R v AAG & AAH [2009] QCA 158

[1]

Director of Public Prosecutions (Qld) for the respondent

[2]

[1] McMURDO P: The applicants, AAG and AAH, pleaded guilty in January 2006 in the District Court at Brisbane to nine counts of rape and one count of deprivation of liberty committed on 13 February 2005. On 7 March 2006, both were sentenced to eight and a half years imprisonment on each count of rape and two and a half years concurrent imprisonment for the count of deprivation of liberty. All the rape offences were declared to be serious violent offences with the effect that each applicant will serve 6.8 years imprisonment before parole eligibility. In each case, pre-sentence custody was declared to be time served under the sentence. Both applicants filed applications for leave to appeal against sentence within time but, through their solicitors, abandoned those applications on 9 May 2006.[1]

[3]

[2] On 9 December 2008, both applicants applied for an extension of time to apply for leave to appeal against sentence. The applicants, through their counsel, Mr Smith, agreed at the hearing that the applications to extend time were misconceived and should be treated as applications to set aside the abandonment and to reinstate the applications for leave to appeal. The applications were made about two years and seven months after the abandonment of the appeals. The explanation provided in each application is "at the time of sentencing, my legal representatives advised me that an appeal would be unsuccessful". Each applicant wishes to appeal on the grounds that their sentences were manifestly excessive.

[4]

[3] Each applicant has filed affidavit material in support of his application. The mother of the applicants, KN, deposes that she was not aware that her sons had lodged any appeal against their sentences; she engaged solicitors to give an opinion as to the prospects of an appeal; when the solicitors informed her of its cost, she advised her sons that she could not afford to fund it. Both applicants depose that they understood their former solicitors filed an appeal on their behalf but when their mother was unable to pay for the appeals, they each determined not to proceed with it. In oral submissions, Mr Smith explained that there were three reasons for their abandoning the applications for leave to appeal. The first is that their barrister at sentence advised them they had no prospects. A second opinion from another barrister was to like effect. The final nail in the coffin of their appeals was their mother's advice that she could not afford to pay for the appeals. Mr Smith contends that, in the circumstances of this case, each applicant has promising prospects of success in an appeal so that their applications for leave to appeal should be reinstated.

[5]

[4] Rule 69(4) Criminal Practice Rules 1999 (Qld) permits this Court to set aside any abandonment and to reinstate an application for leave to appeal if this is in the interests of justice. The applicants' prospects of success in any appeal are important considerations in determining this question. The applicants deliberately abandoned their applications after taking legal advice. Such informed decisions will only be set aside where the applicants demonstrate that it would be a miscarriage of justice not to allow their applications.

[6]

[5] It is necessary to understand something of the offences and the applicants' antecedents in order to determine whether the interests of justice require the setting aside of the abandonment. AAG was 22 years old at the time of the offences and 23 at sentence. AAH was 21 at the time of the offences and 22 at sentence. Both had a minor but irrelevant criminal history.

[7]

[6] Mr Smith especially emphasises that both applicants gave information to the police that led to their two co-offenders, Azhar Hussein and Afsheen Hussein, being charged with the present offences and with an earlier series of rape offences involving another complainant, C, in which the applicants were not involved. For that reason, the applicants were sentenced under the provisions of s 13A Penalties and Sentences Act 1992 (Qld).

[8]

[7] The sordid circumstances of the offending the subject of the applications are essentially set out in the appeal concerning their co-offenders, R v Hussein & Hussein:[2]

[9]

"[50] ... on 13 February 2005 D, who had decided to work as a prostitute to alleviate financial difficulties, was approached by [AAH] in a van, and she agreed to have intercourse with him for money. They drove to Mount Coot-tha and parked in a secluded car park. Both the Husseins and [AAG] were hidden in the rear of the van under a tarpaulin, to the knowledge of [AAH], and those other three only revealed their presence when the van had stopped. Afsheen Hussein was armed with a screwdriver and he threatened that the complainant D would be killed if she did not keep quiet. Azhar Hussein was holding her arm when that threat was made, and D, who feared for her life and who was pleading with the men not to hurt her, was then subjected to sexual assaults by all four men. That included anal rape by Afsheen Hussein and also by Azhar Hussein, digital vaginal rape by Azhar Hussein, as D fellated another offender, and other forms of sexual abuse. ...

[10]

[51] That offence ultimately led to their undoing. The police were able to identify the vehicle and the co-offenders. Those co-offenders [the applicants] implicated the Husseins, which in turn led to their DNA being identified, and thus their involvement in the rape of C. The co-offenders regarding D had entered pleas of guilty to raping her on 17 January 2006, and a sentence hearing was held on 6 March 2006 in respect of them, and finalised on 7 March; and it was clear that they were available as Crown witnesses against the Husseins for the offences committed on D. On 9 March 2006 the two Husseins, who had pleaded not guilty to those offences on 18 January 2006, changed their plea to one of guilty."

