R v Chinfat

[1995] QCA 508

IN THE COURT OF APPEAL	[1995] QCA 508
SUPREME COURT OF QUEENSLAND
CA No. 354 of 1995 CA No. 355 of 1995
Brisbane [R v. Chinfat]

T H E Q U E E N

v.

WILLIAM THOMAS CHINFAT

(Applicant) Appellant

Fitzgerald P
Davies JA

Dowsett J

Judgment delivered 17/11/1995
Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCES IN RESPECT OF COUNTS 5 AND 10 SET ASIDE, THE APPLICANT TO RECEIVE 9 YEARS ON EACH OF THOSE COUNTS TO BE SERVED CONCURRENTLY, WITH EACH OTHER AND WITH THE OTHER SENTENCES.

CATCHWORDS:	CRIMINAL LAW - Sentence, sexual offences - repeated rape and indecent assault over long period upon a woman with whom there was a prior relationship.
Held: Appropriate sentence range was 8-10 years; in all the

circumstances, the sentence was manifestly excessive.

Counsel:	A Rafter for the Applicant/Appellant D Bullock for the Respondent
Solicitors:	Legal Aid Office of Queensland for the Applicant/Appellant Queensland Director of Public Prosecutions for the Respondent

Hearing Date: 31 October, 1995

REASONS FOR JUDGMENT OF THE COURT

Judgment delivered 17/11/1995

The appellant was convicted in the District Court at Innisfail of two counts of rape, three counts of assault, two counts of indecent assault and one count of indecent assault with a circumstance of aggravation. He was acquitted on two counts of rape and one of assault. The charges concerned conduct during the period from October, 1986 until October, 1993. The complainant and the appellant had been in a relationship of sorts from some time in 1985 when he became a lodger at her parents' home, although they did not ever live together. She had a child from a previous relationship. In December, 1985 she fell pregnant to the appellant and gave birth to a son on 28 September, 1986. In September, 1987 she again fell pregnant to the appellant, the child being born on 24 May, 1988. They continued to see each other until the end of 1990 when the appellant commenced a relationship with another woman. The appellant was often drunk, aggressive and even violent. They had sexual relations from time to time during that period, on one occasion without her consent.

In December, 1990 the appellant transferred his affections to another woman. The complainant said that she had commenced to ignore him because of his prior misconduct. He told her that it was over between them but continued to visit, at least partly for the purpose of seeing the children. During this period, he was violent on occasions and made sexual advances towards her. She denied any consensual sexual intercourse after December, 1990.

The charges, in chronological order, are as follows, with the verdicts:

1.Assault	October, 1986 Guilty
2.Indecent Assault	1.3.87 - 1.7.87 Guilty

3.Rape	17.8.87	Not Guilty
4.Assault	20.1.88 - 1.5.88	Guilty
5.Rape	10.5.88	Guilty
6.Rape	31.8.88 - 1.11.88	Not Guilty
7.Assault	January, 1991 Guilty

8.Indecent Assault	1.1.93 - 1.4.93 Guilty
9.Indecent Assault with a

circumstance of aggravation October, 1993 Guilty

10.Rape	October, 1993 Guilty
11.Assault	24.10.1993 Not Guilty

The only ground of appeal pressed in argument was ground 1, that the jury's verdicts were perverse insofar as they acquitted on three counts and convicted on the others, having regard to the fact that in respect of all counts, it was necessary that they rely upon the evidence of the complainant. This comes very close to an assertion that the jury was obliged to accept all of her evidence or reject all of it, a proposition which is inconsistent with the direction usually given to juries that they are entitled to accept or reject any part of the evidence of a witness. This direction is supported by the recent decision of this Court in R v. B, (CA No. 346 of 1992). The court said at p.6:-

"An appellant seeking to persuade an appellate court that a jury has returned inconsistent verdicts has the burden of establishing that the verdicts could not stand together, meaning thereby that no reasonably jury who had applied their minds properly to the facts in the case could have arrived at that conclusion. And this will be so only if there is no rational basis for the apparently inconsistent verdicts. It is not established merely by showing that the jury must have rejected the complainant's evidence on some counts but accepted it on others. ..."

