R v Knight

[1995] QCA 569

IN THE COURT OF APPEAL	[1995] QCA 569
SUPREME COURT OF QUEENSLAND

C.A. No. 370 of 1995

Brisbane

Before	Fitzgerald P. McPherson J.A. Pincus J.A.
[R. v. Knight]

T H E Q U E E N

v.

WILLIAM THOMAS KNIGHT Appellant

Fitzgerald P.
McPherson J.A.

Pincus J.A.

Orders delivered 07/12/95

Judgment delivered 19/12/95

Reasons for judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCE BELOW SET ASIDE AND IN LIEU ORDER THAT THE APPELLANT BE SENTENCED TO NINE MONTHS IMPRISONMENT TO BE SUSPENDED AFTER THREE MONTHS, WITH AN OPERATIVE PERIOD OF SIX MONTHS FROM THE 7TH OF DECEMBER 1995.

CATCHWORDS	CRIMINAL LAW - BURGLARY - INDECENT ASSAULT - Whether there was evidence capable of amounting to corroboration of the complainant's account of events - Whether verdict was unsafe and unsatisfactory - Whether sentence manifestly excessive.
Counsel:	D. Richards for the appellant M. Byrne Q.C. for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	7 December 1995
REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 19th day of December 1995

The appellant was convicted after a trial in the District Court at Cairns of a count of burglary and another of indecent assault. The complainant is a young married woman, who lived with her husband (who was temporarily absent on business at the time) in a duplex unit or flat in the Cairns suburb of Woree. On the night of 27 January 1995 she drove her brother to a nightclub to celebrate her birthday of a day or two before. At their table at the nightclub there was a group of friends and acquaintances including the appellant. He was a friend of the complainant's brother and she had been acquainted with him for some time.

Members of the party drank and danced into the early hours of the morning. At the invitation of the appellant, the complainant had the last dance with him. She noticed he was pulling her close to him and she pushed him away. When she was about to leave, he asked her to drive him to his home at White Rocks, which she agreed to do. In the course of the journey and again on arrival, he tried to place his hand on or between her legs. She made it clear to him in no uncertain terms that these approaches were unwelcome. She dropped him off at his house and drove on to her own.

On arriving home she locked the front door after her and went to bed. She noticed the time was then 5.12 a.m. and she went to sleep almost immediately. She woke up feeling a hand under the elastic of the leg of her panties. She sat up and looked around in the dark but could not see anything there. All she saw, or thought she saw, was a heap of clothes on the floor. Dawn was breaking and light was beginning to filter into the room.

She lay down again, and then felt someone get into the bed. The hand came back again and felt her underneath her pants in her pubic area. It was trying to pull her pants down. She jumped out of bed and made for the bathroom where she put on a bathrobe. When she returned to the bedroom she saw the appellant apparently asleep in the bed. She called the police who came and arrested him.

On the evidence so far related, it was plainly open to a jury to find the appellant guilty as they did. The appellant himself gave evidence at the trial. However, he claimed to be able to remember nothing before being taken into police custody. He had been drinking a great deal at the nightclub. His father gave evidence that he was up and watching television at the time when the complainant said she had brought the appellant home. He did not hear the car arrive, and saw and heard nothing to suggest that the appellant had arrived home. The dog did not bark as might have been expected if a car had come to the address.

It is a little difficult to identify the nature of the appellant's case at the trial. It seems to have consisted of no more than an invitation to the jury not to be satisfied beyond reasonable doubt of the reliability of the complainant's evidence. It may have incorporated a suggestion that the complainant had in fact not deposited the appellant at his home but had taken him to her own residence and invited him in. If that was the suggestion being made, it ought in fairness to have been put directly to the complainant. Perhaps counsel's instructions were to avoid causing her unnecessary embarrassment, but the complainant should have been given an opportunity to meet such a hypothesis if it was in fact being relied upon.

In the course of summing up the learned trial judge directed the jury that there was evidence capable of amounting to corroboration of the complainant's account of events. That evidence was that on arriving at her home the police called her attention to the fact that a flyscreen over the double sliding windows in the lounge room was buckled or bent, and had been partially removed. The complainant's evidence was that it had not previously been in that condition. There was a birdcage in front of it that she said had not been moved. It was not possible for someone to have entered through the window without moving the cage. It nevertheless suggested that, at the very least, someone had attempted to make an entry there.

