R v Miller [2012] QCA 168

SUPREME COURT OF QUEENSLAND

CITATION: R v Miller [2012] QCA 168

PARTIES: R v MILLER, Grant Lawrence (applicant)

FILE NO/S: CA No 40 of 2012 / DC No 61 of 2011

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Mount Isa

DELIVERED ON: 19 June 2012

DELIVERED AT: Brisbane

HEARING DATE: 30 May 2012

JUDGES: Muir and White JJA and Henry J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application for leave to appeal against sentence is refused.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – MANIFESTLY EXCESSIVE – where applicant pleaded guilty to one count of rape – where applicant had sexual intercourse with the complainant as she was sleeping in her home – where applicant sentenced to five and a half years imprisonment with a parole eligibility date fixed after one third – where applicant was 18 years old at time of the offence and 21 years old at time of the sentence – where applicant had no criminal history, was of otherwise good character and had good prospects of re-employment – whether sentence was manifestly excessive in all the circumstances / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the sentencing judge concluded asentence of five years could not be imposed – whether the sentencing judge fettered the exercise of his sentencing discretion / R v Basacar [2006] QCA 352, cited / R v Breckenridge [1998] QCA 136, cited / R v Elzinga; ex-parte Attorney-General of Queensland [1998] QCA 128, cited / R v Press [1997] QCA 7, cited / R v Q [2003] QCA 421, cited / R v Raymond[1994] QCA 441, cited

COUNSEL: J A Greggery for the applicant / D P Jones for the respondent

SOLICITORS: Anderson Telford Lawyers for the applicant / Director of Public Prosecutions (Queensland) for the respondent

1. MUIR JA: I agree that the application for leave to appeal should be refused for the reasons given by Henry J.

2. WHITE JA: I have read the reasons for judgment of Henry J and agree with his Honour that there is no error to be discerned in the sentencing judge’s approach. Nor can it be said that the sentence imposed of five and a half years was manifestly excessive. It may be that another judge might have acceded to the defence submission for a sentence which would have permitted a suspended sentence. Such a sentence would have given this young offender, with no criminal history and good prospects, the certainty of release. But, having said that, as Henry J’s reasons demonstrate, the sentence was within the exercise of a sound sentencing discretion.

3. HENRY J: The applicant pleaded guilty in the Mount Isa District Court on 7 February 2012 to one count of rape. He was sentenced to five and a half years imprisonment with a parole eligibility date fixed at 7 December 2013 after the service of one third of that term. He applies for leave to appeal on the ground that the sentence imposed was manifestly excessive.

Circumstances of the offences

4. The 18 year old complainant lived at a residence in Mount Isa with her partner and their young son. The applicant was a close friend of her partner.

5. On the night of 30 May 2009 the complainant was out celebrating her birthday with friends and family including her partner. She went home at about 2.30 am after collecting her house keys from her partner who did not come home.

6. She went inside and lay down on a mattress in the lounge room falling asleep fully clothed.

7. She awoke to discover her pants and underpants had been removed. She was lying on her back and a male person was lying under her legs at a right angle with his erect penis inside her vagina. She said her partner’s name to which the male person replied, “I don’t know”. She recognised the voice to be that of the applicant’s and said, “Is that you Grant?” to which he responded, “Yes”.

8. She lifted herself off the defendant, grabbed her clothes and went to the bathroom to shower. When she had finished the applicant was gone.

9. She went and found her partner and told him what had occurred but he did not believe her and they argued, resulting in the police attending and being informed that she had been raped by the applicant.

10. Subsequent forensic analysis identified the applicant’s DNA profile on swabs taken from the complainant’s vagina. The accused was interviewed by police but denied having sexual intercourse with the complainant.

11. It was explained on his behalf at sentence that he had denied having sex with the complainant because he was embarrassed. It was submitted he had been drinking with the complainant’s partner and at one stage of the night had asked the complainant for a cigarette. It was explained he later wandered down to her place to have a cigarette but had no explanation for the offence he there committed. It was submitted that he was extremely intoxicated.

12. No information about the impact of the offence upon the complainant was placed before the Court.

The applicant’s personal circumstances

13. The applicant is an aboriginal man who was 18 years old at the time of the offence and 21 years old at the time of sentence. He had no criminal history.

14. He is now in a relationship with a young woman who is pregnant and due to give birth to their first child in June 2012.

15. A reference by his work supervisor indicated he was otherwise of good character and had good prospects of re-employment as an exploration driller in the future.

Litigation history

16. There was no cross-examination of the complainant at the committal proceedings.

17. The indictment was presented on 20 April 2011 and the sentence proceeded on 7 February 2012, over two years and eight months after the commission of the offence. No information was placed before the Court as to the timeliness of the plea of guilty or when the prosecution was informed of the applicant’s intention to plead guilty.

Sentences submitted for at first instance

18. In the course of the submissions on sentence below, the learned Crown Prosecutor submitted the starting point for offences of this nature, that is a rape committed by an offender who enters a complainant’s bedroom uninvited, was at least seven years.

19. Defence counsel at first instance pressed for a sentence suspended after the service of one third of the head sentence and to that end submitted for a head sentence of four to five years, a suspended sentence only being available pursuant to s 144 of the Penalties and Sentences Act 1992 (Qld) for sentences of five years or less.

The sentencing remarks

20. The learned sentencing judge described the offence as opportunistic, observing the applicant took advantage of a woman who was asleep and in circumstances where she would have considered that she was safe. He noted there was no violence or significant injury accompanying the offence.

