R v Coghlan [1997] QCA 270

All of the offences were committed on 5 May 1996 at Loganlea, and for all but one - one assault occasioning bodily harm - the complainant was a woman aged twenty-two years who lived alone in a home unit. Before the morning in question she and the applicant were strangers. At about 2.00 a.m. she was in bed. The applicant forced open a locked door of her unit. He demanded drugs and money and then subjected her to many outrages: he tried to choke her, dragged her by the hair from room to room looking for money, licked her breasts, bit her, put frozen meat from her refrigerator on her nipples, and raped her three times. After the third rape she escaped. A neighbour pursued the applicant and confronted him in a nearby yard. The applicant knocked the neighbour down, kicked him, and then escaped. The neighbour suffered bruising and a laceration to an eyelid which required suturing.

The applicant, who was born on 11 November 1974, had an unfortunate early life. A report dated 15 February 1997 by Dr Andrew Leggett, consultant psychiatrist, was before his Honour. In it Dr Leggett recorded that the applicant is the father of a daughter aged one year, and that he had assumed shared responsibility for the "parenting" of the mother's daughter aged four years. Dr Leggett gave these details of the applicant's background:

"Prior to being taken into custody in relation to the [offences for which he was sentenced on 13 March 1997], Mr Coghlan had been employed as a welder for six months. Between periods of unemployment, Mr Coghlan has worked in various positions since leaving home at the age of fourteen years, including unskilled factory work, a brief stint as an apprentice boilermaker at the age of fifteen, and numerous casual labouring positions during periods of itineracy.

Mr Coghlan spent his childhood years in Sydney living with his mother and two brothers. Mr Coghlan's father, a council labourer, left them before Christopher turned four years of age. The father is remembered as a heavy drinker who treated the mother violently. There was no regular contact with his father from that time on. He describes his mother as ´a nice lady .... she's always been there for us but she done some pretty bad things when we were kids.' Mr Coghlan told me she had once pushed his head through a glass door and that she frequently sprinkled thumb tacks on the floor of the boys' bedroom to discourage them from getting up during the night. Mother brought a sequence of her male companions into the boys' lives, most of whom were not unlike the boys' father in that they drank heavily, abused her verbally and frequently beat her. When Christopher was thirteen, his mother took him and his brothers to Brisbane with her when she and her male companion of the time moved up from Sydney. Christopher remembers this man as probably the worst of his stepfathers. As well as heavy drinking and violence towards the mother, this man's weaknesses included heroin addiction and a tendency to bully and terrify the children. During this man's relationship with his mother, Christopher remembers the family's life as being very chaotic, unstable and frightening. They were ´in and out of women's refuges' at this time. This man was replaced as his mother's partner by a very authoritarian Vietnam veteran who treated his mother better, but developed a mutually antagonistic relationship with Christopher who saw the strict discipline imposed on him as a ´power trip'. Christopher reports the man delivering his mother with an ultimatum - ´him or me .... I lost'.

At the age of fourteen, Mr Coghlan was, as he states in his own words. ´kicked out of home'. He journeyed back to Sydney, where he lived on the streets according to his own resourcefulness and the benefits of Young Homeless Allowance. He lived a highly itinerant existence, sleeping in youth shelters or in temporary accommodation provided by friends and acquaintances. He had paid work when he could obtain it and managed to sustain employment for up to three months at a time. Unfortunately he began to drink alcohol heavily and to abuse cannabis at this time. His first experience of sexual intercourse occurred under such circumstances. At the age of fifteen, Mr Coghlan reports being willingly seduced by a woman in her early twenties whom he met while sharing accommodation at a friend's house. More unfortunately, he also became involved in breaking into houses and stealing. He was apprehended and found guilty of these offences on one occasion, receiving a fine and a term of a good behaviour bond. He was later convicted of possession of cannabis, amphetamines and an illegal utensil.