[11]

[8] To this summary of the applicants' offending should be added that not all the four offenders wore a condom during the attack. They humiliated, taunted and ridiculed the complainant throughout. When they finally ceased their base behaviour towards her, they abandoned her alone, late at night, in an isolated part of Mt Coot-tha, taking her purse. Fortunately, she was able to obtain assistance from a woman in a car parked at the summit who happened to be an off-duty police officer. The complainant suffered tenderness, fine splits and lacerations in the genital and anal area and substantial psychological harm.

[12]

[9] Camera footage from outside a convenience store in Fortitude Valley, where the applicant, AAH, picked up the complainant, and from traffic cameras, led police to him. They interviewed him on 18 February 2005. He had by then admitted to a friend that he, with the applicant, AAG, and the Husseins, had been involved in an incident at Mt Coot-tha with a prostitute; that she had been threatened with a screwdriver; and that each of them had sex with her. The four offenders met to discuss what they should do. On 16 February 2005, the applicant, AAG, arranged for a friend to repaint his van. Police interviewed AAG on 19 January 2005. Both applicants initially gave untruthful self-serving accounts to police, but they did inculpate the Husseins in this offending. This in turn, through DNA evidence, led to the Husseins' conviction on both these offences and the rape offences committed in September 2004 on the complainant, C. On 20 February 2005, the applicant, AAG, told police that he wished to take part in a second record of interview. He then made admissions implicating him and his co-offenders. Both applicants pleaded guilty at a very early stage after a full hand-up committal so that the complainant was not cross-examined. They were available to give evidence against the Husseins who finally pleaded guilty on 9 March 2006.

[13]

[10] The co-offender, Afsheen Hussein, was 24 at the time of these offences and 26 at sentence. He held the screwdriver at the complainant's throat and threatened to kill her if she did not do as she was told. The co-offender, Azhar Hussein, was 19 at the time of the offences and 21 at sentence. Both Afsheen and Azhar Hussein had some prior minor convictions but none of a like kind. They each pleaded guilty to the present offences, after they were convicted following a trial of the offences involving the complainant, C. Their pleas of guilty to the offences committed against complainant D were entered some months after the applicants pleaded guilty. On the offences against D with which they were charged with the applicants, Afsheen Hussein was sentenced to 11 and a half years imprisonment and Azhar Hussein to 11 years imprisonment. In relation to the offences committed against C, Afsheen Hussein was sentenced to 15 and a half years imprisonment and Azhar Hussein to 15 years imprisonment. Pre-sentence custody was declared to be time served under the sentence.

[14]

[11] Mr Smith emphasised that both applicants were reasonably youthful offenders who pleaded guilty at an early stage and cooperated with the authorities. Their cooperation is noteworthy for its extraordinary and surprising effectiveness. It led to the conviction of the Husseins, not only on these offences against D but also on the rape offences against C the previous September. Mr Smith contended that in these circumstances the judge gave insufficient weight to their cooperation with the authorities and to s 13A. He contended that comparable authorities demonstrate that a sentence after a trial of between 10 to 12 years imprisonment was the appropriate starting point, relying on R v Flew[3] and R v Hussein & Hussein. An offender sentenced under s 13A is often given a deduction of 50 per cent or more from the sentence otherwise applicable: R v Thompson[4] and R v D & Attorney-General of Queensland.[5] The applicants' effective cooperation resulted in the apprehension and conviction of their co-offenders, not only for these offences but also for an earlier series of offences on another complainant. It warranted a greater reduction in penalty than the 23 per cent given by the primary judge. Mr Smith contended that the notional head sentence ought to have been reduced to between five and six years imprisonment with a serious violent offence declaration or, alternatively, that the judge should have taken into account the mitigating matters, especially the s 13A matter, by not imposing a serious violent offence declaration. He pointed out that, at present, the Husseins will be eligible for parole after 8.8 years on these offences and the applicants after 6.8 years. In light of the applicants' cooperation, a potential two or two and a half year difference in the time of imprisonment to be served for these offences by the Husseins compared to the applicants would give the applicants a justifiable sense of grievance and amounts to a miscarriage of justice. The interests of justice warrant the granting of the applications to set aside the abandonment and the re-instatement of the applications for leave to appeal.

[15]

[12] In understanding the sentencing judge's approach, the prosecutor's submissions at sentence are relevant. They were as follows. Had the applicants been convicted after a trial, they would have been liable to a sentence in the order of 15 years imprisonment or more. The plea of guilty and other factors in their favour warranted a reduction in the head sentence to 12 to 13 years imprisonment. The applicants' agreement to give evidence in this case against the Husseins warranted an additional substantial discount on their sentences under s 13A. A head sentence of about 10 years imprisonment would adequately reflect the applicants' level of cooperation.

