R v Lawrence [2002] QCA 526

SUPREME COURT OF QUEENSLAND

CITATION: R v Lawrence [2002] QCA 526

PARTIES: R v LAWRENCE, Mark Richard (appellant)

FILE NO/S: CA No 131 of 2002 / DC No 3421 of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction and Sentence

ORIGINATING COURT: District Court at Brisbane

DELIVERED EXTEMPORE ON: 2 December 2002

DELIVERED AT: Brisbane

HEARING DATE: 2 December 2002

JUDGES: McMurdo P, Helman and Philippides JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Appeal against conviction dismissed / Refuse application for leave to appeal against sentence

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT - where appellant convicted of one count of rape and one count of sexual assault with a circumstance of aggravation – whether conviction unsafe and unsatisfactory / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - where appellant sentenced to 7 years imprisonment and declared to have committed a serious violent offence – where retrial – where appellant sentenced to 6 years imprisonment with a declaration under part 9A Penalties and Sentences Act 1992 (Qld) at first trial – whether sentence of 6 years was manifestly inadequate – whether sentence of 7 years was manifestly excessive / R v Petersen [1999] 2 Qd R 85, considered / Veen v R (No 2) (1988) 164 CLR 465, cited

COUNSEL: The appellant appeared on his own behalf / R G Martin for the respondent

SOLICITORS: The appellant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The appellant, who is self-represented, was convicted after a trial of one count of rape and one count of sexual assault with a circumstance of aggravation. He was sentenced to seven years' imprisonment and was declared to have been convicted of a serious violent offence. He appeals against his conviction on the grounds that it is unsafe and unsatisfactory and not according to law and seeks leave to appeal against the sentence on the grounds that it was manifestly excessive in all the circumstances.

In his outline of submissions the appellant has expanded considerably upon his grounds of appeal against conviction, a consideration of which involves some knowledge of the facts. The complainant was a 27 year old slightly built man on remand at the Moreton B Correctional Centre, awaiting sentence on seven counts of arson. He gave evidence that he first met the appellant, a fellow inmate, when the appellant introduced himself and asked him to get a girl to visit him in gaol. They next met when the appellant moved into the complainant's dormitory of six individual cubicles with beds. A few days afterwards the appellant touched and hugged the complainant on two or three occasions and on one occasion kissed him on the head. The complainant reacted angrily and spurned the appellant's advances. The appellant also grabbed him on the penis on the outside of his clothes a couple of times. The complainant again rejected his advances. On another occasion the complainant was in his cubicle watching TV when the appellant came in, pushed him onto the bed and lay on top of him, but the complainant again resisted the appellant.

On the 13th October 1999, the evening before these offences, the complainant was sitting on his bed smoking a cigarette when the appellant entered. The complainant stood up but the appellant made him sit down again. He said he wanted to talk but the complainant left, making the excuse that he had to phone his wife. He went to the kitchen for some milk before returning to his cubicle for lock-down, where he chatted to another prisoner in the presence of the appellant. The appellant again hugged him and kissed him on the head. The complainant once more spurned these advances. After a time all prisoners retired to their individual cubicles. The complainant watched TV, left his cubicle to speak to another inmate, retired to his cubicle and went to sleep. He was wearing only underpants as it was a hot night, although he had pulled on two sheets and five blankets.

The next thing he remembers is waking to find a hand pushing the back of his head into the pillow. A voice he recognised as the appellant's told him, "Don't make a noise because I'll kill you." The appellant pulled down the complainant's underpants and put a lubricant in the area of his anus before inserting his fingers for about two or three minutes and then his penis for a couple of minutes. He licked the complainant on the ear and kissed him on the side of his head. The appellant removed his penis and ejaculated on the complainant's back. He said something like, "Don't say anything. I'll be watching you. And, remember, I'm a psychopathic murderer." The complainant remained in his bed and went back to sleep.

The next morning he complained to a fellow prisoner. The appellant told him to have a shower but the complainant declined. The appellant offered him a soft drink and for the first time the use of his computer and stereo.

The prisoner to whom the complainant reported the incident passed this information on to prison officers who spoke to him. The complainant then repeated his allegations to prison officer Kostowski. As the complainant had poor literacy skills, another prisoner, Gould, helped him write a statement.

The complainant was then examined by the Government medical officer who took some swabs. The complainant said he had never before had anal sex.

