R v Wark [2008] QCA 172

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

**[1] McMURDO P: The application for leave to appeal should be granted, the appeal allowed and the sentence imposed at first instance varied only to the extent of substituting a sentence of 12 years imprisonment for each sentence of 13 years imprisonment. I agree with the reasons of both Mackenzie AJA and Cullinane J and wish to add only some further brief observations.

[3]

[2] Whilst cases of penile vaginal or penile anal penetration will often be more serious and attract heavier penalties than cases involving only digital penetration, the appropriate sentence in each case will turn on its own circumstances. Relevant exacerbating factors include whether the complainant is a child and if so, the age of the child; whether violence has been used; the physical and psychological effect of the offence on the victim; and whether the offender has previous relevant history. By way of an example of a serious case of non-penile rape, see R v Riley.[1]

[4]

[3] R v Coghlan[2] and R v Mason,[3] referred to by this Court in R v Robinson,[4] do not persuasively support the 13 year term of imprisonment imposed on the appellant after an early plea of guilty to an ex officio indictment. Both those cases involved pleas of guilty but they preceded the 1997 amendments to the Penalties and Sentences Act 1992 (Qld) ("the Act") and the introduction of the Act, Pt 9A - Convictions of Serious Violent Offences.

[5]

[4] The circumstances in Coghlan had some similarity to the present case. Coghlan forced open a locked door of the complainant's unit. He demanded drugs and money. He tried to choke her, dragged her by the hair from room to room looking for money, licked her breasts, bit her, placed frozen meat on her nipples and raped her (apparently penile vaginal rape) three times. She escaped. A neighbour who pursued and confronted Coghlan was knocked down and kicked, suffering a laceration to the eyelid which required suturing. Coghlan had a dysfunctional and disadvantaged background. He had some criminal history for property and drug offences. He expressed remorse and pleaded guilty. He was intoxicated by alcohol and marijuana. He was 21 at the time he committed the offences. A psychiatric report suggested that he fulfilled the criteria for the diagnosis of substance abuse disorder and anti-social personality disorder. The effect of the offending on the complainant was said by the sentencing judge to be "devastating". This Court considered that the sentence imposed (14 years imprisonment with a parole recommendation after six years) was within range; Pt 9A of the Act did not apply because the offences occurred before it came into operation on 1 July 1997.

[6]

[5] Mason was a case perhaps even more disturbing than the present. It was heard and determined by this Court in March 1997, again before Part 9A came into effect. Mason was sentenced to 14 years imprisonment on his plea of guilty to assault occasioning bodily harm, rape, disablement to commit an indictable offence and robbery. No recommendation for early parole eligibility was made. Mason was 35 years old and had an extensive criminal history including for offences of violence in respect of his de facto wife and three young children. He knew the complainant and that she was a homosexual woman. They were not on good terms but he persuaded her to let him into her house one evening, claiming that he wished to apologise following his release from prison. He then assaulted her violently by gouging her eyes. He held a knife against her throat. He dragged her around her home. She begged him to let her go, offering him money. He responded "You're going to get it up you now you lesbian slut". He made degrading comments to her and forced her to take off her clothes. He dug his fingers into her eyes and said he would pull her eyeballs out. He forced her to have penile-vaginal sexual intercourse with him. He wrapped a tea towel around her throat and began to choke her until she lost consciousness. When she awoke he was standing over her and kicking her. He demanded money. Ultimately she gave him $120. He again choked her and she lost consciousness. She next awoke to find him pulling her into the hallway by her hair and forcing her into the shower. He left through the front door and threatened to kill her if she did not leave town, adding: "Rockhampton was not a gay person's town". The cord to her telephone was cut. She suffered physical injuries including a knife cut on her back but much more severe were her psychological injuries for which she required therapy and counselling. Mason provided a false alibi to police and declined to be interviewed. He pleaded guilty only after DNA evidence implicating him had been obtained. His plea of guilty cannot be compared to the early plea of guilty to an ex officio indictment in the present case. The sentence imposed in Mason of 14 years imprisonment with no recommendation for parole eligibility at that time meant that he was eligible for release on parole after serving seven years. This Court refused to interfere with the sentence imposed.

