R v Ridsdale

[1996] QCA 193

IN THE COURT OF APPEAL	[1996] QCA 193
SUPREME COURT OF QUEENSLAND

C.A. No. 147 of 1996

Brisbane

Before Fitzgerald P.
McPherson J.A.
Pincus J.A.

[R. v. Ridsdale]

T H E Q U E E N

v.

RIKKI ANDREW RIDSDALE

(Appellant)

Fitzgerald P.
McPherson J.A.

Pincus J.A.

Judgment delivered 21/06/96

Joint reasons for judgment by McPherson and Pincus JJ.A. Separate concurring reasons by the President.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO

APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS	CRIMINAL LAW - Sexual offence - Whether verdict of guilty was unsafe and unsatisfactory.
Counsel:	A. Rafter for the appellant P. Rutledge for the respondent
Solicitors:	Legal Aid Office for the appellant Director of Public Prosecutions for the respondent
Hearing Date:	14 June 1996

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 21/06/1996

The circumstances giving rise to this appeal against conviction and application for leave to appeal against sentence are set out in the joint reasons for judgment of McPherson J.A. and Pincus J.A.

I do not find it easy to comprehend the basis for the submission that the appellant’s conviction was unsafe and unsatisfactory. On the appellant’s own account, he penetrated the complainant vaginally. On Milanov’s testimony, the appellant penetrated the complainant anally while Milanov penetrated her vaginally. On the complainant’s account, the appellant tried to penetrate her anally while she was having sexual intercourse with Milanov, desisted on that occasion, but later returned and penetrated her anally after Milanov had left the room. The appellant did not give evidence, and it was plainly open to the jury to conclude that the complainant had been penetrated anally. Further, it was open to the jury to find, and perhaps the only rational conclusion, that the complainant did not consent.

The applicant’s application for leave to appeal against sentence has troubled me because of his youth and the circumstances that he was pursuing a useful lifestyle, studying and helping to care for intellectually disabled persons, and a potentially valuable member of the community. Further, because of his father’s occupation, his time in prison will be even more unpleasant than is usual. The alcohol which he had consumed perhaps caused him to misinterpret the complainant’s willingness to accompany two male strangers from a nightclub to their home in the early hours of the morning and engage in sexual intercourse with one of them. However, the complainant was entitled to behave in that way if she chose, without exposing herself to the appellant’s unwanted sexual attention.

The circumstances do not support a conclusion that the sentence imposed on the
appellant was outside the appropriate range, and this Court is not entitled to interfere.

I accordingly agree that both the appeal against conviction and the application for

leave to appeal against sentence must be dismissed.

JOINT REASONS FOR JUDGMENT - McPHERSON & PINCUS JJ.A.

Judgment delivered the 21st day of June 1996

The appellant was convicted at a trial in the District Court at Brisbane of one count of indecently assaulting the complainant, together with a circumstance of aggravation consisting of an act of anal intercourse; and a second count of assaulting the complainant. He was sentenced to imprisonment for four years for the first offence, and for three months, to be served concurrently for the second. He now appeals against his conviction and sentence.

On the evening of 11 May 1995 the appellant and a male friend named Jane Milanov went to a city night club. There they met the complainant, a 21 year old woman, who later accompanied them home to the appellant's flat at Indooroopilly, where the first offence was alleged to have been committed in the early hours of the morning of 12 May 1995. Then they drove her to her home at Lutwyche. She was upset, hyperventilating, and protesting noisily during the journey home, and, when she got out of the car, the appellant pushed her on to the ground. This gave rise to the second offence charged.

At the trial evidence for the prosecution was given by the complainant and Milanov concerning the events of the night in question. In addition, a Mr Forbes testified that at about 2.30 a.m. on 12 May, the complainant, who was in a distressed state, had complained to him of having been anally raped. At 8 a.m. the complainant was physically examined by the Government Medical Officer, Dr Carrol, who found two fissures in her anus.

The complainant's account was that on arriving at the appellant's flat, she and Milanov had danced together in the lounge. Kissing and fondling took place, after which they went to a bedroom where they removed their clothes, lay on the bed together, and continued to kiss and cuddle. While they were doing this, the complainant felt someone licking her vagina. It was the appellant. She said, "I don't want him to do this", and Milanov told him to get out of the room. The appellant left, and the complainant and Milanov engaged in sexual intercourse on the floor. She was on top of Milanov, when she noticed some camera flashes. Then she felt someone trying to push something into her anus. She said aloud that she did not like it, and the person (who was the appellant) left the room.

When the couple had completed their act of sexual intercourse, Milanov left the room to get a glass of water for her. She remained on the floor with her eyes closed. Instead of Milanov, it was the appellant who came in with the water and gave it to her. The room was dark and she thought it was Milanov. She let him fondle her breasts and kiss her, and she kissed him in return. She did not know it was the appellant until she saw him standing in the half-light near the window. Realising that the appellant was going to have intercourse with her, she said "No", and curled herself up into a ball saying "No, no". He took hold of her calves and pushed her legs or thighs towards her face. Holding them there, he proceeded to have anal intercourse with her. She kept saying "No, no, no". It lasted about two to four minutes, she said, and was very painful.

