R v Gill; ex parte A-G

[1] de JERSEY CJ: The respondent pleaded guilty to two offences, stalking with a circumstance of aggravation, and attempted rape. He was sentenced to two years imprisonment for the former and a concurrent three year term for the latter, with a recommendation for consideration of post-prison community based release after 12 months. The Attorney-General appeals on the ground the sentences are manifestly inadequate.

[2] The respondent committed the offence of stalking between the end of January and the end of February 2002. He was then 35 years old. He had earlier lived with the complainant for a couple of months and she had fallen pregnant to him. In late January 2002, the complainant told him that she no longer wanted contact with him. Over the following month, the respondent made almost daily contact with her (and often numerous times per day), by telephone calls and text messages, by repeatedly turning up against her wishes at her home, workplace and as she was collecting her car from a car park, by getting into her car and refusing to leave, by entering her house uninvited, and by attempting to break into her house. In the course of this contact he threatened to commit suicide on five occasions. A lot of his approaches involved requests for help in his emotionally disturbed condition. She yielded to a degree, plainly out of compassion for him while hoping he would go away, but persistently made clear her opposition to his continual harassment of her. Early in the piece, he made this threat: "I love you and that's not going to stop. In twelve months time I will still be phoning you. You don't understand my tenacity. Anyone you think you might want to get involved with, I'll intimidate them so they won't get involved with you. You don't know what tactics I'll deploy. Fire a couple of shots through his window. I've got a nice firearm and am a good shot." As the sentencing Judge noted, he is a powerfully built, large man. On 23 February 2002 the complainant had her pregnancy terminated - one infers with a view perhaps to severing all link with the respondent. She was admitted to hospital four days later. As a result of the respondent's repeated attempts to contact her in hospital, the police were involved and he was taken into custody on 28 February 2002. It was a serious instance of stalking because of the effect on the complainant: her life was effectively controlled by her having to deal with the respondent. And in that context, he attempted to rape her. The offence of attempted rape formed part of the conduct relied upon by the Crown for the stalking. It was therefore not appropriate for the learned Judge to impose a cumulative term in respect of the attempted rape, but it fell to the sentencing court to reflect the overall criminality in imposing the penalty for the attempted rape.

[3] The offence of attempted rape occurred early during the month long period. On 8 February 2002, the respondent turned up at the complainant's house late at night. The complainant contacted the police. She spoke to him through a security screen. After several hours, she yielded to his request to be allowed to enter the house to use the toilet. But he then refused to go back outside. She fell asleep, waking to find the respondent on top of her and pulling at her clothes, with his penis exposed. She yelled "no" on a number of occasions, but despite her protests the respondent continued to attempt intercourse for a couple of minutes before getting off the bed and leaving.

[4] Counsel for the respondent submitted that the case of attempted rape was governed by s 538 of the Criminal Code, on the basis the respondent "desisted of (his) own motion" from the further prosecution of his intention. The learned sentencing Judge was not directed to that provision which, if applicable, reduced the maximum penalty from 14 years imprisonment to seven years imprisonment. The difficulty about this court's invoking the provision rests in the absence of a finding as to the reason why the respondent desisted. It fell to the respondent to establish that reason, if he wished to rely upon the section. The point was simply not addressed. It may be that had the point been raised specifically, evidence would have been led on the subject. I consider it would be inappropriate were this court to make a factual finding to determine whether the provision applied, on the basis of the facts as put before the sentencing Judge, where neither Counsel nor the Judge apparently adverted to the provision. The inference is clear that the Judge was proceeding in a framework where the maximum penalty for the attempted rape was 14 years imprisonment.

