Court of Appeal (Qld)|2007-06-15|Before: Williams and Jerrard JJA and White J, Separate, reasons for judgment of each member of the Court, Williams JA and White J, concurring as to the order made, Jerrard JA dissenting
Williams and Jerrard JJA and White J, Separate, reasons for judgment of each member of the Court, Williams JA and White J, concurring as to the order made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BYCONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED– PARTICULAR OFFENCES –OFFENCES AGAINST THE PERSON – SEXUALOFFENCES – where applicant pleaded guilty to charges of rape, grievousbodily harm,robbery with violence, burglary and deprivation of liberty –where offences were committed in the victim's home – wherevictim was anelderly lady and suffered serious physical and psychological harm as a result ofthe attack – where offendershowed little remorse – where degree ofcallousness was significant – whether sentence was manifestlyexcessiveR v Amituanai (1995) 78 A Crim R 588[1995]QCA 80, citedR v Basic (2000) 115 A Crim R 456[2000]
QCA 155, considered
R v Bolton [2005]
QCA 335
CA No 119 of 2005, 9 September 2005, considered
R v Henry
[2002]
QCA 520
CA No 272 of 2002, 27 November 2002, considered
R v
Jerome [1997]
QCA 299
CA No 230 of 1997, 18 July 1997, distinguished
R v Mallie
[2000]
QCA 188
CA 49 of 2000, 17 May 2000, considered
R v Price [2004]
QCA 10
CA No 352 of 2003, 6 February 2004, considered
R v
Shillingsworth & Cosh [1985] CCA 027
[1985] 1 Qd R 537,
considered
Judgment (59 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[1] WILLIAMS JA: The applicant pleaded guilty to charges of rape, grievous bodily harm, robbery with violence, burglary and deprivation of liberty in the District Court at Townsville on 21 February 2007. Each of the charges related to events which occurred on 13 December 2005. The applicant was sentenced on 5 March 2007 to 13 years imprisonment on the charge of rape, and lesser concurrent sentences were imposed with respect to the other offences. A declaration was made that he had spent 447 days in pre-sentence custody. He seeks leave to appeal against the head sentence on the ground that it is manifestly excessive particularly in view of his age. He was born on 7 November 1988 making him just some weeks past his 17th birthday when the offences were committed; he was aged 18 at the time of sentence.
[3]
[2] The victim was a 60 year old married woman who lived next door to the applicant's grandmother. The victim had been introduced to the applicant on one occasion, and she had seen him around the neighbourhood on a number of occasions. On the night before the incidents in question the applicant consumed a quantity of ecstasy. At sentence counsel for the applicant tendered a report from Dr Moyle, a psychiatrist, which included a detailed account given by the applicant of the events leading up to the commission of the offences. It appears that the applicant was with two friends when the ecstasy was consumed and they were roaming the streets behaving in an antisocial manner. The next morning he was tired and aggressive and "felt like he was coming down off ecstasy". He heard a conversation between his stepsister and his stepmother which caused him to become annoyed. In consequence he decided to walk to his grandmother's house which was about five minutes away. When he arrived his grandmother was not at home, but she returned shortly afterwards and she gave him a soft drink. He went outside to have a cigarette. He apparently saw the victim go inside her house and, according to his statements, he decided to rob her as he had no money.
[4]
[3] At about 12.15 pm the victim was in her bathroom washing her hands when she heard the bathroom door slam shut. She tried to open the door but realised there was someone pulling on the door from the other side. She eventually managed to open the door a little way and saw the applicant on the other side. At that point the applicant grabbed the complainant and held one hand over her mouth telling her not to scream. He dragged her into the hallway despite the victim pleading with him not to do anything. She was thrown to the floor in the middle of the doorway to the second bedroom. She immediately felt immense pain in her lower back. Following that the applicant punched the complainant to the left side of her face near the left eye. He kept telling the victim to shut up and not to scream. The victim was then punched at least four times to the side of her face causing extreme pain. The victim told the applicant that her back was hurt and she begged to be allowed to get up from the floor. The applicant said he did not care about her back and continued to punch her. The victim begged the applicant not to punch her in the left eye as she had had operations previously on that eye and was scared she would lose sight. The applicant told her he did not care. He then ordered her to take her clothes off but she refused. The applicant then dragged off the victim's dress and removed her bra. He dragged her into the main bedroom whilst the victim was crying because of the severe pain in her back. She was pushed onto the bed and the applicant then placed a pillow over her face. The victim asked the applicant to take the pillow off her face as it was hurting but he refused.