In cross-examination the complainant agreed that when he was sentenced for his most recent offences it was put in mitigation by his barrister that he had been raped by another prisoner whilst on remand. As a result he received a more lenient sentence than otherwise. The complainant agreed that whilst on remand he was in fear of being sexually assaulted by the appellant. He spoke to one prison officer about his fears but did not make a formal complaint. He spoke to other inmates about his fears. He did not speak to his family or friends outside the prison although in 1995 when he was in prison in Rockhampton and he feared he may be sexually assaulted he did complain to family and friends outside the prison. During the appellant's attack he made no noise or complaint because he was scared for his life. He agreed that he had threatened to falsely accuse a prisoner, Galley, of sexual impropriety when Galley threatened to have him bashed.

He denied making false allegations against others; he made a genuine complaint about prisoner John Martin. Although he agreed at the committal proceedings that he had made false allegations about John Martin, namely that he was throwing water over the other prisoners' beds, these allegations were in fact true. The complainant had a lengthy criminal history commencing in 1992 for offences of arson, receiving, burglary, wilfully giving a false alarm of a fire, assault occasioning bodily harm, false representation causing police investigation and most recently offences of arson involving a motor vehicle.

The complainant agreed he did not use the term "psychopathic" in his statement to Gould but remembered afterwards the appellant had said this. The appellant was not gentle during the act of intercourse, thrusting deeply and hard. The complainant denied having a consensual sexual relationship with the appellant before and on 14 October 1999.

In re-examination the complainant agreed that in his statement he said that the appellant threatened him after raping him saying, "If you say anything about this you will be killed, you know I'm in for murder, I'll be watching you." When the prisoner Galley threatened to have him bashed the complainant threatened to make a false complaint against Galley but did not in fact make that false complaint.

Geoffrey Gould was a prisoner in a different dormitory to the complainant at the Moreton B Correctional Centre on 14 October 1999. They were not close friends, merely fellow inmates. He saw the complainant just after unlock that morning. The complainant appeared very upset, agitated, was crying, could not get his words out properly at first and was emotionally upset. He said that the appellant had raped him and he did not know what to do. Gould took him to the prison officers who were unlocking. Later when the complainant was making his statement he asked Gould to sit in on it with him and Gould wrote down what the complainant dictated.

Corrective services officer Kostowski spoke to the complainant who said he had been raped during the night. The complainant requested that prisoner Gould write out the statement for him. Mr Kostowski secured the crime scene and contacted police. He was not present whilst the appellant gave his statement.

Mr Kostowski read the statement to the complainant afterwards. The complainant said that the statement was true and signed it and Mr Kostowski witnessed his signature. Each dormitory in the prison had an intercom system accessible by a phone located beside the main door to each dormitory.

The Government medical officer, Dr Carroll, examined the complainant at about 12 to 12.20 p.m. on the 14 October 1999 and took swabs and samples from him. At 1.53 p.m. Dr Carroll also took samples and swabs from the appellant. Dr Carroll found no injuries to the complainant. The use of lubricant will mean that injury from non consensual penetration by fingers or a penis is less likely. Rough, forceful penetration would be more likely to leave signs of injury such as tears.

Forensic scientist Ms Hadfield examined the swabs and samples taken by Dr Carroll. Spermatozoa were present on the rectal and peri-anal smears. There were insufficient numbers of spermatozoa on the rectal swab to successfully analyse its DNA. The sperm on the swab from the peri-anal area had a DNA profile that matched that of the appellant. The swab taken from the complainant's neck was consistent with contact at that point from the appellant. Because of the positive result from the swabs, Ms Hadfield decided it was unnecessary to also examine a bed sheet from the complainant's bed or items of clothing. Sperm break down in the rectum much more quickly than in the peri-anal area. Testing of the swabs taken from the appellant did not reveal any of the complainant's DNA. In cross-examination Ms Hadfield said that this would not be unusual even had anal sexual intercourse taken place with the complainant.

The appellant elected neither to give nor call evidence.

His first contention is that the learned trial Judge erred in refusing leave to cross-examine the complainant about his prior sexual experiences, with a view to showing the complainant had previously engaged in homosexual activity with other men, contrary to the complainant's statement to police made on 15 October 1999 and that he had not previously engaged in anal intercourse.

The learned primary Judge acceded to the only application made to cross-examine the complainant about his prior sexual activity. This ground is without substance.

The appellant's next contention is that he did not call evidence on the advice of his solicitor because his solicitor advised him that he "had the case won" and that the appellant "was getting out".

There is no admissible sworn material before this Court to suggest that the appellant's decision not to give or call evidence was made otherwise than freely and on sound legal advice. He was represented by an experienced defence counsel. This ground also fails.

The appellant next contends that the learned trial Judge erred by not directing the jury as to the limited value of the evidence of the forensic scientist Ms Hadfield, namely that her evidence was incapable of independently confirming the element of absence of consent as to the complainant's account.