This proposition is clearly inconsistent with the thrust of the appellant's argument. In the present case, it is not even clear that the jury must have rejected part of the complainant's evidence. They may simply not have been satisfied to the requisite standard on the counts on which they acquitted. The evidence suggests possible reasons for this. Count 3 alleged that the appellant raped the complainant on 17 August, 1987. There was evidence at the trial that the appellant was in jail in June and July, 1987 and that the complainant had written to him in friendly, even affectionate terms in response to a letter from him in which he said that he intended to reform and asked for another chance. The jury may have felt that intercourse shortly after his release could have occurred in circumstances which reflected the tone of that correspondence.

As to count 6, the complainant's evidence was that she had undergone an operation for the removal of a cyst in her genital area shortly before the events in question. It is reasonable to infer that she would have expected considerable pain associated with sexual intercourse at that time. Notwithstanding this fact, it is possible that the jury treated her evidence as less than convincing on the issue of consent. She said that she let him into the house and that he took her into the bedroom and lay down on the bed beside her. When he commenced to kiss her, she said, "No, I can't do anything because I am really sore." He said, "Oh, just try, you know, I'll go really slowly but just try." She said that he removed her pants and a pad which she was wearing and penetrated her. She told him to stop because it was hurting, and he did. Although she may not have consented, the jury may have considered the evidence to be inconclusive on that issue. Further, there was the added complication of mistake.

As to count 11, the alleged assault was said to have occurred on 24 October, 1993. This followed another incident which occurred earlier in that month in which he both raped her and committed indecent assault upon her. (Counts 9 and 10) With respect to count 11, her evidence was that he telephoned late at night and said that he was coming over. She protested, but he again said that he was coming and did so. When he arrived, she let him in. He pushed her onto the lounge; she told him that she didn't want him touching her; he said he knew that but didn't care and put his hand under her nightdress. The complainant kept her legs crossed. He persisted but eventually gave up and went to sleep. It is possible that in the light of the previous relationship between them, the jury may not have been satisfied that the Crown had excluded the possibility of mistake, given that the complainant had let the appellant into the house. One might reasonably have expected that she would not have done so under any circumstances, given the jury's view that his conduct on the previous occasion had constituted both rape and assault. That she let him in may have led the jury to suspect that he might have mistakenly thought that she would be receptive to his advances.

These explanations of the verdicts of "not guilty" are based upon very favourable views of the evidence from the appellant's point of view, but that is no basis for impugning the other verdicts. The acquittals can stand with the other verdicts, and we see no basis for interfering in those verdicts. The appeal against conviction should be dismissed.

The prisoner also seeks leave to appeal against the sentences on the rape counts. The

sentences imposed were as follows:-

Count 1 (Assault)	Six months
Count 2 (Indecent Assault)	One year
Count 4 (Assault)	Six months
Count 5 (Rape)	12 years
Count 7 (Assault)	Six months
Count 8 (Indecent Assault)	One year
Count 9 (Indecent Assault with a

circumstance of aggravation) Two years

Count 10 (Rape) 12 years

All sentences were to be concurrent.
The applicant was born on 1 April, 1968 and was therefore 27 years of age at the time

of sentence. However the first offence occurred when he was aged 20. There was little information provided about his personal antecedents, save that at the time of sentence, he was living in a de facto relationship with another woman and working on a property in Ravenshoe. The applicant has a very serious criminal history dating back to 1985. There have been numerous cases involving violence to the person and to property, together with traffic offences and offences of dishonesty. He was first imprisoned in 1987 for unlawful use of a motor vehicle. In 1988, he was imprisoned for wilful and unlawful damage to property. In 1989, he received a sentence of 12 months for deprivation of liberty, coupled with indecent assault. This was reduced on appeal to three months. In that year, he was also sentenced to four months for assault occasioning bodily harm, six months for discharging a firearm, two months for assault on a police officer and 18 months for another offence of assault occasioning bodily harm. In 1990 he was imprisoned for six months for dangerous driving. In 1991 he was imprisoned for three months for assault and unlawful damage. Although it may be said that the vast bulk of a very long criminal history is for relatively minor offences, he has committed a number of quite serious assaults, judging by the penalties which have been imposed. No doubt, his criminal record also explains, to some extent, the irregular nature of his relationship with the complainant.