The other item of evidence said to be capable of corroborating the complainant was the appellant's presence in her home at that early hour. The police found him in her bed when they arrived at 5.45 a.m. The distance between his home and hers was measured at 4.4 km. The appellant said he had since walked it, and it had taken him over an hour. The inference being invited must have been that the appellant could not have covered that distance in the time between being dropped off by the complainant at his home at White Rocks and being found by police in her bed at 5.45 a.m. It can only have been intended to support a conclusion that the complainant had not in fact driven him to his home but to hers, and then invited him in, which was the hypothesis that was never put to the complainant at the trial. As it was, there is more than one possible explanation of how he might have got there. He might have taken a taxi, or have driven there himself, or been driven by someone else. In cross-examination the complainant said that on arriving at his home she had noticed a car on the opposite side. It was white and had its lights on.

The jury were entitled to regard the condition of the flyscreen and the presence of the appellant in the complainant's bed as tending, in a material particular or particulars, to corroborate her account of what had happened. Ground 2 in the notice of appeal is that the learned trial judge ought not to have left that evidence to the jury as corroborative. That complaint is not well founded. It is not the function of corroborating evidence to prove of its own force a matter in issue, but simply to support or confirm other evidence directed to that matter. On the hearing of the appeal, this ground of appeal was, quite properly, not pursued by Mrs Richards of counsel.

Ground 1 is that the verdict was unsafe in that the jury ought to have had a reasonable doubt about the appellant's guilt. What has so far been said is sufficient to dispose of that ground. To prove burglary, the Crown had to establish that the appellant had broken and entered the complainant's dwelling house at night between 9 p.m. and 6 a.m. with intent to commit an indictable offence. The only elements that could have been seriously in issue were the breaking and entering and the intent. Entering through the sliding windows after pulling aside the screen would be sufficient to constitute those two elements of the offence. So would entering through the front door if it was opened in order to gain entry. The complainant said she had locked, but not deadlocked, the door when she came home; but she might have been mistaken about having done that, or about having done it securely. She said that after jumping out of bed and leaving the bedroom, she noticed that the front door was partly open and the security chain detached. The door had been shut when she went to bed. It was possible to detach the chain from the outside. The appellant's boots were found outside the front door by the police when they arrived

The only remaining element was the intent. The appellant's actions in touching the complainant under her pants in bed constituted indecent assaults and sufficiently reveal the intent with which he entered the dwelling house, particularly when taken in conjunction with his earlier actions in the car when she was driving him home. He was, by all accounts very intoxicated; but plainly not so much so as to be incapable of forming the requisite intent to assault her, or of carrying it into effect. All matters considered, there was ample evidence on which the jury were reasonably entitled to come to a verdict of guilty.

The appeal against conviction therefore fails. We have already announced our decision to that effect. We also said that the application for leave to appeal against sentence should be allowed. The sentence imposed was imprisonment for 15 months, of which nine months was ordered to be suspended for two years.

We have been persuaded that, in the circumstances of this applicant and this case, a sentence of that duration is manifestly excessive. Burglary is a serious offence particularly when undertaken, as it was here, with a sexual motivation. There is, however, no evidence that the appellant intended to use force to achieve his purpose, and he in fact did not do so. In his inebriated condition, he seems to have conceived the notion that he might win the complainant's favours by persistence. It is, unfortunately, a not uncommon misapprehension on the part of some young males who have had too much to drink.

By itself, that is not a reason for treating the appellant lightly; but in fact the complainant in this instance does not seem to have been unduly perturbed by his unsolicited presence and attentions. When she found him in her bed, she at first telephoned for a taxi and asked them to get "a big guy out here to take a guy out of my room". It was only after the taxi company evidently declined the invitation that she called the police. Even then she said she did not want the appellant charged, but just wanted him out of her house. It was only some time later, after talking to her husband and others and taking their advice, that she decided to press charges. Although young, she is plainly a woman of some maturity of outlook.

The appellant is also young but less mature. He was 22 years of age at the time of the offence. He has no previous convictions of any kind and is of very good character. He has completed a full time two year course in child care at the local TAFE college and received an associate diploma. After being employed at a child care centre for two years, he transferred to a go-kart business, where he had been working full time for a year before those offences. During that time he was working long hours, and receiving a not inconsiderable salary of which he was paying a weekly amount for board to his parents. He is an A grade rugby union player.

The appellant had intended in due course to return to child care teaching. His conviction for these offences may affect those plans; but we do not consider it would, for that reason, be appropriate not to record a conviction. Having regard to his relative youth, his good character and previous unblemished record, and the rather unusual circumstances in which these offences were committed, we do not consider that what was done on this occasion ought to be classified with the run of other and serious offences of this kind. It is most unlikely that he will offend again in this, or so far as we can see, in any other way. The appeal against sentence should, as we have already said, be allowed and the sentence below set aside. In lieu the appellant has been sentenced to imprisonment for 9 months, to be suspended after serving three months of that term. The operative period of the suspension is to be 6 months beginning from the date on which the sentence was varied on appeal, which was December 7, 1995. It is intended that the three months imprisonment already served be taken as satisfying the period to be served before the suspension comes into effect.