R v Marrell and Marrell

[1992] QCA 349

COURT OF APPEAL [1992] QCA 349

McPHERSON JA
DAVIES JA
WHITE J

CA No 240 of 1992 CA No 241 of 1992

THE QUEEN v.

STEPHEN DOUGLAS MARRELL and

PETER DAVID MARRELL	Respondents
ATTORNEY-GENERAL OF QUEENSLAND	Appellant
BRISBANE ..DATE 28/09/92 JUDGMENT

1

McPHERSON JA: The respondents to this appeal against sentence brought by the Attorney-General are two brothers with the surname Marrell. It is thus convenient to refer to them by their first names Stephen, for whom Mr Long of counsel appears, and Peter, for whom Mr Alcorn appears. Each of them pleaded guilty to one count of indecent assault, and one count of stealing from a person. It was Stephen who, in fact, committed the indecent assault by putting his finger in the vagina of the complainant, while Peter held her down. That was the substance of count 1. Count 2 was constituted by taking her handbag and throwing it away at a place where it was later recovered.

It is necessary to refer to the events leading up to these offences in somewhat greater detail. Stephen is, or at the time of sentence was 26 years of age. He is a qualified printer. He is married, and at Christmas 1991 when these events occurred he and his wife were living in Melbourne where each of them was employed. Stephen had been in steady employment with the same business or person for some five years. He had no previous convictions of any kind. Peter, who is aged 24, has, on the other hand, some previous convictions, mainly convictions involving theft.

What had happened, before the events giving rise to the

2

offences, was that an arrangement had been made for Stephen
and his wife to travel to Mackay, which is where Peter was
living at the time, and still lives. Stephen in fact went to
Mackay a day ahead of his wife, because of the financial
collapse of Compass Airlines, and the cessation of its
flights. Before and after he arrived in Mackay, he seems to
have spent a lot of time drinking. Some of this was done in
the company of his brother Peter, when the two of them visited
various night clubs in Mackay in what appears to have been a
Christmas Eve spree.

It is plain from the sequence of events, and the accounts given by all parties, that intoxication played an important part in the later behaviour of all those involved. On leaving one of the night clubs which they had visited, the complainant, as Stephen described it, latched on to him. She is a woman in her 30s, and there is evidence that she is intellectually disadvantaged due to brain damage sustained when she was an adolescent.

One of the results of this is that she has episodes of loss of memory of incidents, and she was consequently not able to give a useful account of what occurred on the night in question. It appears from evidence that was given by some members of her family that it is not always easy for others to recognise or appreciate the fact that she has this intellectual disability.

3

Stephen initially showed no interest in the complainant, but she would not leave the two brothers alone. In the result they all ended up at Peter's home, which is in a suburb of northern Mackay. Peter's wife was there at the time. They continued drinking there for some two to three hours. The drink they were mainly consuming was rum. The complainant became very noisy, but would not leave when told do so. There was confirmatory evidence from a neighbour about the racket that she was creating. In short, the brothers could not get rid of her.

Eventually, they themselves left the house and were away from it for about an hour, trying to get something to eat. When they returned home, the complainant was still there, and still continuing to make a noise. She insisted on putting her arms around the two men, and they walked her out and along the road. About 50 yards or so up the road, there was an area of long grass where the offence was committed.

Stephen put his finger in the complainant's vagina. At first she seemed not to resist. Then she began to struggle. Peter held her by the shoulders. Stephen then desisted from his efforts. It seems he may have done so because some people came along. On being seen, the two respondents fled, taking her handbag which they threw away without, as it proved, taking any of the contents.

4

His Honour caused inquiry about that fact to be made in the course of the hearing. There was evidence that the complainant had, in the course of the evening, obtained some $40 from a handi bank or in some such other way, and some $38 together with some change was found in her handbag when it was recovered.

In the light of those matters, His Honour found there was no deliberate theft in the usual sense of the word. All in all His Honour seems to have regarded the incident giving rise to the offences as quite unplanned and the result of excessive intake of alcohol on the part of all three involved, as no doubt was indeed the fact. In the circumstances, he imposed on Stephen a sentence of 3 years' probation, and on Peter a sentence of 3 years' probation together with 100 hours of community service.

