R v BC

[1999] QCA 66

[1999] QCA 66

COURT OF APPEAL

DAVIES JA
THOMAS JA
MUIR J

CA No 420 of 1998

THE QUEEN

v.

BC  Applicant

BRISBANE

DATE 15/03/99

JUDGMENT

THOMAS JA:  The applicant was sentenced for 25 offences which were offences of a sexual nature and some of a violent nature, involving five different women.

They fall into three parts.  Firstly there was sexual and general bodily abuse of his de facto partner, P; secondly there were sexual depredations on P's 13-year-old niece who lived with them for a time; and thirdly there were three separate assaults in Brisbane on three women during one day when he was on bail on the other counts.

The applicant was sentenced to nine years imprisonment on particular sodomy counts and to lesser terms of concurrent imprisonment on the other counts.  As well a declaration was made that he had served 328 days of pre‑sentence custody and that, of course, was to be taken as time served.

The circumstances of the offences are marked by humiliation of and insult to his victims.  Some assaults were accompanied by statements that he was God and that the women should call him by that name, and that they should sit on the floor because they were dogs.  I may say that in his submissions today the applicant, who appeared in person, said that he was not guilty of "half" the charges to which he had pleaded guilty.  He also said that he was not in his right frame of mind when "half" of these crimes were committed.

The submissions are of little assistance in our consideration of the question of excessiveness of sentence.  This Court should act on the circumstances as they were related to the learned sentencing Judge.

Four of the counts include forcible sodomy inflicted in circumstances where the victim suffered severe pain.  It will more than suffice to describe a few samples of the numerous offences to which the applicant pleaded guilty.

The first sodomy involved his telling P to get undressed.  She refused.  He said, "Do what you are told" and lifted his hand as if to strike her.  She undressed, and he dragged her on top of him.  She cried.  He told her to shut up.  He then said, "Go and get a washer and clean me up."  She did so.  He then told her to have a shower saying, "Have a shower, bitch, you stink."  She did so and found that she was bleeding from her anal area.  That was the first time she had had anal intercourse.

Another sample offence which may be mentioned is the one described as Count 9, an indecent assault, where he induced his de facto partner to engage in a sexual relation after he ordered her to "suck my dick".  He grabbed her hair and forced her to do so, rocking her head.  The young boy was crying outside so the applicant called for the niece to come in.  She did so with the child and the incident continued in front of them.  Now he remarked in front of the niece, "Only my wife sucks my dick."  Later that afternoon the two women were told to pray and seek forgiveness for their sins.

Another offence that may be mentioned is the first of the offences on various women in Brisbane when the applicant was on bail.  The complainant was a restaurant manager in Paddington.  At 1 a.m. she was alone in the restaurant when she heard a knock at the door.  The applicant claimed he wanted to go to the toilet but was told, "Sorry, we are closed."  When she left soon afterwards the applicant approached her and said, "I want to fucking talk to you."  She tried to avoid him and moved towards her vehicle.  He then placed his hand over her mouth and caused her head to hit the roof of her car.  He then said, "I am going to fucking rape you."  She bent and scratched his neck and screamed and got into her car and blew the horn for a long period.  She was able to identify the applicant from a photograph.

The circumstances that have been related show serious conduct.  The applicant was represented by very experienced counsel and both the Crown Prosecutor and his counsel agreed before the learned trial judge that the sentence which was actually imposed, nine years, was appropriate.

The Crown's submission was that the sentence should be between nine and 11 years and the defence counsel conceded that nine years would be an appropriate response.

Indeed, the learned sentencing judge, Judge Botting, was initially minded to impose nine years and a cumulative term in respect of the Brisbane offences.  However he responded to strong submissions by counsel for the applicant, and in the end imposed the effective nine year sentence.

The conduct occurred over a sustained period.  It involved multiple complainants and was of a character serious enough to justify the sentences.  In fact, in my view, he may consider himself fortunate not to have been more severely dealt with.

I note that certain things were urged in his favour by his counsel below including the fact that the relationship occurred when his de facto partner fell pregnant whereupon he felt trapped.  It was suggested on his behalf that many of the violent occasions involved both parties and it was said that there was some degree of exaggeration in the complaint.  It was also mentioned that at times he smoked marijuana very heavily and had no recollection of the delusions when he spoke about God.  It was also mentioned that he was a hard worker and this may be accepted in his favour.

However, all things taken into account suggests to me that the sentence was appropriate and in my view this Court should not interfere.

Accordingly I would refuse the application.

DAVIES JA:  I agree.

MUIR J:  I agree.

DAVIES JA:  The application is refused.

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