[16]

[13] Although not stated in terms, the judge seemed to act on the prosecutor's submission that a 15 year head sentence would have been appropriate had AAG and AAH been convicted following a trial. Serious as was the applicants' offending against D, the authorities relied on by the respondent to support a notional 15 year head sentence after a trial are unpersuasive in light of the applicants' relative youth and lack of prior relevant convictions. In attempting to do so, the respondent relied on R v Mitchell[6] and R v Mason & Saunders,[7] who were all co-offenders and were convicted after a trial of repeatedly raping the complainant, sodomising her and forcing her to engage in oral sex. The offending continued over some hours and she was sometimes simultaneously sexually assaulted by more than one offender in more than one way. Mitchell gave evidence at the trial. Mason was about 33 years old at the time of his offending and had a lengthy prior history for offences of violence, including indecent assault on a female and aggravated assault on a female. Saunders was 27 years old at sentence and had some prior history including assault occasioning bodily harm on a female. Mitchell was 32 at sentence and had a significant criminal history for offences of violence including a conviction for grievous bodily harm for which he was sentenced to four years imprisonment. Their rape offences were committed prior to the 1997 amendments which introduced Pt 9A to the Penalties and Sentences Act 1992 (Qld). The complainant received cuts to her lips, bruises to her breasts and buttocks and lower back, scratches to her knees and back, tenderness and lacerations with some bleeding to the genital area and tenderness of the anus. Mitchell was sentenced to an effective term of 15 years imprisonment, Mason to an effective term of 14 years imprisonment and Saunders to an effective term of 12 years imprisonment. On appeal, this Court held that Pt 9A had no application to their sentencing, but refused their applications for leave to appeal against sentence other than to set aside the declaration that the offences were serious violent offences under Mitchell, Mason and Saunders were all older than the applicants and had much worse criminal histories. Mitchell and Mason & Saunders suggest that the applicants after a trial would probably have been sentenced between 11 and 13 years imprisonment.

[17]

[14] In Hussein & Hussein,[8] Jerrard JA, with whom Jones and Atkinson JJ agreed, reviewed the cases said to justify the sentence imposed on the Husseins of 15 and 15 and a half years imprisonment for the offences against C, including Mitchell and Mason and Saunders and also R v Barclay,[9] R v Penniment[10] and R v Gerrits.[11]

[18]

[15] In Barclay and Penniment, sentences of 15 years imprisonment were imposed for rape offences after a trial. Barclay involved the rape of a woman whilst she was sleeping in her accommodation. Barclay bashed her so severely in the chest and face that she could barely see and she felt herself losing consciousness. Barclay had prior convictions, including for rape and for assault occasioning bodily harm.

[19]

[16] In Penniment, the applicant pleaded guilty to burglary, rape and rendering a female incapable of resistance by methods calculated to choke. Penniment also broke into the complainant's dwelling when he knew that her boyfriend was away intending to rape her. He used "an appalling degree of force in a prolonged attack".[12] He was sentenced to 15 years imprisonment with a parole recommendation after six years, no doubt to reflect his guilty plea. This Court described the sentence as "at the top of the range" but not manifestly excessive.

[20]

[17] In Gerrits, the offender again broke into the complainant's home at night. He assaulted her with a bottle which broke, cutting her scalp and face. He threatened to kill her daughter and forced the complainant to have sexual dealings including anal rape. This Court upheld a sentence of 16 years imprisonment imposed after a trial.

[21]

[18] This Court in Hussein considered that the review of those cases demonstrated that the head sentence imposed on the Husseins of 15 and 15 and a half years imprisonment was too high if they were being dealt with solely for the offences committed against C in September 2004 (in which the applicants in the present case were not involved). This Court concluded, however, that the 15 and 15 and a half year sentences imposed on the Husseins were global head sentences, reflecting their overall criminality for all the offences, including those offences which they committed with the present applicants.[13] For that reason, this Court refused the Husseins' application for leave to appeal against sentence noting that:

[22]

"they preyed upon two vulnerable victims, and the circumstances of both sets of offences involved a considerable risk of actual violence if the victim began to resist. The fact that there were two separate episodes of rape means that the 15 year head sentence, although high, was not manifestly excessive."[14]

[23]

[19] This analysis strongly suggests that the prosecutor's submission at sentence, on which the primary judge seemed to act, that a 15 year term of imprisonment for the applicants would have been appropriate after a trial, was wrong. The applicants' comparative youth, lack of prior similar convictions, and the fact that the complainant (no doubt through her own level-headedness) was not badly physically injured, suggest that, were the applicants convicted of the present offences after a trial, a sentence in the range of 11 to 13 years would have been appropriate.