21. His Honour noted that the applicant pleaded guilty, there was no cross-examination of the complainant, he was very youthful and he was remorseful. His Honour did not directly refer to the long period between offending and sentence and the absence of any further offending. He did however note the applicant otherwise had no criminal history, was a person of ordinarily good character, had entered a stable relationship and had a good work history. He also observed that while the applicant had been intoxicated at the time of the offence he no longer consumes alcohol.

22. His Honour observed the absence of a victim impact statement allowed defence counsel to distinguish the matter from more serious cases but that on the other hand he must not assume that means there has been no trauma for the complainant. As to the prosecution’s submission it was inherent in cases of this kind that a woman is always in jeopardy of getting some sexually transmitted disease, his Honour noted the matter is to be contrasted with other cases where there is positive information about such a fear.

23. His Honour rejected defence counsel’s submission seeking a sentence of five years imprisonment or less, observing such a sentence would be too lenient and proceeded to impose a sentence of five and a half years imprisonment with a parole eligibility date fixed after the service of one third of that period.

Manifestly excessive?

24. The applicant does not submit the sentence was above the appropriate sentencing range. Such a submission, if made, would be unsustainable.

25. The respondent has referred to a variety of authorities which demonstrate the range for some so called rape by stealth cases extends upwards of seven years. Indeed, in R v Q [2003] QCA 421¹ Helman J observed two such cases to which the Crown had referred, R v Raymond [1994] QCA 441 and R v Press [1997] QCA 7*,* established “a range for offences of the kind in question beginning at imprisonment for seven years”.

26. That statement was cited in R v Basacar [2006] QCA 352² in support of a conclusion by Mullins J, with whom Holmes JA concurred, that:

“It is not possible to reconcile with precision each of these authorities with the others, but collectively the authorities support a sentence of at least seven years for a rape committed by an offender who enters a complainant’s bedroom uninvited.”

27. Those statements are not authority for the proposition that less serious instances of this serious but factually broad category of offending cannot ever attract sentences of less than seven years.

28. Illustrating this point, the applicant placed particular reliance on two 1998 decisions, which post-dated R v Raymond and R v Press, where sentences of five years imprisonment were imposed: R v Elzinga; ex-parte Attorney-General of Queensland [1998] QCA 128 and R v Breckenridge [1998] QCA 136. Those cases reasonably support the applicant’s submission, in effect, that a sentence in this broad category of offending, depending on the circumstances of the case, may be low as five years. However, as the applicant implicitly acknowledges, they do not support an argument that a sentence of five and a half years is manifestly excessive. The sentence was not manifestly excessive.

Error?

29. The applicant submits that the basis for interference here ought be a conclusion there was an error, thus enlivening this Court’s power to sentence afresh. That error is said to be the learned sentencing judge concluded a sentence as low as five years could not be imposed and he thereby improperly constrained the exercise of his sentencing discretion.³

30. In the course of his sentencing remarks his Honour said:

*“*The sentence has to be up above five years imprisonment in my opinion.”

31. His Honour had earlier indicated an intention to impose a head sentence of five and a half years.

32. His Honour later stressed the applicant’s favourable personal circumstances were not to be emphasised to the exclusion of the seriousness of the offending and said:

“I stress it to make the point that it is most regrettable indeed...that you have been involved in this but, in my opinion, the sentence can only be as low as I have indicated.”

33. The applicant’s counsel places particular emphasis on these passages as purportedly showing his Honour fettered his discretion by concluding a sentence of five years was beneath the permissible range for offending of this kind. On the other hand, the respondent asserts these remarks were simply indicative of his Honour’s view as to the sentence which ought be imposed in all the circumstances of the case.

34. The applicant’s counsel urged this court to interpret the meaning of these remarks by various references to exchanges in the course of counsels’ submissions on sentence at first instance. However, this Court has recently warned that remarks from the bench made in the course of such exchanges should be treated with caution in light of the fact they are often only made to draw out and test submissions.⁴

35. In this case exchanges during counsels’ submissions at first instance are relevant to the interpretation of the remarks of his Honour presently under consideration but only for the limited purpose of explaining his Honour’s reference to the duration of the sentences which had been submitted for by prosecution and defence.

36. Defence counsel specifically submitted that the head sentence should be five years or less, in part for the acknowledged purpose of triggering the availability of apartial suspension of the penalty. The prosecution submitted for a head sentence of at least seven years. It is apparent from his remarks that his Honour was more favourably disposed in the particular circumstances of this case to the defence submissions on range than those of the prosecution. However, he was not persuaded the sentence should be as low as that contended for by the defence.

37. His Honour said to the applicant near the beginning of the sentencing remarks:

“I can inform you at the outset that I incline to the view that the submissions made by …your counsel, are the more accurate. Although I do not agree that the sentence should be as low as five years imprisonment such that the sentence could be suspended after a period. There would be advantage, of course, in a sentence such as that in that you would have certainty as to your date of release but in my opinion such a sentence would be too lenient for a case as serious as this.”

38. When his Honour’s remarks are considered as a whole, particularly in the light of defence urgings for a sentence of five years or less, his conclusion a sentence as low as five years should not be imposed does not indicate an error. It merely reflects his view that the appropriate head sentence in the circumstances of this case was five and a half years imprisonment rather than the five years or less contended for by the defence. His Honour did not err.

39. I would refuse the application for leave to appeal the sentence.

Footnotes

1. At [29]. ↩

2. At [18], [19]. ↩

3. The applicant’s argument is similar to that unsuccessfully raised in R v You [2011] QCA 279. ↩

4. See R v Hyatt [2011] QCA 55 at [13], [15]. ↩