R v Lukic

[1992] QCA 334

COURT OF APPEAL  [1992] QCA 334

MOYNIHAN SJA
PINCUS JA
WHITE J

CA No 243 of 1992

THE QUEEN

v.

BRANKO LUKIC  Respondent

ATTORNEY-GENERAL OF QUEENSLAND  Appellant

BRISBANE

..DATE 29/09/92

JUDGMENT

290992
PINCUS JA: This is a Crown appeal against sentence.
The respondent, Mr Lukic, was convicted before the District Court of an offence of procuring by force or intimidation the commission of an act of gross indecency consisting in contact between the mouth of the complainant and the genitalia, namely the penis, of the respondent.

The Judge who decided the matter said in effect that, but for two decisions which he mentioned, he would have imposed a greater sentence than he did. However, in the light of those two decisions, he decided to impose a sentence of imprisonment for a period of two years which he made cumulative upon a sentence being served.

The difficulty which has arisen is that, as is conceded, his
Honour was wrong in thinking that he was constrained by one of the decisions for reasons which will be mentioned. It therefore appears necessary for this Court to exercise its own discretion in the matter.

The respondent was 29 years of age at the time that he committed the offence and is now 30 years of age. The offence was committed while the respondent and the complainant were both inmates at the Rockhampton Correctional Centre. The circumstances in which the offence was committed were as follows. The complainant was called in to the respondent's cell and was asked to sit opposite down on the bed. The respondent put a blanket over the window and a towel on top of the door and a chair against the door and asked the complainant to “suck him off". The complainant objected. The respondent then assaulted the complainant and through fear the complainant complied with the respondent's request and did suck his penis until the respondent ejaculated.

The offence, in short, was one in which there was violence inducing the complainant to act as the respondent desired. What the Judge said about the matter, after discussing the circumstances in which the offence was committed, was this:

“I've read the decisions handed to me by the Crown of The Queen v. Manager and Another and The Queen v. Short. Were it up to me, without previous authorities such as those two reports, I would be inclined to impose a greater sentence, taking into account the sorts of matters I have been referring to. However, I think I should in imposing a sentence do so in accordance, generally, with the expressions of opinion in those two cases."

His Honour then, as I have mentioned, imposed a sentence of imprisonment for a period of two years.

The argument which has been put forward on behalf of the Attorney‑General by Mr Ridgway is that his Honour was wrong in thinking that The Queen v. Manager (unreported, Qld CCA, 24 July 1989) relevantly constrained him. Mr Ridgway points out that the larger of the two sentences imposed in that case, namely three years, was in fact the maximum which could have been imposed for the offence, which was one of assault occasioning bodily harm. Therefore, Mr Ridgway says, his Honour has made a mistake in thinking Manager had something to do with the matter. It appears to me, and indeed is not disputed, that that is right.

The other case to which his Honour referred is The Queen v. Robert William Short (unreported, Qld CA, 31 March 1992) which was decided in this Court on 31 March 1992, and which appears to me to have more relevance.  That was a case of a similar character, in that it involved the same sort of act.  The circumstances which differentiate it from the present are that there were two accused involved; Short was not the one who actually committed the offence but he stood watch apparently to ensure that no‑one else interfered. The other point which differentiates it somewhat is that it does not appear that there was any injury done to the complainant there. A hand was placed on his shoulder, but there was no actual violence used.

The case of Short, in which the Court dismissed an application for leave to appeal against sentence when a penalty of two years had been imposed, does appear to me to throw some light upon the present one in that it suggests that a sentence of two years or thereabouts would be appropriate in ordinary circumstances for an offence of this kind. There are, however, matters which suggest that Short's case should not be regarded as governing the present.

The respondent has a lamentable criminal history involving  offences of dishonesty and the like and including, it appears, a number of offences of violence. He has been convicted of rape on two occasions, once in Western Australia, when he was also convicted of an offence of deprivation of liberty and more recently in Brisbane in 1987 when he was sentenced to 10 years imprisonment.

During the term of imprisonment which I have mentioned, the respondent has committed a number of offences, three of which were assaults. In 1988 he was convicted of assault occasioning bodily harm and sentenced to four months imprisonment. In l991 he was convicted of two charges of assault on a correctional officer and was sentenced to three months imprisonment concurrently with the terms he was then serving.

So we have a man who, while in prison, has committed a series of offences of violence and we have another one before us today. There is nothing of that kind, so far as I can see, involved in the case of Short. The applicant there had a substantial criminal history but no previous convictions for offences of violence or offences of a sexual nature. That, in my opinion, helps to differentiate Short's case from the present and makes it seem reasonably clear that the penalty imposed in the present case was too low.

Here we have substantial sexual offences committed prior to 1987 and substantial assaults committed in prison since. It does not appear to me that the respondent has been taking sufficient notice of the law's disapproval of his continuing violent conduct, and I am influenced by the circumstance that the primary Judge who had the matter before him, would, as he said, have imposed a greater sentence had he not been of the opinion that both Manager and Short constrained him.

In all the circumstances of the case and having regard to the fairly obvious necessity of protecting young people who are in prison, so far as can be done, from this sort of assault, I am of the opinion that the Crown's appeal should be allowed.

I would allow the appeal and substitute for the sentence which was imposed below a sentence of imprisonment for a period of four years with the direction that it take effect from the expiration of the deprivation of liberty for the offences for which the prisoner is presently serving sentences. In short I think the imprisonment should be for four years cumulative upon present sentences.

MOYNIHAN SJA: I agree. However one regards the decision in Short's case, the circumstances of this case which have been outlined by the presiding Judge are such as to make the outcome which he proposes appropriate for the reasons which he has given.

WHITE J: I agree and have nothing further to add.

PINCUS JA: The order of the Court will be: appeal allowed, the sentence imposed below set aside and in substitution therefor it will be ordered that the respondent, Mr Lukic, be imprisoned for a period of four years with the direction that that term take effect from the expiration of the deprivation of liberty for the offences for which he is presently serving sentences.

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