Community service was not a realistic option in the case of Stephen, because he lives in another State and there is no provision for him to perform such service there under the terms of a Queensland order. As a Queensland resident, Peter was under no such disability, if that is what it is. Also, as I have said, he had previous convictions in Victoria. It was Peter's criminal record that attracted and no doubt justified the slightly more extensive or more severe sentence imposed by the Judge.

5

A factor that it might be supposed would have weighed with the sentencing Judge - and almost certainly did so - was the serious consequences that had resulted for Stephen from his being charged and initially detained for this offence. Originally, in fact, a charge of rape was preferred against him, or at least contemplated. In consequence he was unable to return immediately to Melbourne and so suffered the loss of his job. Ultimately he found another job at Mildura, but it necessitated both his and his wife's leaving Melbourne and going to live in Mildura.

The result was that she had to forego her own employment, which she lost as well. Unfortunately the job at Mildura collapsed after only 2 weeks. The respondent Stephen and his wife could no longer afford the repayments on their house or car or other items, and Stephen was ultimately obliged to present his own petition for bankruptcy. Since then he has obtained other work as a printer, this time in Albury. He has hopes there that he will be able to earn enough to put the couple back on their feet.

He is, also it may be added, a footballer, and has expectations of being involved in the local football competition, where he is looking forward to payments being made to him in connection with that occupation or pastime. It seems reasonable to say that he has suffered a good deal as a

6

result of the charge brought against him, and he will
certainly suffer more if his employment is broken again by a
term of imprisonment. One would expect that by now he has
learned a lesson about the seriousness of the behaviour in
which he engaged on that night.

Peter's position perhaps does not attract quite so much sympathy, having regard to his record of previous convictions. However, the account given about him is that he left home at the early age of 13, after some disagreement with his parents, and became something of a renegade. Over a period of years following that time he committed sporadic offences of dishonesty. In 1986 he formed a de facto relationship with the woman with whom he now lives, and he eventually came to take stock of his behaviour.

In consequence the couple came to Mackay in 1987 and Peter succeeded in obtaining employment there. After one or more changes of job he has work now which the sentencing Judge was told appeared most likely to be permanent. Both of these respondents, it may be added, pleaded guilty as soon as was reasonable in the circumstances, which included the dropping of the more serious charge.

I have entered in some detail upon the personal background an condition of each of these respondents. I have done so because

7

I am in no doubt that it must have influenced the Judge's attitude on sentence. The offences committed were by no means trivial and they are not such as one would expect a Court to view in any light-hearted fashion. There is, of course, no suggestion that the Judge under-rated their seriousness.

On the other hand, it is not easy to see what, if any, long-term adverse effects resulted for the complainant herself. The record records that immediately after the incident she was in an hysterical condition complaining of what had been done to her and that she had had money stolen from her. Unfortunately, as I have already said, her intellectual condition is such that she has no accurate memory of the events that occurred. That, on the other hand, may conceivably have helped to prevent her from remembering in all its detail the extremely unpleasant experience that she underwent.

It must be said, of course, that on all sides far too much was taken in the way of drink on the evening in question, and no doubt it was that that was largely responsible for what may well have been uncharacteristic behaviour by all.

Sentences in other cases of indecent assault and the like were referred to us by counsel for the Attorney-General. On examination, however, none of them proved really comparable,

8

except perhaps as suggesting that in more serious cases more
serious or heavier sentences are likely to be imposed than
were imposed in this case. That is only to be expected.

When all these matters are considered, including the rather peculiar circumstances in which the woman came to attach herself to these men and the evidence that she would not leave them; and when consideration is also given to the particular personal circumstances of the respondents in this case, I am not persuaded that the sentences imposed were inadequate. I would in any event not be prepared to disturb them, but would instead dismiss the appeal.

DAVIES JA: I agree.

WHITE J: I agree.

McPHERSON JA: The order of the Court is that the appeals are dismissed.

-----

9