R v Dawson

[1992] QCA 74

STEWART JAMES DAWSON	Applicant
BRISBANE
.. DAY 1 JUDGMENT

COURT OF APPEAL [1992] QCA 074

MACROSSAN CJ
DAVIES JA

WILLIAMS J

CA No 297 of 1991

THE QUEEN

v.

.. DATE 30/3/92 against sentences imposed in this case. The applicant pleaded guilty to five offences committed in November in 1991. JUDGMENT

Count number 1 was a case of entering a dwelling house with intent to commit an indictable offence therein. I pause to say the offence in question was one which, depending upon the view one took of the circumstances, may have been of a sexual nature or perhaps not.

The applicant's claim was that he was interested in getting money when he first entered the dwelling house. Three years was imposed in that case, that is, a custodial term of three years.

The second count was one of attempt to commit rape upon the wife of the householder and twelve years was imposed in that case.

A custodial term and the greatest of all was imposed on the next count which was one of with intent to resist lawful arrest or detention doing grievous bodily harm. This was done to the person I have described as the householder who was the husband of the woman who was the victim of the attempted rape.

The next count was unlawfully using a motor vehicle and twelve was count 5, drew a penalty of two years. There was a circumstance of aggravation there. The use was for the purpose of facilitating the commission of an indictable offence. This means that the effective sentence was on count no 3 where, as I have said, the highest custodial term was imposed. That was a term of eighteen years.

months was imposed in that case.

The applicant was aged only twenty at the time of these offences but he had had a previous bad criminal history.

Briefly, the facts are these: he presented himself in mid- afternoon at the house in question, knocked, told some story and gained entry. He then violently attempted to rape the woman who had come and opened the door to him and who was at the time, there alone with a young infant child.

By coincidence, it would seem the husband arrived home after the attempted rape had occurred. On the husband's arrival, a long and violent struggle occurred with the applicant attempting to escape. The serious aspect was that the applicant used a knife and inflicted extremely serious injuries upon the husband in the course of this struggle.

The learned sentencing Judge clearly felt constrained to have regard to the overall criminality of the actions in sentencing the applicant. I would be disposed to think that he had some element of choice in the way that he should proceed. He may have, perhaps, chosen the course of imposing some cumulative sentence or sentences. It is unnecessary to proceed with that point further because that is not the course which the Judge chose.

The real question is whether there is any disproportion or excessiveness in relation to the overall criminality of the offence. It could not properly be said, in my view, that the Judge erred in selecting count no 3 as the one which should bear the imposition of the largest custodial term, that is, once the Judge had decided to impose concurrent sentences.

The applicant had a criminal history which, as I have said was serious, and included a serious and brutal rape perpetrated upon a young woman at a suburban Brisbane railway station. The applicant was still a child within the meaning of the legislation at the time that offence was committed, and he was dealt with under s 63 subs 1 of the appropriate legislation and ordered to be detained at Her Majesty's pleasure.

In that rape the applicant took advantage of the fact that he and the young woman, who was a stranger to him, were alone at the railway station. In the course of a long continuing and vicious assault during which he dragged her from spot to spot, he treated her extremely savagely. Then something that calls to be taken into account is this; he had been released for only some 13 months after the end of his detention on that earlier rape, before these next offences occurred. In that interval of 13 months we see from the applicant's criminal history that he was convicted also of attempted unlawful use of a motor vehicle, and ordered to perform community service and pay certain restitution.

While in custody, apparently on the rape offence to which I have already referred, he was convicted of escaping from legal confinement and sentenced to four months' imprisonment.

I mention these matters particularly because one of the submissions made to us is that the applicant demonstrated some attempts at rehabilitating himself while in custody waiting to be sentenced for the present offences. But any claims of attempted rehabilitation have to be considered in a context where his recent behaviour had been so bad, and where during the period when he had been recently released he had been guilty of yet another offence.

The critical factors seem to me to be these. The first is the previous extremely bad criminal history including the commission of an offence which bears points of similarity in the character of the offence and the nature of the circumstances with the present; the accompanying violence involved and the savagery which were incident to the execution of the offence; the intrusion into the home of the victim in the present case; the use then by the applicant of a knife in his fight with the attempted rape victim's husband when he came home, the knife being used no doubt in the applicant's attempt to make good his escape. But his use of that weapon displayed savagery. He stabbed the husband in the stomach and also in the chest, and the record shows that he attempted to thrust the knife into the husband's face.

It was said that he had spent 11 months in custody waiting to be dealt with in the present case and that he had intimated in timely fashion pleas of guilty. It was accordingly suggested that the effect overall of the substantial sentence, which on the face of things was 18 years, should be regarded as something in excess of 20, perhaps 21 years, reduced by allowances for those matters, that is allowances for the time in custody and for the timely intimation of a plea. It was then said that an effective sense of something like 21 years or thereabouts, perhaps even more, was excessive in terms of the overall criminality involved.

I find myself unable to agree to that submission. The circumstances, I think, justified the imposition of the penalties which we see here and in my view, it cannot be said that the

penalties imposed were excessive such as to call for this Court's

interference and I would dismiss the application.

DAVIES JA: I agree. 1991, the Court of Criminal Appeal had occasion to discuss the different approaches that may be adopted by a sentencing Judge when faced with a series of offences such as those in question here. As was there pointed out. it cannot be said that any one particular approach is correct and the others wrong. Usually the facts of the particular case will determine the approach which should be adopted by the sentencing Judge. The Court there indicated that the appropriate test to be applied on appeal was whether or not the total penalty imposed reflected the overall criminality of the conduct. Bearing in mind the factors that I have emphasised, and all that's been said by the learned presiding Judge, I have come to the conclusion that the sentence is not manifestly excessive and does not warrant interference by this Court. I would refuse the application.

WILLIAMS J: Particulars of the offences and sentences have been
set out by the learned presiding Judge. In my view, the serious
features with respect to the offences in question were firstly,
they all occurred within the home in which the two persons
attacked and their young family resided; secondly, a knife was
used on two occasions in the course of the assault on the husband
and caused serious stabbing injuries; thirdly, there is the
previous conviction of the applicant for the offence of rape and
the fact that he was only released from custody some 13 months
prior to the commission of these offences. It is true that the
learned sentencing Judge did not advert in his sentencing remarks
to the 11 months spent in custody awaiting sentence, and in
consequence, one has to regard the head sentence imposed as
effectively being of the order of 20 years.

THE CHIEF JUSTICE: The application is refused.

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