R v Clarke

Case [2017] QCA 226


SUPREME COURT OF QUEENSLAND

CITATION:

R v Clarke [2017] QCA 226

PARTIES:

R
v

CLARKE, Aaron David
(appellant/applicant)

FILE NO/S:

CA No 309 of 2016
DC No 113 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 18 July 2016, Date of Sentence: 11 November 2016 (Baulch SC DCJ)

DELIVERED ON:

10 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2017

JUDGES:

Morrison and Philippides JJA and Brown J

ORDERS:

1.   The appeal against conviction is dismissed.

2.   The application for leave to appeal against the sentence is refused.

3.   In relation to the offence of Rape on Indictment No 113 of 2015, the Registrar of the District Court is directed to amend the Verdict and Judgment Record to reflect that a total period of 326 days was declared as pre-sentence custody, being time already served under the sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of rape – where the appellant appeals the conviction on three grounds: that there was a miscarriage of justice because the learned trial judge gave a direction based on an erroneous view of the evidence, that the appellant was denied a fair trial because he was cross-examined by the trial judge and that the learned trial judge misdirected the jury as to particular evidence – where there was evidence of consensual and non-consensual sexual activity – where the complainant suffered injuries consistent with sexual activity – where the bed on which the rape occurred had a stain – where the trial judge prompted the jury to consider what they thought of the stain – whether the trial judge directed the jury to consider that the stain was blood – where the trial judge asked the appellant a number of direct questions – where the trial judge is not precluded from asking questions but must not do so where to ask questions would cause prejudicial effect – whether the questions had a legitimate basis – whether the trial judge’s conduct has caused a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of rape – where the complainant sent a text message saying that the activity was consensual – where the complainant’s evidence as a whole suggested that some activity was consensual, but not the digital penetration subject of the rape count – whether the text message rendered the complainant’s evidence so unconvincing that the jury could not have been satisfied beyond reasonable doubt that the appellant was guilty of rape – whether it was open to the jury to convict the appellant of rape

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was sentenced for rape and…

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AGLC
R v Clarke [2017] QCA 226
Case
[2017] QCA 226
Decision Date

CaseChat Overview and Summary

In the case of R v Clarke, the appellant was convicted of rape and challenged both his conviction and sentence. The appeal was based on three grounds: that the trial judge's direction to the jury was based on an erroneous view of the evidence, that the appellant was denied a fair trial because he was cross-examined by the trial judge, and that the trial judge misdirected the jury regarding specific evidence. The complainant had sent a text message indicating that the sexual activity was consensual, which the appellant argued rendered her evidence unconvincing, and thus the jury could not have been satisfied beyond reasonable doubt that the appellant was guilty of rape. Additionally, the appellant challenged the sentence imposed for the rape conviction, arguing it was manifestly excessive when compared to other cases and that a suspended sentence was more appropriate.

The court examined whether the trial judge's direction to the jury was based on an erroneous view of the evidence and whether the judge's conduct caused a miscarriage of justice. The court also considered whether the complainant's text message rendered her evidence so unconvincing that the jury could not have been satisfied beyond reasonable doubt that the appellant was guilty of rape. Furthermore, the court assessed whether the sentence for the rape conviction was manifestly excessive. The Crown argued that the sentence should be viewed in light of the other offences, as it was open to impose cumulative terms, but this was not done partly due to the need to structure the sentences for the Commonwealth offences.

The court found that the sentence for the rape conviction was not manifestly excessive, noting that the sentence was much more than in some other cases but not enough to demonstrate that it was beyond the permissible range. The court also dismissed the appeal against conviction and refused the application for leave to appeal against the sentence. The court proposed orders to dismiss the appeal against conviction, refuse the application for leave to appeal against the sentence, and amend the Verdict and Judgment Record to reflect the correct period of pre-sentence custody.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against the sentence is refused.

3. In relation to the offence of Rape on Indictment No 113 of 2015, the Registrar of the District Court is directed to amend the Verdict and Judgment Record to reflect that a total period of 326 days was declared as pre-sentence custody, being time already served under the sentence.

