R v Cowell

[1993] QCA 487

IN THE COURT OF APPEAL [1993] QCA 487

Q UEENSLAND

C.A. No. 362 of 1993

B	risbane
[	R. v. Cowell]

T H E Q U E E N

v.
STEPHEN JOHN COWELL

(Applicant)

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The Chief Justice Mr Justice Davies

Mr Justice McPherson

──────────────────────────────────────────────────────────────

Judgment delivered 03/12/93

JUDGMENT OF THE COURT

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.
APPEAL ALLOWED. SET ASIDE THE SENTENCE OF SEVEN YEARS
IMPOSED BELOW FOR THE OFFENCE OF RAPE AND SUBSTITUTE A SENTENCE
OF SIX YEARS, THE OTHER TWO SENTENCES IMPOSED BELOW TO REMAIN,
ALL SENTENCES TO BE SERVED CONCURRENTLY FROM 8 MARCH, 1993. NO
SPECIFIC RECOMMENDATIONS ARE MADE IN RESPECT OF RELEASE ON

PAROLE.

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CATCHWORDS: CRIMINAL LAW - Sentence - whether manifestly excessive - appellant convicted of rape, stealing and false pretences - trial judge recommended parole not be allowed unless due consideration provided reasonable assurance prisoner would not be a further danger to women - whether medical

evidence/criminal	history	justified
approach

Counsel:	Mr P. Rutledge for the applicant Mr P. Callaghan for the respondent
Solicitors:	Legal Aid office for the applicant Director of Prosecutions for the respondent
Hearing date:	12 November, 1993

IN THE COURT OF APPEAL

Q UEENSLAND

C.A. No. 362 of 1992

Brisbane
Before The Chief Justice Mr Justice Davies

Mr Justice McPherson

[R. v. Cowell]

T H E Q U E E N

v.

STEPHEN JOHN COWELL

(Applicant)

JUDGMENT OF THE COURT

Judgment delivered 03/12/93

Leave is sought to appeal against the sentences imposed on the applicant on his conviction for three offences committed in February and March 1993. In each case, the applicant pleaded guilty. On 28 February, 1993 he raped a young woman and stole a cassette player which belonged to her and then on 1 March, 1993 by falsely pretending that the cassette player was his property he obtained a sum of money from a third person with intent to defraud.

In the proceedings before the learned sentencing judge the prosecutor suggested that an appropriate sentence for this offence of rape was six years' imprisonment but the judge considered that that was not sufficient. He imposed terms of seven years for the rape, two years for the stealing and one year on the false pretences charge with all sentences to be served concurrently and dated from 8 March, 1993 when the applicant was taken into custody on the charges. The judge in the course of fairly lengthy reasons explained his view why the offences should, overall, carry a more substantial penalty than the prosecutor had suggested and these reasons must now be considered. It is convenient, first, to outline the facts.

The 19 year old complainant in the course of the evening attended a nightclub and consumed a quantity of liquor. Her original companions departed but she stayed on until 5.00 a.m. The applicant was also present although not in the complainant's group. There was some brief contact between the two of them there and they left together or virtually together. Outside the nightclub some brief conversation took place between them. The applicant suggested to the complainant that they should go to his house and have breakfast there. The complainant declined that offer but invited the applicant to her house where she would cook breakfast. He accepted and they caught a taxi together. Shortly after they arrived the applicant made some physical advances towards the complainant but she told him to desist and he did so. Announcing that she felt tired and needed to sleep the complainant lay down on her bed and the applicant lay beside her. Again he made some advances but again desisted when told to do so by the complainant. They slept for an hour or two. The complainant woke up at approximately 7.30 a.m. and she became aware that the applicant was walking around the house behaving in a fashion which she thought was odd. She heard him saying things in an angry tone along the lines of "she wants me". She became concerned, thought it wiser to leave and told the applicant that was what she was about to do. As she attempted to leave he grabbed her. Then commenced the behaviour in the course of which the applicant eventually raped the complainant while she continued trying to resist. Her clothing was forcibly removed and various physical intimacies followed until the applicant holding the complainant's wrists to the floor carried out the rape. Notwithstanding the struggles of the complainant and her continued attempts at resistance she suffered only minor physical injuries. These were listed by the judge as including a bump to the back of her head, some carpet burns on her elbow, bruising on her knees, shins and right hip, and pain in the stomach muscles and back. When the rape was concluded the complainant drove off to a friend's house. The applicant before he left took a cassette player which he pawned the following day for $40.00.

The police investigation located the prisoner and he participated in an interview. He admitted stealing and pawning the cassette recorder and also admitted having been at the complainant's house and that sexual intercourse had taken place there but he said it was consensual.

The sentencing judge said that he accepted matters asserted by the complainant in the statement she provided described as an "impact statement". She spoke of an aftermath of understandable upset and dislocation in her life. She had difficulties in sleeping and with her ability to concentrate. She suffered nightmares, and was concerned about living alone and even of being alone in the street. She experienced fits of crying, difficulties in her relationships with men and general feelings of stress and depression.

