R v Jerome [1997] QCA 299

Court of Appeal (Qld)|1997-07-18|Before: Davies J, Pincus JA, Williams J

The applicant submits that the overall sentence is manifestly excessive and whilst it was not submitted on his behalf by Mrs McGinness that it was wrong to make the present sentence cumulative upon the sentence which he was serving when he committed these offences, it was submitted that the overall effect of these sentences being made cumulative on the earlier sentences demonstrated that the sentence imposed was excessive.

Because the earlier sentences would expire in accordance with their full term on 23 August 1998, the effect of the imposition of the present sentences cumulative upon those was that the full term of the cumulative sentences would not expire until about 16 years after the commencement of the present sentences.

The first of these was one primarily relied on by Mrs McGinness. However, it was pointed out by Mrs Clare that there were a number of factors in that case which distinguish it from this and which indicate in my view that when those factors are taken into account the sentence imposed in this case was not outside the appropriate range. The offender in that case was a very young man and it is important, in my view, that that factor is generally taken into account in offences. The offences were only a few weeks apart, whereas in this case, the offences the subject of this application were committed after the offender had served a sentence of gaol and after he had undergone what was thought to be a program to treat his strong and violent sexual urge and though it is true in Tomlin that with respect to one of the offences, the attempted rape, the applicant went to trial, he nevertheless in his evidence at trial confessed his guilt and on the rape charge, he pleaded guilty.

When those factors are taken into account, as I have indicated, I think Tomlin indicates that the sentence imposed in this case, even in its totality, was not outside the range of a sound sentencing discretion and Schwartz, in my view, relied on more I think by Mrs Clare for the respondent also, in my view, supports that conclusion.

Not surprisingly, none of the cases referred to us combine the factors to which I have referred which arise in this case and nor do they demonstrate as this case seems to do, the apparent incapacity of a program designed to enable the applicant to control his sexual urges to have any apparent effect.

Although the sentence was, in the absence of gratuitous violence, a high one I think that the circumstances to which I referred places them in the range of a sound sentencing discretion. There were nevertheless two errors in His Honour's reasons which in my view did not cause a sentencing discretion to miscarry.

The first of these was a failure to state how, if His Honour did, he took the plea of guilty into account, or if he did not, his reasons for not reducing the sentence (see section 13 of the Penalties and Sentences Act). But in the end, as I think Mrs McGinness accepted, the question is not so much that, but whether, having regard to the totality of the sentence, it was manifestly excessive and, as I have indicated, in my view, it was not.

In particular, in my view, a parole recommendation of less than the halfway mark was not appropriate in this case. The second error is one which I think needs to be corrected. Section 157(3)(a) of the Penalties and Sentences Act requires a Court imposing another term of imprisonment on an offender who is already serving imprisonment for an offence, which was the case here, to make a fresh recommendation for parole relating to the period of imprisonment that the offender must serve before being eligible to apply for parole. The learned sentencing Judge omitted to do this. I would therefore grant the application and allow the appeal, only to the extent of adding to the sentence imposed a recommendation that the applicant serve until 23 February 2003 before being eligible to apply for parole. That date is the mid point of the term of imprisonment which the applicant is now required to serve.

In making that recommendation, I am not saying that he should be eligible for parole on that date; that is a matter which should be considered at the appropriate time by those in authority who have the opportunity of observing the likelihood at that time of his release without further endangering women.

PINCUS JA: I have, as I indicated during the hearing, been concerned that the sentence for this rape committed by the applicant might be excessive as infringing the principle in Veen [No. 2] [1988] HCA 14; (1988) 164 CLR 465 at 477.

The relevant passage is included in the Crown's submission in this case delivered by Mrs Clare. To adapt the language of the High Court, quoted by Mrs Clare, the question is whether the offender's criminal history has produced the result that a penalty has been imposed which is "disproportionate to the gravity of the instant offence". If that has occurred, then, again to adapt the language of the High Court, the result has been that the offender has been given a fresh penalty for a past offence.

The circumstances that there were prompt confessions made here and prompt exhibitions of remorse appear to me sharply to distinguish cases in which somewhat similar penalties have been imposed, one instance being Gerrits (CA No. 158 of 1991, in which the judgment of this Court was delivered on 4 October 1991).

If one has regard to the previous sentences which have been discussed before us, there is in my view ground for thinking that the applicant has received a substantial sentence. The question which has troubled me is whether or not the sentence is one within the range or merely a high one. I have in the end concluded that although it appears to me to be high, the sentence is not one with which we should or could properly interfere. I agree that the order which is proposed by Mr Justice Davies should be made.

WILLIAMS J: Given that the offences in question were committed whilst the applicant was on parole for a similar offence and given the degree of planning and premeditation involved in the commission of the offences, I consider a head sentence of 14 years to be within the appropriate range where there have been pleas of guilty.

In addition to the authorities referred to by Mr Justice Davies in his reasons, I would add a reference to the decision of the Court of Criminal Appeal in Gerrits, CA No 158 of 1991, judgment delivered 4 October 1991. I agree with the reasons of Mr Justice Davies and with the orders he proposes.

There are three aspects of this matter which in my view are disturbing and which justify the imposition of a sentence of a kind which was imposed. The first was the planning and premeditation which was involved in the commission of this offence. The second is that it is the second offence of a similar kind and committed whilst the applicant was on parole for the earlier offence. The third is that both involve rapes of elderly women, possibly indicative of a particular form of deviation, the repetition of which might continue unless adequately deterred. The last two factors are matters which are analogous to those referred to by the High Court in Veen v. The Queen [No. 2] [1988] HCA 14; (1988) 164 CLR 465.

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Cases Cited (3)