R v SAS [2005] QCA 442

Judgment (35 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] McMURDO P: I agree with Jerrard JA's reasons and proposed orders.

[3]

[2] JERRARD JA: On 29 July 2005 SAS pleaded guilty to three counts of indecent treatment of a child under the age of 16 years, one count of deprivation of liberty, and two counts of rape. On each count of rape he was sentenced to nine years imprisonment, with a recommendation that he be considered for release on post-prison community based release ("parole") after four years, and to concurrent terms of five years imprisonment on each of the counts of indecent treatment and three years imprisonment on the count of deprivation of liberty. The learned sentencing judge declared that 100 days of pre-sentence custody counted as time served under the sentence. SAS has applied for leave to appeal against the sentences for rape on the ground that they are manifestly excessive in all the circumstances.

[4]

[3] SAS has some previous convictions for offences involving violence or threatening to use it. He was convicted of one count of unlawful assault, and one of assault occasioning bodily harm, committed on different dates in January 1992, and sentenced to perform community service on each count. Just over 10 years later on 6 February 2002 he was convicted of an offence of breaching a domestic violence restraining order, and on 3 June 2002 was convicted on two further charges of breaching a domestic violence restraining order. Those 2002 offences all happened in January 2002. That is a past history of very occasional unlawful use of force. He has one other conviction worth noting, incurred on 28 January 2005, for having possessed methylamphetamine in January 2004. He has no other convictions for drug-related offences.

[5]

[4] The complainant, to his knowledge, was 14 years old at the time he raped her. She was living on the streets and receiving money from the Department of Family Services. He knew her because he had gone out with a much older friend of hers.

[6]

[5] The immediate background to the offences was that in the early hours of the morning of 24 February 2003 the complainant was at a service station, having something to eat, when SAS and two other men happened to arrive there. She agreed to go clubbing with them, and at the club chosen all four consumed alcohol. She was drinking vodka cruisers. Later she went with the men to the premises of the Nomads Motor Cycle Club, where more alcohol was consumed, including rum. Somewhere around dawn all four left the club, but then SAS and the complainant returned back there, and the complainant initially fell asleep, fully clothed, on a lounge. SAS then invited her to use a bed on the premises, which she did, and she later woke up to discover that her pants had been removed and that SAS was performing cunnilingus upon her. That conduct was count 1 on the indictment.

[7]

[6] The complainant got up immediately and grabbed her clothing, went straight to a phone, and dialled 000 to call the police. Unfortunately no police arrived until approximately 50 minutes later, and all other offences were committed on her in the intervening period. She had been unable to open the door to leave, and she asked SAS to let her out. He attempted to convince her she should stay, then eventually told her he was not going to let her out, even though she begged him to do so. He said words to the effect that "If I'm going to gaol for this, I might as well finish", apparently referring to the uninvited cunnilingus he had performed. The refusal to assist her to open to the door was the basis of count 2, the charge of deprivation of liberty.

[8]

[7] SAS then threatened to assault the complainant with a pool cue if she did not do as he wanted, and by that threat induced her to sit on a barstool and take her underpants off; and then to insert her own finger or fingers into her vagina while he masturbated. That conduct was the basis of count 3, a charge of procuring a child under the age of 16 to commit an indecent act.

[9]

[8] She got down from the stool and asked if she could go, but SAS lifted her onto a pool table and then undid her top and bra. He then licked her breasts and again performed cunnilingus. That conduct constituted count 4 on the indictment, a charge of unlawfully and indecently dealing with her.

[10]

[9] He then made a claim that he wanted to have sexual intercourse, and told her he would hit her with the pool stick; despite her clear statements that she did not want "to fuck you" and just wanted to go, he attempted to achieve penetration in a number of different positions. Twice he succeeded. That was both when facing her and when penetrating her vagina from behind. The learned sentencing judge was told that the complainant had said it really hurt her on each of those occasions, and that SAS was wearing a condom by then. That conduct formed the basis of the two counts of rape.

