
    4. (d)
       the silver ring and the bowl in the car;
    5. (e)
       the bonnet of the car; and
    6. (f)
       the front passenger door handle.
35. [35]
    G’s DNA was located on the interior and exterior of the applicant’s shorts, singlet and underwear seized from his house.

Victim Impact Statement

36. [36]
    The victim impact statement described the ongoing trauma suffered by G including:

    1. (a)
       after the rape there was dirt inside her vagina, in her period blood, on her pad and all over her singlet;
    2. (b)
       she suffered repeated thrush for months;
    3. (c)
       she suffered an unknown throat infection on and off for weeks where large yellow pus formed in the back of her throat;
    4. (d)
       she wanted to kill herself in the first four weeks after the incident;
    5. (e)
       she did not feel safe and couldn’t leave the house;
    6. (f)
       sexual intercourse is no longer a good experience for her;
    7. (g)
       she was worried that if she left the house that someone else would do the same thing to her; and
    8. (h)
       she feels permanently scarred by the experience, is afraid of men and cannot see herself having a health relationship with a man.

Approach of the sentencing Judge

37. [37]
    The learned sentencing Judge commenced with a review of the factual background to the two offences of rape.  Along the way his Honour added some characterisation of the conduct.  For example:

    1. (a)
       when G started to feel drowsy and the applicant put the joint away, his Honour concluded that it was at that point that the applicant decided what was going to happen next;
    2. (b)
       when the applicant kissed G and she responded saying she did not want to do it, his Honour found that G made it clear to the applicant that, at the very least, she did not want to even kiss the applicant;
    3. (c)
       his Honour further stated that it was difficult to know what about the statement, “stop, I don’t want to do this”, that the applicant should not have understood;
    4. (d)
       his Honour found that there can be no question that his conduct thereafter was something that G did not consent to;
    5. (e)
       G’s compliance thereafter was out of understandable fear, and the applicant must have known that she was not consenting;
    6. (f)
       G was vulnerable in that she was alone, feeling drowsy and no doubt feared from what was about to happen if she refused;
    7. (g)
       when the applicant penetrated G’s vagina with his fingers, she tried to push the applicant’s hand away;
    8. (h)
       his Honour concluded that was another sign of non-consent; and subsequently when G asked him to stop, and the applicant did not, his Honour concluded that it was difficult to understand how the applicant could not have understood what was meant by G;
    9. (i)
       the applicant only “desisted from further sexual indignities” because he was having trouble maintaining an erection;
    10. (j)
        the sexual intercourse was unprotected, giving rise to the risk of infection.
38. [38]
    The learned sentencing Judge identified the following factors in the course of the sentencing remarks:

    1. (a)
       the case was distinguishable from some of the comparable cases cited by counsel, because there was no force used over and above the acts of sexual violence; it was clear that G protested, and there were physical consequences as described in the victim impact statement;
    2. (b)
       there was no evidence of gratuitous violence or cruelty;
    3. (c)
       there were no threats to kill or threats of any retribution, nor was a weapon used;
    4. (d)
       there was no evidence of premeditation;
    5. (e)
       the plea of guilty was a factor “very heavily in [the applicant’s] favour”;
    6. (f)
       whilst it was not an early plea, in the circumstances it spared G the ordeal of a trial, and saved the community the time and expense; therefore, to that extent the applicant had cooperated with the administration of justice;
    7. (g)
       an extra reduction in sentence was to be allowed for the fact that the pre-sentence custody had undergone whilst the COVID-19 pandemic was in force, with the consequence that restrictions for prisoners made their incarceration more difficult to endure;
    8. (h)
       the offence occurred whilst the applicant was on a suspended sentence, albeit for a minor example of dishonesty and not sexual offending; however, he had a history of personal violence, some of which were of significant magnitude. Whilst there was no previous convictional offence, there was an offence of common assault which had a sexual offending overtone to it.
39. [39]
    The learned sentencing Judge then proceeded to weigh up factors in the cases citied to him, such as R v Basic and R v Kahu.  Whilst finding that there was some similarities with those two convictions, his Honour took the view that the circumstances were “vastly different”, and it had to be recalled that up to a point G was willing to be the applicant’s company, and willing to consume cannabis with him.
40. [40]
    The learned sentencing Judge then turned to the psychological report which had been tendered by counsel.  His Honour took the view that it offered “somewhat gloomy prospects as far as rehabilitation is concerned, unless you make a real effort at becoming free of illicit drug use”.  However, his Honour concluded the report offered “a ray of hope in that you recognise that you need counselling and … specifically, sexual offence counselling”.
41. [41]
    His Honour then identified the purposes for which the sentence was being imposed, namely:

    1. (i)
       to punish the applicant to an extent and in a way that was just in the circumstances,
    2. (ii)
       to provide conditions which would assist in rehabilitation,
    3. (iii)
       to deter the applicant and others by way of general deterrence,
    4. (iv)
       to make it clear that the community denounces that sort of conduct, and
    5. (v)
       to protect the community from the applicant.
42. [42]
    His Honour said, the serious nature of the offences called for a term of imprisonment.  For that reason, he imposed a head sentence of eight years and made no early parole eligibility date.

Previous criminal history

43. [43]
    The applicant had a criminal history that commenced in the year 2000.  He was then just over 17.  He incurred convictions for obstruction of a police officer, an assault occasioning bodily harm, stealing, wilful damage and assaulting a police officer.  His first suspended period of imprisonment came when he was not quite 18.  The offence was one of violence (an assault occasioning bodily harm).  By the time he was 23 his offending had moved on to possession of property suspected of been stolen, dealing with shop goods, entering a dwelling with intent to commit an indictable offence, for obstructing a police officer and wilful damage of police property.  By the time he was about 24 his offending included further assaults occasioning bodily harm, common assaults, assaults on a police officer and wilful damage.  His first imprisonment was a two-year term with immediate parole release.  Further offences of common assault occurred, incurring a prison term.  In his early thirties the applicant recorded convictions for sexual assaults, drug offences, obstruction of a police officer, unlawful possession of a weapon, stealing and entering premises to commit an indictable offence.  Offences of dishonesty continued through the applicant’s thirties.

Previous offences

44. [44]
    The learned sentencing Judge was told the background of the applicant’s offence from 2007 of common assault.  It concerned his approach to a fifteen-year-old girl on a bus, when he sat beside her, tried to engage her in conversation, touched her by poking her ribs and legs, pushed her skirt up to rub her thigh, and tried to turn her face towards him with the instruction to show him her pretty eyes.  For that the applicant was sentenced to nine months imprisonment.  There was no challenge to that description of the offence.
45. [45]
    A second offence in 2018 (when the applicant was nearly thirty-six) was an offence of sexual assault.  The applicant approached a young woman in the street, in public and at a set of traffic lights.  He hugged her and kissed her and slapped her bottom.  He was sentenced to six months imprisonment.  There was no challenge to that description.
46. [46]
    The applicant was on a suspended sentence at the time of the two rapes the subject of these proceedings.

Additional matters raised in submissions

47. [47]
    In reliance upon R v Kahu,^[5] the prosecutor submitted that a range of seven to ten years was applicable in the present matter.  Counsel appearing for the applicant said that he did not challenge that.
48. [48]
    In the course of submissions counsel appearing for the applicant told the learned sentencing Judge that the applicant had “mental health problems” and had done so for some time.  In respect of that a psychologist’s pre-sentence report was tendered.  The report detailed his difficult upbringing including living on the streets between the ages of thirteen and twenty-one and drug use.  The report also indicated that the applicant had been seeing a treating psychiatrist whilst in gaol and was receiving medication.
49. [49]
    The learned sentencing Judge raised the fact that there had been mention that the applicant had schizophrenia in 2008.^[6]  However, his Honour observed that there was nothing in the report to suggest that at the relevant time the applicant was suffering from schizophrenia.  Counsel for the applicant agreed saying it “doesn’t go as far as that” and did not reveal who diagnosed him with schizophrenia.
50. [50]
    The learned sentencing Judge specifically raised the issue concerning the schizophrenia, namely that if there had been evidence that he was suffering from schizophrenia or a mental illness at the time of the offence, that would be relevant to general deterrence.  Counsel appearing for the applicant agreed that there was no such evidence.  Acknowledging that it was not a psychiatrist’s report, counsel appearing for the applicant pointed out that it was a comprehensive report, highlighting the problems and difficulties which the applicant had had over the years.
51. [51]
    Counsel provided a letter explaining a program offered to the applicant whilst in custody.^[7]  The applicant had not completed any programmes whilst in gaol because he was on remand.

Consideration of the applicant’s submissions

52. [52]
    In R v Eaton^[8] this Court said :

“[71] In order to establish that the sentence is manifestly excessive, this Court must be satisfied that there ‘must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’.  The mere fact the sentence imposed is different from other sentences, and even markedly different from other sentences, does establish that it is manifestly excessive.  As was said by this Court R v MCT:

‘To succeed on an application based on manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters.  It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is ‘unreasonable or plainly unjust’.  Consistently with accepted understanding that there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”.