The complainant has suffered from anxiety and depression as a result of his conduct. She is undergoing psychiatric counselling. As was pointed out by the Crown Prosecutor, this is hardly surprising in view of the fact that the appellant's conduct, "violated the sanctity of (her) bedroom and that his behaviour was reprehensible ... over a long period of time when he took advantage of (the complainant)." It must also be kept in mind that for much of the time, she had the care of two, or possibly three children.

Whilst the conduct prior to December, 1990 must be seen as part of an on-going relationship, with all the complex issues which that raises for consideration in the sentencing process, the conduct after December, 1990 constituted an exploitation of their previous relationship. The circumstances of a number of the offences were quite degrading. Count 1 occurred very shortly after the birth of her first child to the applicant. On this occasion, he gained access to her by entering through a broken window in the house. He grabbed her by the throat and held her against a wall.

Count 2 involved his putting his hand under her nightdress and rubbing her breasts and between her legs. He then pulled down his own jeans and put her hand on his penis. She said that it felt sticky and suggested that he had been with another person. He replied, "What if I have?", and then attempted to push her head towards his penis, although contact was not established.

Count 4 involved an assault which occurred not long before the birth of their second child. The appellant held a gun to her head with his finger on the trigger and told her to watch out or he would shoot her.

Count 5 was a rape which occurred very shortly after the birth of the second child. He told her that if she told anybody, he would kill her and that if she went to the police, he would kill them too.

Count 7 was an assault in 1991. He obtained access to the house by climbing on to a balcony and telling her to open the door or he would smash it. She let him in, and he lay down beside her. She said, "No. You told me it was over when you started going out with Cathy." He produced a pocket knife, held it to her throat and started rubbing his hands over her body.

Count 8 occurred in early 1993 in the presence of the elder of their two children. He put his hand up the back of her skirt and rubbed between her legs on the outside of her pants, saying to the boy, "You do this to Mum now."

Count 9 was an indecent assault with a circumstance of aggravation in October, 1993. The appellant visited the complainant in the middle of the night, took her to a bedroom, lay her on the bed, held her hands behind her back, removed her pants and licked her vagina. Associated with this was count 10, rape. After licking her vagina, the appellant inserted his penis into her vagina without her consent. He ejaculated.

The salient features of this, case apart from the unusual context in which the offences

occurred, are:-
(a)that the offences occurred in the complainant's home;
(b)that the applicant was known to her;
(c)that there was minimal violence;
(d)that the first rape occurred shortly before she gave birth to a child;
(e)that the second rape occurred a substantial period after their prior relationship had ceased.

R.v Hunt is a decision of this Court (CA No. 305 of 1994) delivered on 12 September, 1994. In that case the applicant and the complainant had been in a de facto relationship which had ceased in January, 1993 although there had been consensual sexual intercourse on about four occasions thereafter. The applicant went to the complainant's house and when she refused to admit him, he broke down the screen door. She ran from the house and was pushed over by him, striking her knee in the process and losing some skin. He then dragged her back inside by her hair, took the telephone off the hook, locked the door, pushed her into the bedroom and raped and assaulted her. Following this act of intercourse, he committed anal intercourse upon her and at a later stage, again had sexual intercourse. She suffered injuries, bruises, abrasions and tenderness indicative of forceful sexual intercourse. The charges were defended, and the sentencing Judge took the view that the applicant had demonstrated no remorse. The circumstances of the offence were described as "quite violent". In argument, it was agreed that had the parties been strangers each to the other, a sentence of 10 years, "would not necessarily have been out of the range". The applicant was sentenced to seven years imprisonment on each of the rape counts. He had previous convictions for assault occasioning bodily harm and being unlawfully in a dwelling house. The sentences were held not to be manifestly excessive.