It was this act of anal intercourse that was charged as count 1. She told him to "F-off", and he went, but came back again, and apparently took another photograph of her. She saw the flash.

Milanov's evidence of what had happened largely agrees with that of the complainant in terms of sequence and event. However, he said that the complainant did not say anything on the first two occasions when the appellant came in to the bedroom and had physical contact with the complainant while she and Milanov were in the bedroom together. He was not present when the appellant was alleged to have done the act which constituted the offence charged in count 1. However, he saw the appellant go into the bedroom with the glass of water. About 10 minutes elapsed before he saw the appellant again. During that time he heard the complainant say "No, no, no", and, he added, "within 10 seconds" the appellant was out of the room.

In some respects Milanov's testimony went to the complainant's credit in that, if what he said was accepted, it suggested that she might not have expressed audible dissent from what the appellant was doing to her when she and Milanov were engaging in sexual activity in the bedroom. Furthermore, according to his account of it, both he (Milanov) and the appellant were penetrating the complainant at the same time, Milanov doing so vaginally and the appellant anally. She, on the other hand, said that she felt something "pushing into my rectum" or "trying to push into my rectum". If Milanov was correct in what he said, and the appellant did succeed in penetrating the complainant anally, it might account for the anal fissures which Dr Carroll noticed on examination in the morning. On the other hand, if she had already sustained those injuries on that occasion, it seems unlikely that she would have been prepared to permit the appellant to penetrate her anally again.

Questions like that were for the jury to resolve having regard to the impression they formed of the two principal witnesses at the trial. The appellant himself did not give evidence, so that the complainant's evidence of the accounts giving rise to count 1 was uncorroborated but not contradicted by any sworn evidence, apart perhaps from Milanov's testimony that the appellant came out of the bedroom "within 10 seconds" after Milanov heard her cry out "No, no, no". According to the account given by the appellant in an interview (which was video recorded and admitted at the trial) with police Sgt. Cook on the morning of 12 May, the appellant penetrated her vagina, not her anus, whereupon she said "No, no, no" and "I'm too sore", and he desisted from further vaginal intercourse.

The jury were entitled to have regard to her complaint to Forbes and to the evidence of the examination conducted by Dr Carroll as indicating consistency on her part in claiming that she had been penetrated anally and not vaginally on the occasion that was the subject of count 1. Taken together, there was evidence on which it was reasonably open to them to find that the appellant had penetrated her anally and without her consent. It may be that the jury considered, possibly with justification, that the appellant had made up his story to the police that he had vaginal intercourse with her on the occasion of count 1. Ground 2 of the notice of appeal complained that the trial judge had erred in failing to direct the jury in terms of s.23 of the Code that the appellant might have penetrated her anus accidentally; but this ground was abandoned at the appeal hearing.

Considering all these matters, there was a proper evidentiary basis on which a conclusion of guilt can be supported. The case is not one in which it can be said that the verdict was unsafe or unsatisfactory. The only other ground, which was that the trial judge ought to have permitted cross-examination with a view to showing that the appellant had no prior convictions, was abandoned at the hearing.

As regards sentence, a maximum penalty of imprisonment for life is specified by s.337 for indecent assault consisting of carnal knowledge by anal intercourse. In the particular circumstances with which we are concerned here, the offence committed by the appellant may fairly be compared to the offence of rape under s.347, for which the maximum sentence under s.348 is also imprisonment for life. A degree of force was used by the appellant in committing the offence; it was a painful experience for the complainant; and she sustained some physical injury. She said she felt humiliated by the manner in which the appellant treated her, and it is evident that the appellant showed contempt for her feelings throughout the proceedings at the flat, in the car when she was being driven home, and afterwards when she got out. Pushing her on the ground was a final and unwarranted indignity he visited upon her.

The sentence of imprisonment for four years is plainly within the appropriate range for this offence. The appellant's submission to this Court is that the sentence should have been accompanied by a recommendation for early parole. The applicant was born on 24 May 1975, and so was a few days short of his 20th birthday when the offence was committed on 12 May 1995. He was then a university student studying arts and humanities. He had no previous convictions but sustained convictions for two minor drug offences as a result of the police investigation on the present occasion. He comes from a good family, and has been involved in helping to care for intellectually disabled persons.

A particular consideration that was urged on the appellant's behalf is that his father is a senior officer in the prison service. The appellant is therefore more than usually vulnerable to malicious action from other prisoners. For that reason, the learned sentencing judge recommended that he be placed in protective custody. He is, we were told, being detained in the Moreton Correctional Centre, to which sexual offenders against children are commonly sent. To that extent the sentence may bear upon him more harshly than other persons convicted of comparable offences. However, in the ordinary course, he may expect to be considered for parole after serving two years of his sentence. To make a recommendation for parole at an earlier stage than that might be thought considerably to underrate the seriousness of the offence committed by the applicant and its likely impact on the complainant. It is not obvious that, despite the appellant's youth and the unfortunate position in which he now finds himself, that his circumstances call for reduction in the sentence imposed. It is not suggested that the sentencing discretion miscarried in principle or in any other way.

The appeal against conviction should be dismissed, and the application for leave to appeal against sentence should be refused.