R v Tomlin [1995] QCA 177

Court of Appeal (Qld)|1995-04-04|Before: Pherson JA, Pincus JA, Jersey J

The applicant was interviewed by police on 13 December 1994 which, it may be noted, was a date after he had committed the other offences with which we are concerned here on 4 December 1994. He denied the earlier offences involved and persisted in that denial.

At the trial, where he pleaded not guilty, he gave evidence. There is a passage in his evidence which, when one reads it, can only lead to the conclusion that he was then admitting that he had done the acts amounting to the commission of this offence. He said he had told the girl that if he did not get money, or did not get speed, he was going to fuck her one way or the other.

The second set of offences, which attracted the sentence of imprisonment for 12 years, was even more serious than the first. As already mentioned, it took place on 4 December. The circumstances are that the complainant lived at a retirement village for elderly people at Caloundra. She had been there for some five years after suffering a stroke. She was a widow aged 86 at the time of the offences.

At about 5.30 a.m. on 4 December, she heard a knock on her door. She had previously heard knocks on other doors before her own. She answered the knock, expecting to see her grandson, but she was confronted by the prisoner pushing the door further open.

He shoved her onto her bed. She tried to resist by pulling his hair, but to no avail. The complainant used a frame in order to walk and she tried to place the frame between herself and the applicant when he came into her room. He simply pushed it away. He held a pillow over her head and pulled her underclothing off before raping her and ejaculating inside her. He then ran off. Mrs Smith summoned help and was treated for injuries, including bruising to upper arms, a tear to the skin on the right forearm, bruising and trauma to the vagina, including a lesion to the labia majora.

The applicant was interviewed by police on 13 December 1994 and made full admissions. He told the police he had been drinking and that he did not know what he was doing. He said, "I done her over. I raped the woman. I really am sorry, eh, but it makes me sick just to think about it." He agreed to the presentation of an ex officio indictment and pleaded guilty at the first reasonable opportunity. It was because of that that His Honour made the recommendation for parole to which I have referred.

The applicant's personal circumstances, which should now be mentioned, are these. He is described as a trawlerman, aged 24 years at the time of the offences, and he has a not inconsiderable record of previous offences, although none of them are offences involving personal violence of a kind shown here. Between 1986 and 1992, he has made eight court appearances for convictions, which include 15 counts of stealing, attempted break and enter, six counts of wilful destruction and arson of a vehicle. There are also some street offences, such as three convictions for resisting arrest and one or more for obscene language.

As well as that, there are offences involving breach of court orders, such as breach of bail and on three occasions breaches of probation. He has been fined and placed on probation twice, and also sentenced to 18 months imprisonment. A psychiatric assessment carried out apparently in April 1991 produced the opinion from Dr Bell that the applicant is a person with an anti-social attitude.

The application for leave to appeal is based essentially on the submission that when one looks at the two sets of offences in this case, serious though they are, the sentence imposed is so heavy as to be oppressive or "crushing" in its effect; that is to say, it offends the "totality" principle discussed in a number of cases, and recently re-stated in this Court in R v. Clements, CA No 279 of 1992. In that case, the joint judgment of the Chief Justice and Mr Justice de Jersey, reference is made to the requirement that the sentencing judge keep in mind the possibility that he might be imposing a disproportionate sentence for the totality of the conduct involved in the matter or matters before him.

The judge in the present case specifically referred to that principle, so that there is no question of his having overlooked it in the course of his sentencing here. The overall sentence involved here may, when one looks at the cumulative effect of it, appear high; 16 years is a long time out of anyone's life to spend in prison. On the other hand, the court has, in my experience, consistently taken the attitude that for the offence of rape committed after breaking into a woman's home a sentence of a substantial duration is called for. My impression is that the tariff penalty for such offences or for offences committed in those circumstances ordinarily begins with imprisonment for a term of 12 years.

When, in this case, is added the fact that the applicant apparently deliberately went to an old people's home and forced his way into the room of an elderly and defenceless lady of 85 years of age, physically attacking her without mercy, it is difficult to suppose that a sentence of less than 12 years for that offence alone could possibly be excessive. An even higher sentence could be justified for that offence alone. To add nothing for the other offences committed several weeks before seems to me to have the unacceptable result that the more offences that are committed the lower the penalty for each of them will be. It may be that, on one view of it, the totality principle requires such a result. For my part, I do not think that it is a result that ought to follow in this case. The overall sentence is not so disproportionate to the totality of the offending conduct as to require revision.

The offence committed on the younger woman of 30 years of age on 15 October in this case was a very serious one, in which it may be said that the complainant was lucky to escape the fate that was obviously planned for her. Had she not succeeded in eluding her captor, it seems likely that she too would have been raped.

When all these matters are taken into account, I can not see that the effect of making the sentences cumulative, so as to produce an effective sentence of 16 years in this case, takes it beyond the limits of a proper sentencing discretion. Although it might have been possible to adjust it downwards a little, I do not consider that it is pitched at such a level that this Court should interfere with it. I would, in consequence, refuse the application for leave to appeal.

PINCUS JA: As the presiding Judge has mentioned, we were referred to remarks in the principal judgment in Clements, that of the Chief Justice and Mr Justice de Jersey; I have found those remarks persuasive as to the application of the totality principle. We were also referred to Rosenberger, a decision of this Court (unreported, 21 November 1994), in which a rather younger man than the applicant, with a criminal record rather less extensive than his, was sentenced in this Court to nine years imprisonment for the rape of an elderly lady - one of the same age, as it happens, as this applicant's second victim.

Mr Lynch submitted, in the end, that the total sentence should not have exceeded 14 years and, speaking for myself, I was somewhat troubled by that contention. I have also noted that there was not a substantial reduction in the applicant's punishment for the applicant's ready admission of guilt to the police, when questioned about the major offence, and his plea of guilty to that charge. In short, I have been concerned that the total sentence of 16 years imposed upon this young man might be thought excessive. It is certainly a substantial sentence, but I have come to the view, like that of the presiding Judge, that we should not interfere, and I agree with His Honour's proposed order.

de JERSEY J: I also agree with the order for the reasons given by Mr Justice McPherson.

McPHERSON JA: The application for leave to appeal against sentences will be dismissed.

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