R v Henry [2002] QCA 520

Court of Appeal (Qld)|2002-11-27|Before: McPherson, and Williams JJA and Philippides J, Separate reasons for judgment of each member of the court, each concurring as, to the order made

Director of Public Prosecutions (Queensland) for the respondent

PHILIPPIDES J: This is an application for leave to appeal against a sentence imposed on the applicant on the ground that the sentence was manifestly excessive. On 30 July 2002 the applicant pleaded guilty to some nine offences including three counts of breaking and entering premises and stealing, one count of burglary with circumstances of aggravation, four counts of rape and one count of stealing.

The applicant was sentenced to 11 years' imprisonment for the four rape offences and the burglary with circumstances of aggravation and a declaration was made in respect of these offences that the applicant was convicted of serious violent offences. He was also sentenced to 12 months' imprisonment for the offences of breaking and entering premises and stealing and six months' imprisonment for the offence of stealing. All sentences were ordered to be served concurrently.

The offences occurred between 11 July 2000 and 31 May 2001 when the applicant was aged between 17 and 19. The circumstances of the offences of breaking and entering and stealing were that the applicant broke into two motor vehicles and was a look-out whilst a third vehicle was broken into.

Various property was stolen from each of the vehicles. The applicant was linked to each of the offences, admitted his involvement when interviewed by police. The last offence occurred after he was interviewed and issued with notices to appear for earlier offences.

The circumstances of the remaining offences of burglary with circumstances of aggravation, rape and stealing were as follows. On 23 May 2001, the applicant broke into the complainant's home by breaking two louvres at the rear of the house. At the time the 21 year old complainant was asleep with her 10 month old son in one bedroom with the light on whilst her de facto husband was asleep in another.

The applicant entered the complainant's room armed with a knife. He instructed her to be quiet or she would be hurt and expressed a desire to have sexual intercourse with her as he pushed a cot across the doorway. The complainant rejected and huddled over her son but as she did so the applicant raped her from behind. This first act of rape was only brought to an end when the complainant's child started to cry and the complainant was permitted to comfort him.

The applicant left the room to smoke a cigarette instructing the complainant to remove her shorts completely. He returned and lay next to her on the bed as she held her son. He continued smoking with one hand and with the fingers of his other hand penetrated her vagina, which constituted the second count of rape.

The two talked and established that they may be cousins. The applicant then extinguished his cigarette on the carpet. The applicant told the complainant to straddle him and engage in sexual intercourse with him whilst holding her son which she refused to do. The applicant then raped her a further two times as she huddled over her baby. The ordeal ended when the applicant withdrew threatening to return and kill the complainant if she told anyone. He took a golf club from a bag in the kitchen and tapped it on the outside of the complainant's window as he left. The complainant estimates that the ordeal lasted for, at least, an hour. She could smell alcohol on the applicant.

Once the applicant had left the complainant woke her de facto and called the police. The applicant's key card and wallet were located in the house. His identity was confirmed by later DNA comparison and location of the golf club at a relative's house.

The applicant declined to be interviewed about the offences. It was submitted, at sentence, that he had no memory of what had occurred but was extremely remorseful for his actions. The complainant's de facto was known to him. The complainant was not required to give evidence at the committal proceeding and the plea of guilty was a timely one.

The applicant has a significant criminal history for property offences commencing from about the age of 14. It contains one entry for common assault. He has had the benefit of community based supervision as a juvenile and as an adult. Two periods of detention were served as immediate release orders. He has not previously been sentenced to a term of imprisonment as an adult. The applicant was the subject of a probation order for seven of the nine offences.

The offences have had a significant physical and emotional impact upon the complainant. After the offences were committed she was observed to be vomiting and shaking and crying. She has had difficulty sleeping since the offences. She can only sleep with the light and TV on and usually wakes every half hour to an hour. She has constant nightmares. The offences have had a strain on the complainant's relationship with her de facto.