[5]
[4] The victim was able to see in a mirror that the applicant's pants were down and he put a condom on his penis. The applicant then proceeded to remove the victim's underpants and penetrated her vagina with his penis. The victim was not sure whether or not he ejaculated.
[6]
[5] The applicant then got off the bed and told the victim to stay there and not take the pillow off her head. He asked where her purse was and the victim stated it was in the dining room. The applicant then obtained the purse and took $40 from it. He then left the house.
[7]
[6] Prior to leaving the house the applicant told the victim on a number of occasions not to leave the bed. The victim remained on her bed until her husband returned home a short while later.
[8]
[7] The victim was examined by a medical practitioner at the Townsville Hospital shortly afterwards. On examination extensive bruising around the left temple, right cheek, below her right eye and around the lower jaw was noted. An x-ray revealed she had a broken lower jaw and a rib on the right side was also fractured. Bruising was also noted in the region of her left knee.
[9]
[8] On the following day further medical examination was carried out at the Mater Hospital. On that occasion bruising was seen on both buttocks and inside her right cheek. Genital examination revealed no obvious external injury. Her fractured jaw was wired and that remained in place for about six weeks.
[10]
[9] It was also reported that at the Mater Hospital the victim was barely able to move whilst lying in bed because of pain in her back. Medical examination revealed extensive muscle tenderness along the lumbar spine with pain on rotation consistent with soft tissue injury.
[11]
[10] It was noted by the doctors who examined the victim on 13 and 14 December that she was visibly distressed and her mood was depressed. Medical examination towards the end of December 2005 resulted in a finding of her being apathetic, profoundly depressed and lacking any will to self-care. She was admitted to a private psychiatric hospital for some 10 days. She had difficulty eating because of the bracing to her jaw and on re-admission to the Mater Hospital on 28 December 2005 a nasogastric tube was inserted for supplementary feeding.
[12]
[11] Since December 2005 the victim has received regular psychiatric treatment, including hospitalisation, for post traumatic stress disorder and depression. At the time of sentence her prognosis was not clear; she may require further hospitalisation.
[13]
[12] The severe beating the victim sustained at the hands of the applicant clearly resulted in her suffering grievous bodily harm and as the victim impact statements and medical reports reveal her problems have been ongoing since then. It was a brutal assault committed by a young man nearly six foot tall and weighing 100 kilograms on a defenceless elderly woman.
[14]
[13] Of particular concern is the fact at the time the applicant showed no remorse. It is clear from the applicant's statements recorded in the psychiatrist's report that he was aware that the victim was terrified, and was pleading with him to stop the attack because of her pain, yet he persisted. On sentence the prosecutor referred to the incident as "a vicious, degrading and appalling depraved assault on a frail and elderly woman in her own home"; that aptly describes what happened.
[15]
[14] The police investigation revealed presence of the applicant's fingerprints on a number of places in the victim's home. The applicant went to the Townsville police station at about 3.30 pm on the day in question with his parents and took part in an interview in which he admitted to being at his grandmother's place but denied entering the victim's dwelling and denied commission of the offences. Notwithstanding those denials he was arrested and charged. Then at about 10.45 pm, when his parents were not present, he gave a further interview in which he made full and frank admissions as to the commission of the offences in question.
[16]
[15] The learned sentencing judge referred to the fact that the applicant told Dr Moyle that he was aware of the victim's complaints that he was hurting her but stated he did not care about that. That led to a conclusion that the applicant acted callously. The sentencing judge described the applicant's conduct as "gratuitously violent" and noted that he was "indifferent to the complainant's protests". The consequences to the victim were "horrendous".