When he was sixteen, he moved back to Brisbane where he again resided temporarily with his mother before resuming his pattern of intermittent itinerant labour, unstable relationships, and substance abuse with bouts of severe intoxication. During these binges of alcohol and cannabis consumption, Mr Coghlan reports that he would frequently perform acts that he acknowledges were cruel, violent and irresponsible. After such binges, he would often have little or no recollection of these antisocial actions. Friends would later tell him that he had been belligerent, involved himself in disputes leading to violent altercations or cruelly mistreated his dog. He was reluctant to believe the stories he was told, but he noticed that his dog avoided him for several days after these incidents and reports feeling remorseful on occasions that he had made the animal suffer. On one occasion he stole a friends car to go joy riding, returning it after the matter had been reported to the police. The friend withdrew the charges, so the matter did not go to court."

Dr Leggett observed that the applicant had no past history of psychiatric illness, other than the history of substance abuse and the "deficits of personality development" he had referred to in the passage quoted. Dr Leggett gave this assessment of the applicant's mental condition:

"It is my opinion that Christopher John Coghlan was not suffering any major mental illness at the time that I interviewed him. His history suggests that he fulfils DSMIV (American Psychiatric Association) criteria for diagnoses of substance misuse disorder and antisocial personality disorder. I do not believe that Mr Coghlan has undergone any major personality change when affected by alcohol in combination with cannabis use. Rather it is my opinion that preexisting personality traits were exaggerated and previously unconscious impulses disinhibited and unmasked by the intoxicating effect of this combination of drugs, especially by the alcohol. I believe that it is more probable than not that at the time of the time of the alleged offences, Mr Coghlan was not deprived of any of his capacities under section 27 of the Criminal Code, although it is likely that the combined intoxication with alcohol and cannabis diminished his capacity to control his actions, but did not completely deprive him of it. I also consider him fit to plead to and face the charges in the District Court."

The applicant did not have an extensive criminal history. On 27 July 1990 he was before the Camden Children's Court in New South Wales on a charge of breaking, entering and stealing and was required to enter into a recognizance for twelve months. On 14 September 1990 he appeared before the same court on charges of carrying a cutting implement, an offence recorded simply as "possn equipment", and three drug offences. He was placed on probation for twelve months on each charge and fined $30.00. On 17 December 1996 he came before the Beenleigh Magistrates Court on a charge of breaching a domestic violence order. No conviction was recorded, and he was released on his entering into a recognizance in the sum of $500.00 on the condition that he be of good behaviour for one year.

His Honour took into account the remorse the applicant had expressed for what he had done, and that the applicant had pleaded guilty to the offences thus sparing the woman the ordeal of giving evidence. His Honour observed that it had been said on his behalf that he was heavily intoxicated by alcohol and "to some extent" by marijuana and that that provided an explanation. His Honour added that in his view it did not constitute a mitigating circumstance. He said it was one of the worst home invasion cases he had encountered. Such cases were becoming "all too frequent", he said.

On behalf of the applicant Mr Glynn S.C. submitted that his Honour gave insufficient weight to the applicant's youth, his deprived upbringing and its consequences, the absence of any serious prior criminal convictions, the fact that at the time of the commission of the offences the applicant was grossly affected by the consumption of alcohol and marijuana, his remorse, and his early plea of guilty. In addition we were asked to consider the possible application of recent amendments to relevant legislation.

We were referred to a number of unreported decisions of the Court of Criminal Appeal (R v. Kwan, C.A. no. 65 of 1988, 23 May 1988; R v. Griinke, C.A. no. 278 of 1990, 7 December 1990; and R v. Gerrits, C.A. no. 158 and C.A. no. 192 of 1991, 4 October 1991) and the Court of Appeal (R v. Penniment, C.A. no. 38 of 1992, 29 April 1992; R v. Williams, C.A. no. 136 of 1996, 6 June 1996; R v. Schwartz, C.A. no. 311 of 1996, 19 September 1996; R v. Currie, C.A. no. 320 of 1996, 2 October 1996) concerning sentences passed on intruders who had attacked women in their residences. In addition R v. Soper, C.A. no. 119 of 1994, 15 June 1994, a case of rape in a shower block of a caravan park, and R v. Riley, C.A. no. 155 of 1992, 7 September 1992, a case of abduction and rape, were mentioned. On behalf of the applicant reliance was placed in particular on R v. Griinke in which the Court of Criminal Appeal substituted for sentences imposed by the judge at first instance concurrent sentences of imprisonment for twelve years for a rape and three years for burglary on a man of twenty-eight years who had pleaded guilty to those offences. A recommendation was added that he be considered for parole after serving four and a half years. There was evidence that he had a history of epilepsy and had been slightly mentally retarded from birth. He knew his victim for whom he had done odd jobs. She was fifty-three years old and lived alone. Griinke had threatened and punched the victim causing a fracture of a cheek bone.

