R v Laman

[1997] QCA 357

IN THE COURT OF APPEAL	[1997] QCA 357
SUPREME COURT OF QUEENSLAND

C.A. No. 142 of 1997

Brisbane

Before McPherson J.A. Shepherdson J. White J.

[R. v. Laman]

T H E Q U E E N

v.

CLIFFORD EDWARD LAMAN

(Applicant) Appellant

McPherson J.A. Shepherdson J. White J.

Judgment delivered 21 October 1997.

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION TO APPEAL AGAINST SENTENCE GRANTED AND APPEAL ALLOWED TO THE EXTENT OF SUBSTITUTING FOR THE EXISTING PAROLE RECOMMENDATION A RECOMMENDATION THAT THE APPELLANT BE CONSIDERED FOR PAROLE FROM 7 JANUARY 2003.

CATCHWORDS: CRIMINAL LAW - Indecent Assault - Rape - Whether prior relationship between complainant and appellant terminated - Whether totality principle of sentencing relevant . M. v. The Queen (1994) 181 C.L.R. 487; R. v. Coss (C.A. 262 of 1994); R. v. Cutajar, ex parte Attorney-General (C.A. 338 of 1995).

Counsel:	Mr P.E. Nolan for the appellant Mr D. Meredith for the respondent
Solicitors:	Harris Sushames for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	12 August 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21 October 1997

This is an appeal against conviction after a trial in the District Court in

which the appellant was found guilty of rape and five other cognate offences

including indecent assault consisting of anal intercourse. There is also an

application for leave to appeal against sentence.

The offences alleged were committed on 19 November 1995. At that

time the complainant, whose first name is Allison, was living alone with her

20 month year old daughter at her house or flat at Cannon Hill. She had first

met the appellant in October of that year. The acquaintance rapidly

developed into a sexual relationship but it lasted only for a fortnight or so,

until 3 November or thereabouts, before coming to an abrupt end. There

was, it seems, a difference of opinion as to which of the two had terminated

it.

After their parting, the complainant and the appellant were not

together again until the evening of 19 November. He came to her door at

about 7.15 p.m. and she let him in. He was, she said, very drunk and

angry. There was some talk over a cup of coffee in the lounge room. An

argument ensued and she stood up to let him out. He sprang at her, threw

her on to a mattress, pulled off her pants, and, after perpetrating the various

other indignities with which he was charged, he raped her. Then he turned

her over and sodomised her. She did not consent to any of these acts.

When he left soon afterwards, she telephoned the police at about 8.00 p.m. They arrived at about 8.20 p.m. and found the complainant in a distressed condition. She was shaking and crying and complained she had

been raped. She was taken to hospital and medically examined, where she

was found to have fresh bruising, minor scratches and abrasions on parts of

her body, bite marks around one nipple, and a tear in the edge of the verge

of the anus. Swabs were taken in the vaginal and peritoneal area.

At the trial, the appellant did not himself give evidence, but it is

accepted that at the trial the only issue was whether the complainant had

consented to sexual intercourse and perhaps also to the other acts

complained of. It was put to the complainant that her allegations were false

and had been fabricated by her after the appellant’s rejection of her in

November. The swabs taken from her body were subjected to DNA testing

but the seminal fluid was generally too small in quantity to permit a

conclusion, except for one taken from high in the vagina, which in fact

served only to eliminate the appellant as the source of the sperm recovered

from that source. The explanation given for it was that she had had sexual

intercourse with another man some 24 hours before the incident alleged; but

the evidence had little relevance once her consent became the only matter in

issue at the trial.

Although the appellant himself did not give evidence, two witnesses

were called in the defence case. One testified to having in November 1995

received at the appellant’s work place a telephone call from a woman calling

herself Allison, who, having demanded to speak to the appellant, then called

the witness a liar when she told her he no longer worked there. The other witness was another woman who, with a male friend, had shared a flat with

the appellant at about this time. She said that in early to mid-November

1995, after the appellant stopped seeing the complainant, there had been

persistent telephone calls from the complainant, who repeatedly inquired

after the appellant. For her part the complainant denied all but one of these

calls, claiming instead that it had been he that had pestered her after the

breakup of their relationship, on at least one occasion threatening her that

he would cut her throat. This and other incidents which she attributed to

him were reported to the police.

The evidence of the two defence witnesses and the course of cross-

examination of the complainant presented an impression which, if accepted,

tended to bear out the appellant’s claim that it was she who was relentlessly

pursuing him rather than the reverse. In support of this hypothesis, a letter

was tendered and read to the jury which she admitted having written, and in

which she expressed her great admiration, not to say affection for him; but

at the same time charged him with having been a faithless lover who had

used her simply for sexual gratification, and then left her for another. In the

letter she admitted to feelings of anger and frustration, and to having been

hurt by his rejection of her.

