R v Sambo [2000] QCA 191

The Judge described the applicant's going to trial on the rape and deprivation of liberty as not indicative of remorse but more of a tactical ploy in the hope of his avoiding conviction.

In the written outline, that is challenged. Whether or not it was a ploy, the plea of not guilty to rape, was obviously a first step in an attempt to avoid conviction, but the Judge's terminology if vulnerable to criticism, does not seem to me in the end to matter for the resolution of this case.

Part of the applicant's difficulty is his past criminal history in that it extends over 20 years and includes relevant convictions, albeit that they were at this time rather old. There were two convictions for assault occasioning bodily harm in 1979 and 1989, one for assaulting police in 1983 and one for indecently dealing with a girl under the age of 14 years in 1994.

The matter has been argued, as I say, on the basis that the declaration rendered oppressive the nine years' imprisonment which however would otherwise have been justified absent a declaration. The declaration means that the applicant will have to serve 7.2 years rather than 4.5 years, which as has been pointed out in the course of the hearing, reflects a 60 per cent increase over the 4.5 years.

Bojovic, Court of Appeal number 4 of 1999, requires that sentencing Judges be conscious of the strengthening effect of such declarations. That circumstance should not however in my view lead to moderation such as would be seen to subvert the legislative intention underlying the relevant provisions of the Penalties and Sentences Act.

I consider a nine year term including a declaration not susceptible of challenge. The essentials are that a mature man with a relevant prior criminal history, albeit rather old, committed a prolonged, brutal attack with weapons, and rape upon his de facto wife, inflicting substantial injuries upon her. He was convicted after a trial and apparently showed no remorse.

I would not for my part regard nine years as at or near the top of the range for an offence of rape of this character. I would refuse the application.

I would invite Mr Justice Muir to deliver the next judgment.

MUIR J: I agree with the reasons of the Chief Justice and with the order proposed.

The offence, accompanied as it was by a brutal attack with the applicant's fists, a metal broom handle and a knife was a serious one. In order to perpetrate the offence, the applicant after savagely beating the complainant, tore off her bloodstained clothes. He then, it seems, evinced no interest in assisting her to obtain necessary medical attention.

PINCUS JA: The Courts are still grappling with the application of Part 9A of the Penalties and Sentences Act.

The intention of the Courts is to apply the statute faithfully, but to try to avoid imposing punishments which are quite unreasonably severe. The formula which is intended to achieve this result relies on the Courts identifying the top and bottom of the range which would have been appropriate, ignoring the effect of Section 9A, and fixing a head sentence within that range, and perhaps at or towards the bottom of the range. It is not absolutely clear to me that that scheme works satisfactorily, particularly where the sentence would, apart from any consideration arising from Part 9A, have been in the vicinity of 10 years.

To take the simplest type of problem, which is illustrated by this case, a 10 year sentence would automatically produce an eight year non-parole period. A nine year sentence, depending on the way the Judge exercised his discretion, could produce a non-parole period of either four and a half years or 7.2 years. Therefore the practical effect of exercising the discretion against the offender is to bump up the minimum time served very substantially, and I think that Judges are having difficulty exercising this discretion.

That is illustrated by comparison of this case with Bojovic, to which the Chief Justice has referred. It will be noted that in Bojovic the sentence initially imposed was 10 years; there the victim died, and the injuries sustained which caused the death were very much more serious than those in the present case. Bojovic finished up, as Mr Byrne QC was good enough to point out to us, with a sentence of eight years without a declaration; that is, he would have to serve the minimum of four years.

In the present case, this is as the Chief Justice has mentioned, a bad rape and deserving of significant punishment. I note, however, that as was mentioned during the course of argument, the applicant's last sentence of imprisonment was imposed some 15 years ago. Since then the offences which he has committed have been met with fines, so that the criminal record is not quite as bad as some which we see here.

Taking the circumstances which have been mentioned by me and those mentioned by the Chief Justice into account and also having considered the helpful arguments of both counsel, I am not prepared to dissent from the order which the Chief Justice proposes. But I have indicated, I hope, some of the difficulties which I have had with cases of this sort. I agree with the order his Honour the Chief Justice mentioned.

THE CHIEF JUSTICE: The application is accordingly refused.