[5] The learned Judge made the unexceptionable observation that neither offence fell into the worst category of case. Counsel for the Attorney queries, if not criticizes, His Honour's reference to the circumstance that the offences arose out of a relationship between the respondent and the complainant. It is not clear that the Judge was saying that that warranted more lenient treatment than would otherwise apply. The limited possible significance of that factor was discussed in R v Stephens; Attorney-General of Queensland [1994] QCA 507, as relevant "to the offender's state of mind ... where there is a married or de facto relationship, there may be greater scope for a genuine belief on the part of the man that the woman has or is likely to consent to sexual intercourse. And where that mistake is honest but unreasonable, it may be relevant to take it into account in sentencing the offender". But that is not the case here - neither was it the case in Stephens. Prior to this event, the complainant exhibited reluctance to let the respondent into her house and later upon becoming conscious of his depredations, yelled "no". That should have dispelled any view on his part that she was acquiescent or compliant, yet he persisted for another couple of minutes. This is a case where the circumstance of the prior relationship should in no degree have led to more lenient treatment than would otherwise be accorded.

[6] An aspect of great significance is the respondent's prior criminal history. The instant offences occurred in early 2002. In February 1994, the respondent had been convicted in New South Wales of intimidation/stalking and three counts of breaching a domestic violence order. He was placed on a bond, and subjected to three years probation. He re-offended, broadly similarly, within 12 months: in June 1999, the respondent was convicted of the offences of wilful damage, burglary and indecent assault. Those offences were committed in October 1995, and involved a woman with whom the respondent had previously been in a relationship. The respondent forced his way into her house and assaulted her by touching her on the genitals and inserting a finger into her vagina. Following appeal, his sentence was set at three and a half years imprisonment suspended after six months. The instant offences were committed while the respondent was subject to that suspended term. Then on 3 September 2002, he was convicted of entering premises with intent, assault occasioning bodily harm and breaching domestic violence orders, and sentenced to 12 months imprisonment. Those offences involved the respondent's wife, and were committed shortly before the instant offences, in November 2001. The offences for which he was imprisoned on 3 September 2002 also were committed during the period of the earlier imposed suspended sentences. The respondent reappeared in the District Court on 10 April 2003 and was ordered to serve 15 months of that suspended sentence. As pointed out by Counsel for the appellant, over an eight year period, the respondent committed sexual and violent offences against three former partners. He breached associated domestic violence orders four times. In my view this past history should have assumed high significance in the selection of the appropriate penalty.

[7] Counsel for the appellant particularly complained that the three year term imposed in respect of this attempted rape is less than the three and a half years imprisonment imposed in 1999 for the indecent assault committed on a former partner. That indecent assault followed the respondent's breaking in to the house. I am not convinced that that rendered that offence more serious than the instant offence, where having gained entry, the respondent refused to leave. In any event, in the present case, the sentencing court had to deal with a respondent who committed an offence in similar circumstances, but at a time when he was subject to a suspended term of imprisonment. That being so, it is at least unusual that he should in this instance have been subjected to a lesser penalty.

[8] The essential submission for the Attorney is that the three year term to which the respondent is now subject fails adequately to reflect the context of the attempted rape, being the stalking, and the respondent's relevant prior criminal history. Counsel for the respondent submitted that the sentences imposed were within a relevant range, and laid emphasis upon the efforts at rehabilitation made with some success by the respondent during his recent incarceration, his disturbed emotional state (on which the sentencing court received a report from Dr Wilkie, a psychiatrist), and the so-called totality principle.

[9] As to the question of totality, the respondent was taken into custody on 28 February 2002, and sentenced in respect of the instant offences on 2 December 2003. In the intervening period, he was (substantially) serving activated suspended sentences. Such sentences would ordinarily be served cumulatively upon other imprisonment. That he was required to serve otherwise suspended terms should not therefore necessarily have led to any particular moderation in the sentences imposed for the instant offences.