Mr Glynn submitted that for his client's case R v. Griinke "probably is as good an indication as you'll get of what is an appropriate sentence and it indicates that the sentence of fourteen years is far too high". Precise comparisons in matters of sentence are not possible, but bad as Griinke's offences were it appears to me that this applicant's attack was substantially worse in its sustained ferocity and sadism. Furthermore, consideration of the other cases demonstrates that the penalties imposed on the applicant were within the range applicable to this case.

In R v. Rosenberger, ex parte Attorney-General [1994] QCA 488; [1995] 1 Qd.R. 677 the Court of Appeal held that unless there is something which, whether wholly or partly, excuses the taking of alcohol or other drugs by an offender, ordinarily the offender's intoxication, whether by alcohol or drugs, will not mitigate penalty. The subject of the effect of evidence of intoxication on sentence arose again in R v. Hammond (an unreported decision of the Court of Appeal, C.A. no. 445 of 1996, 10 December 1996). The applicant in that case sought leave to appeal against sentences imposed on him for three armed robberies, one attempted robbery, and two instances of unlawful use of motor vehicles with circumstances of aggravation. In the judgment of the court the following appears:

"Mr Bullock for the Crown submitted that it was incorrect to draw attention to the applicant's previous good character as by his admission of heroin addiction since about August 1994 he had been constantly breaking the law. He also maintained that because of the applicant's previous level of addiction to the drug his prospects of rehabilitation were not as positive as was submitted by Mr Martin. He referred to R v. Rosenberger [1994] QCA 488; (1994) 76 A Crim R 1 as authority for the proposition that a sentence ought not to be reduced because of the applicant's addiction to heroin. That was a case where the sentencing judge had taken into account in mitigation the respondent's heavy drinking prior to raping an elderly woman. This Court observed that the proper policy was to decline to give an offender the benefit of a reduction in sentence on the ground of his drunkenness at the time of the offence particularly in cases involving personal violence and more particularly as an excuse for rape. The Court cannot be taken to have intended to extend its observations, as Mr Bullock submitted it had, to exclude all circumstances of drug addiction as a mitigating factor in robberies carried out to support such a habit. It cited with approved a passage from R v. Redenbach (1991) 52 A Crim R 95 where the Victorian Court of Criminal Appeal said

´Where ... the Court is satisfied that there is something which, whether wholly or partly, excuses the taking of drink or drugs, it will treat that circumstance as going in mitigation, as where a drunken man who had committed an armed robbery showed that his alcoholism was the result of the painful disease from which he suffered ...'

Mr Martin submitted that because of the applicant's personality defects he was driven to take refuge in drugs from the depression which beset him as a consequence of personal crises, not dissimilar to the notion of painful disease referred to in Redenbach. But here there is nothing to suggest that the applicant was under the influence of heroin when he committed the offences although it might fairly be inferred that his craving for the drug led to the commission of the offences. It is no doubt a truism that all persons who resort to addictive drugs have personality defects of some kind, but Mr Martin wished to emphasise that the applicant's ingestion of heroin was not for recreational purposes. Accepting Dr Wiltshire's assessment of the applicant's personality type, his deficits on that analysis are not such as to reduce his culpability and the deliberation which attended his criminal conduct so as to call for a more lenient sentence, Channon (1978) 33 FLR per Brennan J (as his Honour then was) pp. 436-7, Butler CA No 196 of 1996. However, the fact that the applicant disposed of all of his own possessions and borrowed where he could before turning to crime must be counted as something in his favour.

