R v Burrows

[1994] QCA 180

IN THE COURT OF APPEAL [1994] QCA 180

SUPREME COURT OF QUEENSLAND

C.A. No. 79 of 1994.

Brisbane

[R v. Burrows]

T H E Q U E E N
v.
GRANT ANDREW BURROWS

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

_______________________________________________________________

Fitzgerald P.
Pincus J.A.

Shepherdson J.

_______________________________________________________________
Judgment delivered 31/05/1994
Judgment of the Court
_______________________________________________________________

Appeal allowed. Following orders are made, subject to the respondent notifying the Registrar in writing within 48 hours of his consent to them and confirming that the effects of the

o rders have been explained to him by his counsel:

1.Order that the respondent Burrows perform 240 hours community service subject to the requirements set out in s.103 of the Penalties and Sentences Act 1992, and in respect of s. 103(1)(b) that the respondent report to the authorised Commission officer at Brisbane within 14 days of this order.

2.Condition 4 of the probation order made below on 11 February 1994 is set aside and in lieu thereof the following condition is imposed:

"The respondent shall undergo such treatment as may, from time to time, be reasonably required by an authorised Commission officer and take such medication as may be reasonably required by the doctor responsible for such treatment and refrain from the use of amyl nitrite or any similar substance during the period of probation."

4.Orders made below are in all other respects confirmed.
CATCHWORDS: CRIMINAL LAW - Sentence - Respondent threatened

woman with a knife during daylight - apparently acting under influence of amyl nitrite at the time - long history of substance abuse - respondent currently undertaking treatment for his abnormally high sex drive and sexual deviations - whether term of imprisonment should be substituted in lieu of term of probation imposed below, where such imprisonment may interrupt the treatment programme.

Counsel:Mr P Rutledge for the appellant.

Mr S Herbert Q.C. for the respondent.

Solicitors:Director of Prosecutions for the appellant.

Robertson O'Gorman for the respondent.

Date of hearing:18 May 1994.

JUDGMENT OF THE COURT

Delivered 31/05/1994

This is an Attorney-General's appeal against a sentence of three years probation imposed in the District Court for conviction of deprivation of liberty, unlawful assault and going armed in public. It appears that assault was treated as the main charge, and the judge below sentenced on that basis. The Crown contends, on this appeal, that a sentence of imprisonment should be imposed.

The complainant, a 24 year old woman, was walking alone on a track at Noosa during daylight hours when the respondent came up behind her, grabbed her firmly around the mouth and chin with his left hand, and said, "Don't worry, I'm not going to hurt you, come with me." She saw that he had a knife in his right hand which she described as a 15 centimetre silver blade with a wooden handle; it looked to her like a carving knife.

The respondent swung the complainant around and grabbed her by one of her wrists whilst still holding the knife in his right hand. He then said, "Just come with me or I will cut you", and threatened her with the knife, which was at that stage within striking distance of her arm. He attempted to pull her toward a pathway down to some rocks, out of sight of the main track. She resisted, and was crying and extremely upset, being frightened of what might happen to her and concerned as to what the respondent would do with the knife. The attack, which included a continual threat to use the knife, lasted for another 15 to 20 seconds; suddenly the respondent let go of the complainant's wrist and said, "Don't worry, I was just joking, it doesn't matter, don't worry". He then left the main track and went towards the shore.

The complainant some few minutes later identified the respondent entering his car in the carpark and noted his registration number, by which means the police managed to trace him. The respondent pleaded guilty to each of the three charges arising out of the incident.

At sentencing below, the Crown emphasised the need for effective deterrence, but did not insist upon a custodial sentence being imposed, saying instead that if a non-custodial sentence were imposed then that would require a substantial amount of community service, at least. No such order as to community service was made, the only sentence being an order for three years probation, with appropriate conditions. As has been mentioned, the Crown now presses for the imposition of a sentence of imprisonment. In our view, the offence was a serious one, creating for the complainant a situation of great danger.

The respondent is 30 years of age and has some relatively minor convictions recorded against him, although none are of a type similar to the offences in question. A pre-sentence report by a Dr Richards, a psychiatrist, which was placed before the sentencing judge suggested that sexual fantasy has always played a big part in the respondent's life, that he is fascinated by the female form, and that he regards himself as highly sexed. The report referred to drug usage, describing the respondent as taking up to 3 or 4 amphetamine tablets in one evening, and smoking one marijuana joint on 3 or 4 nights a week. It appears from the report that in 1992 the respondent commenced using amyl nitrite habitually when masturbating or having sexual intercourse. This drug, the report says, improves sexual performance and satisfaction; it also can bring about a "high", conducive to impulsive behaviour.