For his part, the appellant, when the nature of the charge was

explained to him early on the day following the complaint of these offences,

exclaimed to the police that she was a “psycho bitch”, adding “I went round

and I fucking abused the cunt last night. Don’t worry about that”. When asked to elucidate, he said “the psycho bitch” was “the fucking one that’s

been ringing all me friends all the time”.

The jury were no doubt pressed by the defence to view the case as an

example of the age-old story of a woman scorned, who would stop at

nothing, including fabricating a false charge, in order to avenge herself on

her false lover. It would have been open to them to accept that version of

events. But there are indications that they applied themselves with care and

attention to their task before arriving at their verdicts of guilty on all counts.

The sole ground of appeal was and is that the verdicts were unsafe and

unsatisfactory, and that the jury should not have convicted having regard to

the state of the complainant’s veracity (or lack of it) as displayed at the trial.

It must be said that there was material before them sufficient to raise

a doubt about the complainant’s account of the termination of the

relationship or the reasons for it; its impact on her; and her denial at the

trial that she made the telephone calls attested to by the two defence

witnesses. The letter admittedly written by her to the appellant goes far to

supporting his and their version of those events.

There are, however, reasons why, even if it was accepted that the

complainant had not told the truth about these matters, the jury might

nevertheless have accepted her account that she was set upon, raped, and

otherwise dealt with on the evening of 19 November 1995 in the manner she

described. In the first place, her own evidence was given in what, so far as

the sterile pages of the record book are capable of conveying on an appeal, was a detailed, logical, and apparently reliable manner. First, her evidence,

although challenged in cross-examination, on the critical question of what, if

anything, had happened that night, was completely uncontradicted. Next, it

seems clear enough from what the appellant said to the police when taken

into custody next morning that he admitted at least having been to her

home on the preceding night and having “abused” her there. That went

some way towards supporting her account of events. The distressed

condition of the complainant witnessed by others at 8.15 pm. that evening

was, unless she was successfully feigning it, consistent with the account she

gave at the trial of what had happened. The bruising and scratching noticed

on medical examination went to support her story, and fitted in with the

particulars she gave in evidence of what had been done to her. Finally, the

tear in the fringe of her anus tended to confirm her evidence of having been

sodomised by the appellant. Dr Leonard said that, although other

explanations were possible, it was a fresh tear or split, and not a chronic

fissure of long-standing.

When all these matters are taken into consideration it seems clear that

it was reasonably open to the jury to accept her evidence of what had

happened on the evening in question, even while also accepting, as they

may well have done, that she had not told the truth about her subsequent

pursuit of the appellant after their relationship had come to an end.

Assuming that her conduct in that regard was that of someone either

lovelorn or vengeful or possibly both, it is plain that the appellant was equally frustrated and angered by her unwanted and persistent attention and

interference in his affairs. In that state, and affected as he was by the

influence of alcohol, he may well have decided to put a stop to her activities

by giving her a brutal lesson that would teach her to leave him alone in the

future.

At the very least, it was open to the jury to reach such a conclusion in

arriving at their verdicts. In the end, the case is one where, despite the

apparent unreliability of the complainant’s evidence about her conduct

before the incident on 19 November 1995, she may, as a reading of the

transcript of her testimony itself tends to suggest, have presented as a

convincing witness on the central issue in the case. The matter is therefore

one where the impression gained from seeing and hearing the complainant

give her evidence at the trial was likely to have formed a decisive factor in

persuading the jury of the appellant’s guilt: cf. M. v. The Queen (1994) 181

C.L.R. 487, 494. Conversely, it is not an instance where there is a

significant possibility that an innocent person was convicted.

We would therefore dismiss the appeal against conviction.

Turning to the application for leave to appeal against sentence, the

learned judge of District Courts imposed an effective sentence of seven years

for all the offences of which the appellant had been found guilty, of which

there were six in all. In addition to the rape and sodomy, there was a

charge of indecent assault constituted by forcing the complainant to take the

appellant’s penis in her mouth; another of sticking his fingers in her vagina; yet another arising from his having bitten her nipple; and, in addition, a

charge of assault occasioning bodily harm.

A sentence of imprisonment for seven years is well within the range of

penalties imposed for offences of this kind and, from the appellant’s

standpoint, compares not unfavourably with that in R. v. McIlvaney (C.A.

427 of 1996). Needless to say, the complainant has been seriously affected

by the experience she underwent. In the end, therefore, the only arguable

point is that the cumulative effect of the term of imprisonment imposed for

the subject offences is, when taken with an existing sentence to which the

appellant was subject to at the time, such as to amount to such a “crushing

burden” upon him as to require moderation.

The subject offences were committed on 19 November 1995. On 3

June 1994, the appellant had been convicted in the District Court at Brisbane

of robbery in company, for which he was sentenced to five years, together

with unlawful use of a motor vehicle for the purpose of facilitating the

commission of an indictable offence, for which the sentence was

imprisonment for 18 months. Those two offences were committed on 5

October 1992. On the same occasion in the District Court, he was also

sentenced to imprisonment for 18 months for breaking, entering and stealing

on 29 September 1992. All of those sentences were ordered to be served

concurrently, with a recommendation that the appellant be considered for

parole after serving nine months of the total five year sentence.