The true relevance of drug addiction is a factor contributing to the commission of crime and its effect in the sentencing process has never been adequately explained. In our view it is a factor that may help an offender to the extent of showing that his or her descent into the crime in question was a secondary consequence of desperation produced by a human weakness rather than a primary choice. It may be inferred in many cases (and the present cases is very much in point) that the offender would almost certainly never have become a thief but for loss of control of an ordered life through drug addiction. The proposition that the results of drug addiction are self-inflicted is half true and therefore dangerous. The offender must of course be held responsible for his or her own actions. The drug addiction is not an excuse; but it is a factor that may tell the court that the real weakness of character is that of a drug addict rather than that of a robber. That may be by no means inconsequential. It is however a two-edged factor; it may also tell the court that rehabilitation is going to be difficult.

Just how these factors are to be applied to particular cases had not been spelled out, and it may be undesirable to attempt to do so. In our view the fact that drug addiction has led to criminal activity can properly lead to a wider understanding of the offender's character and motivation for the crime. Depending on the circumstances of the particular case this may sometimes show the offender to be less deserving of condemnation than the primary facts, without more, might suggest.

The present case is such a case because the applicant, despite a difficult upbringing, was on a successful career path when a personally devastating event precipitated a genuine breakdown resulting in admissions to a psychiatric hospital. His descent into drug addiction is not excusable, but it is more readily explained in this case than usual. Further, his said descent, including the gradual sale of all his possessions including his home unit, car and even clothes, before exhausting his capacity to borrow from friends prior to his commission of the offences says something in favour of the applicant's character. Other circumstances including the responsible attitude of the applicant and his actions to overcome the drug habit also suggest that he is a good candidate for rehabilitation."

Mr Glynn submitted that his client was, by a similar process of reasoning, less deserving of condemnation that primary facts alone would suggest: what he did on 5 May 1996 was, Mr Glynn argued, a product of the disorders mentioned by Dr Leggett which were at least in part attributable to his deprived childhood. There are substantial obstacles to the application of that analysis to this case. In the first place, Dr Leggett's diagnosis of the disorders was tentative: "[h]is history suggests that he fulfils DSMI . . . criteria for diagnoses of substance abuse disorder and antisocial personality disorder" (my emphasis). That comment is hardly a sure foundation for an argument of the kind advanced by Mr Glynn. Secondly, this case was not - as Mr Glynn conceded - one in which descent into crime could be regarded as a consequence of desperation. The applicant had not suffered a breakdown and decline as Hammond had: he had held down a job as a welder for the six months before he was arrested. Thirdly, while an offender who has committed a crime while tormented by a craving for drugs may possibly deserve less condemnation than the bare facts of the crime might suggest, I can see no proper basis for arriving at the same result in the case of an attack by an intoxicated man on a defenceless woman. In the latter case the principle explained in R v. Rosenberger, ex parte Attorney-General is applicable. I therefore see no merit in Mr Glynn's submissions on the evidence of his client's drinking and drug-taking, and hence no flaw in his Honour's conclusion on that subject.

At the hearing of the application a question arose as to whether amendments to the Penalties and Sentences Act and to the Corrective Services Act 1988 made by the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997, the relevant provisions of which commenced on 1 July 1997, had the effect of overriding the recommendation concerning parole made by his Honour.

The 1997 Act provided in s.10 for the insertion of a new Part 9A in the Penalties and Sentences Act:

"PART 9A-CONVICTIONS OF SERIOUS VIOLENT OFFENCES

When an offender is convicted of a serious violent offence

161A. An offender is convicted of a serious violent offence if-

(A) against a provision mentioned in the schedule; or

(B) of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in the schedule; and

(ii) sentenced to 10 or more years imprisonment for the offence, calculated under section 161C; or

(b) the offender is convicted on indictment and declared to be convicted of a serious violent offence under section 161B(3) or (4).