[24]

[20] In his in-camera sentencing remarks under s 13A, the judge indicated that, but for the additional s 13A cooperation, he would have sentenced the applicants to an effective term on the rape charges of 11 years imprisonment. Accepting the notional head sentence after a trial at about 11 to 13 years imprisonment, a discount of at least two years for the applicants' early plea of guilty (without the additional s 13A cooperation) equates to a discount of about one-sixth. Such a deduction was insufficient to give adequate weight to the mitigating factor of the applicants' timely pleas of guilty. This is an especially important factor in sentencing sexual offenders. The result here is that the complainant was not required to give evidence at the committal proceedings and the applicants' pleas of guilty saved her from the unpleasant experience and further disruption to her life of giving evidence about intimate matters at trial. Although there is no mathematical formula and every case will turn on its own circumstances, courts give very significant discounts to sex offenders who plead guilty and save the complainant from giving evidence at committal and trial, usually in the range of one-quarter to one-third of the head sentence applicable after a trial. Where apposite, a parole eligibility date may also be fixed somewhat earlier than the usual half way point. Of course, the overall sentence must still be within the appropriate range to reflect the criminality of the offence. The discount apparently given by the sentencing judge of two years imprisonment for the applicants' cooperation with the authorities and early plea of guilty (other than the s 13A cooperation) was insufficient. Adopting the appropriate notional head sentence of 11 to 13 years imprisonment for a sentence following a trial, and a deduction of about one-quarter to one-third for the conduct of the case and the early plea of guilty, a head sentence in the vicinity of about nine years imprisonment should have been imposed.

[25]

[21] The applicants then had the additional mitigating feature of their s 13A cooperation. In Thompson, this Court emphasised the importance of giving a substantial and discrete discount to offenders who provide information to police to assist in the investigation of other offences, particularly those in which the offender was not involved. In the circumstances of that case, the Court reduced Thompson's notional head sentence by 40 per cent and then made a recommendation for parole after one-third of that sentence.[15] Thompson is not, however, authority for the proposition that a 40 per cent deduction should be given in every case where offenders implicate others. Each case will turn on its own circumstances. The primary judge considered that the appropriate discount was about three years imprisonment from the 11 years imprisonment he would otherwise have imposed. This equated to a discount of a little less than one-quarter. That seems an appropriate proportional discount in all the circumstances of this case. Applying a similar proportional discount to the nine year term of imprisonment which would have been imposed but for the additional s 13A cooperation, the appropriate sentence also taking into account the applicants' s13A cooperation, appears to have been about seven years imprisonment.

[26]

[22] The applicants' offending was extremely serious. It was premeditated, committed in company, and was of a gravely anti-social nature. Three of the offenders hid in the vehicle driven by the AAH, who lured the complainant into the vehicle. The complainant was taken to an isolated area where the other three offenders revealed themselves. She was then threatened with a screwdriver and must have been in fear of her life. The offenders humiliated her in the commission of the offences and abandoned her in an isolated area at night with callous disregard for her safety or her very humanity. The circumstances warranted a declaration that the rape offences were serious violent offences, both because of the circumstances of the offences themselves and to maintain parity with the sentences imposed on the Husseins for this offence.

[27]

[23] It follows from this analysis that I am persuaded that there is considerable force in Mr Smith's submissions, at least after reviewing the cases relied on by the parties, that the applicants have received a sentence of imprisonment about 18 months heavier than they should have. They made a decision, based on legal advice, to abandon their applications for leave to appeal against sentence. My analysis suggests that legal advice was not a correct objective analysis of the applicable law. Having to potentially serve 18 months imprisonment more than was justified amounts to a miscarriage of justice. It may be that additional material and case law will be placed before the court hearing the applications for leave to appeal against the sentence which demonstrate that the applications should be refused. But I am presently satisfied that the interests of justice require the granting of their applications to set aside the abandonment and to re-instate the applications for leave to appeal.

[28]

[24] In each case, I would set aside the abandonment of the application for leave to appeal and reinstate the application for leave to appeal

[29]

[25] HOLMES JA: I agree with the President that the error she has identified as to the starting point for the imposition of sentence warrants the setting aside of the abandonment of the applications for leave to appeal and reinstatement of those applications.

[30]

[26] A LYONS J: I agree with the reasons of McMurdo P and agree that the abandonment of the applications for leave to appeal should be set aside and the applications for leave to appeal should be re-instated.

[31]

[1] See file no 85 of 2006 and file no 86 of 2006.

[32]

[2] [2006] QCA 411 at [50]- [51].

[33]

[3] [2008] QCA 290.

[34]

[4] [1994] QCA 393; (1994) 76 A Crim R 75.

[35]

[5] [1995] QCA 332.

[36]

[6] [1998] QCA 31.