R v Stirling [1996] QCA 342

Court of Appeal (Qld)|1996-09-17|Before: Before Fitzgerald P, Davies J, Thomas J, As Thomas J, Fitzgerald P

The applicant was sentenced to nine years' imprisonment for the rape and two years concurrent for the indecent assault. The circumstances, briefly stated are that the complainant and the applicant were known to one another as they lived in adjacent units at Mermaid Beach. A group from both flats consumed liquor and marijuana in the complainant's unit and by 10.40 p.m. the complainant and the applicant were left alone. The complainant went to bed. About twenty minutes later the applicant said he was leaving. However at about 2 a.m. the complainant awoke and felt someone under the doona interfering with her underpants and licking her genital area. She observed the applicant and told him to get out but he held her down on the bed, started licking her face and said he was not leaving until he finished what he had come for. When she stood up the applicant tore her underpants down the side. He lay her on the bed and again licked her genital area before having sexual intercourse with her. The complainant described her sensation during this act as a "sort of slimy feeling not like a jelly but almost like he maybe was wearing a condom or it was lubricated or something". Scientific evidence suggests that vaseline intensive care lotion had been used from a bottle in the appellant's bedroom.

The applicant was thirty years old, and had a criminal history, but nothing of a sexual nature. In fact his only prior serious convictions were recorded in 1990 in Western Australia when he was sentenced to eight and a half years imprisonment on a variety of charges including armed robbery, deprivation of liberty and break enter and steal. He had been released on parole in relation to these offences after serving approximately half of the term. The Western Australian parole supervision order was transferred to Queensland and he was of course still on parole when the present offences were committed.

Relevant factors in the present case include intoxication, absence of significant violence, absence of injury, and on the other hand a persistence in putting the complainant through the ordeal of a trial, and the circumstance that he was on parole at the time.

We have been referred to a variety of past sentences for like offences, including R v. Raymond C.A. 299 of 1994, 12 September 1994, R v. Chinfat C.A.354 and 355 of 1995, 17 November 1995, and R v. Day C.A. 247 of 1993, 13 September 1993. 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.

A difficulty exists in the present case by reason of the loss of parole under the Western Australian sentences. Parole supervision had been transferred to Queensland under the Parole Orders (Transfer) Act 1984-1988. An order registered under that Act has effect as if the sentence of imprisonment had been imposed by a Queensland court (s.10). In turn s.157(3) of the Penalties & Sentences Act applies, and the present sentence was deficient in its failure to provide a fresh non-parole period.

The situation is rather complex. The relevant datum points are that he was sentenced in Western Australia on 3 September 1990 and was released on parole on 18 January 1994. He was taken into custody on the present matter on 8 March 1996 and was sentenced on the present matters on 4 April 1996.

Under s.187 of the Corrective Services Act 1988, which applies because of registration of the order under the Parole Orders (Transfer) Act, his parole was cancelled, and under s.190 of the Corrective Services Act the unserved part of the original sentence remains to be served. However, in the absence of the necessary designation of a fresh parole date under s.157(3), the parole eligibility date (calculated in accordance with the law stated in R v. Gipters C.A. 25 of 1995, 30 May 1995) is the halfway mark of the current "term of imprisonment". That term is deemed to have commenced at the beginning of the first current sentence and to end at the end of the last expiring current sentence.

In the present case this would produce an unwarranted windfall for the applicant unless, as s.157(3) of the Penalties & Sentences Act requires, a fresh parole date is specified. There may be some doubt as to the precise date for consideration of parole in the absence of such a declaration, as there is difficulty in calculating "the unbroken period of imprisonment (the applicant) is liable to serve by virtue of a number of sentences, whether ordered to be served concurrently or cumulatively and whether imposed at the same time or at different times" (s.10(b)) (the definition section of the Corrective Services Act) having regard to the interruption to the original sentence which has now been reactivated. It is unnecessary to make a conclusive determination as to that date, because our essential task is to fix an appropriate date having regard to all the circumstances. However, on the assumption that the automatic parole consideration day would be the mid-point between 3 September 1990 (the original sentence date) and 4 April 2003 (the end of the full term of the present sentence if seven years is substituted) the date would be approximately mid-December 1996. That would seem to be an absurdly early entitlement for consideration.