[11]

[10] Eventually he changed the condom for a new one, then lay on the lounge and endeavoured to persuade her, despite her objection that it hurt, to get on top of him. The police arrived while that was happening, and in response to their inquiries SAS, when at the front door, at first pretended that the complainant was not present. However, the police saw her, identified her, and when she spoke to them outside she became quite hysterical. Subsequent medical examination showed that she had a full thickness split to her hymen and a tender small split to the posterior fourchette.

[12]

[11] SAS claimed, when the police spoke to him at the scene, that the complainant had told him she was 16, and that they had had consensual intercourse. He denied having threatened to hit her on the head with the pool cue. Consistent with those denials and assertions by him, the complainant was cross-examined at some length in the committal hearing, and was also cross-examined at some length in a pre-recording of evidence for the trial, with the proposition being put to her then that she had consensual intercourse with SAS, and that she had falsely told him she was 18 years old. The matter was listed for a trial in April 2005, but after a jury was selected SAS's legal representatives withdrew; and new solicitors were engaged later that day. Next day those solicitors were dismissed and on the following day SAS failed to appear at the trial, because he had taken an overdose of prescribed medication. He was then held in custody from 20 April 2005 onwards until his ultimate pleas of guilty to all charges.

[13]

[12] That made the case one where there was a very late plea of guilty, where the complainant had been forced to undergo cross-examination twice and was challenged on her account, later admitted by his pleas to be truthful. SAS is therefore entitled only to a small reduction in the otherwise appropriate sentence, in recognition of that late plea, and for his limited co-operation with the administration of justice. He has not shown any obvious remorse. He raped a vulnerable child who could not escape from the premises, after taking advantage of her intoxicated condition which resulted from alcohol he had helped give her, and when he knew she had called police for help.

[14]

[13] Mr Heaton, SAS's counsel on the appeal, argued that nevertheless the sentence imposed was manifestly excessive and outside the applicable range of penalty. Part of the argument claimed that too little weight had been given to the plea of guilty, when the eligible date for consideration for release on parole was only six months less than the statutory halfway mark. I consider, with respect, that that last submission should be rejected, because of the very late plea and other preparation for trial.

[15]

[14] More relevant are Mr Heaton's submissions that while SAS used a threat of violence to subdue the girl's resistance to him, he used little actual violence. Mr Heaton also argued that while SAS had exploited her vulnerability when in the clubhouse, they had gone to it voluntarily.

[16]

[15] Mr Heaton chiefly relied on the decision of this Court in R v Faifuaina [2004] QCA 262. Mr Faifuaina had pleaded guilty, on the date fixed for his trial, to two counts of deprivation of liberty, one count of attempted rape, and one count of rape. There were two victims, and one of the counts of deprivation of liberty and the count of attempted rape related to one complainant, and two other counts to the other. Mr Faifuaina was sentenced to concurrent terms totalling seven years imprisonment, and his application for leave to appeal was dismissed.

[17]

[16] The first complainant was a 16 year old school girl who was wearing a school uniform when she met that applicant at a Centrelink office, and she went with him to some local shops where he bought takeaway food. They walked towards his unit when she said she had to go to school; it was raining and he suggested she come into the unit and out of the rain. She did so, but when leaving the unit was grabbed from behind and pulled back into it, forced down onto a mattress on the floor, told to shut up and offered money. Mr Faifuaina then attempted to kiss her and lift up her shirt, but she successfully resisted. He got up and told her to "wait there", but she left the unit and went to her school and complained.

[18]

[17] Later that same day, the second complainant, who was just 14 years old, was walking past those units. She should have been at school but was not, and was not in school uniform. It was still raining and at Mr Faifuaina's suggestion she joined him under a tree to keep out of the rain. Then she stood outside his unit while he got a towel with which to dry her. Eventually he grabbed her and dragged her inside his unit, locking the door, and when she almost escaped he dragged her back in again. She too was pushed onto a mattress by that applicant, and also was offered money. He lay on top of her, pulled down the front of her top and bra, and started to suck on her breasts. He then tried to pull her skirt up and succeeded in inserting his penis into her vagina. When he offered her money, she took $10 from him, then ran away and went to her school where she also complained. Mr Faifuaina was arrested the next day.