[17]
[16] The sentencing judge also referred to the fact that the applicant wore a condom and said that the suggested spontaneity of the conduct was minimal. The sentencing judge gave credit for a plea of guilty at the earliest opportunity, but noted that there was a very strong case against the applicant. The pleas of guilty preserved the victim from the further trauma of giving evidence.
[18]
[17] The sentencing judge also took into account the applicant's youth and the need to have regard to the prospects of rehabilitation.
[19]
[18] The applicant had no previous criminal convictions and that was a matter the sentencing judge took into account. But it has to be said in the light of the contents of the report of Dr Moyle that the applicant had been a user of illicit drugs for some time and, particularly whilst affected by the ingestion of such drugs, behaved in a very delinquent way. In the psychiatrist's report there is reference to fighting other people in the streets, throwing rocks on roofs, stealing garden gnomes and the like. Clearly it was but a matter of time before the applicant was charged with a serious criminal offence.
[20]
[19] In the view of the sentencing judge there was no real evidence of remorse and the degree of callousness was significant. In his view the fact that the applicant robbed the victim after the rape aggravated the incident even further.
[21]
[20] The sentencing judge referred to a number of decisions of this Court dealing with sentences in comparable cases: Mallie[2000] QCA 188, Bolton[2005] QCA 335, Price[2004] QCA 10 and Jerome[1997] QCA 299. That led his Honour to say that the range for the most serious offences of this type was "10 to 14 years". In my view, as the subsequent analysis of those cases demonstrates, that is the appropriate range particularly where rape and grievous bodily harm are involved.
[22]
[21] As already noted, on the hearing of the appeal, counsel for the applicant concentrated on the applicant's age and submitted that the sentencing judge had not placed sufficient weight on that consideration. It was also submitted that the report of Dr Moyle did demonstrate that the applicant had insight into his offending conduct and had demonstrated some remorse.
[23]
[22] Certainly there was no remorse shown at about the time of the commission of the offences. As already noted the applicant made a number of statements which indicated he was aware of the severe pain the victim was suffering before the rape but nevertheless he proceeded to take advantage of her. It could not be said that the sentencing judge was wrong in concluding that there was a significant degree of callousness associated with the applicant's conduct. Dr Moyle also referred to a degree of callousness in his report.
[24]
[23] The passages relied by the applicant's counsel from Dr Moyle's report as indicating some remorse included the following: "... he felt disgusted with himself". "He emphasised that his mind would focus on how rotten his crime was and he asked himself why he did it." "Now a year later he says he still feels bad about what has happened and he deserves to be punished." "He still feels like 'shit', with no self-confidence."
[25]
[24] Those statements to Dr Moyle were made at a time when the applicant was in custody facing sentence for the offences. Looked at objectively it could be said that he was more feeling sorry for himself than feeling sorrow for the plight of the victim. Nevertheless some weight must be given to those statements as to how he saw himself after committing the offences.
[26]
[25] One should not leave Dr Moyle's report without noting that he considered the risk of the applicant re-offending as being in the "low to moderate range".
[27]
[26] It is against that background that this Court must look at how the sentence imposed on the applicant fits in with its other decisions on comparable cases.
[28]
[27] Bolton is the most recent comparable decision. The complainant in that case was a 24 year old Japanese student who was walking along Rainbow Beach at about 5.00 pm one day. The offender, then aged 18, grabbed her from behind and forced her to the ground. The offender was carrying a knife with a 10 to 12 centimetre blade. The complainant tried to struggle and, in doing so, grabbed the knife and injured her hand. The offender told her that if she tried to resist he would hurt her. She was then dragged into the bush where her clothing was removed. At that point the offender held the knife to the complainant's neck. In those circumstances the offence of rape was committed. The complainant had injuries to three fingers of her left hand which required surgical repair and it constituted grievous bodily harm. There were also some fine linear abrasions to her throat and neck consistent with the blade of the knife being drawn across the skin.
[29]
[28] The offender sought leave to appeal against the sentence of 10 years imprisonment for the rape and six years imprisonment, concurrent, for the offence of grievous bodily harm. The application for leave to appeal was dismissed.