In imposing the sentence the learned sentencing Judge took into account, in the applicant's favour, the applicant's plea of guilty which saved the complainant from the additional trauma of Court proceedings, the applicant's youth and his cooperation with police in relation to three property offences. However, the learned sentencing Judge also considered that the case against the applicant was very strong on all counts; that the applicant had a considerable criminal history of dishonesty; that the applicant was armed with a knife; that he threatened to kill the complainant if she told anyone; the significant impact on the complainant; that the offences occurred in the presence of a young child and that the applicant showed a "disgraceful attitude of disrespect" towards the complainant and her young child.

His Honour also referred to the need for deterrence and the need to reflect the community's denunciation of such behaviour through the sentence imposed. His Honour considered that the appropriate sentencing range was somewhere between 11 and 13 or 14 years and imposed a sentence at the lower end of that range to reflect the matters in the applicant's favour.

The applicant provided no written submissions in respect of this application. His oral submissions were, in effect, a reference to his conduct in undertaking rehabilitation courses and a suggestion that that warranted a more lenient sentence.

The respondent submitted that the offence contained a number of significant features which warranted the imposition of a significant period of imprisonment. It was submitted that the sentence imposed was appropriate in all the circumstances, given that the attack on the complainant was prolonged and deliberate and involved the use of violence. The respondent referred to the cases of R v. Mallie CA No 49 of 2000, R v. Coghlan [1997] QCA 270; [1998] 2 QdR 498 and R v. Ivey CA Nos 68 & 181 of 1997 in submitting that this sentence was within the appropriate range.

Coghlan involved multiple counts of rape on a woman unknown to Coghlan with the use of considerable violence. In addition, there was one count of burglary, one count of assault with intention to steal, one of robbery with actual violence, one of indecent assault and three counts of assault occasioning bodily harm. In that case, Coghlan had had an unfortunate early life and had abused alcohol and drugs. He was 22 when the offences were committed. He did not have an extensive criminal history, expressed remorse and pleaded guilty. The sentence of 14 years' imprisonment with a recommendation for parole after six years was upheld on appeal.

Ivey involved a sentence of 14 years' imprisonment for rape which was reduced to 11 years on appeal. The complainant and Ivey had been in a relationship which broke down. Ivey became extremely jealous and obsessive and the complainant was forced to change address. However, Ivey broke into her house at night and raped her. He had been armed with a pick axe which he found under the complainant's house and threatened that if he found her in bed with someone else he would kill them both. Ivey had a prior conviction for rape and various other convictions for offences involving violence or damage to property. The Court noted that although the offence was most reprehensible Ivey did not gratuitously inflict physical injuries.

Mallie involved a sentence of 10 years' imprisonment imposed in respect of one count of rape with lesser concurrent sentences for burglary, stealing, assault occasioning bodily harm and sexual assault which was imposed on a 20 year old offender. In respect of the rape a serious violent offence declaration was made. Mallie had broken into the complainant's house, entered her room and violently assaulted her several times, raped her and stole her property whilst under the influence of alcohol and amphetamines. The complainant's victim impact statement revealed that she had been severely affected by the offences. The Court of Appeal, after reviewing the comparable cases including Coghlan and Ivey, determined that the appropriate sentencing range was between 10 and 14 years. The Court upheld the 10 year sentence imposed referring to Mallie's youth, plea, limited criminal history and reasonable prospects of rehabilitation given that he had addressed his substance abuse. Nevertheless, it described the sentence as being at the bottom of the range.

The learned sentencing Judge imposing sentence, in this case, stated that he was satisfied that the case was at least as serious as Mallie observing that although the present case did not involve gratuitous violence, the applicant was armed and did commit the offences in the presence of the complainant's 10 month old baby.

Even giving due credit for the matters of mitigation, I consider that the sentence imposed was within the learned sentencing Judge's discretion and it cannot be said to be manifestly excessive. I would refuse leave.

WILLIAMS JA: Particularly bearing in mind that the applicant was on probation at the time these offences were committed the sentence in fact imposed is not manifestly excessive. I agree with all that has been said by Justice Philippides and the order proposed.

McPHERSON JA: The application for leave to appeal against sentence is dismissed.

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