Court of Appeal (Qld)|2000-07-05|Before: Davies JA, Pherson JA, Thomas JA

The applicant was a worker on the show circuit and had no previous convictions.

In order to understand the facts it is necessary to describe something of the prior relationship between the complainant and the applicant. They originally met at the Mount Gravatt show. The complainant and her girlfriend became friendly with the applicant and a friend of the applicant. Mutual sexual interest followed, resulting in a number of consensual acts of heterosexual intercourse between the complainant and the applicant. These occurred at Plainlands and Lowood. There had been an argument when they were driving back from their encounter at Lowood. The complainant put her hand on his leg and was told "No, you can't do that." She called him a "wanker", saying it was all right if he had sex with her but now she wasn't allowed to touch him. She said she felt used. There followed a period of about six weeks when they had no contact, partly because of that argument. Subsequently the complainant saw the applicant at the Strawberry Festival at Cleveland and the friendship was renewed. The complainant had oral sex with the applicant in a campervan a few days before her visit to Allora, where the offences took place.

During their earlier association the applicant on occasions indicated a desire to have anal intercourse with her and she had clearly indicated her objection to this. Soon after they were alone at Allora the applicant used a knife to peel an orange and menaced the complainant with it. He said "You're out here in the middle of nowhere. I could be a murderer, a psycho killer, rapist and you wouldn't know and you're stuck out here in the middle of nowhere." His attitude was intimidating. She submitted grudgingly to commit fellatio upon him. He told her he was going to have sex with her, not anal sex, and then sodomitically raped her. She had not previously experienced anal intercourse, was strongly opposed to it and put her objection clearly to him. Two further episodes of anal rape ensued during the 40 hours while she stayed at the campervan. Each of these was preceded by oral sex. Each time the complainant was confronted with a threat to sodomise her if she did not fellate him. On each occasion she screamed and resisted. The episodes were painful. On each occasion he had indicated that he was going to have vaginal intercourse but then proceeded to commit sodomy.

At trial there was a good deal made of the fact that the complainant did not seek help from those who were not far away. She had telephoned friends and there were periods when the applicant was absent. The complainant testified that she felt that she was unable to get away. She regarded persons living nearby as friends of the applicant. She felt unable to leave the van until the complainant ultimately drove her back to Beenleigh. She complained to her sister upon arrival home and was subsequently examined by a doctor. His evidence afforded some support for the fact that she had been sodomised.

Cross-examination by defence counsel suggested a complete denial of any sodomy. The applicant did not give evidence.

Counsel for the applicant submits that the sentence is affected by a number of errors on the part of the learned sentencing Judge. Firstly, he submits that his Honour erred in taking the view that the case was one involving deprivation of liberty. It is true that his Honour's sentencing remarks include the statement "I regard this as a case where there was a deprivation of liberty", but this was immediately followed by the further statement "You say -

and it may well be right - that other people would have seized the opportunity to escape." In context I do not think that his Honour was intending to say more than that the complainant had felt captive and powerless, that she "simply didn't have the wits" to escape and that she was a stranger in the applicant's domain.

The second submission was that his Honour erred in treating sodomitical rape on the same basis as rape. Since the amendments to section 347 and 348 of the Code, the legal distinction between sodomitical rape and vaginal rape has disappeared with the same penalties available, although of course different physical acts and consequences attend such acts. In my view it is a pointless exercise to attempt to generalise that one is worse than the other. This was recognised in this Court in R v. Maddox, CA 299 of 1998,

4 December 1998, in which all members of the Court agreed with the following statement:

"For present purposes, without losing sight of the obvious differences between the two offences, there does not appear to be any pressing reason why different levels of sentence should be adopted with respect to the offence of rape according to whether it is sodomitical or vaginal rape."

I do not understand his Honour to have suggested any different view.

Finally, it was submitted that the earlier consensual sexual relationship of the parties was a mitigating factor. The complainant voluntarily went to the applicant's campervan and was willing, it would seem, for some sexual activity to ensue, though not of the kind upon which the applicant insisted.

Clearly the learned sentencing Judge made proper allowance for it. If such acts had been committed upon a stranger, counsel for the Crown submitted, correctly in my view, that a greater sentence would have been justified. But the seriousness of the offence, of course, must always depend upon the circumstances of the particular case.

The circumstances of the present case were squalid and reveal insensitivity of a high order on the part of the applicant. There had been no food or drink in the campervan and the complainant did not have nourishment for nearly three days. She had not bathed. She was normally particular about her appearance but, when driven to Beenleigh, was dirty and smelly and her hair was dishevelled. During the sentencing remarks the applicant expressed his inability to comprehend what he had done wrong. He said "I know I'm a fella, but if I was a girl, in a million years I wouldn't let myself get raped three times if I got raped once. It doesn't really matter does it now?"

This incomprehension, however, does not sit easily with his persisting in instructions denying that anal intercourse had occurred at all.

There are certain features of the Crown case which are not entirely satisfactory and perhaps, as his Honour remarked in the summing-up, the whole story or all circumstances have not been told. But the jury has accepted the complainant's version. Some of the complainant's actions may have engendered unrealistic hopes or expectations in the applicant. But the fact that comes through with absolute clarity is that she did not want anal intercourse and he insisted on it despite her resistance. The only reasonable interpretation which the sentencing Judge and this Court can place upon the matter is at least one of gross insensitivity on the part of the applicant with utter disregard for the wishes of the complainant. He certainly has displayed no insight, remorse or realisation of wrongdoing. He went to trial and the complainant was severely cross-examined. These factors mean that he is not entitled to benefits in sentencing which might otherwise have been available.

Having regard to experience of other cases over a number of years, although neither counsel was able to refer to any that could properly be regarded as comparable, the range of sentence in this case, in my view, was within a fairly narrow compass, namely seven or eight years. It follows that it cannot be said that the sentence is manifestly excessive. I would refuse the application.

THE QUEEN v JOEL JOHN McCAULEY [2000] QCA 265 (5 July 2000)

THE QUEEN v JOEL JOHN McCAULEY [2000] QCA 265

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THE QUEEN v JOEL JOHN McCAULEY [2000] QCA 265 (5 July 2000)