[7]

[6] Early pleas of guilty by way of an ex officio indictment are an important mitigating factor, especially in cases of this sort. The complainant has been saved the further trauma of giving evidence, both at committal and at trial. The community has been saved very considerable expense. Early ex officio pleas of guilty are also encouraging signs that offenders, in admitting their wrongdoing, are taking the first steps towards rehabilitation. There is reason to think that is so in this case. On the other hand, the appellant's conduct was inarguably horrific. It warranted a salutary penalty.

[8]

[7] It was not, however, as serious as the conduct in R v Spoehr[5] where a 14 year term of imprisonment was imposed following a plea of guilty. Spoehr committed seven counts of rape and one count each of assault with intent to rape, deprivation of liberty and sexual assault on a 29 year old Japanese tourist who was walking in the Noosa National Park at 3 pm on Christmas Day. He attacked her with a stick. He was also armed with a 10 cm bladed knife which he later used to cut off her clothing. He shaved her pubic hair with a razor. He had penile-vaginal sexual intercourse culminating in ejaculation with her on three occasions. He twice performed oral sex on her. He inserted his fingers in her vagina. He forced her to touch his penis until he ejaculated on three occasions. He held her as a sexual prisoner in his tent in a secreted location in the National Park from about 3 pm on Christmas Day until 5.45 am on Boxing Day when he finally assisted her to find her way to safety. The complainant suffered particularly dreadful consequences from the offence because for cultural reasons she had been unable to share her ordeal with those closest to her. Psychiatric reports regarded him as "an eccentric loner who has, using the DSM-IV,[6] a diagnosis of a schizotypal or and paranoid personality disorder".

[9]

[8] Had the appellant pleaded not guilty, a sentence of 15 or even 16 years imprisonment could have been imposed: cf R v Robinson;[7] and R v Barclay.[8] The facts in these cases and in R v Edwards[9] are set out in Cullinane J's reasons. Barclay, who received 15 years imprisonment for a series of broadly comparable degrading sexual offences, went to trial and he had a prior conviction for rape. Edwards, who received 15 years imprisonment on a plea of guilty, was also more serious case than the present in that he was on parole for malicious wounding when he committed sordid sexual offences on his pregnant victim who had been asleep in bed in her own home.

[10]

[9] A discount in this case of but two or three years on a 15 or 16 year sentence does not provide sufficient recognition of, or encouragement to, offenders like the appellant to admit their wrongdoing at an early stage by pleading guilty to an ex officio indictment. This was an appealable error warranting this Court's intervention. A sentence of 12 years imprisonment, which reflects a discount on the head sentence of three or four years for his early plea and cooperation and which provides for parole eligibility after 9.6 years,[10] more appropriately balances the competing sentencing principles apposite in this case.

[11]

[10] I would make the orders set out in paragraph [1] of these reasons.

[12]

[11] MACKENZIE AJA: I agree with the reasons of Cullinane J. I only wish to add the following.

[13]

[12] Mr Greggery submitted that there was a clear differentiation in the authorities, reflected in the level of penalties, between cases where penile rape had occurred and cases where the offence was rape because it fell within the extended modern definition.

[14]

[13] It may be that a generalisation can be made that cases can be identified where it is said that the fact that only non-penile rape has occurred resulted in a lesser penalty. But because it is a generalisation it is not universally applicable. R v Webb[11] is such a case; but what McPherson JA said was said against a factual background that did not include significant violence. While the nature of the sexual conduct is a factor to be taken into account, the facts of the particular case and the overall criminality must always govern the seriousness of the offence.

[15]

[14] In the present case, there was no count that charged a penile vaginal or anal rape. However, there were four counts alleging that the complainant was forced to commit fellatio on the applicant, two of which resulted in ejaculation in her mouth. One of the counts of unlawful and indecent assault consisted of the applicant trying to insert his penis into the complainant's vagina but failing because he could not maintain an erection. He inserted something, probably his finger, into her anus. As well as other acts of a sexual nature, he also committed sundry degrading acts on her with overtones of sadistic pleasure over her reaction. She understandably feared for her life during the course of the episode.