[10] We were referred to a number of cases. R v McNamara [1996] QCA 433 would support a sentence of three years imprisonment for an attempted rape of this character, if standing alone and committed by an offender without any particularly relevant prior criminal history. The major point of distinction here, of course, is the respondent's highly relevant prior history, which suggests a clear need for special deterrence. In R v Hughes [2000] QCA 16, a sentence of three years imprisonment suspended after 278 days was considered appropriate for a stalking charge which extended over a three week period and involved that offender hanging around the complainant's house. On one occasion he pushed his way into her house and assaulted her in a way that seemed "preparatory to a rape". This respondent's behaviour is comparable with that of Hughes, although Hughes desisted only when a neighbour arrived - but then this respondent persisted for a couple of minutes despite the complainant's opposition, and importantly, Hughes did not have previous convictions for sexual offences or offences involving violence (and his criminal history, though extensive, was more than 10 years old). For the respondent, we were referred to R v Hatch CA No 320 of 1999, a case of indecent assault, although committed in circumstances comparable to those of the present case. Hatch was imprisoned for 18 months, but he had no prior criminal history - and there was no concurrent sentencing for stalking. Counsel for the respondent also referred to R v J [2002] QCA 48, again a similar case, although of indecent assault. The penalty imposed there was 12 months imprisonment suspended after four months, but that offender had only a minor criminal history including no comparable offending, and again, there was no related stalking offence. In my view the court should in this case work from McNamara, making allowance for the respondent's criminal history in particular.

[11] Counsel for the appellant submitted that the sentence for the attempted rape should be increased from three years to five years, with a recommendation for post-prison community based release after two years. My view is that that would have been warranted in the sentencing court, and after allowing for the significance of the pleas of guilty and the other circumstances peculiar to the respondent, including his emotional condition. It is the stalking context, and the highly significant prior criminal history, which warranted elevating the three year McNamara level to five years in this case. That discrepancy is such as to warrant interference on an Attorney's appeal. But allowing for the moderation appropriate to the disposition of such an appeal, I would order, in respect of the attempted rape, that the appeal be allowed, the sentence of three years imprisonment set aside, and the respondent be imprisoned for four and a half years, with a recommendation for consideration of post-prison community based release after serving two years. The four and a half year term would be served concurrently with the two year term imposed in respect of the stalking. I would also order that the recommendation in relation to post-prison community based release made in the District Court be set aside.

[12] DAVIES JA: I would dismiss the appeal for the reasons given by Holmes J.

[13] HOLMES J: I have read the judgment of the Chief Justice and gratefully adopt his account of the factual basis for sentencing in this case. I am unable, however, to agree that the Attorney-General's appeal should be allowed.

[14] The respondent relied on s 538(1) of the Criminal Code which provides:

"When a person is convicted of attempting to commit an offence, if it is proved that the person desisted of the person's own motion from the further prosecution of the person's intention, without its fulfilment being prevented by circumstances independent of the person's will, the person is liable to one-half only of the punishment to which the person would otherwise be liable."

Unfortunately, no reference was made to that provision at the sentence hearing. Mr Eberhardt for the respondent argued here that the respondent had desisted of his own motion from proceeding with the attempted rape, without the intervention of any external force. While one might find on the balance of probabilities, given the agreed facts, that he did desist from the attempt, and without human intervention, it is difficult to isolate the reason for that; to say, for example, that it was not because of an inability to maintain an erection. In the absence of evidence on the point, one cannot make a positive finding as to the immediate cause of his desistance. The section requires proof not only of desistance, but that fulfilment of the individual's intention was not prevented by circumstances independent of his will. The respondent did desist, and credit was properly given to him for that; but without positively establishing both the elements of s 538 to the requisite level of proof, he cannot now be given the benefit of that provision.

[15] However, I do not in any event think that the sentence imposed was manifestly inadequate (the only basis on which the appeal was advanced) by reference to the authorities relied on by the appellant. R v McNamara (CA No 399 of 1996, 8 November 1996) concerned an appellant who was convicted after trial, unlike the respondent here, who, it was accepted at sentence, had entered a timely plea of guilty. In McNamara a sentence of four years imprisonment for attempted rape was reduced to three years. The appellant had entered the house of a woman not known to him in the early hours of the morning. She woke to find him on top of her trying to penetrate her. He did not desist; it was only by some form of deception that she managed to get away from him.

