_R v Ramm_

Court of Appeal (Qld)|2008-02-11|Before: McMurdo P, Keane JA and Atkinson, JSeparate, reasons for judgment of each member of the Court, each concurring as to the, order made

ATKINSON J: The applicant, Luke Kade Ramm, has applied for leave to appeal against a sentence imposed upon him in the District Court on 3 October 2007. On that day he pleaded guilty to four counts. On each of count 1, break and enter dwelling with intent at night with actual violence used, and count 2, assault with intent to rape, he was sentenced to four years' imprisonment. On each of two counts of stealing, counts 3 and 4, he was sentenced to one month's imprisonment. All the sentences were to be served concurrently and a declaration was made with regard to 149 days in pre-sentence custody. The sole ground of appeal is that the sentence imposed was manifestly excessive.

The events, the subject of counts 1 and 2, occurred in the early hours of 5 August 2006. At about 4.30 a.m. the complainant was woken by someone trying to open the front door of the unit in which she lived. He was fully clothed and asked her in rather vulgar terms to have sexual intercourse with him. Although they lived in the same block of units they had no previous acquaintance and she rejected his request. She was concerned for her safety and ensured that the front and back doors were securely locked.

About half an hour later the applicant smashed in one of the French doors to her living room. By this time he had undressed and was wearing only his underpants and work boots. He physically attacked the complainant. She tried to kick him to fight him off but fell backwards on to a couch. He placed a pillow over her face forcing it into her face and it was only when other residents of the unit complex on hearing the complainant screams came into the room that he desisted. As he left the unit the applicant said to one of the male witnesses, "She is f'ing crazy." He walked off and hid underneath a truck parked in the street.

As well as the emotional and psychological effects of the attack on her the complainant suffered a fracture to the knee joint which has required surgery and a long period of being unable to walk unaided. As a result she lost her job and her leg is still painful.

The two stealing charges are related to each other but were unrelated to counts 1 and 2. The complainants were both employed as mechanics in the same workshop as the applicant. On 27 September 2006 the applicant sold personal tools which belonged to them at a Cash Converters. After initially denying the offences he admitted them during the record of interview.

The applicant lost his job as a result of those offences. He was a relatively young man being 25 at the time he committed the offences. He was single with no dependants. He had a good education, had completed an apprenticeship and had a good work history until he was dismissed. He had been under personal stress after his father committed suicide in 2002 and the applicant began drinking heavily. He had been drinking at the time of the offences the subject of counts 1 and 2. He had personal references which spoke highly of him and the applicant had written a letter of apology to the complainant. It was an early plea of guilty entered at the time of the committal.

He had, however, a number of prior convictions. In 2004 he was convicted of common assault and given a community service order. In 2000 and 2002 he was convicted of driving with excessive alcohol and driving without due care and attention. He was fined and disqualified for 12 months. In 2000 he was fined for disorderly behaviour.

He was dealt with as a juvenile in South Australia where he had the advantage of family conferences for offences such as possessing a controlled substance and equipment to administer cannabis, receiving and common assault. He received community service orders as a result of those offences. More recently he was sentenced to two months' imprisonment for breach of bail undertaking on 3 May 2007. That breach had led to his bail being revoked.

The learned sentencing Judge made particular reference in arriving at the sentence of 4 years' imprisonment to R v. Armstrong [2006] QCA 158. In that case a sentence of eight years' imprisonment was reduced to six years' imprisonment on appeal.

The sentence was imposed after Armstrong was convicted by a jury of assault with intent to rape. No two cases are precisely similar but the circumstances of Armstrong do show more serious offending. Armstrong was older, in his mid-thirties when he committed the offence. He assaulted the complainant with intent to rape at night when she was alone and vulnerable in public. The attack on the complainant was violent and occurred in spite of the fact that she phoned the police for assistance. Armstrong had an extensive criminal history consisting of sexual violence against women and other offences of violence and dishonesty. He did not have the advantage of a plea of guilty, expressed no remorse and the complainant was obliged to give evidence. The only aspect which made it arguably less serious was that the offending did not involve, as it did in this case, breaking into the complainant's home.

A comparison of Armstrong with this case suggests that a head sentence of four years' imprisonment is appropriate for the offending in this case; but in order to take account of the different personal history, the remorse expressed by the applicant and his early plea of guilty the applicant in this case would be more appropriately dealt with by the Court adding a recommendation that he be eligible for parole after serving a portion of his sentence. In my view not to do so made the sentence manifestly excessive. The applicant is clearly an offender who would benefit from a substantial period of supervision in the community.

A comparison with other cases leads to the same conclusion. R v. Billy, CA No 208 of 1997 was a more serious case in which the applicant was sentenced to four years' imprisonment with no recommendation for early release. The applicant, a man in his mid-thirties, pleaded guilty to one count of entering a dwelling house with intent and one count of indecent assault. He had a criminal history of aggravated assault, wilful damage to property and stalking for which he had been imprisoned for three years and six months. In 1994 he was convicted of possession of a weapon in a public place, breaking and entering a dwelling house with intent, stealing and impersonating a police officer. There were also two previous convictions for stealing.

The offences in Billy occurred in the following circumstances. A 29 year old woman returned to her home in the early hours of the morning and went to bed. She woke up to find the accused person naked and lying on top of her trying to kiss her. He began to pull her pants down and told her not to scream because he had a knife. The knife was later found on the bedroom floor. The woman did scream and the man left by the front door. The Court of Appeal unanimously held that the application for leave to appeal be refused. As in this case the offence involved invading the sanctity and safety of the victim's home at night and he pleaded guilty but Billy was older, had a much more extensive criminal history and was armed with a knife.

I would not disturb the sentence except by adding a recommendation that the applicant be considered eligible for release on parole after serving 16 months' imprisonment.

The orders I would make therefore would be application granted; appeal allowed only to the extent of ordering that the applicant e considered eligible for release on parole after serving 16 months' imprisonment.

THE PRESIDENT: I agree. The burglary and assault with intent to rape offences were serious in that the applicant terrorised the complainant in her own home and caused her substantial physical and emotional harm. This is clear from the victim impact statement.

The comparable cases to which both counsel have referred us support the four year head sentence. The submissions made on the applicant's behalf at sentence and in this Court are that the offences are out of character and occurred when the applicant had been abusing alcohol heavily. His lack of relevant criminal history and the references tendered at sentence on his behalf support that submission. It seems that if he controls his alcohol abuse he has promising rehabilitative prospects.

These factors also suggest that both society's and his best interests will be served if he is subject to a lengthy period of strict supervision in the community.

Balancing these competing interests then with his early plea of guilty in the Magistrates Court to these charges and his demonstrated remorse I am satisfied that an early recommendation for parole eligibility is warranted and that without it the sentence is manifestly excessive. I agree with the orders proposed by Justice Atkinson.

KEANE JA: I agree with the President and Justice Atkinson.

THE PRESIDENT: The orders are as proposed by Justice Atkinson.

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