53. [53]
    For the reasons which follow, nothing has been advanced by the applicant that would satisfy those tests.
54. [54]
    At the outset the applicant’s outline seeks to challenge some of the facts which were admitted at the sentencing hearing.  One is that he seeks to deny that he shared or gave any drugs to G, including cannabis.  In that respect, in oral address the applicant asserted that his shorts had shown no traces of cannabis when tested.  In addition, he has sought to proffer additional facts that were not contained within the schedule.  Absent consent from the Crown, those submissions should be rejected.  The applicant was sentenced upon an agreed Schedule of Facts and the question now is whether the sentence was manifestly excessive, on those facts.
55. [55]
    The applicant also asserts that the prosecutor at the sentencing hearing had supressed evidence in the form of photographs of the inside of G’s car.  There was no suggestion of that at the sentencing hearing.  In any event the submission that there are other photographs was in aid of the applicant’s contention that G’s car had drugs in it.  No such thing was in the agreed schedule of facts which was the basis of the sentence hearing.  The submission should be rejected.
56. [56]
    The applicant seeks to advance a number of factors which, it seems he contends, demonstrate that the sentence is manifestly excessive:

    1. (a)
       there was no use of a weapon or threat of a weapon;
    2. (b)
       there were no threats to harm G;
    3. (c)
       there was no deprivation of liberty nor physical attack;
    4. (d)
       there was no sodomy; and
    5. (e)
       there were no threats to silence G if she screamed, and no covering of the mouth.
57. [57]
    None of these advances the argument for manifest excess.  The lack of physicality was a matter noted by the learned sentencing Judge when discussing comparable cases.
58. [58]
    The applicant now seeks to explain in a different way the circumstances concerning the previous offence involving a girl on a bus.  The description of that offence was something expressly agreed at the sentencing hearing, and further explanation should not be received now.
59. [59]
    The applicant submits that the sentence was excessive due to the fact that no psychiatric record was provided at sentencing and therefore no insight was gained into his mental health at the time, particularly as to his schizophrenia and an antisocial personality disorder.  There was no such evidence at the sentencing hearing, and counsel appearing on behalf of the applicant acknowledged that the psychologist’s report was limited and that there was no evidence of schizophrenia or other mental illness.  Specifically, counsel appearing for the applicant acknowledged that there was no evidence of any mental issue affecting the applicant at the time.
60. [60]
    In his oral address to this Court the applicant relied on a letter from a psychiatrist, Dr Tie, dated 29 July 2014.  The applicant advanced it as showing his diagnosis for schizophrenia and an anti-social personality disorder.  The letter does not assist the applicant.  First, it was not tendered at the sentencing hearing, yet it was plainly in existence.  Secondly, it refers to a time well before the current offences.  Thirdly, to the extent that it refers to the schizophrenia and personality disorder, it was not a diagnosis by Dr Tie, but a note based on self-reporting by the applicant.  Fourthly, it says nothing about the applicant’s condition at the time of the current offences.
61. [61]
    The applicant seeks to advance a submission based on his participation in counselling whilst in custody.  That all post-dates the sentence and would only be relevant if this Court were re-sentencing the applicant.
62. [62]
    The applicant submits that a range of four to seven years should have been imposed, based largely upon his personal background.  Those matters were explored in the psychologist’s report which was tendered at the sentencing hearing.  To the extent that the applicant seeks to go beyond that report, the submission should not be entertained.  The applicant was represented by counsel at the sentencing hearing and the psychologist’s report was relied upon, together with anything else said by way of submissions.  There is no basis to depart from those factual matters.
63. [63]
    The applicant submits that he entered a guilty plea on the basis of a deal whereby the sentence would have an upper limit of seven years with a bottom of twenty-four months, and he complains that the Crown did not uphold their end of the agreement.  Of course, there could be no such agreement that would bind the sentencing Judge and, the sentence to be imposed was a matter for the sentencing Judge to assess.  This submission should be ignored.
64. [64]
    The applicant’s oral address did not raise any further matters that require a response.
65. [65]
    In my view, the application should be refused.  I propose the following order:

1. Application for leave to appeal refused.

66. [66]
    BOND JA:  I agree with the reasons for judgment of Morrison JA and with the order proposed by his Honour.