Background

Background to the litigation

For the Crown it was submitted that the sentence for the rape conviction had to be viewed in light of the other offences, because it was open to impose cumulative terms and that was not done. Part of the reason for not making them cumulative was the need to structure the sentences for the Commonwealth offences. Reference was made to R v Hennessy,[144] Keevers & Filewood, HX, R v Baxter,[145] and R v Postchild,[146] in respect of the rape charge, and R v Sykes,[147] R v Jones[148] and R v Wharley[149] in respect of the other offences.[144][2002] QCA 523.[145][2010] QCA 235.[146][2013] QCA 227.[147][2009] QCA 267.[148][2011] QCA 147.[149](2007) 175 A Crim R 253; [2007] QCA 295.Factual background to the offences The circumstances of the rape offence are dealt with in detail above. To that can be added some information given to the learned sentencing judge, without objection, as to the examination by the doctor on the night the complainant was admitted to hospital.[150] The nurse conducted her examination after the doctor. The doctor noted suprapubic abdominal pain, a 3 cm by 0.3 cm superficial graze to the posterior vaginal wall, a 1 cm haematoma at the entrance of the vagina. She administered analgesic pain. The doctor said: “The likely long-term effects of the injuries are not likely long-term physical effects. The injuries suffered by the patient would have caused an interference with the patient’s health and/or comfort as the patient required analgesia due to vaginal pain caused by the alleged sexual assault.”[150]AB 57 lines 34-46. By agreement the doctor did not give evidence at the trial: AB 59 lines 10-17. On the other charges there was an agreed schedule of facts.[151] What follows draws from that schedule.[151]Appeal Book (AB) 108-114.The possession charge On 12 February 2012, police searched Clarke’s house. Computers were seized, along with associated equipment. Child exploitation material was found on the computer, including a number of movies and images which depicted children in sexual poses and situations. There were 22 movies and 1,596 images:(a)four movies in category 1 (no sexual activity), which showed girls under 10 and between 10 and 14, naked or dressed in lingerie; in some close-ups of their vaginas; one girl inserting an object in her vagina; in others sexual or provocative poses;(b)18 movies in category 2 (child non penetrate); these included small girls, some under eight or 10, naked; close-ups of vaginas; some being digitally penetrated, some in showers or dancing naked;(c)1,398 images in category 1; mostly girls between the ages of four and 14;(d)78 images in category 2; naked of mostly female children between four and 14;(e)37 images in category 3 (adult non-penetrate); images of young girls (four to 14) touching or licking adult penises;(f)60 images in category 4 (child adult non-penetrate); young girls (four to 14) being penetrated anally and vaginally; also several images of newborn female babies being vaginally penetrated by adult penises;(g)four images in category 5 (sadism and bestiality); young girls (four to 14) engaging in sexual acts with animals; and(h)nine images in category 6 (animation); young girls (four to 14) in sexual acts with adolescent males, adult males and adult females.