[30]
[29] The case is comparable to the present because of the offender's age, because grievous bodily harm was inflicted in the course of committing the offence, and there was the disturbing feature of the offender's lack of remorse.
[31]
[30] In my view it is of some significance that in that case the injury to the hand which constituted the grievous bodily harm was occasioned when in the course of the struggle the complainant grabbed the knife. The present case is distinguishable because the victim here was subjected to a prolonged vicious physical attack occasioning more serious injuries.
[32]
[31] Mallie was considered by the Court in Bolton. The offender in that case was aged 20 when he committed offences of burglary, stealing, two counts of assault occasioning bodily harm, one count of sexual assault and one count of rape. On pleading guilty he was sentenced to 10 years imprisonment with a declaration he was convicted of a serious violent offence for the offence of rape, and to lesser concurrent sentences in respect of the other offences. The complainant in that case was a 37 year old woman who was asleep on a bed in her home, naked, with the lights on. The offender broke into the house and entered the complainant's bedroom. He proceeded to punch the complainant with both fists about five or six times. She injured her thumb while trying to protect herself and pleaded with the applicant not to hit her. After touching her breasts he proceeded to rape her. After having intercourse with the complainant he again punched her with both fists a further four or five times. She later realised that her purse had been taken from her handbag.
[33]
[32] The complainant suffered significant injuries concentrated around her left eye. She also had a small cut to her lower lip, an abrasion on her left shoulder and tenderness to her left thumb. During the attack she feared for her life and was severely affected by the offence. Subsequently she suffered from post traumatic stress disorder and had made some attempts to end her life. She had been hospitalised on a number of occasions for depression.
[34]
[33] The offender had a previous conviction for assault occasioning bodily harm for which he was ordered to do community service. He also had other relatively minor convictions. Prior to the incident he had regularly used alcohol and drugs. He wrote a letter of apology to the complainant which was tendered at sentence.
[35]
[34] The sentencing judge in that case considered the appropriate range was 10 to 14 years and considered that the mitigating factors for the applicant placed the appropriate sentence at the lower end of that range.
[36]
[35] This Court in its reasons noted that the sentence imposed "was at the bottom end of that range" and contained an appropriate discount for the plea of guilty. Ultimately this Court considered that the sentence imposed "properly balances the competing features in this case" and in consequence was not manifestly excessive. The application for leave to appeal was refused. The more serious injuries sustained by the victim in this case would call for a higher sentence than that imposed in Mallie.
[37]
[36] The offender in Jerome was convicted after a trial of burglary, rape, and indecent assault. He sought leave to appeal against the sentence of 14 years imprisonment for the rape; he was given lesser concurrent sentences for the other offences. In that case those sentences were imposed cumulatively on a term of imprisonment which the offender had to serve for other offences of attempted rape and indecent assault. The offences in question were committed whilst he was on parole in respect of the earlier offence. He had an extensive criminal history.
[38]
[37] The offences under review in that case involved what was described as a planned and premeditated rape on an elderly woman whom the offender knew. He had been drinking heavily on the night in question and after an argument with his wife decided to go to the complainant's house with the intention of raping her. On arrival at the complainant's house he turned off the power and entered through a bathroom window. He entered the complainant's bedroom and raped her. He threatened her that if she told anyone he would make it worse for her, but the following morning, apparently seized with remorse he returned to the complainant's house and asked for forgiveness.
[39]
[38] In my view Jerome is distinguishable because there was no violent physical attack on the complainant causing grievous bodily harm. Clearly if that element had been present a sentence well in excess of 14 years would have been called for. Although the judgment does not indicate the offender's age he was clearly a much older man than the present applicant.
[40]
[39] The final case to be considered is Price. The offender in that case pleaded guilty to burglary with violence, rape, serious assault and stealing. He was sentenced to 12 years imprisonment for the rape and to lesser concurrent sentences on the other counts.