[16] While it is true that in R v Stephens; ex parte Attorney-General of Queensland (CA No 411 of 1994, 28 November 1994) the Court of Appeal said that it was not, as a general proposition, necessarily right to take a more lenient view of rape taking place in an existing de facto relationship, that statement does not in my view go so far as saying that sexual assault by a former or current partner will necessarily be equivalent to entirely unexpected assault by a stranger. (Obviously, in either case there may be aggravating circumstances of violence or intimidation which worsen the impact of the assault). I do not think that the traumatic effect of sexual assault in a case such as this, where the complainant had, albeit without enthusiasm, admitted the respondent to the house and gone to sleep with him present, is readily equated with the likely shock and fear of a woman sleeping in her home who without warning is assaulted by an intruder; as happened in McNamara.

[17] That is not, of course, to trivialise anything about the offence committed by the respondent; the point is that there were features in McNamara - the attack of a stranger in the circumstances I have described, and the absence of any desistance from the conduct involved - which I think make it impossible to regard it as comparable on its facts. The other distinguishing feature is the lack of a guilty plea. It might reasonably be said, however, that the context in which the present offence was committed, that is, of stalking over a period of one month and the respondent's criminal history, add to the circumstances to bring the respondent's offence to a similar level of seriousness.

[18] Stephens, to which I have already referred, was an Attorney-General's appeal, in which a sentence of three years imprisonment with a recommendation for parole after six months was set aside, and a sentence of five years imprisonment with a recommendation after two years was substituted. There, however, the respondent was convicted of two counts of rape and one of indecent assault (forced fellatio) against his de facto wife. The rapes seem to have been committed in the context of significant abuse in the relationship. The preceding morning, the respondent had pointed a gun at the complainant and threatened to shoot her if she left him. He lied to the police about what had happened, and defended the charges. I think it is clear that there is no basis for comparison between the facts and those in the present case; but to be fair to Mr Campbell, who appeared for the appellant, he relied on the authority more for its statement that the seriousness of rape was not to be discounted merely because it took place in an existing relationship, than for any similarity.

[19] The next case relied on by the Crown was that of R v Beaver (CA No 114 of 1992, 2 June 1992). Like Stephens it involved actual rape, not attempt, with accompanying violence. The applicant forced his estranged wife to have intercourse with him and to engage in other sexual activities including taking his penis in her mouth. In the course of those incidents he used considerable violence towards her, putting her in a head lock, throwing her around and choking her. He did, however, show remorse, and went himself to the police to admit what he had done. Interestingly, in considering the applicant's application for leave to appeal against a sentence of three years imprisonment with a recommendation for eligibility for parole after nine months Pincus JA, with whom the other members of the court agreed, said that he was somewhat troubled that "the applicant was not perhaps treated as generously as regards recommendation for parole as some judges might have treated him" (at p 4). The sentence was described as proper but "not particularly light" (p 5).

[20] The last of the cases relied on by the Crown was R v Hughes [2000] QCA 16. There a sentence of three years imprisonment suspended after 278 days (the period already spent on remand) was upheld. The appellant had pleaded guilty to offences of some similarity to those here. He had stalked the complainant over the period of about a month, constantly loitering outside her house, looking through windows, hiding around her yard and subsequently denying that he had been there. Towards the end of the period involved he forced his way into the house and assaulted the complainant, partly removing her clothing in what was described as a manner "which seemed to be preparatory to a rape". The complainant called out, attracting the attention of a neighbour who came to her aid; upon that the appellant decamped. There was, therefore, no question in that case of any desistance. The appellant had an extensive criminal history, but it did not include sexual offences or offences of violence. He did not in fact appear to argue his application for leave to appeal, and the court dealt with the sentence only because an associated order for probation was made without jurisdiction; but Pincus JA, with whom the other members of the court by inference agreed, said he did not think that there was any argument which could be advanced for reduction of the head sentence below three years.

[21] It was not suggested on this appeal that error could be shown in the exercise of the learned judge's sentencing discretion apart from what might be inferred from the sentence itself. An examination of the cases relied on to demonstrate that the sentence was manifestly inadequate does not lead me to the view that it was outside the pattern of sentencing which they present. In my view, the sentence was lenient, but it was one which could reasonably be imposed in a proper exercise of the sentencing discretion.