[16]

[15] All of these offences occurred over a period of several hours, commencing in the early hours of the morning while she was kept captive by the applicant at his isolated house. The complainant had travelled from the town where she lived with friends to other towns some distance away. The person upon whom she was relying to drive her home abandoned the journey because he believed his car was likely to break down and let her off in a small town on the way. She began to walk to a place where she thought she might get a lift from a passing driver and while she was walking there, the applicant asked her if she needed help. After he said things from which it was reasonable to infer that he was well intentioned and that she would come to no harm, she accepted a lift and then his offer of refreshments at his house. He said he would drive her back to the town where he had picked her up afterwards.

[17]

[16] After a relatively short time at his house she said that she was ready to go. He invited her to stay for the night but she said that she wanted to go home. He said that he would not give her a lift. She then walked out of the house but he followed and said that he would give her the lift.

[18]

[17] She noticed that his demeanour had changed and he grabbed her arm. Then he hit her more than once on the head with a piece of wood that was like an axe-handle in size. When she asked why he was doing it he said:**

[19]

**He then dragged her into the house where over the next few hours he inflicted on her the treatment previously described. During the course of the activity, he reduced her to captivity by tying her hands. For part of the time the rope was also tied to the head of the bed.

[20]

[18] Unlike the offender in R v Spoehr,[12] he did not relent and let her go. It was only due to her seizing an opportunity, after daylight had broken, to leave the house while his attention was distracted that she made her escape. Even then he unsuccessfully pursued her until it became obvious that she had made good her escape.

[21]

[19] The Crown Prosecutor at sentence submitted that the appropriate range for the offending displayed in the case was between 14 to 16 years imprisonment. In my view the facts of the case place it towards the upper end of that range as a starting point before allowing for matters of mitigation. In submissions before this Court, counsel for the respondent drew attention to the similarities between the present case and Spoehr in which a sentence of 14 years following a plea of guilty was not disturbed on appeal. One feature which counted in Spoehr's favour that is absent in this case has been referred to above. On the other hand, unlike the present applicant, Spoehr engaged in a number of acts of penile intercourse and his offending related to a visitor to Australia whose cultural background resulted in what were described as catastrophic consequences for her.

[22]

[20] Since the sentence is more than 10 years imprisonment, it carries with it an automatic declaration that the offence is a serious violent offence and therefore a requirement to serve 80% of the sentence. To allow the applicant proper allowance for his plea of guilty in a case in this category, a reduction in the notional head sentence is the only way in which that can be achieved. In my view a reduction of the head sentence from what would have been merited, in the range of 15-16 years had the matter gone to trial, to 13 years did not make adequate allowance for the plea of guilty.

[23]

[21] I agree with Cullinane J that the application for leave to appeal should be allowed, and with the orders proposed.

[24]

[22] CULLINANE J: The applicant seeks leave to appeal against a sentence of 13 years imprisonment imposed in respect of five counts of rape. He had pleaded guilty to an ex-officio indictment containing those counts as well as five counts of sexual assault, one count of assault with intent to rape, one count of assault occasioning bodily harm while armed, one count of deprivation of liberty and to two summary charges of possessing a dangerous drug, cannabis sativa, and possessing instructions for production of cannabis sativa. 177 days spent in pre-sentence custody was declared as time already served under the sentence.

[25]

[23] At about 1 am one Saturday morning, the complainant, a woman in her thirties, was walking along a highway in North Queensland. She accepted a lift from the applicant, who persuaded her to accompany him to his home on a rural property, promising that he would drive her to her destination after he had had some tea. When she attempted to leave the house, the applicant twice struck her about the head with a piece of wood, causing bleeding (the assault occasioning bodily harm while armed count). He grabbed her by the hair and dragged her back inside, where he forced her on to a bed and removed her clothes (the assault with intent to rape and the commencement of the deprivation of liberty). The complainant was so frightened that she involuntarily urinated.