Declaration of conviction of serious violent offence

161B.(1) If an offender is convicted of a serious violent offence under section 161A(a), the sentencing court must declare the conviction to be a conviction of a serious violent offence as part of the sentence.

(2) However, the failure of the sentencing court to make a declaration as required under subsection (1) does not affect the fact that the offender has been convicted of a serious violent offence.

(i) against a provision mentioned in the schedule; or

(ii) of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in the schedule; and

(b) sentenced to 5 or more, but less than 10, years imprisonment for the offence, calculated under section 161C;

the sentencing court may declare the offender to be convicted of a serious violent offence as part of the sentence.

(i) that involved the use, counselling or procuring the use, or conspiring or attempting to use, serious violence against another person; or

(ii) that resulted in serious harm to another person; and

(b) sentenced to a term of imprisonment for the offence;

the sentencing court may declare the offender to be convicted of a serious violent offence as part of the sentence.

161C.(1) This section applies for deciding whether an offender is sentenced-

(a) under section 161A(a)-to 10 or more years imprisonment (the ´specified years' of imprisonment); or

(b) under section 161B(3)-to 5 or more, but less than 10, years imprisonment (also the ´specified years' of imprisonment);

(c) against a provision mentioned in the schedule; or

(d) of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in the schedule.

(2) An offender is sentenced to the specified years of imprisonment if-

(a) the offender is sentenced to a term of imprisonment of the specified years for the offence; or

(b) the term of imprisonment to which the offender is sentenced for the offence is part of a period of imprisonment of the specified years imposed on convictions consisting of the conviction on which the offender is being sentenced and any 1 or more of the following-

(i) a conviction of an offence mentioned in subsection (1)(c) or (d);

(ii) a conviction declared to be a conviction of a serious violent offence under section 161B.

(3) For subsection (2), whether the offender is sentenced to the specified years of imprisonment must be calculated as at the day of sentence.

Sentence for serious violent offence cannot be remitted

161D. The sentence of an offender convicted of a serious violent offence cannot be remitted under the Corrective Services Act 1988."

Rape, robbery with personal violence, attempted robbery, burglary contrary to s.419(3)(b) of the Criminal Code but not as alleged in the indictment against the applicant, sexual assault (which includes indecent assault), and assault occasioning bodily harm are all offences against provisions mentioned in the schedule.

Section 24 of the 1997 Act provided for the omission of paragraphs (a) and (b) of s.166(1) of the Corrective Services Act and the insertion of the following paragraphs:

"(a) if the prisoner is serving a term of life imprisonment and the Criminal Code, section 305(2) applied to the prisoner on sentence-until the prisoner has served the period required under an order under the subsection, or, if no order was made, 20 years; or

(b) if the prisoner is serving a term of life imprisonment and the Criminal Code, section 305(2) did not apply to the prisoner on sentence-until the prisoner has served a period of 15 years; or

(c) if the prisoner is serving a term of imprisonment for a serious violent offence-until the prisoner has served the lesser of the following-

(i) 80% of the term of imprisonment to which the prisoner was sentenced;

(d) otherwise-until the prisoner has served half of the term of imprisonment to which the prisoner was sentenced."

"166.(1) Subject to the subsection (4) of this section and the Penalties and Sentences Act 1992, section 157, a prisoner mentioned in section 165(1)(a)(i) is not eligible for release on parole-

(a) in the case of a prisoner serving a term of life imprisonment-until the prisoner has been detained for a period of 13 years;

(b) in the case of any other prisoner-until the prisoner has served at least half of the term of imprisonment to which the prisoner was sentenced."

Subsection (4) of s.166 provides that the Queensland Community Corrections Board may in certain cases where it is satisfied that there are "special circumstances relating to a prisoner" release that prisoner on parole at any time. Section 157 of the Penalties and Sentences Act deals with eligibility for parole. A prisoner mentioned in s.156(1)(a)(i) is a prisoner who is serving a term of imprisonment (including a term of life imprisonment).

