R v Eastwell

[1992] QCA 109

COURT OF APPEAL	[1992] QCA 109
MACROSSAN CJ DAVIES JA McPHERSON JA
CA No 31 of 1992
THE QUEEN
v.
ANTHONY CLYDE EASTWELL

(Applicant)

BRISBANE

... DATE 29/04/92

JUDGMENT

JUDGMENT

THE CHIEF JUSTICE: The applicant seeks leave to appeal against sentences imposed in respect of an episode involving both attempted rape and some associated incidents and offences.

The offences occurred on 24 February, 1991 and the applicant was sentenced on 16 January, 1992. The offences were: attempted rape and the sentence imposed for that matter was 10 years; unlawful detention which related to the time the complainant was kept in the applicant's taxi cab - he being a taxi driver when the offences occurred - and the penalty imposed for the unlawful detention was a term of imprisonment of two and a half years; two further incidents of indecent assault, one of them with a circumstance of aggravation, and these two offences attracted the penalties respectively of two and half years and five years imprisonment. They were part of a continuing episode.

The facts in outline were these. The applicant is a taxi driver and at a shopping centre car park, in the early hours of the morning, he drove up to a 20 year old woman who was alone at that place. Even though she did not have the money to pay the fare, that having emerged, the taxi driver offered to drive her to her destination saying something to the effect that she should not worry about having no money and that she should just hop in because young girls should not be out at night by themselves.

On the way to the destination he detoured off the highway, took her to a secluded area and then the criminal episodes commenced.

He said that if she was not going to pay him, she would have to have intercourse with him. Then a prolonged determined assault upon her occurred. He stripped her completely naked in the course of this; various intimate activities ensued, all of which she was endeavouring to resist as best she could. He used threats and a degree of violence was also employed. She was detained for a significant period, continuing to struggle. He terrified her, there is no doubt.

His activities were briefly restrained when a security vehicle came up and approached them. He sent that vehicle and its occupants off with some excuse for what was going on. When that vehicle came back to investigate further, the applicant drove his taxi off but the girl, while the vehicle was in motion, managed to jump out doing herself some injury. The vehicle was moving at speed. She had to escape naked. She went to an adjoining residence, I believe, and the episode so far as the physical aspects were concerned came to an end there.

However, the girl was left with a substantial psychological aftermath. There was evidence that she has significant trouble relating in any way with the opposite sex at the present time and sleeps in her bedroom in conditions which resemble something of a fortress.

When the complainant jumped from the moving taxi cab she suffered certain injury: bruising, abrasions, swelling to her ankle and elbow and perhaps others. The more serious effects however, is the psychological consequence to which I have referred.

The sentencing Judge in passing sentence took into account the applicant's previous unblemished record - he had no convictions whatsoever. It is not a case, I should add, where he had pleaded guilty; he persisted in denials. The sentencing Judge said he regarded it as a very serious case of attempted rape. No substantial objection can be made to his having described it in those terms.

The Judge also averted to the fact that taxi drivers were in a position which can reasonably be described as a position of trust to their passengers, in particular perhaps to their young female passengers. There is a substantial element of truth in that.

We have had a number of comparative sentences drawn to our attention. None of them give specific assistance although all of them give some general help in deciding whether, as is contended, the sentences imposed in a substantial effect were excessive and manifestly excessive in this case. It is certainly true that this was a case of attempted rape only and not of a perpetrated rape. It is also not to be lost sight of that the applicant had no previous convictions, he being a 43 year old man.

The Legislature provides that the maximum penalty for attempted rape is 14 years only. This is to be contrasted with the life penalty imposed as a maximum in cases of rape.

It is true that this, considered as an attempted rape case, was a particularly bad one. The aspect of trust is to the forefront in that assessment. The prolonged determined nature of the assaults and the other details which the record discloses in respect of the physical actions of the applicant are further factors.

It is also true although it is a very bad case in the category of attempted rape cases, no weapon was used. That is a factor which might make some difference. It is certainly also true that no significant injuries, at least ones which were intended by the applicant, in a physical sense occurred. The psychological aftermath I put to one side, having already mentioned that.

I am left with the view that because there were no previous convictions in the applicant's history and because it was an attempted rape case rather than a case where a rape actually occurred, the sentence imposed of 10 years was properly to be described as a very severe sentence. In the end, however, I am not persuaded that it can be described as manifestly excessive because of the circumstances attending the perpetration of the offences and I would not, therefore, be disposed to interfere in this particular case with the head sentence imposed.

However, there are then left for consideration the further features that this man had no previous convictions and had led, so far as the record appears, a useful enough life to this point.

I think that these factors should be reflected in the sentence

which is imposed.

In respect of the sentence imposed for the attempted rape, that is the 10 years, I would interfere to the extent of adding a recommendation that in that case he be considered for parole after he has served three and half years of that sentence. I would allow the application to that extent only and refuse it otherwise.

DAVIES JA: I agree.
McPHERSON JA: I agree. It is possible to conceive of instances
of attempted rape that are more serious than actual rape itself
of kinds that one can think of.

This is I think an instance of attempted rape of a more serious kind. It involved the luring of a 20 year old girl into a taxi by the driver, who posed or presented himself as being concerned for her safety. He took her to a lonely place, he forced her to remove her clothing, using physical force, slapping and choking her; hitting her with a shoe, and then committing indecent assaults on her.

She succeeded in escaping by jumping naked out of the moving car, and in consequence suffered further injury. She sustained scarring over various parts of her body which limits her ability to wear swimming costumes and evening gowns without exposing the scarring.

The emotional impact on her was even worse. She now sleeps little, and with the light on, and with a knife under her pillow.

It has affected her relationship with men; she will not let boys near her; and will not let males touch her. Needless to say, she will not use taxis.

The consequences for her have been severe. For the applicant who committed this offence and for his family they have also been serious. He is a man who has been married some 17 years. He has hitherto led an unblemished life and is now 43 years old. It is difficult to account for what he did, and the effect of it both on him and his family is certainly adverse.

In those circumstances, the case is one in which I think it would be proper to recognise his previous good conduct in the way suggested by the Chief Justice, which is to make a recommendation of the kind he has proposed. I therefore agree with the order that the Chief Justice has propounded.

THE CHIEF JUSTICE: The order of the Court will then be as we have indicated.