[41]
[40] The complainant in that case was a 66 year old widow living alone. The offender entered her home around midnight after the complainant had retired to bed. She told him she was a little old lady and asked him not to hurt her. He said he would not hurt her, but proceeded to punch her with a closed fist to the left side of her face about four or five times. After that he attempted to have intercourse with her but was apparently unable to effect complete penetration. After the offender left the complainant found $140 was missing from her purse. She suffered severe bruising to the left side of her face and on the left upper arm. There was also some bruising to the genital area.
[42]
[41] The offender was 29 years old when he committed the offence and aged 32 at sentence. He had been a serious abuser of alcohol. He had a criminal history which did include convictions for assault occasioning bodily harm. The sentencing judge accepted that the offender showed some remorse and once his DNA was identified he co-operated with the authorities to the extent of pleading guilty. After referring to Mallie and other authorities this Court concluded that the sentence imposed could not be said to be manifestly excessive and was within the appropriate range.
[43]
[42] Again in this case the injuries sustained by the victim were more serious, but against that the present applicant had no previous convictions, particularly assault occasioning bodily harm. In broad terms those two factors would cancel each other out.
[44]
[43] As noted above those comparable decisions of this Court demonstrate that the learned sentencing judge was correct in indicating that, on a plea of guilty for a range of offences such as involved here, the range would be imprisonment for between 10 and 14 years.
[45]
[44] In the present case the applicant's age and the fact that his risk of re-offending was considered to be in the low to moderate range is largely offset by the persistent, vicious assault to which the victim was subjected and the ongoing consequences for her of the injuries so sustained. Whilst the applicant is also entitled to some discounting for his plea of guilty, the prosecution case was a particularly strong one, and the plea is not indicative of remorse.
[46]
[45] When all of those factors are brought into account a head sentence of 13 years imprisonment could be said to be at the top of the range for an offender of this applicant's age, and a slightly lower sentence could not have been held to have been manifestly inadequate. But I am not persuaded that a sentence of 13 years imprisonment for this offender and for the degree and extent of the offending involved, is manifestly excessive. Seventeen year olds who regularly ingest dangerous drugs such as ecstasy cannot expect extreme leniency when their first offence is an horrendous crime such as was committed by this applicant.
[47]
[46] The application for leave to appeal against sentence should be dismissed.
[48]
[47] JERRARD JA: In this matter I have had the advantage of reading the reasons for judgment of Williams JA, which conclude that the application should be dismissed. His Honour has described the relevant facts. Although those facts reveal that this applicant committed rape with the serious circumstances of aggravation that the offence was committed in the victim's home, was accompanied by considerable personal violence and by the theft of her property, and there was little evidence of remorse, I would nevertheless allow the appeal and reduce the sentence from 13 years to 11. That is because of the fact that the offender was only aged 17 at the time.
[49]
[48] A comparison with sentences imposed in offences of a similar kind suggests that this sentence was near the top of the available range. In R v Shillingsworth & Cosh [1985] CCA 027, that 19 year old offender was sentenced to 15 years imprisonment. He was one of three people who broke and entered the home of an 80 year old woman at night, to get money and food, and he severely beat and raped the 80 year old victim. She was left in a battered state, badly bruised and with fractured facial bones. She suffered serious injury to her genitals. She needed to be hospitalised. Mr Cosh had a trial, and his offending was more serious.
[50]
[49] In R v Basic(2000) 115 A Crim R 456; [2000] QCA 155, that offender pleaded guilty to rape. He was 31, and not armed; he threatened to hurt the 19 year old victim if she complained to the police. He had accosted and raped her early one morning, while she was walking to work. He had previous convictions, although only one involved personal violence. His sentence was eight years with a declaration that he had committed a serious violent offence. The application for leave to appeal was dismissed. His offence was less serious; his victim was not injured apart from the injury involved in rape, he did not steal, and he did not break into the victim's residence.