This Court has on a number of occasions recognised that unduly oppressive results may occur if an offender has to serve a new sentence as well as the unexpired portion of an old one when the benefit of parole is lost, as for example when the new sentence is made cumulative upon existing sentences in respect of which parole entitlement has been lost (R v. Coss C.A. 262 of 1994, 15 March 1995). It was not suggested that a cumulative sentence would be appropriate in the present matter and in the absence of submission that some cumulative effect was desirable I shall not pursue this point. This Court's function is to make a recommendation which fixes a non-parole period in respect of all current sentences the offender is serving, including the new sentence. In the present circumstances it seems to me that such a date would be the mid-point of the present sentence, namely 4 October 1999.

It was submitted that the applicant should be given credit for the time served between 6 March and 4 April 1996 (twenty-seven days) but I would regard that period as being served mainly by reason of his own breach of conditions of bail. It is not "time that the offender was held in custody in relation to proceedings for the offence and for no other reason" under s.161 of the Penalties and Sentences Act. I therefore do not consider that it should be declared time already served under s.161, or that it should persuade this Court to advance the recommended parole date.

It was recognised during argument that the effect of this Court's order might be to subject the applicant to a result less favourable than that which has earlier been described as a windfall through the sentencing judge's failure to make a recommendation under s.157(3). The applicant was therefore given the opportunity of withdrawing his sentence application. Presumably in view of the fact that the defect may be corrected by means of reopening the sentence under s.188 of the Penalties and Sentences Act, and to avoid loss of the opportunity to reduce the length of the sentence for rape, there has been no withdrawal of the present application. This Court should therefore proceed, under s.668E(3) of the Code, to pass "some other sentence, whether more or less severe".

I would therefore allow the application for leave to appeal against sentence, set aside the sentence of nine years for rape and in its place substitute a sentence of seven years, and under s.157(3) of the Penalties & Sentences Act make a fresh recommendation for parole on 4 October 1999.

I also agree that a sentence of nine years was excessive in this case and that one of seven years was appropriate. I agree generally with the reasons of Thomas J. for that conclusion except that I would not accept that voluntary intoxication was a mitigating factor. See Attorney General v. Rosenberger [1994] QCA 488; [1995] 1 Qd.R. 677.

It is well settled that directions of this kind should not be given unless some special need arises in the trial (Green v. The Queen [1971] HCA 55; (1971) 126 CLR 28, 33; R v. Willson Tchorz and Young (1986) 42 SASR 203; R v. Dam (1986) 43 SASR 422, 429; R v. Britten (1988) 51 SASR 567, 570, 575, 581). It was not suggested, for example, that during the present trial counsel for the accused laboured the onus of proof to such a degree as to suggest that fantastic or unreal possibilities ought to be regarded as affording a reason for doubt, such that the trial judge was under a duty to "restore the balance".

The question arises whether the proviso should be applied. The test is whether no reasonable jury properly directed could fail in the performance of their duty on the evidence before them to have convicted the accused of the charge (Driscoll v. R [1977] HCA 43; (1977) 137 CLR 517, 524). In the present case the appellant did not give evidence. His defence may best be described as putting the Crown to proof and through cross-examination of the complainant attempting to suggest that while oral sex had been forced upon the complainant, intercourse did not happen. The issue was plainly whether there was any reasonable doubt in relation to the complainant's allegation that sexual penetration had occurred. The corroborative evidence was very persuasive in favour of the complainant's story being true. In these circumstances, the use of the word "sure" would hardly have a tendency to mislead or distract the jury from the direct determination of the issue, or to convict the appellant in circumstances where there was a possibility that he might have been acquitted. The same may be said for the other extrapolations including the "not a fanciful doubt" and other phrases that some judges used before Thomas v. The Queen [1960] HCA 2; (1959-1960) 102 CLR 584 and Green above in 1971. It is hardly necessary to say that these points were established a long time ago, and that such directions are a dangerous practice which are to be strongly discouraged.

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