Section 9 of the 1997 Act provided for the insertion of the following new subsection (7) in s.157 of the Penalties and Sentences Act:

(7) If an offender is convicted of a serious violent offence-

(a) the court that sentences the offender for the serious violent offence can not make a recommendation under this section that reduces the period of imprisonment the offender must serve before being eligible for release on parole under the Corrective Services Act 1988, section 166(1)(c); and

(b) no recommendation made under this section by any court can reduce the period of imprisonment that the offender must serve before being eligible for release on parole under the Corrective Services Act 1988, section 166(1)(c)."

Section 16 of the 1997 Act provided for the insertion of transitional provisions for that Act:

´Transitional provisions for Penalties and Sentences (Serious Violent Offences) Amendment Act 1997

´206.(1) Section 157(7)(b) applies to a recommendation made under section 157 even if the recommendation was made before the commencement of section 157(7).

´(2) For subsection 161C(2)(b), sentences of imprisonment imposed on the offender for offences mentioned in section 161C(1)(c) or (d) must be taken into account even if the sentences were imposed before the commencement of part 9A.'."

Section 166(1)(c) of the Corrective Services Act as amended by the 1997 Act applies only if the prisoner is serving a term of imprisonment for a serious violent offence. The expression "serious violent offence" is defined in s.10 of the Corrective Services Act as amended by the 1997 Act by reference to s.4 of the Penalties and Sentences Act as amended by the 1997 Act which gives this definition:

"´serious violent offence' means a serious violent offence of which an offender is convicted under s.161A".

Section 161A did not commence until 1 July 1997 but the applicant was convicted in March 1997. It follows that he was not convicted of a serious violent offence within the meaning of that expression in s.166(1)(c) of the Corrective Services Act as amended, and so that provision does not apply to him unless by operation of some other provision of the relevant legislation s.166(1)(c) could be said to apply.

The only possibility comes from the new s.206 in the Penalties and Sentences Act. His Honour's recommendation was made under s.157 of the Penalties and Sentences Act before the commencement of s.157(7), so does it follow that s.157(7)(b) applies to it? But before s.157(7)(b) can apply to a recommendation the offender must have been convicted of a serious violent offence because the subsection begins, it will be observed, with the words "[i]f an offender is convicted of a serious violent offence". That brings us back to the definition of "serious violent offence" in s.4, so that before s.157(7)(b) can apply to a recommendation made under s.157 of the Penalties and Sentences Act before the commencement of s.157(7) the offender must have been convicted of a serious violent offence within the meaning of that expression in s.157(7). The applicant was not convicted of a serious violent offence within the meaning of that expression because he was convicted before s.161A commenced.

That is as far as I need go in dealing with this matter, but the transitional provisions of the 1997 Act prompt one to ask how s.157(7)(b) applies to recommendations made before s.157(7) - and s.161A - commenced. It appears that it was intended to clarify any question that might arise as to the effect of the survival of a recommendation for parole attached to a sentence of imprisonment imposed before a sentence for a later conviction under s.161A is imposed, as would happen in a case to which s.157(3)(b) applies. Section 157(3) is as follows:

"(3) If a court imposes another term of imprisonment on an offender who is already serving imprisonment for an offence, the court must-

(a) if it is a court of like jurisdiction or higher jurisdiction to the court that last sentenced the offender to a term of imprisonment-make a fresh recommendation for parole relating to the period of imprisonment that the offender must serve; or

(b) if it is a court of lesser jurisdiction to the court that last sentenced the offender to a term of imprisonment, recommend a non-parole period in relation to the fresh term of imprisonment imposed by the court."

It follows that the recommendation made by his Honour concerning parole is not affected by the 1997 amendments.

I should add that it is not necessary for us to consider whether the new provisions have the retrospective effect of applying a new sentencing regime to an offence committed before 1 July 1997 but for which the offender is convicted on or after that day.

Returning to the merits of the application, I conclude it should fail. The applicant's brutality called for severe punishment. The effect on the woman was, as his Honour said, devastating. Giving full weight to the matters relied on by Mr Glynn, I am not persuaded that his Honour's sentencing discretion miscarried.