[26]

[24] The applicant tied the complainant's hands to the bed head with a rope, and lay on her, rubbing his penis on her vaginal area. Then he used the rope to pull her onto the floor where he put his penis into her mouth and forced her to perform oral sex on him (the first rape count), slapping her across the face repeatedly when she faltered. He then returned her to the bed where he lay on her again and fondled her. He bit her left breast (the first sexual assault) slapped her a number of times and covered her mouth and nose so she found it difficult to breathe. He made her lick his neck, squeezing her right breast hard (the second sexual assault) when he was not satisfied, before again forcing her to perform oral sex on him (the second rape count). Then he dragged her by the rope to a shower where he made her perform oral sex upon him again (the third rape) after which he urinated on her. She was then dragged back again by the rope to the bed where the applicant tried unsuccessfully to penetrate her vagina with his penis (the third sexual assault).

[27]

[25] The applicant fell asleep briefly, but awoke when the complainant tried to move. He told her she was not going anywhere pulled her on to the floor on to her knees and made her perform oral sex on him again, ejaculating into her mouth (the fourth rape). She was made to get back on the bed where the applicant told her to lick his neck (the fourth sexual assault). He fell asleep lying on her. When he awoke, he took the complainant into another room where he told her to lie on her stomach on a mattress and whipped her repeatedly on her buttocks (the fifth sexual assault). Then he held his hand over her mouth while he inserted something into her anus, which he moved in and out, causing her a great deal of pain (the fifth rape). He told her that he was going to "keep her" and that as long as she did as he said, she would be fine.

[28]

[26] After the anal penetration, the applicant left the complainant alone while he went into another room. By this time day was breaking. She took the opportunity to free her hands from the rope and to run from the house. The applicant pursued her, but she managed to reach a neighbouring house where the occupants took her in and telephoned the police.

[29]

[27] Over the hours during which the applicant held the complainant against her will he repeatedly struck her and abused her verbally. It is clear from her statement that she feared throughout that she would be killed. The complainant was examined later the same day. Her hair was matted with blood and she had areas of lacerations and swelling on her head. There were marks on her chest consistent with bites, abrasions on the wrists consistent with rope burns and multiple abrasions and bruises of her arms, knees and buttocks. The examining doctor found a three millimetre tear to her perianal region consistent with stretching.

[30]

[28] The applicant was 51 years old at the time of sentence. He had worked in the past as a labourer and had then acquired a small farming property on which he ran some cattle and pigs. His counsel said that he had difficulties controlling his alcohol use and on the night in question had been drinking at a hotel. His only previous criminal history in Queensland consisted of convictions on a single occasion in the Magistrates Court for producing and possessing dangerous drugs, for which he was fined $300. He had a history of similar, minor drug-related offences in Western Australia in the 1980s. He had indicated an early intention to plead guilty and his co-operation was further evinced by his plea to an ex-officio indictment. Through his counsel he expressed some shame at his conduct. His counsel submitted that the starting point for a head sentence was 15 years imprisonment and that that might be reduced to 12 years to reflect his co-operation.

[31]

[29] The learned sentencing Judge accurately described the offences as "a shocking and horrible and prolonged series of violent and sexual assaults". The treatment of the complainant had been particularly degrading and humiliating and the applicant had not desisted; even when the complainant fled, he pursued her. Her Honour accepted in the applicant's favour that he had co-operated by indicating his intention to plead guilty at an early stage and by not challenging the complainant's account. The learned judge had regard to three authorities to which the Crown prosecutor referred her which are also relied on here: R v Barclay,[13] R v Edwards[14] and R v Robinson[15].

[32]

[30] In R v Barclay the appellant was convicted of two counts of rape, one of indecent assault and one of assault occasioning bodily harm. He had attacked a sleeping woman with whom he was slightly acquainted. He punched her, bit her, gouged her eyes and squeezed his hands around her throat before raping her; after which he restrained her for some hours before raping her again. Throughout the episode he threatened to kill her. He was a 39 year old man with previous convictions including one for rape some 20 years earlier. Unlike the applicant here, he had pleaded not guilty. A sentence of 15 years imprisonment was not disturbed on appeal.

