R v Sams

[2003] QCA 240

SUPREME COURT OF QUEENSLAND

CITATION:	R v Sams [2003] QCA 240
PARTIES:	R v SAMS, Stephen John (applicant/appellant)
FILE NO/S:	CA No 266 of 2002 CA No 304 of 2002 DC No 321 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING  COURT:	District Court at Beenleigh
DELIVERED EX	4 June 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	4 June 2003
JUDGES:	Davies and Williams JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to withdraw the notice of abandonment refused 2. Application for leave to appeal against sentence granted 3. Appeal allowed to the extent of setting aside the terms of imprisonment imposed with respect to Counts 2, 3, 4, 5, 6, 10 and 11, but otherwise the sentences imposed should stand
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where appellant had filed a notice of abandonment with respect to appeal against conviction – where appellant sought to withdraw abandonment – whether any prospect of success on the appeal – whether leave should be granted to withdraw abandonment
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – SENTENCE TO BE OF AND RELATED TO OFFENCE – PARTICULAR CASES – where appellant convicted of torture along with a number of counts of assault occasioning bodily harm, one count of rape and two counts of indecent assault – where the other offences constituted the basis for the torture conviction – where separate penalties were imposed on the offences other than torture – whether sentences should have been imposed on the offences other than torture
Pearce v The Queen (1998) 194 CLR 610, followed followed
COUNSEL:	The appellant appeared on his own behalf P F Rutledge for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

DAVIES JA: I will ask Justice Williams to deliver his reasons first.

WILLIAMS JA: After a trial in the Beenleigh District Court, the appellant was convicted on the 8th of August 2002 on one count of torture, one count of assault, two counts of

indecent assault, two counts of assault occasioning bodily
harm, one count of rape and one count of assault occasioning
bodily harm whilst armed.

The jury found him not guilty of a further count of assault and two further counts of assault occasioning bodily harm. He lodged a notice of appeal against conviction, alleging in essence that the verdicts were unsafe and unsatisfactory and that the verdicts of acquittal were inconsistent with the verdicts of guilty.

After that appeal against conviction was filed, a notice of abandonment of the appeal against conviction was lodged. The appellant now seeks to withdraw that abandonment and to argue that the conviction was unsafe and unsatisfactory.

The Court adopted the view that in the circumstances it would look at the merits of the appeal and only if there was a prospect of success would it become necessary to consider whether or not leave to withdraw the notice of abandonment should be granted.

The appellant appeared on his own behalf and placed before the Court two documents, setting out at some length, his argument in support of the appeal against conviction.

He also relied on an outline of argument which had been prepared at an earlier point of time when he had legal representation.

The critical issues before the jury were whether or not they accepted the complainant's evidence beyond reasonable doubt that she was assaulted in the way alleged and then whether or not those various assaults constituted the offence of torture as defined in the Criminal Code.

It emerged in the course of the evidence that the complainant, on a number of relevant occasions, was affected by alcohol and it also appeared that she had suffered a number of injuries, many of which could not be dated.

There were inconsistencies in her evidence which were with the verdicts of not guilty on the three counts to which I have referred. There were bases on which a jury, properly instructed, could have had a reasonable doubt about those charges.

highlighted by the learned trial Judge in his summing-up.
The appellant did not give evidence and the evidence of the
complainant was not contradicted.

For example, one of the counts on which the jury found the appellant not guilty involved the use of a machete to assault the complainant, thereby cutting her breast.

The medical evidence did not confirm any sign of injury to the breast, such as may have occurred in those circumstances. For reasons such as that, the jury were entitled to bring in the verdicts that they did. I am not satisfied there was any inconsistency.

The appellant in his written submissions also complained about the admissibility into evidence of a domestic violence order which the complainant had obtained prior to the commission of a number of the assaults in question.

In my view, there was no error on the part of the learned trial Judge in admitting the domestic violence order into evidence at the trial. There was also a complaint that the

learned trial Judge wrongly rejected the evidence of a

Mr Reid.

It appears that Mr Reid, for a period, had been a neighbour statement, provided the learned trial Judge ruled that it was relevant. The statement, so far as one can glean from a perusal of the record, indicated that the complainant was an alcoholic and that the maker of the statement had seen injuries to her on some two occasions.

of the complainant and the appellant and he had given a
statement to the police. He was deceased by the time of the
trial and in consequence defence counsel sought to have his
statement placed before the jury pursuant to section 93B of
the Evidence Act.

Those matters were really not in dispute at the trial. The learned trial Judge, in the course of argument, made the observation, "There's not a lot in it that's relevant."

He then went on to say, "I don't think I can make any ruling about it either way at the moment." Subsequently, the issue as to the admissibility of the statement was not re-argued.

There is no substance in the appellant's complaint with respect to that. It therefore follows that there is no prospect of the appellant succeeding in an appeal against

conviction and in consequence it is not necessary for the abandonment of the notice of appeal could be withdrawn. Leave to withdraw the notice of abandonment should be refused.

I now turn to the application for leave to appeal against declared the appellant to be convicted of a serious violent offence. The appellant contends that the sentences are manifestly excessive and also relies on an issue raised by counsel in the outline to which I have previously referred.

sentence which has at all times remained extant. The
learned trial Judge sentenced the appellant to 10 years'
imprisonment, on each of the count of torture, the two
counts of indecent assault and the count of rape. He
sentenced the appellant to 12 months' imprisonment on the
assault charge, being Count 2 on the indictment, and 18
months' imprisonment on the remaining charges of assault
occasioning bodily harm and assault occasioning bodily harm
whilst armed.

Relying on cases such as Pearce v. The Queen (1998) 194 CLR 610 and R v. R and S; Ex Parte Attorney-General [2000] 2 QdR 413, it is submitted that because the other counts constituted the basis for the conviction of the offence of torture, no separate penalty should have been imposed on the offences other than torture.

Convictions were rightly recorded, but no separate penalty should have been imposed with respect to the charges evidencing the torture. Counsel for the Prosecution now agrees with that submission. It follows that the sentences imposed on Counts 3, 4, 6, 2, 5, 10 and 11, should be set aside, but the convictions for those offences should remain.

In my view, bearing in mind that the offences constituting the offence of torture include one count of anal rape, one count of indecent assault involving the insertion of a

didgeridoo into the complainant's vagina, and one count of
indecent assault involving the use of a cardboard roll
against the complainant's vagina, a sentence of 10 years'

imprisonment for torture was appropriate.

In the circumstances, I would grant leave to appeal against
sentence, allow the appeal to the extent of setting aside
the terms of imprisonment imposed with respect to Counts 2,
3, 4, 5, 6, 10 and 11, but otherwise the sentences imposed
should stand.
DAVIES JA: I agree.

ATKINSON J: I agree.

DAVIES JA: The orders are as indicated by Justice Williams.