R v BDR[2022] QCA 85

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  A jury found the appellant guilty of three offences of rape, one offence of procuring a woman, without her consent, to commit an act of gross indecency, one count of unlawful choking and one charge of contravening a domestic violence order.  Richards DCJ sentenced the appellant to an effective term of imprisonment of eight years with parole eligibility fixed at 19 July 2023.  The appellant has appealed against his convictions and seeks leave to appeal against his sentences.
2. [2]
   The appellant and complainant had been in a relationship for about 10 years and were living together.  They had two children.  The relationship was a violent one.  The appellant had once given the complainant a black eye.^[1]  On another occasion he dragged her into the bedroom and put his hand over her mouth to stop her screams.^[2]  On the same occasion he threatened to kill her.^[3]  She reported these assaults to police.  In February 2019, the appellant became angry and threatened the complainant with a baseball bat.^[4]  The complainant reported the assault to police and she and the children lived elsewhere for a week.^[5]  Police obtained a domestic violence order to restrain the appellant.^[6]
3. [3]
   On 18 March 2019 the complainant picked the appellant up at work and they came home.^[7]  After dinner, and after the children had gone to bed, the complainant and the appellant were drinking.  According to the complainant’s evidence, the appellant had drunk about six full strength beers.^[8]  She had drunk a bottle of wine.^[9]  At about 11.30 pm the appellant came onto the balcony where the complainant was sitting and put a tea towel over her face and dragged her into their bedroom.  There he told her to take her clothes off.  When she refused, he grabbed her by her legs and took off her skirt and underpants.  He told her to remove her bra and she did so.^[10]  He then penetrated her vagina with his penis.^[11]  While he was doing this the complainant was crying and telling him to stop.  He did not stop. He told her that her crying was making him “horny”, and he continued.^[12]  He pushed on her neck making it hard for her to breathe.^[13]  He then stopped and went into the bathroom.^[14]  This was count 1, rape.
4. [4]
   The appellant returned to the balcony.  The complainant came with him.  She had a cigarette and then went back to the bedroom and lay down.  The appellant followed her inside and locked the door.  He pushed her towards the middle of the bed, removed her clothes and, once again, inserted his penis into her vagina and began to have sexual intercourse.^[15]  This was count 2, rape.  He told the complainant that it would be easy to kill her.^[16]
5. [5]
   He was unable to climax.  The appellant told her to “play with” herself.^[17]  She put her fingers into her vagina because she was frightened that he would hurt her if she refused.^[18]  This was count 3, procuring an act of gross indecency.  The appellant was touching himself at the same time.^[19]  He told the complainant to take his penis into her mouth.  She did this.  He moved her head back and forth.^[20]  This was count 4, rape.  The complainant asked him to stop because she could not take it anymore.^[21]  He lay down and the complainant went to check the children.^[22]
6. [6]
   When she returned to bed the appellant put his hand on her throat and strangled her.  He said, “You know how easy it is to kill you right now.  I can slit your throat”.^[23]  The complainant could not breathe.  This was count 5, choking.  The appellant then fell asleep.
7. [7]
   On the following morning, at 7.59 am, the complainant called police and made her complaint.^[24]  Ms Sandra Matthieson, a police employee, took her call.  She gave evidence that the complainant was crying or sobbing when she said that “he’s just stopped raping me”.^[25]  She asked for help because “he” was coming to kill her.^[26]  This evidence was not challenged.  Police were immediately sent to the complainant’s home.
8. [8]
   The Magistrates Court had previously made domestic violence orders against the appellant.  One of these had been made on 1 March 2019, a little less than three weeks before these offences were said to have been committed.  Police therefore arrested the appellant for breaching that order.  He was taken to the watchhouse where he was interviewed.  When the interviewing police officer, Senior Constable Hiles, put to the appellant that he wanted to ask him questions about complaints of rape and choking, the appellant affected incredulity.^[27]
9. [9]
   The appellant admitted to having drunk about 14 beers, presumably stubbies.^[28]  He said that the complainant had consumed two bottles of wine and three beers.^[29]  He said that he and the complainant would have sex with other couples as well as engaging in “role play in the bedroom”.^[30]  He said that the complainant had said to him, “Let’s be a bit naughty tonight.  Can you pretend that you’re a stranger … And that you’ve just come on to the balcony and you force yourself on to me”.^[31]  He explained that the complainant had asked him to drag her into the bedroom and “force” himself onto her.  He said that they had done this several times before.  He said that they had an argument that ended with the complainant saying, “I’ll have you removed from the house”.  According to the appellant, she then stormed off.  When he awoke the next morning and was arrested it was because of “the little argument we had last night”.^[32]  He told police that, “she’s turned our role play last night into a, into reality ‘cause she wants me out of the house, and so she’s trying to make out that I really did rape her because she wants me out.  She knows I won’t go and she’s, she’s trying every trick she can in the book to get me out”.^[33]
10. [10]
    It was true, said the complainant in evidence, that she wanted the appellant to go and live somewhere else but he had refused to leave.^[34]  She had made these demands several times in angry and forceful terms, including by text messages.^[35]
11. [11]
    The police interview of the appellant was recorded and the recording was played for the jury.^[36]
12. [12]
    During the appellant’s incarceration he telephoned the complainant several times.^[37]  During these calls he tried to persuade her by various means to withdraw her complaint.  Remarkably, given what he had said to police, he never raised with the complainant that she had made a false complaint to police or even that she might have misunderstood his actions and his intentions.  In all of these conversations he never referred to either sexual role play or to her request that he force himself upon her.
13. [13]
    The calls from prison were, of course, recorded by the authorities.  Transcripts of the conversations between the appellant and the complainant were admitted as evidence at the appellant’s trial.  The following examples give a sufficient sense of what the appellant was trying to do:^[38]