[33]

[31] In R v Edwards the applicant sought an extension of time in which to appeal against his sentence of 15 years imprisonment imposed, apparently on a plea of guilty, in respect of three counts of rape. He had been given lesser sentences for other counts, one of burglary, nine of sexual assault and one of attempted rape. At the time those offences were committed he was on parole in respect of a four year sentence imposed for malicious wounding. All of the offences had occurred in a single episode. He had broken and entered the house of a pregnant woman who was asleep at the time. He had grabbed her around the throat, performed oral sex on her and made her perform oral sex on him on a number of occasions. He attempted anal intercourse unsuccessfully and then had vaginal intercourse with her. She had said that she thought she was miscarrying and asked him to call an ambulance; instead he forced her to have a bath in which he attempted to wash his semen out of her vagina. He threatened that he would kill her and her family if she revealed what had happened. The application for an extension of time was refused on the basis that there was no prospect of success in his appeal against sentence.

[34]

[32] In R v Robinson the applicant was convicted after a trial of six counts of rape, one count of burglary, one count of deprivation of liberty and one of stealing. In respect of three of the rape counts, a sentence of 16 years imprisonment was imposed. The complainant was a 57 year old woman living alone. The applicant had entered her townhouse in the early hours of the morning and raped her digitally, orally and by penile penetration. After those assaults he forced her to take a shower to wash her vagina out. The applicant was 33 years of age at the date of the offences. He was a carrier of Hepatitis C but the complainant fortunately did not contract the disease from him. He had a criminal history which included a previous conviction for rape, for which, with related charges, he had served 12 years imprisonment. There was, the Court observed, no sign of remorse or obvious prospect of rehabilitation. It was argued on his behalf that other decisions did not support a range of sentence beyond 14 years imprisonment. The Court, however, citing R v Coghlan[16] and R v Mason,[17]observed that sentences of 14 years imprisonment had been upheld in cases where the offender had pleaded guilty. The application for leave to appeal against sentence was dismissed.

[35]

[33] Before us counsel for the applicant contended that judgments of the Court of Appeal supported the proposition that offences involving penile-vaginal intercourse fall into a different category for the purposes of sentence to those involving digital or oral rape.

[36]

[34] He placed reliance upon cases such as R v Robinson,[18] R v Webb[19] (in particular the remarks of McPherson JA at paragraph 25) and R v TM[20].

[37]

[35] Mr Greggery contended that in the case of the category of non-penile rape it was impossible to find any sentences which exceeded ten years. He submitted that a significant disparity had by now been established between the range of sentences imposed in the two categories with there being a difference of about six years.

[38]

[36] I do not think that a reading of the cases supports the proposition that there is a rigid compartmentalisation of rape offences into these two categories. In all cases it is the particular circumstances which will determine the level of criminality and together with other factors the sentence to be imposed.

[39]

[37] I think it can be accepted that as a general proposition that rape constituted by penile-vaginal or anal penetration will attract a higher sentence than rape cases involving digital or oral penetration. However there may be cases not involving penile penetration which because of their associated circumstances call for punishment which may be as great as or exceed cases involving penile penetration.

[40]

[38] The cases to which we have been referred and the remarks upon which reliance has been placed must be seen in the context of their particular facts and must be taken as being concerned with those and have to be regarded as being concerned with those.

[41]

[39] In addition to the reliance which the case of R v TM (supra) in support of the proposition just discussed, it is fair to say the counsel for the applicant focussed upon this case as one bearing considerable similarities to the present but which resulted in a significantly shorter sentence.

[42]

[40] The applicant in that case pleaded guilty to a count of rape on Thursday Island in August 2003 which was constituted by a single act of digital penetration of the vagina of a sleeping woman. Whilst he was on bail for that offence he committed a second lot of offences which included torture and two acts of rape.