The sentencing judge was also assisted by certain medical

reports. in which he reviewed the applicant's medical history and provided an opinion. He mentioned that the applicant suffers from epilepsy and that dilantin and tegretol are prescribed. Some years ago the applicant was concerned that he might be suffering from schizophrenia but he had been informed that this was not the case. He said he "went berserk" in 1991 or 1992 after a drinking bout and woke up in hospital strapped to a bed.

The applicant is a longstanding alcoholic and although at earlier times he worked as a storeman and then as a process worker, for about the last 10 years he has had no more than part-time employment. This may well be due to his alcoholism. He has assault convictions for behaviour occurring in the course of his stormy marriage but the marriage has now broken up. He is presently about 30 years of age. He regards himself as having been first a heavy drinker and then an alcoholic by the time he was 20. His drinking pattern in recent years is to abstain apart from "bender" drinking which occurs over a day in every week or two. Dr Mulholland's view was that the applicant was genuinely remorseful at what he had done and regretful of his behaviour which to his mind resembles nothing that he had ever done before. He is thought to be in need of counselling for his alcoholism and has for a time benefited from assistance provided by the Salvation Army.

A report from a Deputy Director of Psychiatry at the Royal Brisbane Hospital noted the admission to hospital which has been referred to above. On that occasion the applicant had a very high blood alcohol reading and was violent while he was in the accident and emergency department. This was in late September or early October 1990. However there was no evidence of psychotic disorder during the few days he spent in hospital at that time although a diagnosis of antisocial personality disorder was made. The report referred to "a past history of sexual deviation (exhibitionism)". Although it is not possible to be certain, that conclusion may have resulted from a particular reading of the criminal history sheet to which reference will be made shortly. A further report from a Deputy Director of Psychiatry at the Princess Alexandra Hospital referred to an occasion in May 1984 when the applicant was admitted to that hospital with a left peri-orbital haematoma sustained following a fight when he had been drinking. The conclusion was that the applicant had not sustained any major head injury on that occasion. In February of 1987 he was admitted to the Princess Alexandra Hospital having been referred from the Biala Alcoholism Unit following bizarre behaviour. At that time the applicant claimed to be hearing voices but, although vagueness in his thinking was exhibited, it was not concluded that any psychiatric disorder was established beyond that of severe personality disorder combined with longstanding antisocial traits. It was stated in the report that there was evidence that his claimed psychotic or bizarre symptoms including the voice hallucinations and also feelings of rage, sexual and religious preoccupation were simulated. The report said "it is not clear why he should choose to feign psychiatric illness" but the conclusion nevertheless was that "no significant abnormality" was revealed by the investigations.

This rather full extract from the psychiatric reports is included because the learned sentencing judge relied upon the reports although as will appear his sentencing approach cannot be regarded as fully justified by them. Essential aspects of His Honour's reasoning will now be set out.

Having listened to the submissions of counsel the judge said that "if one were considering the rape alone" it would be correct to accept the range of sentences submitted by the Crown, "that is to say, between five and seven years. But one is not considering a usual case at all". He then said, "furthermore, there are warning signs which get stronger on closer examination; warnings against a recommendation for early release. In a word, I strongly suspect this prisoner is and will remain a danger to women". The judge thought that the fact that at the complainant's house the applicant had been prepared to allow her to sleep unmolested for an hour or so was "one of the unusual features of this case. Perhaps it represents a warning sign". The judge considered also that the applicant's responses to Dr Mulholland's questioning as revealed in the report "heightened" his concern although in this respect the judge seems to go considerably beyond Dr Mulholland's conclusions. His Honour said that the suggestion of the applicant's having feigned psychiatric illness as referred to in the second report from a Deputy Director of Psychiatry was "another warning sign". He further said that when the applicant's criminal history was examined there was "support for concern".

The criminal history starts with a conviction for obscene language in December 1980 when the applicant was 18. On that occasion bail was forfeited. In the following year he was convicted in June on two counts of stealing which occurred in May and for wilful exposure which occurred on 21 June. He was on that occasion placed on probation for two years and ordered to pay a small amount by way of restitution. On four further occasions prior to September of 1988 he was dealt with for being found in a dwelling house without lawful excuse, for obscene language, for wilful and unlawful destruction of property, for aggravated assault on a female and for stealing and false pretences. On these occasions he was dealt with by being fined, having bail forfeited, or ordered to perform community service and also to pay certain amounts by way of restitution but nothing which could be called a substantial penalty was imposed.

The assault on the female is likely to be one of the episodes within the turbulent marriage to which Dr Mulholland referred. In September of 1988 the applicant was convicted of assault occasioning bodily harm but the seriousness of what was involved on that occasion is probably best judged by the order which was made: he was placed on a recognizance of $500 and be of good behaviour. In August of 1989 a further conviction for assault occasioning bodily harm appears and for this he was fined $600 with a fine option order providing for community service. This may be a further episode in the difficult matrimonial relationship to which Dr Mulholland refers and while it is not possible to be certain the moderate amount of the penalty imposed gives some insight into the degree of seriousness of the behaviour involved. In the same year, 1989, on three separate occasions the applicant was convicted on obscene language charges and on one occasion of resisting police and he was either fined a moderate amount or had bail forfeited. In May of 1990 he was convicted of stealing and ordered to perform 150 hours of community service and in the following year, for breach of that community service order, he was convicted and fined $300. In November of 1992 he was convicted on two charges of stealing and fined in each case $100 and in total ordered to make restitution of $24.