“COMPLAINANT: Well, I just [INDISTINCT] does Ryan want me to go see him or is he expecting me or what?

APPELLANT: Well –

COMPLAINANT: ‘Cause I’ve got [INDISTINCT]

APPELLANT: No. Um, I’m going to ring him after this. Like, if, if, you know, if you’re going to sort of agree with what I’m saying, um, but I, I talked to him a while back. I wrote him a letter a good couple of months ago in the event that it ever come to this and if you ever went and saw him and he knows exactly what to do. I can’t repeat it over the phone because it’s a recorded call so –

COMPLAINANT: Yeah, I know.

APPELLANT: But all I can is that he knows what to do. Alright. Go see him, he’ll fix everything.

COMPLAINANT: Okay.

APPELLANT: Okay. And you won’t have to say a word. Alright.

COMPLAINANT: Okay.

APPELLANT: Alright. You’ve just got to trust me that I know what I’m talking about, but see him after I ring you and all you’ve got to do is ring him and go see him and, you know, I don’t know what say, … I’m going to owe you for the rest of my life if you do this, but –

COMPLAINANT: Hey?

APPELLANT: I said I’m going to owe you for the rest of my life if you do this, but at the same time –”

14. [14]
    This call took place on 13 January 2020 at 4.04 pm. On 18 January 2020 at 4.12 pm, the appellant tried again to compel the complainant to withdraw her complaint:^[39]

“APPELLANT: Yeah. Um, is there bloody, um, anything you need to talk to me about just be careful what you say.

COMPLAINANT: Um, no, I went and saw Ryan.

APPELLANT: Yeah, yep, yep. Alright. Alright. Well, I just hope it all goes well ‘cause, um, like we’re starting to run out of time.

COMPLAINANT: Yep.

APPELLANT: So like we’ve got to act fast.”

15. [15]
    Later, at 4:35 pm there was the following:^[40]

“APPELLANT: It’s frustrating ‘cause I know exactly what’s got to be done, but I just, if I say it straight up and you go do what you gotta do and then they come back and listen to these calls then I’m in a lot of trouble.

COMPLAINANT:  Yep.

APPELLANT:  So you know it, it, it’s really frustrating that I can’t just convey what has to be done, but just, yeah, just follow what he says and just try and do it ASAP.

COMPLAINANT: Yeah.

APPELLANT: Yep.

COMPLAINANT: Well, I talked to him so-

APPELLANT: Yeah, yeah. Well, I’m, I’m just hoping, ‘cause I’ve got a legal call with my people on Monday so I’m going to have to put them off a bit, but I’m, I’m hoping they’ll have the information by no later than Wednesday so I can call them back up and say hey, look, this, there’s a change in circumstances now. This is what I want to do.”

16. [16]
    Then, on 20 January 2020, there was the following conversation:^[41]

“APPELLANT: Alright. You’ve got to do this quick. I’ve just, I’ve just had a call today and it’s got to be done quick. Like even if you’ve got to pull a sickie to, to do the, the meet and get it all done.

COMPLAINANT: Mmhmm.