At the time of the offence, the respondent told Dr Richards, he had stopped on a secluded part of the track, sniffed amyl nitrite for a minute or so and when that wore off too soon, took another sniff. He then started jogging back along the track when the incident occurred. In the report the respondent is quoted as saying that when he understood the complainant was distressed and crying he realised the enormity of what he had done, suddenly desisted and left the scene. Had he not done so, the result might have been much more serious; behaviour of this kind must be firmly discouraged.

It was argued before us that at the time when he committed the assault the respondent was still under the influence of the amyl nitrite, and when this wore off he realised what he had done and ceased the attack. This appears to be a speculative inference, but if, as seems likely, the drug affected the respondent's behaviour, he must have known that it would, having presumably used it to that end. A second psychiatric report, dated 4 May 1994, which was read before us, refers to a more serious aspect of the respondent's character; that report by Dr. P. Edwards suggests the presence of some "sociopathic traits". Dr. Edwards describes amyl nitrite as tending to result in disinhibited, impulsive and emotionally labile behaviour. He also emphasises what is described as the respondent's "abnormally (sic) level of sex drive and his sexual deviations".

Sexual fantasies included consenting and non-consenting sex, such as raping post-pubertal females, imagining himself "grabbing a girl, throwing her to the ground and having sexual intercourse." The respondent told Dr Edwards that he was always seeking out sexual activity that was new and different in order to obtain greater excitement and gratification. Dr Edwards remarked:

"It is not surprising that he eventually acted on these fantasies and impulses and on a background of an abnormally high sex drive when he committed these offences, particularly as he had used Amyl Nitrite shortly before he encountered the victim in this matter."

Treatment for the respondent's abnormally high sex drive and sexual deviation was commenced by Dr Richards in Townsville and continued under Dr Edwards in Brisbane, at Dr Richards' recommendation. This treatment consisted of the taking of an anti-androgen preparation, androcur, which suppresses the production of testosterone and thereby decreases sex drive. Dr Edwards said in his report that 85% of patients do not re-offend while they remain on anti-androgens. The doctor said there would be a greater risk of re-offending if the respondent were to return to substance abuse. To the date of the report, 4 May 1994, the respondent was said to be reliable and totally compliant with treatment, a recent serum testosterone level being below the normal range for post-pubertal males, confirming his compliance with the treatment.

On behalf of the respondent it was submitted by Mr S Herbert QC that the imposition of a term of imprisonment would necessarily involve the cessation of the androcur treatment which could in turn lead to the respondent re-offending, perhaps more seriously, upon his release from prison. Mr Rutledge for the Crown submitted that this possibility could be overcome by imposing, in addition to a term of 6 months imprisonment, a requirement of probation with the condition that the respondent recommence treatment immediately on his release.

If the matter had come before us at first instance we would have found it difficult to see any reason why a sentence of imprisonment should not be imposed. The attack was unprovoked and sudden, and had a terrifying effect on the complainant, particularly because of the threats with the knife. It is not a case in which one would let stand a sentence providing only for probation. However, we are of opinion that this Court should not now impose a term of imprisonment, but should order performance of the maximum period of community service, in addition to probation. By this means, the interruption of the apparently successful course of treatment of the respondent which a term of imprisonment would cause will be avoided. We understood from Mr Herbert that the respondent would agree to an alteration in the conditions of probation, as set out below.

The appeal will be allowed and the following orders made, subject to the respondent notifying the Registrar in writing within 48 hours of his consent to them and confirming that the effects of the orders have been explained to him by his counsel:

1.Order that the respondent Burrows perform 240 hours community service subject to the requirements set out in s.103 of the Penalties and Sentences Act 1992, and in respect of s. 103(1)(b) that the respondent report to the authorised Commission officer at Brisbane within 14 days of this order.

2.Condition 4 of the probation order made below on 11 February 1994 is set aside and in lieu thereof the following condition is imposed:

"The respondent shall undergo such treatment as may, from time to time, be reasonably required by an authorised Commission officer and take such medication as may be reasonably required by the doctor responsible for such treatment and refrain from the use of amyl nitrite or any similar substance during the period of probation."

4.Orders made below are in all other respects confirmed.