R v Adcock & Attorney-General of Queensland [1994] QCA 525

Court of Appeal (Qld)|1994-12-02|Before: Fitzgerald P, Davies J, Lee J

This is an appeal by the Attorney-General against sentences of 11 years' imprisonment, in each case with a recommendation that the respondent be eligible for parole after serving three and a half years, for offences of disabling with intent to commit rape and rape. The respondent pleaded guilty to each of those offences on 2 September last and was sentenced on the same day.

The circumstances giving rise to the offences were as follows. The complainant, who was only 15 years of age and still at school, attended a dance at a suburban hall on the night of 19 February 1994. After midnight on that night she went to the home of one of her friends to sleep the night. A male friend accompanied her and was in her company for most of the night. She was offered a mattress on the floor and lay on it to sleep. The respondent, who had arrived at the house because he had been told that there was a party there, came and lay beside the complainant and began to touch and fondle her. She told him she didn't want anything to do with him and to leave her alone. He persisted. When it appears that her protests were not effective she got up, woke her male friend, and asked him to accompany her home. This was at about 4.30 a.m.

She and her friend set off to walk to their respective homes which were about four kilometres away. They paused at a bus shelter along the way and rested for a while. The respondent caught up with them and remained with them. They continued to walk and he followed closely behind. Some distance further along the complainant and her male friend parted company to go to their respective homes. Shortly after this the respondent caught up with the complainant, grabbed her and pushed her down an embankment beside the road. Thereafter his conduct became more violent, culminating in his holding her by the throat and squeezing until she stopped moving. She lost her strength and became frightened and light-headed and was afraid that she would lose consciousness. During all of this time the respondent continued to fondle the complainant both outside and inside her clothes, including inserting his fingers into her vagina. When the complainant cried the respondent became angry and told her to stop crying and to do as he said. She was frightened of him and, as he instructed her, removed her pants and tights.

When it was obvious that the respondent intended to have intercourse with her the complainant asked him to use a condom. He asked her if she was on the pill and she said that she was not. He nevertheless continued and forced intercourse occurred. He then let her go.

Not surprisingly these events have had serious psychological consequences for the complainant. Although she returned to school, she found concentration difficult and as a result left. She has since been unable to obtain a job, no doubt in part because of her lack of education. She also finds it difficult to speak to people, especially men. She has lost her trust in people and finds that when she is out she is constantly looking over her shoulder. She frequently feels depressed, finds it hard to sleep and sometimes has nightmares about the incident. Unfortunately there is no psychological report with respect to the complainant so that it is impossible to say what the prospects are that her condition will improve in the future. Although she speaks of seeing a counsellor, she has apparently not seen a psychiatrist and is apparently not on any medication.

The respondent has a substantial criminal history dating from 1986 including offences of assault occasioning bodily harm in 1987, assault in August 1990, assaulting a policeman in May 1992 and aggravated assault on a female on the same day. When first interviewed by the police in respect of these offences he denied that he had raped the complainant. He said there had been consensual intercourse between them at the house at which he had been sleeping and that he had only followed her because he wanted to see her again. He later admitted to the offences and, by his admission, saved the complainant the anxiety of having to give evidence.

The offences which we have described and for which the respondent was sentenced to 11 years' imprisonment were both violent and revolting. The respondent showed no respect for the young and vulnerable complainant. He ignored her protests, her pleas and her tears and by his conduct could easily have killed her. It is not surprising that she is still suffering the consequences of which she complains. Whether those consequences are permanent or not, and it is unfortunate that we do not have an opinion on this, they will no doubt be with her for a considerable time. It is unlikely that she will ever completely erase the memory of these events. Moreover, these events and the respondent's previous offences of violence show him to be of violent disposition which earlier conviction and punishment has not deterred. We note that he had earlier been ordered to undergo psychiatric treatment. It is unfortunate that there is no psychiatric report with respect to the respondent. Without it, it is impossible to say whether he would benefit from psychiatric treatment. Nevertheless, for the reasons which we have mentioned, deterrence is an important element in this case.

On the other hand, notwithstanding that he has been convicted on 15 previous occasions, he has not previously served a term of imprisonment.

The only other things which can be said in the respondent's favour are that he pleaded guilty at an early stage thereby relieving the complainant of the need to give evidence and saving the State some money; and that he appears to have a stable family relationship with a young wife and two children, having his wife's support and he also appears to have had a reasonable work history.

On the night in question he had consumed a considerable amount of alcohol and had taken some Serepax. These, it was said on his behalf, had clouded his judgment. Although none of this can excuse the respondent's appalling conduct, it, and early reference in his criminal history to an alcohol problem, does indicate that, if he can overcome that problem, there might be some prospect of rehabilitation, having regard to his stable family relationship and reasonable work history.

Although a number of previous cases were cited to us, none of them provided a close analogy to this. Although, because of the violence involved in the commission of this offence and the effect which it has had on the complainant, this case falls into the more serious category of rape offences, the two cases most relied on by the appellant involved offences of even greater and prolonged violence than this. They were: Penniment, C.A. No. 38 of 1992, 29 April 1992 and Riley, C.A. No. 155 of 1992, 7 September 1992. In the first of these the effective sentence was equivalent to 16 years' imprisonment with a recommendation for eligibility for parole after six years, the recommendation being made because of a guilty plea. The rape in that case involved the accused breaking and entering the victim's room in a hotel and violently attacking her for a prolonged period. The attack involved an appalling degree of force which included choking the victim to the point of unconsciousness more than once. The appeal which was by the convicted man against the severity of the sentence was dismissed.

In Riley the effective sentence was 12 years but it involved, in addition to rape, a count of burglary, one of abduction and two of indecent dealing. The convicted man had a very bad previous record including terms in gaol. On the last occasion he had been before the Court he had been given a specific warning, having been guilty of an offence of violence, of the likely result of his continuing with that sort of conduct. As in this case the complainant was a 15 year old girl. Initially the offender threatened to kill her with a hammer and abducted her from her house telling her that he had previously committed murder and robbery. The offence was made worse in that case by conduct which continued over a long period of time. The offender was convicted only after a trial. This Court thought that the sentence of 12 years' imprisonment was a reasonably appropriate one in the circumstances of that case.

If 12 years' imprisonment was appropriate in Riley, it is difficult to conclude that the sentence of 11 years imposed in the present case is outside the range of a sound sentencing discretion. Indeed counsel for the appellant conceded that it was not. If it was within that range, then it was appropriate also to make a recommendation for eligibility for early parole, having regard to the early plea of guilty, the fact that the respondent had not previously served a term of imprisonment and the prospect, having regard to his stable family relationship and his work history, of his rehabilitation.

It is always difficult, in cases such as this, to impose a sentence which will be a sufficient deterrent to the respondent and others and which will satisfy both the complainant and the community that the respondent has been adequately punished for his shockingly callous attack on her; and at the same time which will make proper allowance for the prospect of rehabilitating offenders such as the respondent.

Although in our view the overall sentence imposed in this case, taking into account the recommendation for eligibility for parole, was at the lower end of the appropriate range, we do not think either that any error in principle was discernible in the reasoning of the learned sentencing judge or that the sentence was so low that, in accordance with the principles stated in Melano, C.A. No. 393 of 1994, judgment delivered on 1 December 1994, this Court ought to interfere. The appeal is therefore dismissed.

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