R v Kinloch

[1994] QCA 463

IN THE COURT OF APPEAL  [1994] QCA 463

SUPREME COURT OF QUEENSLAND

C.A. No. 366 of 1994

Brisbane

Before     McPherson J.A.
          Davies J.A.
          Derrington J.

[R. v. Kinloch]

T H E     Q U E E N

v.

GLEN JOHN MILES KINLOCH
  (Applicant)

McPherson J.A.

Davies J.A.

Derrington J.

Judgment delivered 03/11/94

Reasons for judgment by the Court

APPEAL ALLOWED. VARY THE SENTENCE IMPOSED BELOW TO ADD A RECOMMENDATION FOR PAROLE AFTER FOUR YEARS OF THE SENTENCE HAVING BEEN SERVED.

CATCHWORDS:   CRIMINAL LAW - SENTENCE - Armed robbery with personal violence - Deprivation of liberty - Indecent assault - Shop assistant threatened with shotgun - Tied up - Digital penetration of vagina - Forced tongue down throat - Ejaculated into complainant's mouth - Head sentence of 10 years imprisonment - Whether early parole recommendation appropriate - Previous good record - Service in RAN - Recipient of bravery award - Genuine remorse - Co-operation with police - Plea of guilty.

Counsel:R. Collins for the applicant

D. Bullock for the Crown

Solicitors:Legal Aid Office for the applicant

Director of Prosecutions for the respondent

Hearing Date:26 October 1994

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 3rd day of November 1994

This is an application for leave to appeal against sentences imposed on the applicant in the District Court at Southport on 2 September 1994.  The sentences are imprisonment for 10 years for one count of armed robbery with personal violence; 3 years for deprivation of liberty; and 9 years for indecent assault.  The learned sentencing judge said he took account of a period of 6 months pre-sentence detention in arriving at the effective head sentences of 10 years.  He made no recommendation for early parole.
     The circumstances of the offence are that at 2.20 p.m. on 24 November 1993, the complainant, who was a 23 year old woman, was working in a video store at Labrador on the Gold Coast.  The applicant came in and made a request to use the toilet, which was refused.  He left and returned about 5 minutes later carrying a shot gun.  He pushed the complainant away from the till, holding the shotgun to her back, and pushed her into the staff area and into the toilet.  He ordered her to take out her shoe laces, but she was unable to take them both out because of her state of fear.  He then removed one of her shoes.  She pleaded with him not to hurt her, but he tied her hands together behind her back with one of the laces.  He pushed her so that she was leaning over the toilet and pulled her underpants down and penetrated her vagina with his finger.  He then turned her round and forced his tongue down her throat.  He unzipped his jeans and she felt his penis against her anus.
     He turned her round again, and made her kneel in front of him, pulling her head back by the hair and forcing his penis into her mouth, where he ejaculated.  When he had finished with her, he pulled her to her feet, retied her hands more tightly, pushed her on to the ground, and tied her feet together.  He put her underpants into her mouth as a gag.
     He asked her where the money was kept, and told her that if she screamed or called out he would "blow her head off".  He could not at first find the money where she said it was, until she explained it was under a cloth, which was where he found it.  About $420.00 was taken.  Throughout this ordeal he continually abused her verbally, referring to her as a "fucking bitch".  She was crying and praying throughout.  He put her pants back into her mouth and locked her in the toilet.  It was by chance that about 10 minutes later the complainant's superior arrived, and, hearing cries coming from the toilet, prised open the door and released her.
     The complainant had some physical injuries such as scratches, bruises and red marks, but the principal consequences of the attack on her are psychological.  A report from the psychiatrist she consulted describes her as a having post traumatic stress disorder which is "moderate to severe".  His professional opinion is that she will bear the emotional scarring of the experience she underwent for many years to come.  From being an outgoing personality, she has become introspective, lacking in confidence, and avoiding the company of others.  For some time she was not even able to bring herself to attend church.  Her mother often found her in the early hours of the morning awake and cowering.  She will need to continue receiving psychiatric counselling for at least another year, and perhaps even longer.
     The circumstances make the offence a very serious instance of its kind.  The judge rightly described the complainant's ordeal as "shocking" and one that had significantly disrupted her life.  His Honour said it seemed to him that the applicant was a danger to women, and that the attack was carried out "with ferocity and some calculation".  His Honour was plainly correct in regarding the case as calling for a substantial period of imprisonment.  On behalf of the applicant, Mr Collins of counsel did not before us contest the appropriateness of the head sentence, which, when  the period of pre-sentence detention is taken into account, may be viewed as an effective sentence of imprisonment for 11 years.  Instead, he confined his submission to urging that the learned sentence judge had been wrong in refusing to make any recommendation for early parole.
     In that regard, the personal history and circumstances of the applicant are that he was born in 1968, and so was some 24 years of age at the time of these offences.  He had no prior convictions of any kind.  He grew up in Melbourne and has an apparently good family background.  His father served in the Army for 14 years, and died while the applicant was on bail pending sentence.  His mother was a nurse but is old now and not in good health.  The applicant achieved some distinction in his studies.  He joined the Royal Australian Navy in 1988 at the age of about 18 years and served in it until shortly before these offences were committed in 1993.  His reason for seeking his discharge was that his family life was suffering because of his naval service.  He has a de facto wife and two very young sons.  They came to the Gold Coast because she had relatives there, and the prospects of employment looked better than in Perth, where they had been living.