This contention is plainly without substance. His Honour told the jury:

"If you accept the evidence of Dr Carroll and Ms Hadfield you might think that it is clear that there was sexual activity but you will realise that that is silent on the question of consent. The evidence of Dr Carroll and the evidence of Ms Hadfield is silent on the question whether or not the complainant consented to whatever was happening."

This ground also fails.

The appellant next submits that the learned trial Judge erred in not directing the jury as to the limited value of Ms Hadfield's evidence in that there was mixed profile of the complainant's rectal swab. And that this was evidence that required particular care and caution and that the jury should not draw an adverse inference from the evidence of the rectal swab unless they rejected the inference that the donor was someone other than the appellant as a reasonable inference on the evidence.

This contention is not entirely easy to follow but it appears to misunderstand Ms Hadfield's evidence. The peri-anal swabs did not suggest a mixed profile; the mixed profile came from the swab from the complainant's neck. The reliability of the DNA evidence was not seriously disputed in the conduct of the defence case which was primarily that limited sexual contact between the complainant and the appellant occurred consensually. There was no requirement in the circumstances here for a warning about the quality of the DNA evidence. This ground also is without substance.

The appellant's next contention is that Dr Carroll's evidence of the absence of injury is inconsistent with the complainant's account. Dr Carroll's evidence is however not inconsistent with the complainant's account that a lubricant was used prior to the penetration by the fingers and penis and that injuries would not necessarily be expected in such circumstances. Dr Carroll's evidence does not require the rejection of the complainant's evidence and again this complaint is without substance.

The next contention is that the complainant's evidence must be doubted because of his admission that he has previously threatened to make false accusations against others.

This was a significant issue in the trial and his Honour warned the jury that prisoners sometimes make false allegations about other prisoners to ingratiate themselves with prison officers or for other reasons. In summing-up the defence case the Judge again reminded the jury of the defence submission that the complainant had previously made false complaints about another prisoner and that that meant his evidence could not be relied on to find somebody guilty of a serious offence. These directions were adequate in the circumstances. Despite these warnings, the jury were entitled to accept the complainant's evidence and the verdict demonstrates they plainly did.

The appellant's application to lead new evidence, which was hearsay and inadmissible, has already been refused.

The appellant's next complaint is that there is no evidence that a Correctional Services Officer was present when Mr Gould wrote down the complainant's statement. This was not an issue at trial and nothing turns on it. It does nothing to assist the appellant's cause.

The appellant's next contention is that the complainant stated that the intercom in his dormitory was not working and that this is inconsistent with the evidence of Correctional Services Officer Kostowski as to the intercom. The complainant did not give such evidence and this was not an issue in trial. There is nothing in this contention.

The appellant's penultimate complaint is that the evidence of the complainant shows that he fabricated his story by changing his evidence each time he was asked a question on oath and his final contention is that he feels that allegations against him have been fabricated and that there was no evidence of penetration of the complainant. These contentions can be dealt with together. They were fully explored at the trial. Although there were some inconsistencies in the complainant's evidence these were of a relatively minor nature and not such as to render the verdict unsafe. The jury on the whole of the evidence was entitled to accept the complainant's evidence that the appellant penetrated his anus with his fingers and penis and that he did not consent to these acts. There was, after all, no evidence inconsistent with the complainant's version. The complainant's evidence was supported in important respects by the DNA evidence. The complainant made a timely complaint and was distressed. The jury verdict was open on the evidence.

The appellant has expanded on these grounds in further typewritten submissions handed up to the Court this afternoon but nothing in those further contentions supports the quashing of the conviction. The jury verdict was open on the evidence. The appeal against conviction should be dismissed.

I turn to the appeal against sentence. The appellant has an extensive criminal history. He was first convicted in 1978 of aggravated assault on a male child under 14 and placed on probation. The next year he was convicted of aggravated assault on a female under 17 and sentenced to a further three-year probation period with a psychiatric clause. The following year he was convicted of aggravated assault of a male child under the age of 14 years and was fined $75.

In 1981 he was convicted of conspiracy to commit a crime, assault or intent to steal with threats of actual violence whilst armed with a dangerous weapon in company and was sentenced to four months' imprisonment and a further three years' probation. In 1985 he was convicted of manslaughter on the grounds of diminished responsibility, for which he was sentenced to 15 years' imprisonment, being found in an enclosed yard without lawful excuse, for which he was sentenced to two months' imprisonment and for escaping legal custody, for which he was sentenced to a further 12 months' imprisonment cumulative upon the 15 year sentence.

