R v Nolan

[1997] QCA 285

COURT OF APPEAL

[1997] QCA 285

McPHERSON JA
WILLIAMS J

BYRNE J

CA No 146 of 1997
THE QUEEN
v.

GARRY JOHN NOLAN	Appellant
BRISBANE ..DATE 24/07/97
JUDGMENT
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McPHERSON JA: The appellant was tried and found guilty by a jury in the District Court at Brisbane of one count of deprivation of liberty, one of indecent assault with a circumstance of aggravation, and one count of common assault.

He was sentenced to a term of imprisonment of four years. He now appeals against his conviction and seeks leave to appeal against his sentence. The appellant has been unable to obtain legal aid and has appeared in person before us.

The offences were committed on 5 December 1994. The complainant was a 17 year old girl who lived in a unit or flat at Beenleigh with her boyfriend. The appellant lived in the same block of units with another man, whose name I gather was Craig.

The complainant according to her evidence met a man called Wayne or Spew, otherwise known, it seems, as Wayne O'Donoghue, in a hotel where the appellant happened also to be drinking. She agreed with Wayne to go back to the appellant's unit in the block in which she lived to have a drink and to smoke some marijuana.

Wayne made a sexual advance to her while he was there, but she resisted or discouraged him from pursuing it. Then the appellant arrived back from the hotel. According to her evidence at the trial, he walked into the unit and said to the complainant, "When are you going to get your gear off?" The complainant refused to take her clothes off. The appellant and the other man started unbuttoning her shirt. The complainant got up to leave, ran for the door, was grabbed by the appellant

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and forced to the floor. The appellant grabbed her on the neck and pushed her on to a mattress on the lounge floor. After that he told the complainant that they, by which she understood him to mean the two men, had bought her for $500 and that, regardless of what she said, she had to stay there till morning and please them.

She began crying and pleading or begging to be allowed to go and offering to pay the money back if they would let her go home. It was these actions of the appellant in company with the other man in keeping her in the flat in this way that constituted the offence of deprivation of liberty.

The appellant told her to "Shut up" and then carried her to the bedroom. He put her on a mattress and took the rest of her clothes off. The other man followed a couple of minutes later.

The complainant said she was pleading to have them let her go and was pretty much hysterical. She said that the other man, Spew, started fingering her, saying how much he would like to "fuck it".

The complainant then said she had venereal disease and one of the two men said they didn't have to "fuck her" but could do it other ways and told her that she was to give them oral sex. The complainant said that she didn't want to give them oral sex. She was forced to do so, although she was crying and complaining about it. In the course of taking the appellant's penis in her mouth, her teeth scratched his penis and she received a slap on the back of the head. That no doubt was the common assault count, and the oral sex, as it was called, constituted the

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indecent assault.

She then feigned an asthma attack and was allowed to go to the bathroom. In doing so, she succeeded in escaping out of the front door, where she waved down a car that was passing and was taken to a friend's house. At the time she was in a distressed state and dressed only in a shirt.

Her friend gave evidence at the trial of the complainant coming running through the front door of the unit and said that the complainant was hysterical and that she complained of two men she had met at the hotel forcing her to have oral sex. The complainant, it seems, wore a nose ring and it was found in one of the rooms of the unit occupied by the appellant. When she eventually returned to her own unit in the block, she found her clothes outside the door and the appellant admitted to police, when later interviewed, that he had put the clothes there; but said that it had nothing to do with him.

At the trial, the appellant gave evidence claiming that when he'd come home from the hotel, he found Wayne or Spew and the complainant at the unit. He, that is the appellant, did some cleaning up, had a shower and went to bed for the night. His defence therefore was in substance a denial. It was a matter for the jury to decide whether they accepted the account given by the complainant at the trial and did so beyond reasonable doubt, or whether the evidence given by the appellant before them was sufficient to induce a doubt in their minds. In the end, they found the appellant guilty as charged in respect of all three offences.

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An appeal to us really, therefore, faces the impossible task of demonstrating that the jury ought to have accepted the complainant's evidence. Having read that evidence, it seems to me to be fairly capable of being regarded as cogent. It is not subject to the kind of inconsistencies one sometimes find in evidence of this kind, and there is no objective reason that I can see that would lead one to think that the jury ought to have rejected it.

The appellant's evidence, on the other hand, amounted basically to a denial, without any particulars of detail, which the jury might well have thought was, perhaps, not the whole truth. However that may be, it is not our function to review verdicts of juries except in cases where it is plain that there was either not enough evidence or the evidence was not of a proper quality to justify a conviction. The present is not such a case, and we are, therefore, not in a position where we can or should exercise such power as we have to set aside jury verdicts.

So far as the sentence is concerned it is my impression that a sentence of the kind and duration imposed was clearly justified and well within the limits of a proper sentencing discretion. As I mentioned to the appellant in the course of his submissions, we had a similar four year sentence in a case, which in outline was not dissimilar to this, last week on 17 July 1997 in a matter of R v. Billy which came to us from the District Court in Townsville. It attracted, as I say, a four year sentence for a similar dealing with a woman in this

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fashion, though it must be said that in that instance there was a break and enter and a threat. At the same time the woman concerned was not handled roughly in the way in which complainant claims to have been.

The appellant before us now is a 45 year old man who has a more extensive criminal record than the appellant in Billy's case. The record includes convictions for breaking and entering and also includes one for rape, although that was as long ago as 1973.

All matters considered I see no basis on which this Court, exercising its powers in accordance with law, would be justified in interfering either with the verdict or the sentence in this case. In those circumstances I would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.

WILLIAMS J: Neither the appellant on hearing of the appeal nor defence counsel at trial questioned the summing-up in any way. I cannot see any errors therein which would call for an overturning of the jury verdict. Given the appellant's criminal history and the circumstances of this case as revealed by the evidence the sentences were well within the appropriate range. I agree with what has been said by Mr Justice McPherson and with the orders he proposes.

BYRNE J: I agree with what has been said by the presiding Judge

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and by Justice Williams. I would only add that for my part I regard the sentence imposed, especially having regard to the prior conviction for rape which resulted in a sentence of imprisonment for 12 years, as a light one in all the circumstances.

McPHERSON JA: The orders will be as I have stated them. We will now adjourn.

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