R v. Stephens (CA No. 411 of 1994) was a decision of this Court given on 28 November last year. It was an Attorney's appeal against sentence. The respondent was convicted after a trial on two counts of rape and one of indecent assault on a young woman with whom he was living at the time. He was sentenced to three years imprisonment with a recommendation that he be considered for parole after six months. He was 21 at the date of the offences and 22 at the time of trial. He had only a minor criminal record. It was said that they had lived together for some time and that he had regularly assaulted her throughout that time. Shortly before the rapes, the respondent had told the complainant to leave the house and had threatened to shoot her. She left the house and visited a neighbour but returned late that evening and went to bed. The respondent returned later, entered her room, took off his clothes and asked her where she had been. He accused her of sleeping with people at the neighbour's house and abused her. He commenced to assault her and then told her to suck his penis. When she said that she didn't want to, he threatened her and so she did so. He then had intercourse with her against her will. He lost his erection and compelled her to suck his penis again, after which he again had intercourse with her. He ejaculated and then made her sleep on the floor. When he fell asleep, she went to the police. She suffered bruising and redness in the genital area and a deep cut, at least two centimetres in length, at the vaginal entrance. The respondent showed no remorse, told a false story to the police and defended the charges. The sentence was found to be outside the sentencing range and was increased to five years, with a recommendation that he be considered for parole after two years in recognition of his youth.

Finally, we should refer to the decision of this Court in The Queen v. Soper (CA No. 119 of 1994) delivered on 15 June, 1994. That applicant was convicted of rape and indecent assault and sentenced to imprisonment for 11 years on the first count and two years on the second, the sentences to be concurrent. The sentence of 11 years represented a reduction from 12 years to recognize a late plea of guilty after the receipt of DNA results. The complainant was a 17 year school girl who went to a shower block in a caravan park in which she lived. She entered a cubicle, locked the door and commenced her ablutions. The applicant had followed her and was watching her. He scaled the cubicle wall, jumped into it, landing on her or colliding with her and forcing her against the wall. The force of the collision exacerbated a pre-existing back problem. He threatened to kill her, exposed his penis and threatened her with his fist. He forced her to suck his penis and then to bend over so that he could have intercourse with her, which he did. He threatened to come back if she told the police. She was left with bruising on parts of her body and back pain aggravated by what he had done. He denied the offence and tried to fabricate an alibi. He was said to come from a good family but had an extensive criminal record, including one conviction for carnal knowledge against the order of nature upon a younger boy. There was some suggestion that he was affected by liquor at the time of the current offence. The sentence was held to be at the high end of the appropriate range.

The current rapes were, in our view, not accompanied by the same frightening conduct as occurred in Soper, although in that case, all of the misconduct occurred in the course of one transaction. In the present case, the misconduct was spread over a substantial period of time. The applicant's abuse of the complainant over such a long time demonstrates a particularly unsatisfactory attitude to women. In Hunt, the Court refused to reduce the sentence. The case therefore only indicates that the sentence in question was not manifestly excessive. Stephens was an Attorney's appeal, and it is not uncommon for the Court to take a lenient view when re- sentencing an offender after allowing such an appeal.

Having taken these matters into account, we find ourselves in substantial agreement with the submission made by the counsel on behalf of the applicant that the appropriate range was 8 to 10 years and that in all of the circumstances, the sentences were manifestly excessive. We would grant leave to appeal and order that the sentences in respect of counts 5 and 10 be set aside. In lieu thereof, we would sentence the applicant to imprisonment for a period of nine years on each of those counts, to be served concurrently with each other and with the sentences passed in respect of the other offences.