R v Short

[1992] QCA 108

COURT OF APPEAL [1992] QCA 108

MACROSSAN CJ McPHERSON JA WILLIAMS J

No 292 of 1991
THE QUEEN
v.

ROBERT WILLIAM SHORT

(Applicant)

BRISBANE

... DATE 31/3/92

JUDGMENT

JUDGMENT

McPHERSON JA: Robert William Short was tried in the District Court at Brisbane on an indictment charging one count of procuring Scott Gregory Curtis to commit an act of gross indecency. The indictment alleged that the act was committed with the consent of Curtis, but that he consent was obtained by intimidation or fear of bodily harm. The count went on to charge a circumstance of aggravation, namely, that the act of gross indecency consisted in bringing part of the mouth of Curtis into contact with the genitalia of one David Smith. David Smith was tried on the same indictment together with Short.

The sentence imposed on Short was one of two years' imprisonment, cumulative upon a sentence that he was already then serving. The other offender, Smith, was given a similar sentence.

Short now applies for leave to appeal against the sentence imposed upon him, asserting that the sentence was manifestly excessive.

The circumstances of the offence are as follows. The applicant, his co-accused Smith, and the complainant Curtis were all inmates of Brisbane Prison on 4 October 1990. The complainant Curtis had been admitted tot he gaol only one or two days before the incident. He was sitting in the yard late one afternoon minding his own business when he was approached by the applicant and Smith.

What happened is recorded in his evidence at the trial in substantially the following terms: "David" (that is, Smith) "sat down next to me, and Robert" (that is, the applicant Short) "stood in front of me." Smith said, "'I'll give you 10 minutes to decide whether you give me a head job or let me fuck you.'" The complainant's response to that was, "No, f-off."

Some further words passed between them in which the two accused kept on saying to the complainant that he should, in effect, accept what was going to happen to him. The complainant resisted these suggestions, and the applicant Robert Short said to him, "No, you're going to do it because we've done it to other prisoners." After this exchange they left, and the complainant continued to sit where he was.

The two accused returned within about 10 minutes or so after that. They said to the complainant, "What's your decision?" to which he again replied, "No." At that, Smith put an arm around the complainant's shirt and walked him over to the toilet or shower area. In the shower cubicle Smith said to the complainant, "Well, let's do it." The complainant got down on his hands and knees, Smit pulled down his pants and put his penis in the mouth of the complainant. This was followed by what is described in the record as "a head job", which occupied about two or three minutes. During that time Smith's arms were on the complainant's shoulders.

During the period when these events were taking place the applicant Short was keeping watch for others who might come. He was standing at the side of the shower cubicle "just keeping an eye out", as the complainant said. Smith then left and the complainant heard the two young men, that is the applicant and the co-accused Smith, "just laughing" as they went away. He said that he felt "pretty sick", but that he had not been physically hurt in any way. He said he had gone to the shower cubicle with Smith because he was frightened of what might otherwise happen, having been told what had happened to other prisoners in the gaol.

The three individuals involved in this incident were, it seems, all aged 18 years and were in custody in a particular section of the gaol devoted to persons of that age. It is a factor to be considered as going in mitigation of penalty that the applicant was a young man. The fact is, however, that young bullies are just as frightening to young victims as older bullies are to other people.

The applicant has a not inconsiderable history of previous convictions. Almost all of them are in respect of the offence of unlawful use of a motor vehicle, of which there are at least some 10 or more charges in the period running from 1989. He has been convicted on one occasion of receiving, and has breached a community service order in one instance, as well as escaping from lawful custody in July 1990.

He has no previous convictions for offences of violence or offences of a sexual nature. That makes the present offence less explicable than it might otherwise have been, except in terms of the only reason for which it might have been committed at all. By that I mean to say, that it was evidently done, as the remarks and circumstances of the offence demonstrate, in order to assert a dominance over another prisoner. The complainant had, it will be recalled, been brought into the gaol only some two days before.

The applicant has an unfortunate personal history. He seems to have had disagreements with his stepmother, as a result of which he left home and became a street kid as it is called, from about the age of 13. Comparatively speaking, it may be said that the penalty of two years' imprisonment imposed, was a heavy one. The offence was, as Mr Alcorn on behalf of the applicant pointed out, not one of sodomy, and the applicant was not himself the immediate perpetrator. Nevertheless, the offence is one that carries a 14 year maximum, a level to which it was increased in 1989.