APPELLANT: And don’t worry about trying to find the information to forward it on. Leave that to the people you’re going to see. They’ll know what to do.

COMPLAINANT: Okay.

APPELLANT: Alright. Just contact the workshop.^[42] The workshop has got it all organised.”

17. [17]
    On 21 January 2020, the complainant signed a form withdrawing her complaint.  She did not assert that she had lied about the commission of the offences.  Nor did she assert that the appellant had asked her to withdraw it.  On the form itself she said that she wanted to withdraw her complaint because she was “under a lot of stress” and because she did not “want to go through court”.  She said that the prosecution was “affecting [her] employment and [her] kids” and that she “just want[ed] the matter to go away”.^[43]
18. [18]
    On the following day the appellant spoke to the complainant:^[44]

“APPELLANT: Alright. Cool. Um, how did youse go? Did you manage to get things done?

COMPLAINANT: Yeah.

APPELLANT: You did? Oh, that’s good news.

COMPLAINANT: Yeah.

APPELLANT: So you’ve got a written invoice done?

COMPLAINANT: Yep.

APPELLANT: Excellent. So just send that written invoice to my accountant and my--

COMPLAINANT: Yeah.

APPELLANT: Accountant will take care of it.

COMPLAINANT: Okay.

APPELLANT: Alright. You beauty. That’s, that’s good news to hear. So the car is all sorted?”

19. [19]
    In cross examination by the appellant’s counsel, she agreed with his proposition that the appellant’s reference to a “written invoice” was code for “written withdrawal of complaint”.  She also agreed that the appellant’s reference to an “accountant” was a code for “solicitor”.^[45]
20. [20]
    Following the withdrawal of the complaint, the complainant was informed the ODPP was proceeding with the charges.
21. [21]
    On a call on 19 July 2020, the appellant tried to compel the complainant to have the charges dropped:^[46]

“COMPLAINANT: Okay. You tell me, you tell me what do you want me to do? You tell me. Do you want me to leave my job?

APPELLANT: I want you to get these charges dropped so I can get back to Airlie Beach and there won’t be any more problems. That’s what I want you to do. And everything will be fixed because they can be with me when you’re at work. They can come to--

COMPLAINANT: You get them--

APPELLANT: [INDISTINCT]

COMPLAINANT: [INDISTINCT]. Wow. Why, oh why don’t you call Ryan and he’ll come and pick them up?

APPELLANT: Ryan can’t do that, he’s too busy for that.

COMPLAINANT: Well I’ve got my friend here, ah, to help out so what do you want me to do?

APPELLANT: I want you to get these charges dropped please.

COMPLAINANT: No.

APPELLANT: Because it, it doesn’t sit well with me.”

22. [22]
    When, during that call, the complainant failed to satisfy the appellant that she would cause the charges to be dropped, he changed his approach:^[47]

“APPELLANT: And I don’t want to have to ring the police to get them involved in this but I will because of the safety of the kids.

COMPLAINANT: Wow, listen to you. Just because--

APPELLANT: Wow.

COMPLAINANT: Nothing’s going your way and then you--

APPELLANT: It’s got nothing--

COMPLAINANT: Threatening—

APPELLANT: To do with that.

COMPLAINANT: Yeah actually it is, oh I want--

APPELLANT: [INDISTINCT]

COMPLAINANT: You get the charges dropped, like--

APPELLANT: Look

COMPLAINANT: Really?”

23. [23]
    Then, a little later during the same conversation there was the following:^[48]

“APPELLANT: You’re not coming up with a solution so I’m telling you right now I’m gonna go see the counsellor and I’m gonna a-, ask to make a call to the police and I’m gonna report this to the police. It –

COMPLAINANT: Alright you--

APPELLANT: [INDISTINCT]

COMPLAINANT: Do that.

APPELLANT: It’s not a, and I--

COMPLAINANT: Alright.

APPELLANT: And I’m ringing Child Safety.

COMPLAINANT: Alright you do that.

APPELLANT: I will, okay. Bye.”

