R v Price [2004] QCA 10

THE PRESIDENT: The applicant pleaded guilty to burglary in the night with violence, rape, serious assault and stealing. He was sentenced to 12 years' imprisonment on the rape and to lesser concurrent periods of imprisonment on the remaining counts. He contends that the sentence was manifestly excessive and that the learned sentencing Judge gave insufficient weight to the plea of guilty.

The complainant was a 66 year old widow living alone in a two-storey dwelling in a northern Brisbane suburb. She was 5'4" tall and weighed nine stone. On 11 March 2000 she had been watching television and went to bed shortly before midnight in her upstairs bedroom. She woke up to see a flickering light in the alcove near the staircase and smelt smoke. She called out, "Is anyone there" and a male voice from within her bedroom replied, "It's Tony." She said, "No Tony lives here". The applicant responded, "He does now".

He sat down on her bed and she screamed and cried. He said, "Don't scream. I'm not going to hurt you, I'm not going to hurt you." She said, "What are you going to do, I am a little old lady." He repeated that he would not hurt her and moved further on to the bed. She was still screaming and he put his hand over her mouth and punched her with a closed fist to the left side of her face about four or five times with great force. She felt immense pain and drained of energy. He straddled her and fumbled with his jeans around the crotch area. He said, "Would you help me get my cock up?" The complainant refused. He pulled her underpants away from her vagina and pushed her legs apart and tried to insert his penis. He was unable to effect complete penetration.

He suddenly got off her and appeared to be disgusted with himself. Her underpants were wet and a subsequent scientific examination detected the presence of the applicant's sperm both on the underpants and in a vaginal swab.

The applicant paced up and down the room and said: "Why did I do this for? What have I done?" The complainant asked how he could have done such a thing and asked him what his mother would have thought. He said he did not have a mother and that she died when he was a baby. The complainant told him to leave because her granddaughter was coming home from a nightclub at any time.

He then left the room. She stayed in bed for a few minutes to ensure he had left the house. She felt incredible pain to her face and irritation in her genital area. She immediately contacted friends and later that night reported the incident to police. She found $140 missing from her purse. The house has been entered by the removal of a fly screen from a window on the ground floor.

The complainant suffered severe bruising to the left side of her face and on the left upper arm. She also had some reddening and bruises in the genital area. In her victim impact statement she sets out the harrowing effect the applicant's offending has had on her life. She has never returned to the home which her husband built and where she lived for 20 years. She now lives with friends and she still experiences facial pain and discomfort and problems with her right eye. She was terrified that she may have contracted a sexually transmitted disease. She has suffered nightmares and continues to be fearful and anxious whenever she is alone. She finds it difficult and stressful to make decisions and her financial affairs have suffered. She has lost the confidence to work outside the home. Her doctor has told her that she requires counselling but she has not yet been able to face up to this.

The applicant was unknown to the complainant and he was only apprehended after he was sentenced to a period of imprisonment and a routine DNA sample taken from him matched the samples taken from the complainant and her clothing. He declined to be interviewed and was arrested.

Defence counsel at sentence submitted that the applicant had no recollection of the offence and that during this period of his life he was a serious abuser of alcohol. He was 29 years old when he committed the offence and 32 at sentence. He had a criminal history commencing in 1989 when he was dealt with for stealing in the Rockhampton Magistrates Court. He was first sent to prison in 1991 when he was sentenced to three months imprisonment and 12 months probation on three counts of assaulting police. In 1996 he was convicted of assault occasioning bodily harm and fined. He also had some street offences and minor drug offences. In 2002 he was sentenced to nine months imprisonment suspended for two years after serving three months for two counts of assault occasioning bodily harm. He had no prior convictions of a sexual nature.

In his sentencing remarks his Honour accepted that after the applicant committed the offence he showed some remorse and once his DNA was identified he cooperated with the authorities to the extent of pleading guilty, saving the complainant the distress of having to give evidence. His Honour also noted that the case was overwhelming and the applicant could do little else but plead guilty.

I do not understand his Honour, in making that correct observation as to the strength of the prosecution case, to be saying that he was not, nevertheless, giving credit to the applicant for his plea of guilty and cooperation with the authorities. The question really is, as Mr Moynihan who appears for the applicant concedes, whether the sentence imposed was outside the appropriate range.

In R v Mallie [2000] QCA 188, CA No 49 of 2000, 17 May 2000, Mallie was sentenced to an effective sentence of 10 years imprisonment for burglary, stealing, two counts of assault occasioning bodily harm, sexual assault and rape and claimed the sentence was excessive. He broke into the complainant's home whilst her husband was away. He violently assaulted the 37 year old complainant and raped her. He then punched her again four or five times. The complainant was able to chase him from the house and eventually obtain assistance. Mallie's fingerprints were found at the scene. The complainant was severely emotionally affected by the offending. Mallie was 22 at sentence and 20 at the time of the offence. He pleaded guilty by ex officio indictment and it was noted that the case against him was, as here, overwhelming. He was affected by amphetamines and alcohol when he committed the offence and, as here, had no recollection of them. Unlike this applicant he committed no further offences whilst at large in the community. He had a criminal history comparable to that of this applicant. In refusing Mallie's application, the Court noted that the range for sentences of this type was between 10 and 14 years imprisonment.

In R v Henry [2002] QCA 520, CA No 272 of 2002, 27 November 2002, Henry pleaded guilty to three counts of breaking and entering premises and stealing, burglary with circumstances of aggravation, four counts of rape and stealing. He was sentenced to an effective term of imprisonment of 11 years.

He was aged between 17 and 19 when he committed the offences. His relevant offending, which he committed when he was 19, concerned breaking into the home of a 21 year old woman who was asleep with her 10 month old son whilst her de facto husband was asleep in another bedroom. Henry was armed with a knife. He told the complainant to be quiet or she would be hurt and said he wanted to have sexual intercourse with her.

He penetrated her from behind as she huddled over her son to protect him. When the child started to cry he permitted the complainant to comfort the boy. Later he digitally penetrated her vagina and raped her a further two times as she huddled over her baby. He left, threatening to return and kill her if she told anyone. The ordeal lasted for about an hour. Henry was affected by alcohol. His key card and wallet was found at the house and his identity was confirmed by DNA comparison. He too claimed to have no memory of what occurred but was remorseful and pleaded guilty at an early stage. He had a significant criminal history for property offences from the age of 14 and one entry in his criminal history for assault. The victim was greatly affected by the offences. Despite the mitigating features, this Court was not persuaded the sentence was manifestly excessive. The seriousness of the level of this applicant's offending was not, of course, identical but was comparable to that in Henry and Mallie. Henry and Mallie, however, were younger offenders who are traditionally dealt with more leniently by the courts. This applicant was a much more mature man of 29 when he committed these offences.

In those circumstances, the sentence imposed here cannot be said to be manifestly excessive and was within the appropriate range. I would refuse the application for leave to appeal against sentence.

McPHERSON JA: I agree. I wish to add that I do not regard the sentence as manifestly excessive in any circumstance.

THE PRESIDENT: The application for leave to appeal against sentence is refused.