It is, however, the reasoning of His Honour in this matter that persuades me that the sentence is one which ought not to be disturbed. After referring to several of the features I have identified, His Honour went on to say:

"When people are sent to prison, they are deprived of their liberty. That is the punishment imposed on them by society that is, the deprivation of their liberty. They are not sent to prison for punishment by fellow inmates, they are not sent to prison to be subjected to the degradation and humiliation of sexual assaults by fellow inmates. These offences are very difficult to detect. Prisoners are very reluctant to complain about these attacks. If they complain they are branded as informers and their lives are at risk in the prison system. They are forced for their own protection to spend the rest of their time in prison in isolation. That becomes therefore a further punishment, having to spend the rest of their time in isolation."

His Honour went on to add that persons who leave prison, after being victims of sexual assaults in prison, are likely to harbour feelings of great anger and resentment against society for tolerating these activities within a prison.

I must say that I agree with His Honour's remarks in that regard, and would add only that the position of a person in prison is even more unfortunate than that of one outside who is confronted by behaviour of this kind. That is because the victim has not the ordinary means of escape, which is to remove himself from the reach of his tormentors.

A number of these features, which both the sentencing Judge in this case and I have referred to, have been mentioned in decisions of Courts, both in this State and elsewhere. In George and Price (1981) 4 A.Crim.R. 12, to which my brother Williams helpfully referred in the course of these proceedings, the Court of Criminal Appeal in New South Wales upheld a sentence of some seven years in respect of offences of buggery and common assaults committed in a prison environment.

In the course of giving reasons for judgment, Sir Lawrence Street

Chief Justice said:

"The crime of homosexual rape that they committed in the
present case upon a cell-mate merits a heavy punishment,
irrespective of the major significance attaching to the
earlier records of these men.
Where three men are, by force of law and by due process of
law, locked together in a cell, it is incumbent upon the
law to ensure the personal dignity and safety of each of
those men against onslaught by the other two. It has been
submitted by the Crown that a prisoner is entitled to
expect that a sentence will be served according to
civilised standards and free from barbaric outrage. It is
also urged that all persons in the community, whether
serving a sentence of imprisonment or whether free, are
entitled to be protected from criminal attack and where
persons are incarcerated in gaol, then it is essential that
there be a strong element of deterrence reflected in
sentencing for offences against the person of criminals who
are serving gaol terms.

His Honour was in fact quoting from an earlier judgment of the Court in a matter of Glasby and Hynes, so that one can see that the need to deal severely with offences of this kind has been recognised over a lengthy period by the Courts. The deterrent element is one that looms large in penalties for offences of this nature. There is obviously little point in imposing short sentences, which are liable to be regarded by the person who sustains them simply as an invitation to continue behaving in the same way.

The present case is one in which a cumulative sentence was obviously called for. It is said that the sentence in this case was excessive, having regard to the act performed; but it is in my view, not so much the act itself as the attitude of dominance that it discloses that calls for heavier punishment; it is the characteristic which attracts a severe penalty like that imposed in this instance.

It is equally true that the applicant before us was not the immediate perpetrator of the offence. However, as regards the element of dominance on which I have placed emphasis, he was quite obviously an equal offender with the person Smith, who committed the particular act of forcing his penis into the mouth of the complainant.

When all these matters are considered, I see no reason for interfering with the sentence that was imposed by the learned sentencing Judge in the Court below. I would therefore refuse the application for leave to appeal.

THE CHIEF JUSTICE: I agree with the order proposed and with the reasons which are given in support of it.

WILLIAMS J: The only matter that has caused me concern is whether or not there should have been some differentiation in sentence between the applicant and his co-accused Smith. Ultimately, I have come to the conclusion that the learned sentencing Judge was correct in imposing the same sentence on each.

The applicant's presence was necessary to constitute the force and threat necessary to secure participation of the complainant in the offence. It was also necessary in the prison environment for there to be a lookout if such an offence was to be committed. Short fulfilled that role in this case knowing what was happening. I agree with all that has been said by my brother McPherson and with the orders he proposes.

THE CHIEF JUSTICE: In so far as the notice pertinent to appeal against sentence is concerned, it should be dismissed.

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