24. [24]
    The appellant did not give evidence at his trial.
25. [25]
    The complainant’s evidence was, seemingly, clear and detailed.  It was evidence that was capable of acceptance by the jury.  Her credit was supported by her preliminary complaint.  It was supported by her state of distress when she called police.
26. [26]
    The only evidence to contradict her account was the version of events that the appellant offered to police.  While plausible on its face, that story evaporated when it emerged that, in the course of trying to persuade the complainant to withdraw her complaint, it did not occur to the appellant to say to her that she should do so because her complaints were false.  On the contrary, the whole tenor of what the appellant said to the complainant during those calls, for that purpose and otherwise, implied his consciousness of his own guilt.  Unsurprisingly, the prosecutor made something of this in his closing address.^[49]
27. [27]
    The appellant is self-represented in his appeal.  He has pointed to 25 matters that, he says, show that the verdicts were unsound.^[50]
28. [28]
    The tea towel used on the complainant was not tested for DNA.^[51]  There is no merit in this point.  The Crown is under no obligation to test every alleged weapon in that way.  If this is indeed a point of weakness, it was a matter to be raised for the jury’s consideration.
29. [29]
    The jury’s guilty verdicts were “fuelled” by the appellant’s failure to give evidence.^[52]  Nothing has been suggested by the appellant that could possibly impinge upon his election not to give evidence.
30. [30]
    There was no evidence led about the complainant’s “narcissistic behaviour”.^[53]  This was a matter for defence counsel to raise.  It could only have gone to credit.  The decision not to take this line of attack was a matter of forensic choice.
31. [31]
    The “crime scene” had been “staged”.^[54]  There is nothing to support this assertion.
32. [32]
    The police investigation was biased.^[55]  There was nothing in the case that could support such an allegation.
33. [33]
    There was a failure to object to evidence of the prior relationship.  The evidence was admissible.
34. [34]
    There was a failure to object to the evidence of phone calls.  The evidence was admissible.
35. [35]
    There was no evidence that the complainant suffered any injury.  The prosecution called evidence from Dr Griffin to explain the lack of injuries.  The significance of that fact was a matter for the jury.
36. [36]
    None of these points have the slightest merit.  The remaining matters raised by the appellant in his written outline do not constitute coherent arguments in aid of his appeal.  They are entirely without substance and beyond analysis.
37. [37]
    I would dismiss the appeal.
38. [38]
    The appellant seeks leave to appeal against the severity of his sentences.
39. [39]
    The jury found the appellant guilty of three counts of rape, one count of sexual assault, one count of choking, and a contravention of a domestic violence order with a circumstance of aggravation, that he had within the previous five years also contravened such an order.
40. [40]
    Richards DCJ imposed sentences of eight years for each of the rape offences, two years for each of the choking, sexual assault and breach of order offences.  All sentences were to be served concurrently.^[56]  The appellant was also arraigned on an indictment charging him with one count of attempting to pervert the course of justice (arising from the phone calls) and two counts of contravening a domestic violence order.  He pleaded guilty to these offences and was sentenced to 12 months’ imprisonment for each offence to be served concurrently with each other but cumulatively upon the sentences imposed for the offences for which he was found guilty.^[57]
41. [41]
    The appellant was 45 years old when he offended and 47 years old at trial.  He had a criminal history that included seven previous offences of contravention of a domestic violence order.  These all concerned the complainant in this appeal.  He has previously been given the benefit of non-custodial orders for these offences.  They included making threatening phone calls, making a death threat, persistent phone calls and text messages in defiance of an order and other like behaviour.
42. [42]
    The appellant has a bad history of violence towards the complainant.  The latest offences were also violent.  They were protracted and cruel.  They were committed in the family home while his children were nearby.  The appellant’s response to his offending was to tell lies to police, to try to pervert the course of justice, including by threatening to make a false complaint to police about the complainant’s care of her children, and then, when this all failed, to pursue a false case at trial.  He has evidenced not the slightest degree of remorse for what his violence has done to the complainant.  The fact that the applicant has a good work history and that he has the continuing loving support of his father is of little moment in this context but that was really all that the appellant’s counsel could raise on his behalf at sentencing.  He rightly agreed that a sentence of between seven and eight years imprisonment was called for.^[58]
43. [43]
    Cases such as R v Burton,^[59] R v TAQ^[60] and R v Motlop,^[61] in which sentences of nine years, eight years (six and a half and 18 months, cumulative), and eight years imprisonment respectively were imposed, show that the penalties in this case were not so out of kilter with previous sentences as to raise an implication that the sentencing discretion miscarried.^[62]  Nor has anything been shown to throw any doubt otherwise about the learned judge’s exercise of her sentencing discretion.
44. [44]
    I would refuse leave to appeal.
45. [45]
    McMURDO JA:  I agree with Sofronoff P.
46. [46]
    KELLY J:  I agree with the reasons of Sofronoff P and with the orders proposed by his Honour.