[43]

[41] The complainant was a visitor from overseas in Australia on a working holiday and had commenced work at a business at which the applicant worked and had moved into accommodation at which the applicant was a caretaker. She and the applicant and another person had consumed some alcohol on the relevant evening and later the complainant went with the applicant back to his unit to watch a movie. A point was reached at which the complainant sought to leave in the face of advances made to her by the applicant. As she did so the applicant blocked her way and struck her twice with his fist. After she had cleaned herself up and was emerging from the bathroom he head butted her and grabbed her around the front of the neck and threatened to punch her again. He told her to take her underpants off and to get onto the bed and when she did so he tied her hands behind her back and her legs together with a tie between her feet and her hands. During this time he rubbed her breasts and penetrated her vagina with his finger. He repeated this shortly afterwards. Those acts constituted the first of the counts of rape. After taking photographs of her with a camera he placed a pillowcase over her head and placed a gag on her and applied shaving cream to her pubic area and shaved it before taking some photographs of her. He performed oral sex upon her and while he was doing so penetrated her vagina with his finger. This constituted the second count of rape.

[44]

[42] Later they both fell asleep and when the complainant woke the next morning she managed to free herself but found that she was dizzy and had difficulty standing up. The applicant woke and re-tied her. She was held for the whole of the following day. She was provided with food and water and escorted to the toilet but at all times had her hands tied. She was able to escape later that evening when the applicant fell asleep. In all she was held captive for 26 hours. She sustained swelling and bruising to both eyes, a swollen nose and bruising and swelling to the left ear area. He had taken photographs of her while she was undergoing the ordeal.

[45]

[43] He was sentenced to three years imprisonment for the first rape and a term of eight years imprisonment to be served cumulatively on the term of three years.

[46]

[44] The appeal was allowed but only to the extent of altering the total imprisonment so as to achieve the aim which the learned sentencing judge had intended and to accord with the principles which are applicable in relation to the declaration which he had made under s.161 of the Penalties and Sentences Act but which had not been adverted to. To do this the imprisonment for the torture count was reduced to seven years.

[47]

[45] Counsel for the respondent submitted that the present case was remarkable for the level of violence and savagery inflicted upon the complainant and her degradation over a long period of time.

[48]

[46] He contended that the case which bore the greatest similarity to the present was R v Spoehr[21].

[49]

[47] The applicant in that case was walking in a national park on Christmas Day and became lost. She encountered the applicant who she sought directions from. After walking together for a period he struck her over the head with a stick a number of times and she began to lose consciousness. The respondent dragged her some distance to a campsite where he had a tent. He repeatedly raped her (in the sense of penetrating her vagina with his penis) through the evening and had committed the sexual offence upon her.

[50]

[48] He ultimately led her to a point where she could safely exit the national park and go back to her hotel where she made a complaint. He was sentenced to imprisonment for 14 years and an application for leave to appeal was refused.

[51]

[49] It is undoubtedly the case that each of these cases provide some support for the submissions on sentence by counsel.

[52]

[50] However the relevant range is to be established by reference to the body of cases overall and by a comparison of the criminality involved.

[53]

[51] A number of these were referred to the learned sentencing judge and have been discussed in these reasons. A number of additional cases were referred to by each of the parties on the appeal.

[54]

[52] For my part I would not be prepared to hold that the learned sentencing judge erred in concluding that the range for the type of offending involved in this case would be some 14 to 16 years imprisonment.

[55]

[53] In my view the matter must fall below the range referred to by Keane JA in R v Robinson (supra) at paragraph 27 where he said that the range for serious sexual offences of this kind for somebody with a history of serious sexual violence found guilty after a trial of multiple rapes would be in the order of 15 to 20 years.

[56]

[54] As I have said the conduct in this case involved brutal and degrading treatment of the complainant with some features which could be described as sadistic.

[57]

[55] Nonetheless the applicant was entitled to a significant discount on the authorities for his plea of guilty on an ex officio indictment and the associated remorse.

[58]

[56] Ultimately I am persuaded that the sentence of 13 years imprisonment does not adequately allow for these factors.

[59]

[57] I would grant the application and allow the appeal and substitute for the term of 13 years imprisonment, a term of 12 years imprisonment.**

[60]

[1] (2006) 161 A Crim R 414; [2006] NTCCA 10.

[61]

[2] [1998] 2 Qd R 498; [1997] QCA 270.

[62]

[3] [1997] QCA 67.

[63]

[4] [2007] QCA 349.