     In the Navy the applicant served at various stations in Australia and also overseas.  He was awarded a special commendation for bravery for diving into electrified waters and saving a man's life.  He has some permanent disabilities as a result of naval service.  He was in the gunnery section and his hearing has been damaged probably as the result of gunfire.  On the patrol boats on which he served for five years he suffered exposure to formaldehyde, which produced a form of bronchial asthma, which is described as "fairly severe".  He suffered a broken foot while at HMAS Cerberus in 1990.  While at Singapore with HMAS Geelong, he sustained a severe head injury in an incident ashore in which another sailor died.  The naval medical records, which are somewhat cryptic, refer to his requiring psychotherapy, and it appears that he received some such treatment while in the service.
     The case is one of those uncommon instances in which a pre‑sentence report might well have proved useful in elucidating a number of matters including the reason for his behaviour in committing the subject offences.  At the time he was becoming frustrated because of the delay in receiving payment of superannuation money that was due to him.  As a result the family was in financially straitened circumstances and, it is said, desperately needed money to live.  He became stressed and angry, grabbed a gun, went out and after walking around decided to rob a store.  The account he gave of his actions in the course of committing the offences is faintly suggestive of a "dissociative" state.  He said his mind was not registering what was happening and "it was just like I went into automatic pilot".  Afterwards, his wife noticed he was sweating and seemed "hyped up".  However, there is no medical evidence of his condition, and his action in attacking the complainant therefore remains, as the sentencing judge said, unexplained.
     The applicant's previous good record, including the bravery award in the Navy, are matters that fell to be considered as relevant to a recommendation for release on parole at a time before the statutory halfway mark of the sentence was reached.  In addition, the applicant expressed profound remorse for his actions and sympathy for his victim.  He instructed his counsel to say that he was well aware what the complainant had been put through, and to apologise through the court to her for what he had done to her.  There is some basis for thinking that his attitude in that regard is genuine.  When in about January 1994 he was identified as a result of information from his wife, the police searched their unit at Labrador and found some incriminating items.  He agreed to an interview in the course of which he admitted the robbery and eventually also that he had sexually molested the complainant.  He pleaded guilty to all three counts thus sparing the complainant the ordeal of a trial.  It is not clear precisely when it was that he agreed to plead.  A committal hearing was held, although it seems to have been required in order to correct some inaccuracies in the material relied on by the Crown in successfully opposing bail.  At or after the committal he was granted bail by the magistrate at Southport.
     It may be that the learned judge took all of these matters into account in arriving at the head sentence of 10 years.  If so, there is no indication in the sentencing remarks (which are brief) of his having done so.  A judge is, of course, not obliged to use any particular form or formula in stating his reasons for arriving at the sentence imposed.  However, it is generally good practice to fix a head sentence appropriate to the circumstances of the offence, and then to allow for any meritorious factors personal to the accused either by making a separate or specific discount or a recommendation for parole where that is called for.  The advantage of adopting that course, and explaining it has been followed, is that it informs both the accused himself, and any appellate court which may have to consider the matter, of precisely what has been considered and what has been done.
     Judges, including appellate judges, ought in my respectful opinion to guard against the temptation to make recommendations for early parole as a form of consolation prize for a heavy sentence, or as a device for easing the discomforture of having to impose it.  In the present case, however, we are persuaded that the sentence imposed must have omitted to give any or any sufficient weight to the factors already mentioned of the appellant's previous good record, his service and his bravery commendation in the Navy, his genuine remorse, and his co‑operation with the police and pleas of guilty.  In this respect and overall the case bears comparison with R. v. Quarrel (C.A. 284 of 1994), in which the Court of Appeal by a majority recently added a recommendation for parole after 3½ years of a 9 year sentence in a very serious case of rape.  The applicant there was younger, but he did not have the equivalent of the present applicant's work record or achievement.  In the light of his past conduct and his expressions of remorse, the applicant's prospect of rehabilitation appear to be encouraging, and he was we consider entitled to some specific recognition for his past efforts and good behaviour.
     It is to be understood that the recommendation for early parole is to be acted upon only if the applicant no longer poses a threat to the victim or other persons.  The nature of his offences indicates the appropriate matters for consideration as well as providing a warning that they should be considered.
     The appeal is allowed by varying the sentence to add a recommendation for parole after four years of the sentence have been served.