[19]

[18] On his application his counsel stressed that he had not produced or threatened to use any weapon, a relevant circumstance which distinguishes his case from SAS's. Like SAS he entered a very late plea, and he too raped a 14 year old girl whom he had made a prisoner. His conduct had also involved abusing some faint degree of trust of him. His application was unsuccessful, but that does not establish that this sentence is manifestly excessive, only that that one was not. That decision suggests that, but for the threat to use a weapon, a seven year head sentence would have been within the available range.

[20]

[19] That view is supported by another decision of this Court on which Mr Heaton relied, R v Williams [2002] QCA 211. That decision suggests that a head sentence, even in a case such as this one, could be in the order of seven years imprisonment. In Williams that applicant was convicted of one count of rape following a trial and sentenced to seven and a half years imprisonment. The complainant was 16 years old at the time of the offence and had met the applicant about eight months earlier. At the time of the offence he was a temporary visitor at premises where she was also a visitor. It happened that they were in the flat where she was minding a baby, who was asleep, as was the complainant's sister. The applicant suggested they have sexual intercourse, and was refused; he then went to the kitchen and returned with a serrated edged knife, and again suggested intercourse. When she refused again, he threatened to cut her head off if she did not comply. He forced her down, they struggled, and he succeeded in achieving penile rape of her. Afterwards he threatened that if she complained, he "knew where she lived." She did make a subsequent complaint. He defended the charge, contending there had been consensual intercourse.

[21]

[20] That applicant referred to this Court's decision in R v Edwards [1997] QCA 472, in which a sentence of seven years was not disturbed even though it involved a second count of rape, during which the offender threatened to stab the complainant with a screwdriver. The Crown relied (in the appeal in Williams) on the earlier decisions of this Court in R v Stirling [1996] QCA 342 and R v Basic [2000] QCA 155. In Stirling this Court reduced a nine year term of imprisonment (after a trial) to seven years, in respect of a 30 year old appellant who entered that complainant's bedroom while she was sleeping. He forcibly overcame her resistance and had sexual intercourse with her. He was on parole for crimes committed in Western Australia; on the appeal in Stirling, Thomas JA wrote:

[22]

"We have been referred to a variety of past sentences for like offences...Sentencing patterns are discussed in these and many other cases in this Court and there is little point in restating the position. Suffice it to say that a nine-year sentence seems more appropriate for those cases where specially serious factors operate such as the infliction of injury or the use of serious threats, possession of a weapon or some factor of a particularly aggravating kind. The present circumstances suggest that a sentence of seven years was the appropriate response, and I am accordingly of the view that the sentence of nine years was manifestly excessive and that it should be replaced with one of seven years."[1]

[23]

[21] In Williams the judgment of this Court remarked that the circumstances in each of Stirling and Williams were somewhat similar by reason of each having the aggravating features of threats and the presence of a weapon. Both were convictions after a trial. In Williams, this Court went on to note that in Basic that offender had attacked the complainant in that case as she was leaving her residence to go to work. He dragged her into nearby bushland and thereafter threatened and raped her. The complainant in that case was not bashed, and that feature in Basic resembled the facts in the instant application and in Williams, but the President (in Basic) described the event as "humiliating, degrading and a terrifying attack upon a young woman". In Williams this Court noted that the penalty of eight years imprisonment (imposed after a plea) was not disturbed in the appeal in Basic, and concluded that a perusal of the schedule of comparable cases suggested that the penalty range for the offence of rape with similar features to the circumstances in Williams was seven to nine years. The Court in Williams dismissed his application for leave to appeal.

