R v H

[2003] QCA 478

SUPREME COURT OF QUEENSLAND

CITATION:	R v H [2003] QCA 478
PARTIES:	R v H (applicant)
FILE NO/S:	CA No 257 of 2003 DC No 266 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING  COURT:	District Court at Southport
DELIVERED EX	3 November 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	3 November 2003
JUDGES:	McPherson and Williams JJA and White J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant convicted of one count of deprivation of liberty, one count of assault with intent to commit rape, three counts of common assault and three counts of sexual assault with circumstances of aggravation – where sentenced to four years imprisonment suspended after 18 months – where sexual assault in company whilst one offender was armed – where sustained attack lasting for 20 to 30 minutes – where element of trust between complainant and applicant as they were sharing accommodation – whether sentence imposed manifestly excessive
COUNSEL:	A J Kimmins for the applicant M R Byrne for the respondent
SOLICITORS:	Price & Roobottom for the applicant Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: On the 22nd July, 2003, the applicant pleaded guilty to one count of deprivation of liberty, one count of assault with intent to commit rape, three counts of common

assault and three counts of sexual assault with circumstances of aggravation. Each of those offences had been committed on 24 August, 1998.

He was sentenced to 12 months imprisonment with respect to the counts of deprivation of liberty and common assault, three years imprisonment for the assault with intent to commit rape, and four years imprisonment on the counts of sexual assault with circumstances of aggravation. Those sentences were to be served concurrently, but an order was made that the sentence be suspended after the applicant had served 18 months. Some 259 days of pre-sentence custody were declared to be part of the sentence.

The complainant was a Japanese woman aged 31 years, who was sharing a unit with another couple and the applicant at Surfers Paradise. The applicant was born in Korea on 26 May 1976 and had been living in Australia for some time. His parents lived in Sydney. He had no previous convictions. The complainant had met previously a Korean friend of the applicant's named J, who was about a year older than the applicant.

On 23rd August, 1998 the complainant retired to bed. Some time later she noticed the applicant in the room. He said he was looking for something and she did not raise any objection and went back to sleep. Later she was awoken again by the applicant and J in her bedroom.

A lighted candle had been placed in her bedroom and…