[51]
[50] In R v Mallie[2000] QCA 188 that 20 year old offender pleaded guilty to burglary, stealing, assault occasioning bodily harm, rape and sexual assault. Those offences happened when he broke into the home of a 37 year old woman at night time, and he punched her several times, both before and after raping her. Some of her teeth were knocked out and she had swelling to her face. He was 20 years old, with a history of alcohol and cannabis abuse, and a history of offending which included one incident of personal violence. His application for leave to appeal against a 10 year sentence was dismissed. He caused less injury to his victim than Mr Newman, but was older and had some criminal history. He had the advantage of a finding that he did show remorse for his offence and there were reasonable prospects of rehabilitation. His sentence was 10 years imprisonment and his application was dismissed. His offence was less serious than this offender's, but not by much.
[52]
[51] In R v Henry[2002] QCA 520 that offender pleaded guilty to three counts of breaking and entering premises and stealing, burglary with circumstances of aggravation, four counts of rape, and stealing. The offence the subject of an application for leave to appeal was an offence of rape, committed when he was 19. He broke into the home of a 21 year old complainant who was asleep with her 10 month old son. He was armed with a knife, and he raped the complainant. He threatened to kill her if she told anyone. He also claimed no memory of what had happened, but was described as remorseful and pleaded guilty. He had a significant criminal history for property offences and one for assault. He was sentenced to 11 years imprisonment, and his appeal was dismissed. He had a weapon, but did no gratuitous violence to the victim, other than that involved in the rape. He did not cause other physical injury to the complainant, as did Mr Newman.
[53]
[52] In a matter of R v Price[2004] QCA 10, that offender was 29 years of age, and entered the house of a 66 year old woman who lived alone. He punched her some four to five times with great force, and then raped her. He also stole $140 from her. She suffered injuries to her genitals and her body, and when later arrested he claimed to have no recollection of the offence due to serious alcohol abuse. He had a criminal history including offences of violence, but none of a sexual nature. He was sentenced to 12 years imprisonment when he pleaded guilty to burglary, rape, serious assault, and stealing. His offending was very like Mr Newman's, except that he did not cause grievous bodily harm to the victim; but he was older, and he had a criminal history.
[54]
[53] In R v Bolton[2005] QCA 335, that offender pleaded guilty to one count of rape, and one of doing grievous bodily harm. His 10 year sentence was upheld on appeal. He was 18 years old when he offended, and he used a knife to threaten his victim, who he raped. She injured her left hand when she grabbed the knife; he did not cause her any other physical injury, other of course than the injury involved in the actual rape. He had no prior criminal history, but like Mr Newman had a history of having abused drugs. He was considered to show no genuine remorse, despite his plea of guilty. His offence did not involve theft, or breaking into the victim's home, or doing other injury, and so was less serious than Mr Newman's.
[55]
[54] Comparison with those other sentences persuades me that this sentence was too close to the upper end of the 10 to 14 year range described by this Court in Mallie. If Mr Newman had been in his 20s, the sentence would accord more with other ones. Because of Mr Newman's very young age and the unavoidable conclusion that his offending behaviour reflected immature judgment, I would set aside the sentence imposed, and substitute instead a sentence of 11 years imprisonment.
[56]
[55] WHITE J: I have read the reasons of Williams JA and agree with his Honour that the application for leave to appeal against sentence ought to be refused.
[57]
[56] I agree with his Honour that the expressions of what were submitted to demonstrate remorse made to Dr Moyle by the applicant are at least as much about the offender as an expression of true regret for his criminal actions and their consequences for the victim and her family
[58]
[57] It is clear, as his Honour has observed, that a sentence of 13 years is, looking at the comparable cases, at the top of the range. While the sentencing judge could have given greater weight to the mitigating factor of the applicant's youth by a slightly lesser sentence, not to have done so reveals no error, particularly where the applicant deliberately ingested ecstasy, knowing that as the intoxication diminished he became irritable and aggressive and was prone to act impulsively. This case demonstrates the adverse effects that can follow the consumption of what are foolishly and deceptively described as "party drugs".
[59]
[58] As Williams JA's description of the offences demonstrates, this was criminal conduct of an appalling and callous kind deserving of severe punishment. It has had prolonged and probably lasting adverse consequences for the complainant and for her husband. Their apparently contented life together has been seriously impaired and the applicant must bear responsibility for those consequences, see R v Amituanai[1995] QCA 80; (1995) 78 A Crim R 588.