[24]

[22] Williams was a recent and unanimous judgment in which, I respectfully observe, the remarks as to the appropriate range were supported by the decisions cited in the judgment of the Court delivered by Jones J. The sentences upheld in Faifuaina accord with the remarks in Williams. Those decisions clarify that an appropriate range of sentence in this matter was seven to nine years; that means this sentence was at the high end of that range, although there was no threat with a cutting or deadly instrument, and the physical violence used was restricted to the acts of rape itself. His conduct still had a number of aggravating features. The fact the victim was known to be a child was one, and so too was the fact SAS raped her after he knew she had already called the police, and the fact that despite knowing she had called the police and had not consented, he then pretended she had. The deprivation of liberty was another, although one present in many examples of the offence of rape though not always charged; it was present and charged in Faifuaina, although there was no threat to use any weapon in that case.

[25]

[23] There were aggravating circumstances in SAS's crimes, but the limited force used makes the case one at the mid-point of an available range. I am accordingly satisfied that the case did not warrant a sentence at the high end of the described one, and would give leave to appeal, allow the appeal, and substitute a sentence of eight years imprisonment. In order to reflect the limited benefit to which SAS is entitled because of his late plea of guilty, I would recommend that he be considered for parole after he has served three and a half years of that sentence.

[26]

[24] ATKINSON J: I have had the advantage of reading the reasons of Jerrard JA. His Honour has set out the applicable facts and law so it is unnecessary to repeat them.

[27]

[25] I do not agree, however, that the sentence imposed by the learned sentencing judge was manifestly excessive. These offences include three counts of indecent treatment of a child under the age of 16 years, two counts of rape as well as one count of deprivation of liberty. The offences were numerous and involved sexual violence as well as preventing the victim from escaping. The applicant had previous convictions for violence. The complainant was to his knowledge only 14 years old and under the influence of alcohol. At 32 years of age, the applicant was much older than the complainant. He armed himself and threatened her with a pool cue. He locked her in the club house after she tried to escape.

[28]

[26] Another matter that aggravated the applicant's offending behaviour was that his sexual violence towards the complainant persisted and increased after, and because, she sought help from the police. That this caused his behaviour to escalate is of particular concern and, when added to the other facts on which he was sentenced, means that sentences of nine years imprisonment imposed on the count of rape, five years imprisonment for each count of indecent treatment and three years for deprivation of liberty were within the appropriate range. This is particularly so when no declaration was made that the applicant had been convicted of a serious violent offence. The nine years imprisonment imposed on the count of rape reflected the applicant's overall criminality.

[29]

[27] This offending was of the type referred to by Thomas J in R v Stirling [1996] QCA 342 at p 9 where his Honour observed:

[30]

"... a nine year sentence seems ... appropriate for those cases where specially serious factors operate such as the infliction of injury or the use of serious threats, possession of a weapon or some factor of a particularly aggravating kind."

[31]

A number of other decisions of the Court of Appeal support a sentence of imprisonment of the length imposed in this case for sexual attacks on a child of about the age of the complainant: see for example R v Riley [1992] QCA 348 (12 years imprisonment); R v Climas [1988] CCA 064; CA No 99 of 1988 (11 years imprisonment).

[32]

[28] In this case the complainant was threatened with a weapon whilst being locked in the club house and suffered injuries being a full thickness split to her hymen and a small split in the posterior fourchette. There were other particularly aggravating factors including the complainant's youth and the applicant's viciousness after she sought help from the police.

[33]

[29] The circumstances of the late pleas of guilty set out by Jerrard JA meant that the complainant was extensively cross-examined on two separate occasions. The recommendation made for consideration for release on post-prison community based release after serving four years was therefore appropriate.

[34]

[30] There is no warrant, in my view, to interfere with this sentence by reducing the head sentence from nine years to eight years imprisonment or interfering with the ameliorating recommendation for post-prison community based release after he has served four years. The sentence is at the higher end of, but nevertheless within, the appropriate range for offending of this type. The sentencing discretion has not miscarried; and the sentence was not manifestly excessive. I would therefore refuse the application for leave to appeal against sentence.

[35]

[1] Cited in R v Williams [2002] QCA 211 at [53]

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Judgment (35 paragraphs)

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