The appellant's conviction for manslaughter related to the brutal and cruel killing of a female fellow patient at the Wolston Park Special Hospital. The appellant committed the crime with a co-accused Sirret. A psychiatric report tendered at that time indicated a high risk that the appellant would re-offend. The circumstances involved the appellant and Sirret coercing the young woman to an isolated spot, where the appellant attempted to rape her and to stop her from screaming, cut her throat with broken glass from a smashed bottle whilst the co-offender held her feet. Afterwards he set fire to the victim's clothing. The appellant was serving the 16 year sentence at the time of the commission of this offence. The 16 year sentence concluded on the 6th of February 2001 and the appellant remained in custody on remand pending trial. This was a retrial. His first conviction being set aside on appeal (see R v. Lawrence [2001] QCA 441, CA No 104 of 2001, 10 September 2001).

After his first trial he was sentenced to an effective term of six years' imprisonment with a declaration under Part 9A Penalties and Sentences Act (1992) Qld. The appellant now contends that the Judge was wrong to sentence him to a heavier term of imprisonment on this occasion. In sentencing the appellant the learned primary Judge referred to the appellant's criminal history and particularly the horrifying circumstances of a manslaughter conviction, the need for a deterrent sentence so that the prison population becomes aware that sexual assaults on other inmates will be dealt with severely, and to the principles espoused in Veen v. R (No 2) (1988) 164 CLR 465 that the antecedent criminal history does not justify a sentence heavier than the objective circumstances of the offence warrant although the prior criminal history is relevant, not to punish the offender for his past offences but to demonstrate whether the current offence is an uncharacteristic aberration or a continuing attitude of disobedience of the law warranting a more severe penalty.

Unfortunately the learned primary Judge was not referred to the case of R v. Peterson [1999] 2 QdR 85 which was very fairly brought to this Court's attention by Mr R.G. Martin who appears for the respondent and reaffirms the principle that where an offender is to be re-sentenced following a successful appeal and retrial the second sentencing Judge should start with the proposition that the offender ought, in general, not receive a harsher sentence than that imposed after the first trial. This is because of the important policy considerations referred to at pages 86 and 87. Ordinarily, only if the second sentencing Judge concludes that the earlier sentence was outside the appropriate range or the facts as they appear at the time of the re-sentence are significantly different from those upon which the first sentence was based should he or she impose a heavier sentence. His Honour did not specifically indicate that this case came within those principles.

The question then for this Court is whether the sentence imposed after the first trial of six years' imprisonment with a declaration was manifestly inadequate.

The tendered victim impact statements taken both whilst the complainant was a remand prisoner and more recently after his release indicate the enormous impact this offence has had on him.

Since he has been incarcerated the appellant has made significant progress with his literacy problems and has attained his year 10 certificate in English. He has also completed other programs, including alternatives to violence programs and a cognitive skills program and has been treated under the Sexual Offenders' Treatment Program. He has been under the supervision of a psychiatrist whilst in prison.

The appellant had a dysfunctional and violent upbringing in which he was physically and sexually abused by his father and by a friend of his father's. Reports prepared by the psychologists in the Sex Offender Treatment Program noted that regardless of the appellant's positive response to treatment he should be considered at a high risk of offending and will need intensive support upon his release into the community to assist him to establish a life with reduced risk for re-offending. The appellant has also completed other occupational oriented courses and is currently working as a computer co-ordinator, teaching other prisoners computer skills.

He is now 41 years old. He does not have the mitigating factors of youth. He has a shocking criminal history involving violent sexual offences. Although no physical violence was used here, he was a bigger, stronger, older man than the complainant. The complainant was undoubtedly intimidated by his knowledge of the appellant's criminal history, which the appellant reminded him of immediately after committing the offence.

The learned sentencing Judge rightly referred to the need for a deterrent sentence in cases of rape in prison. The community and offenders expect a prison system where offenders are kept safe from sexual predators. This has become even more essential with the spread of potentially fatal diseases through unprotected sexual intercourse.

The cases to which we have been referred by the respondent, R v. Garland ex parte Attorney-General, CA No 232 of 1989, 4 September 1989 and R v. Harvey [1994] QCA 515, CA No 354 of 1994, 26 October 1994 demonstrate that the sentence imposed before the first appeal of six years' imprisonment with a declaration, was manifestly inadequate. A heavier sentence was justified when the appellant was sentenced after his retrial in accordance with the principles set out in Peterson.

Indeed, that sentence of seven years' imprisonment with a declaration that the conviction was of a serious violent offence was also extremely lenient in all the serious circumstances here, but this is not an Attorney's appeal against sentence. That sentence certainly did not place inappropriate weight on the appellant's prior criminal history and future propensity for dangerousness and sufficiently recognised the principles referred to in Veen.

In the circumstances the application for leave to appeal against sentence should be refused.

I would refuse the application for leave to appeal against sentence and dismiss the appeal against conviction.

HELMAN J: I agree.

PHILIPPIDES J: I also agree.

THE PRESIDENT: Those are the orders of the Court.