Evidence

Evidence Before The Court

A total of five witnesses gave evidence at the trial, including Clarke. I shall review that evidence in light of the unreasonable verdict ground, though not all of it is necessary to resolve the other grounds.Complainant’s evidence In her evidence in chief the complainant gave this account of the events. She encountered Clarke on a dating website in October 2014. They exchanged messages via instant messaging for about two weeks, then arranged to meet at Clarke’s house on 25 October 2014. She arrived in the evening. They watched television for a while and then, in her words, “we took it further into the bedroom”. That meant consensual sexual intercourse, in Clarke’s bedroom, for 20 or 30 minutes. She said everything was “fine and I had … said goodbye and left”. She gave detailed evidence about the house, its layout and fittings, and identified photographs showing various parts of the exterior and interior.[1][1]Exhibits 1-5. They continued speaking by telephone after that, in a way describe by her: “I spoke to him as a friend, I guess”.[2] She then sent a text on 29 October, asking if he wanted a visitor. They agreed to meet again at his house. She arrived about 8.30 pm. He was drinking beer and watching television. They both watched for a while then moved to the bedroom again where they engaged in consensual sexual intercourse. She said that the door was shut, the curtains closed and the lights were off.[3] The intercourse involved changing positions and lasted about 15 minutes, at which point “I got tired and decided to discontinue”.[4][2]Supplementary Appeal Book (SAB) 34 line 47.[3]SAB 36.[4]SAB 36 lines 1-15. At that point, as she was lying beside him, he said “he wanted to ruin my pussy”. He then started inserting his fingers into her vagina. She described the events:[5]“It was okay at first. Then it was starting to get rough, a little bit too rough. … It was starting to hurt me. … And I told him he needed to calm down. … He said to me that he was going to go get lube. … He exited the bedroom while I remained in the bedroom and he got the lube. … But I was unsure of why we needed it. … He got the lube and put it on his hands. … The door was left ajar while he left. … And when he come back he closed it again. … After that he lubed up his hands and started going again. … He started inserting his fingers into my vagina again with lube. … And it got a little bit more rough. … Like, I could feel that there was more fingers being inserted and it was becoming really, really painful. … I told him that it was hurting me. … That he needed to stop. … He didn’t stop. … it felt like it was getting worse. … It felt like he was putting more fingers in and at this stage I was still telling him to stop and he didn’t want to stop. … I asked him to stop and he said, but, baby, you’ve come so many times and I haven’t. … I said to him if he was to continue he’d have to be gentle. … And not be so rough. … It didn’t go that way. He ended up getting more and more rough. At one stage I could feel that he had all his fingers inside me. … I kept asking him to stop, but no matter what I did he wouldn’t stop. I was screaming. I was asking him for – asking for him to stop and he wouldn’t. He continued to drive his fist into my vagina. … And I screamed in pain while climbing all over the bed to try and get away. … I was trying to grab his wrist, which I could feel at my vagina to try and pull it out. I didn’t have the strength to pull it from that area. I ended up having to get strength to shove his shoulder so that his hand would come out of my vagina. …I could feel my vagina while I was grabbing his wrist.”[5]SAB 36 line 28 to SAB 38 line 11.

Decision

Reasons for decision

Baxter lends some support to the sentences imposed here. That the sentence was much more than in Keevers & Filewood or HX is not enough to succeed on this application. Nor is it enough to demonstrate that it is high or that some other judge might have imposed a different sentence. It has to be demonstrated that the sentence imposed was beyond the permissible range. I am unpersuaded that it is.Another matter – Verdict and Judgment Record Counsel for the Crown raised an additional matter. It concerned the fact that the Verdict and Judgment record wrongly records the pre-sentence custody declared as time served. In relation to the offence of rape on Indictment No 113/15 Clarke was sentenced to five years’ imprisonment. No court ordered parole eligibility date was fixed. A period of 326 days was declared as time served under the sentence.[178] The period of pre-sentence custody declared in the sentencing remarks accords with the period stated on the updated pre-sentence custody certificate.[179] This is also recorded correctly on the Court Order Sheet.[180] However the Verdict and Judgment Record[181] incorrectly refers only to a period of 232 days.[178]AB 70 line 36.[179]Exhibit 25, AB 121.[180]AB 12, left column.[181]AB 13. That submission appears to be correct and the verdict and Judgment Record should be corrected to reflect the correct period.Disposition For the reasons above I would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence. I propose the following orders:1.The appeal against conviction is dismissed.2.The application for leave to appeal against the sentence is refused.3.In relation to the offence of Rape on Indictment No 113 of 2015, the Registrar of the District Court is directed to amend the Verdict and Judgment Record to reflect that a total period of 326 days was declared as pre-sentence custody, being time already served under the sentence. PHILIPPIDES JA: I agree with Morrison JA. BROWN J: I agree with the reasons given by Morrison JA, and the orders proposed by his Honour.

Ratio Decidendi

Legal Principle Established

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