The above fully states the applicant's criminal history as

it appears in the record. offence the learned sentencing judge felt that he was able to gain some detailed insight into the applicant's psychological make-up and his propensity to offend. Some of the notes of alarm sounded by His Honour have already been mentioned but he felt he was able to say more. A statement made by one of the Deputy Directors of Psychiatry in his report was that there was a long history of violence and aggression since the applicant left school but whatever that statement was based on it seems hardly justified by the record of his criminal convictions.

The judge's statement that the applicant's feigning psychiatric illness was another warning sign appears to go further than the psychiatric evidence itself indicates. When the judge said that in the criminal history he found support for his concern he explained what he meant. He said that his experience was that it was unusual for offences of stealing and wilful exposure to be committed in combination even if not on the same day as was the case here. He also said that in his experience it was unusual for a person prone to exhibitionism "in point of sexual exhibitionism" to demonstrate aggression, particularly sexual aggression and that was "another warning sign". It should be mentioned that the wilful exposure offence appearing in the applicant's criminal record is not particularised as having involved what is usually conveyed by the description "sexual exhibitionism" although what it did actually involve is not specifically revealed. The judge said that it seemed to him that "this prisoner's unusual mixture of aggression, exhibitionism, theft and sexual assault is another warning sign". He went on to say that he would not make the recommendation for early parole which was requested but would give "two intimations" to the authorities which were intended to be of assistance. The first was that "parole should be allowed only after due consideration provides reasonable assurance that the prisoner will not be a further danger to women" and the second, "in the event of parole, terms might be imposed which would require frequent consultation with those assigned to his case". He continued:-

"In my view anyone capable of feigning psychiatric illness and who is a known sexual exhibitionist and an aggressive sexual assailant and a thief and a false pretender should be closely monitored while on parole, assuming, of course, he ever is given parole."

Finally, on this theme he said:-

"This is a case where the theft of the girl's property and its ultimate unlawful disposal should be seen for what it was, the last demonstration of aggressive contempt. It is the overall criminality which must be reflected in the penalty in this case and that is why the Prosecution's suggestion that six years would be an appropriate sentence should be rejected. This was the ultimate and complete contempt. He raped a girl with a view to humiliation, and he stole her property in order to rub it in."

No-one can infallibly predict the likelihood of a convicted offender's re-offending on release from imprisonment. In all cases the relevant authorities no doubt feel the need to act with caution. Predictions of the likelihood of an offender's re-offending will inevitably in a percentage of cases turn out to be justified but still it is not an acceptable course to single out an offender for a heavier sentence and the imposition of what is, in effect, a recommendation for delayed release on parole unless something in the circumstances shows that there is a sufficient basis to act in that fashion. With all respect, and allowing for the risks involved in prediction in each case, nothing here seems to establish the insights which the judge felt he gained from the material or justifies what amounts to a fairly strong recommendation against parole at what might otherwise be the usual time. This Court has already found it necessary to issue a warning against too lightly making delaying recommendations that have the potential to work injustice for particular offenders selected without sufficient reason from the general group. In R. v. Brockfield (C.A. No. 229 of 1993, unreported, judgment 21.9.93) the court, looking at the legislative scheme for the release of prisoners on parole, said, in words that bear repeating:-

"It is of the utmost importance that any observations which are made in the course of sentencing, and which are intended to be brought to the attention of a Board or to the prison authorities, should be carefully considered and should reflect the evidence in the case."

It is helpful also to bear in mind that it is not a permissible approach to sentencing in those cases where sentences of imprisonment of determinate length are to be imposed, to order terms longer than would otherwise be justified for the purpose of protecting the community against the possibility of the offenders' further offending if given the opportunity: see Veen v. The Queen (No. 2) (1988) 164 C.L.R. 465.
Serious though the present offence of rape was and careful though the Board can be expected to be in exercising its function in the case of all offenders for whom they have responsibility the conclusion should be reached that the delaying recommendation made in this case was not justified by the evidence before the court and it should be set aside. The result is that the discretion of this Court to interfere is enlivened so that it should then consider whether the sentence as a whole should be modified. There are sufficient indications in the remarks of the sentencing judge to raise concerns that he was led to impose a longer term because of his particular view of the matter which is not fully justified.

The application for leave to appeal against sentence should be granted and the appeal allowed and in lieu of the sentence ordered below it should be ordered that the appellant be sentenced to six years' imprisonment for the offence of rape, two years for the offence of stealing and one year for the false pretences, all sentences to be served concurrently and in each case to commence from 8 March, 1993. The remarks made below conveying specific recommendations in respect of release on parole should be regarded as withdrawn.