R v Riley [1992] QCA 348

Court of Appeal (Qld)|1992-09-07|Before: Pincus JA, Moynihan J, Ambrose J

COURT OF APPEAL [1992] QCA 348

PINCUS JA: The appellant appeals against his conviction and also seeks leave to appeal against sentence. He was convicted of a number of offences all relating to the same series of incidents. They were burglary, deprivation of liberty, indecent treatment of a child under 16 and rape.

The circumstances in which he was guilty of these offences need not be mentioned in detail at this stage, because the only point taken on the appeal against conviction is that, so it is asserted, a member of the jury had conversation with a police officer involved in the case. Specifically, the allegation is that one Tracy Yvonne Pearson, during a period in which the trial was adjourned, observed a police officer, whose name is Det Sgt Lesley Mervyn Hopkins, in conversation with a member of the jury.

The deponent gave evidence by affidavit and further evidence orally in chief and was cross-examined; it became fairly plain that the deponent was not really able to swear definitely that Hopkins did confer with a member of the jury. The ground was not in substance pressed and it seems to me unnecessary to say anything more about it, other than it is not made out and the appeal against conviction must fail.

Mr Nase, who appeared for the appellant, then went on to deal with the application for leave to appeal against sentence and it is necessary to deal with that in somewhat more detail.

The offences with which the Court is concerned began when the applicant came to a house in which a 15 year old complainant was asleep. He had some alcohol taken. He came into the girl's bedroom carrying a small hammer, touched her face with the hammer and threatened her with death if she screamed.

He directed her to get out of bed, took her out of the house and ascertained her age, which she said correctly was 15, and then physically restrained, she walked with him some distance, during which time the applicant mentioned other offences he had allegedly committed, such as murder and robbery. He claimed also to have kidnapped a girl, but killed her when she "dobbed him in".

After travelling some distance, the applicant pushed the girl back, removed her shorts and shirts and inserted a finger into her vagina. She objected, but he persisted and then discontinued, saying he "[couldn't] do it". She clothed herself and still under restraint, she accompanied him across fields, went to his parent's house, where he feigned a burglary. The applicant threatened to kill the girl if she made a noise.

From the house and a nearby shed, he obtained a blanket, a torch and a piece of rope. The two then went some distance further, travelling through scrub, and he again spoke of having killed people. They reached a clearing. The applicant spread out a blanket, lit a fire and had a smoke. He tied the ends of the rope to their respective ankles. By this time, it was some three hours after the girl had been taken away, that is, about 6.00 a.m. Then they walked some distance further. He said he had to think. He said, "I'm going to let you go, but you know what I want first." He removed her clothing, lay on top of her; she struggled and kicked and he had intercourse with her and then put his finger into her vagina, she said, really hard.

Shortly after that, they parted and he said, "You're one lucky girl. Someone must care about you. The next time I see you will be in court." She was, not surprisingly, very frightened by this, particularly because of his assertions that he might kill her.

At the trial, the defence raised was, as I understand it, consent, which as counsel for the applicant implied, was odd, since it was admitted that he commenced his approach to the girl with his hammer. The relevance of that is that he apparently showed no remorse and put the victim through the trauma of a trial.

The sentences imposed were as follows: burglary, 10 years; abduction, 4 years; two counts of indecent dealing, in each case 3 years; and the rape, 12 years. These sentences were made concurrent with one another.

As has been pointed out during the course of the hearing, the applicant, who is 24 years of age, has a fairly extensive criminal history of various kinds, including such matters as making menacing phone calls, attempted arson, stealing, being armed in public so as to cause fear, ill-treating an animal and lesser offences.

He has been in gaol. On the last occasion when he was before the Court, he was given a specific warning, having been guilty of an offence of violence, of the likely results of his continuing with that sort of conduct, and regrettably he did continue and hence these proceedings.

Mr Nase had suggested that the proper sentence would have been in the region of 10 years, whereas Mr Byrne contends that the sentence is well within the range and that it might indeed have been somewhat higher.

In my view the sentence was a reasonably appropriate one in all the circumstances, and the orders which I would be inclined to make would be that the appeal against conviction be dismissed and the application for leave to appeal against sentence be refused.

MOYNIHAN J: I agree with the reasons of the presiding Judge and the orders that he proposes.

PINCUS JA: The orders will be: appeal against conviction dismissed. Application for leave to appeal against sentence refused.

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