R v. Sorby [1995] QCA 251 (27 April 1995)

Court of Appeal (Qld)|1995-04-27|Before: Ambrose J, Davies JA, Moynihan J

DAVIES JA: I will ask Mr Justice Ambrose to deliver his reasons first.

AMBROSE J: This is an appeal by a man convicted of two offences committed on 8 May 1994. The first was a rape and the second was, as it is described these days, an indecent assault aggravated by the fact that it involved sodomy. Both offences were committed within a short time of each other and might be regarded as two aspects of the one piece of criminal activity.

The appellant is 27 years of age. He was sentenced to imprisonment for nine years, an appropriate order being made to take into account time that he had already spent in custody, which was solely referable to the offences of which he was convicted.

He did have a prior criminal record. He had been sentenced to terms of imprisonment previously. They had been property offences and drug offences and some street offences and I do not think they do more than indicate his general background and they do not have any specific relevance to the nature of the offences committed on this occasion.

The circumstances of the case may be stated shortly. The complainant with her fiance, with whom she was then cohabiting, met the applicant at a party in a caravan park. Conversation turned to the fact that the complainant and her young man were anxious to find accommodation outside the caravan park and the applicant told them that he knew of an old house that was available for rental at $50 per week.

Subsequently, excited by this prospect, the complainant approached the applicant and asked about it, and he said that he would take her to see his mother who knew all about it. She accompanied him and in fact when they approached the derelict house, in which apparently the applicant was residing in rather primitive conditions, he suddenly took hold of her, holding her in a vice-like grip preventing her movement.

She was naturally afraid and the fear was not lessened by his observation to her that he wanted to, as he said, fuck her. He threw her inside the fence so that she fell with her back down on the ground, jumped on top of her, threatened to kill her. She said she was terrified. He told her that she could scream as much as she liked, but nobody would hear her.

He covered her mouth and nose. She struggled as best she could to avoid his attentions, clenching her legs together tightly, but he was a very strong young man and eventually he managed to penetrate her with difficulty. The difficulty apparently caused him some anger and in the course of having intercourse with her, he, as it is said, pounded her, causing her pain and breathlessness.

She continued to cry and call out for her fiance upon which the applicant abused her, and then told her that he was going to, as he said, "stick it up your arse". He rolled her over onto a filthy mattress and effected anal penetration which caused her intense pain. He then volunteered to her, "I have come in your cunt and I have come in your arse."

He then left her to satisfy his toiletry needs and she took the opportunity to run away from the place. She was bleeding and painful and quite hysterical. She attended a hospital where it was found that she had a wound to the lower lip caused by a punch that the applicant had inflicted on her. She was scratched and bruised on her leg and back. The labia and tissue around the anus was extremely tender and swollen, so tender indeed that it was not possible, without causing unacceptable pain, to effect any internal examination of those parts of her.

At the trial the applicant demonstrated no remorse. He gave evidence that in fact the complainant had pursued him and had motivated him to have sexual relationships with her by initiating a sexual contact by fellatio. He said that she had consented to having vaginal intercourse with him and that initially the sodomy occurred by accident, but she then consented to it.

In the course of his trial he was warned on a number of occasions by the learned trial Judge. He was standing and staring intently during the time that the Prosecutor was opening the Crown case. A police guard had to pull him back a number of times from leaning over the dock and staring at the complainant as she gave her evidence.

She was so badly affected in the course of the trial that the case had been adjourned to allow her to recover. The complainant was cross-examined vigorously and she became distressed. There was evidence which was uncontradicted that the whole event - both the trauma of the offences committed upon her and the treatment that she received in the Court house, presumably upon instructions from the applicant, had had a very serious and lasting effect on her.

The sexual relationship that had existed between her and her fiance has ended. The learned sentencing Judge in the course of his sentencing remarks described the conduct of the applicant as very brutal. He described the complainant as being a very slightly built female. She was of such a build that she was just incapable of resisting the applicant.

The learned sentencing Judge then imposed a sentence in respect of each of the offences of a period of nine years to be served concurrently. He had already spent a period of 226 days in custody referable only to the commission of these offences, and the sentencing Judge declared that that time already spent in prison should be treated as service of the nine-year period of custody imposed.

The rather unusual performance of the applicant in Court during the trial ended with an intimation from his counsel after sentence had been passed that the applicant had indicated to his counsel and his solicitor that if he went to gaol he would hang himself.

A number of cases were referred to with respect to sentence range. We do not have any statistical analysis or statistical record of the sorts of sentences that have been imposed over the last few years to talk about a range of sentences.

In my view, this is a very bad case and I am quite unpersuaded that the sentencing discretion of the learned sentencing Judge miscarried. Indeed, on the circumstances of the case, it seems to me that it may well have been open to the sentencing Judge to impose a heavier sentence than the one which was imposed. In the circumstances I would refuse the application for leave to appeal.

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Judgment (19 paragraphs)