At the time he committed the subject offences, the appellant had been

released on parole. His conviction and imprisonment for those offences had

the effect of automatically cancelling his parole: Corrective Services Act

1988, s.187(1). The consequence is that, by virtue of s.190(1) of that Act,

the period during which he was on parole is not to be regarded as time

served in respect of the five year term of imprisonment imposed on 3 June

1994. He will now be required to serve the balance of that term, which

presumably amounts to some 4¼ years, subject only to any power the

Community Corrections Board may have to release him on parole again. See

R. v. Cutajar, ex parte Attorney-General (C.A. 338 of 1995).

We are concerned here primarily with the propriety of the sentence

imposed for the offences committed in 1995. The question is whether there

is any basis on which the Court can and should intervene to alter the

sentence of seven years, with a parole recommendation after serving half of

it, imposed for those offences. It is clear that we cannot properly do so on

the ground that the subject sentence of seven years is excessive. Having

regard to the number and seriousness of the six offences involved, and the

circumstances in which they were committed, it is not possible to regard that

sentence as anything but moderate. A longer term of imprisonment would

have been difficult to disturb on appeal. As regards the five year sentence

imposed in 1994, there was no appeal against it at the time it was imposed,

and we are neither asked nor are we authorised to alter it on this appeal.

Even if we had the power to do so, there is nothing before the Court to disclose the circumstances which led to its imposition. That sentence was

accompanied by a generous recommendation for parole, which in due course

was acted on by releasing the appellant after he had served nine months.

Loss of the benefit of the parole granted to him was a consequence of the

appellant’s own conduct in committing further offences in 1995, coupled with

the provisions of the Corrective Services Act already referred to.

This leaves for consideration the parole recommendation after 3½

years that was made by the judge in respect of the later offences in 1995. As

regards his personal circumstances the appellant was 33 years old at the

date of the offences in 1995 and is now 35 years old. Unfortunately, he has

a substantial record of previous offences dating from 1981. He has been

convicted on several occasions since 1983 of various offences against public

order including assault on and resisting police, and also of wilful damage to

property.

In 1989 the appellant served 160 hours of community service for

assault occasioning bodily harm. In 1991, he was again convicted of that

offence, when he was sentenced to a term of imprisonment for six months

on that count and concurrently for three months on a further assault charge.

In 1986 he was sentenced for breaching a probation order imposed in 1985

for drug offences. Judging by his record of convictions, he has had problems

in the past with both alcohol and drug abuse. At sentencing in the District

Court, it was said that he is now drug free, and that his defacto wife, who

has remained loyal to him, has been able to exercise a favourable influence. Nevertheless, the evidence is that he was drunk on the occasion on which

the subject offences were committed; and, although it may to some extent

explain his conduct, it does nothing to excuse his brutal treatment of the

complainant in this instance, for which, as the judge said, he has shown no

signs of remorse.

The personal circumstances including the past record of the appellant

do not argue strongly for a special recommendation for parole in his favour.

Nevertheless the term he will serve under this and the earlier sentence

before being considered for parole is lengthy. A period of 4¼ years remains

of the earlier sentence and he will serve a further 3½ years under the more

recent sentence, making a total of 7¾ years before he is considered for

parole under the judge’s recommendation in this instance. On one view of

it, that might be regarded as almost equivalent to a head sentence of 15½

years with an effective parole recommendation at the halfway mark. As it is,

he will not be due for release until 7 July 2008 (full term) and will not be

considered for parole under the existing recommendation until 7 July 2005.

The submission before us was that this ignored the “totality” principle

of sentencing, and led to an effective sentence that is so long as to amount

to a “crushing burden” on the appellant. The course to be adopted in

sentencing in circumstances like these is, it was suggested, to aggregate the

unserved portion of the earlier sentence (4¼ years) and the term of the

more recent sentence of 7 years, and then fix a parole date at the half-way

mark. In R. v. Coss (C.A. 262 of 1994), Thomas J. said that, in cases where the offender has served less than half of the first sentence, “a prima facie

reasonable result may be obtained if one adds together the old and the new

sentences and specifies half of that as the new non-parole period”. His

Honour pointed out that the application of that formula will not produce a

satisfactory result in all cases, and, as the Chief Justice observed in the

same case, it is prudent for the sentencing judge to consider carefully the

result he intends to achieve.

In the present case the appellant had served very little of his first

sentence of five years when he was released on parole. There is therefore a

basis for applying the formula suggested by Thomas J. or a modification of

it. We consider that justice would be done to the appellant if, after

aggregating the remaining 4 years he must serve under the first sentence

and the 7 years under the most recent sentence, parole was then

recommended at the half-way mark; that is after 5½ years, or on 7 January

2003.

We would accordingly allow the application and appeal against

sentence and vary the sentence by substituting for the existing

recommendation a recommendation that the appellant be considered for

parole on 7 January 2003.