Court of Appeal (Qld)|1994-09-12|Before: Fitzgerald P, Davies JA, MacKenzie J

The application for leave to appeal has been made on the grounds that the sentences were manifestly excessive and that in all the circumstances a recommendation for parole was warranted.

The applicant was 21 years old at the time of the commission of the offences, 22 at the time of the sentencing, and has a number of previous convictions, none of which was sufficiently serious to attract a term of imprisonment.

It is necessary to refer to the facts in some detail. The applicant and the 18 year old complainant met at a Surfers Paradise nightclub. The left the nightclub and went via Cavill Mall to the beach. They lay down and kissed, but when the applicant touched the complainant's breasts she removed his hand. He said she was teasing him and she replied that she was menstruating. She went to stand up and the applicant took her by the arm and led her further up the beach where they lay down. Nothing was said. The applicant then suddenly sat astride her and began to strangle her with his hands. She resisted and then blacked out. She has no memory of the offences beyond that point.

The complainant was found unconscious on the beach around four hours later at about 6 a.m. with her panties removed, her jeans about her ankles and her breasts exposed. The woman who found her, a Ms Corby, managed to restore the complainant to consciousness. Blood ran from the complainant's nose, mouth and ear when she sat up. She became hysterical, had trouble walking, vomited repeatedly, brought up blood and could hardly speak.

She was taken to hospital and noted to have facial discolouration, extensive subconjunctival haemorrhages about the eyes and scratches, bruises and abrasions about the neck consistent with an attempted throttling. There was evidence of cerebral hypoxia, that is, lack of oxygen to the brain causing mental confusion, vomiting and motor disturbance. The examining doctor concluded that the complainant was throttled for 30 seconds or more and given that death occurs from such pressure for two minutes, the doctor considered the complainant was close to death.

The complainant's vagina was red and tender. There was a small tear in the posterior fourchette and semen consistent with it having come from the applicant was found in the complainant's vagina.

The complainant had photographs of the applicant which had been taken earlier at a nightclub and he was promptly identified and apprehended. When questioned, the applicant claimed to have no recollection of the events of the night in question due to extreme intoxication, a claim persisted in when interviewed by a psychiatrist and again on sentence.

Dr Mulholland considered that the applicant had some personality disorder, but that the only reason for the offences appeared to be the result of alcohol and marijuana intoxication superimposed upon that personality disorder.

The complainant gave evidence on sentence and referred, amongst other things, to having to take time off work, going to psychiatrists every day for a good while, being paranoid about people following her, crying a lot, a loss of friends, problems with trusting people and starting new relationships and her family being affected to the point where her parents had broken up.

The sentencing Judge was plainly influenced by the psychological effect of the crime upon the complainant, the fact that the throttling had taken place and that the applicant had left the complainant unconscious on the beach alone and in the condition in which he left her.

His Honour said that the term of imprisonment which he imposed took full account of the plea of guilty and no doubt was also intended to take account of the applicant's youth and relatively immaterial earlier criminal history, except in so far as that reflected, perhaps, a disinclination to recognise legal obligations.

For the applicant, it has been submitted that the sentence is at the higher end of the range for such offences, that the sentencing Judge erred in placing too little weight on the applicant's youthfulness, plea of guilty and demonstration of remorse and his lack of any significant previous convictions and that His Honour should have reflected these mitigatory features by recommending parole at an earlier date than the applicant would be entitled to at the moment and, during the course of argument, a period of four years as the date for an appropriate recommendation for consideration on parole was mentioned.

For the respondent, on the other hand, it was submitted that the sentencing Judge was correct in identifying the extreme violence, the fact that the applicant left the complainant unconscious and the emotional and psychological effects on her as serious aggravating features, that having regard to the overall criminality it was appropriate to impose the same penalty on both counts, that the applicant's age and the fact that his conduct was said to be out of character were properly taken into account and given appropriate weight and that the sentence was within range and not manifestly excessive, and our attention was drawn to some sentences described as comparable.

I have found little assistance in the comparable sentences we were referred to, not surprisingly, perhaps, because these are all difficult cases. The complainant has been severely traumatised by the applicant's outrageous violent behaviour for which he must be heavily penalised. The victim and the community are entitled to demand no less. At the same time, the applicant and the community have an interest in the applicant's rehabilitation. Finally, the community has an interest in general deterrence.

Balancing these matters as best I can, and particularly, perhaps, having regard to the circumstance that this outrageous behaviour arose out of a frequent youthful activity of attendance at nightclubs, and there is no suggestion that the complainant in any way encouraged the applicant in his behaviour, I am not satisfied that we would be justified in interfering with the sentencing Judge's discretion and I would, accordingly, refuse the application.

THE PRESIDENT: The application for leave to appeal against sentences is refused.

R v Broissand [1994] QCA 437 (12 September 1994)

R v Broissand [1994] QCA 437

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R v Broissand [1994] QCA 437 (12 September 1994)