R v Smith - [2020] QCA 23

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2020] QCA 23

PARTIES:

R
v
SMITH, Aidan Daniel
(applicant)

FILE NO/S:

CA No 202 of 2019
DC No 229 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville – Date of Sentence: 2 August 2019 (Clare SC DCJ)

DELIVERED ON:

Date of Orders: 19 February 2020
Date of Publication of Reasons: 21 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2020

JUDGES:

Holmes CJ and Morrison and McMurdo JJA

ORDERS:

Date of Orders: 19 February 2020

1.   The application for leave to appeal is allowed.

2.   The appeal is allowed.

3.   Set aside the sentences imposed on 2 August 2019 and in lieu thereof sentence the appellant to two and a-half years’ imprisonment, suspended as from 19 February 2020 for an operational period of two and a-half years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to five counts of sexual assault and two counts of rape – where all counts arose from assaults carried out while the complainant, a friend of the applicant, was asleep – where the sentences imposed were as follows: (a) Count 1: one month imprisonment; (b) Counts 2, 3 and 6: six months’ imprisonment; (c) Counts 4 and 7 (rape): three years’ imprisonment; and (d) Count 5: eight months’ imprisonment – where a parole eligibility date was set after serving nine months in custody – where the applicant challenges the sentences on the basis that they are manifestly excessive – where the application concerned only the sentences for rape – whether the sentences for rape are manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was assessed by a psychologist – where the psychologist assessed the risk of reoffending as quite low – where a more protected environment than the general population would be appropriate given the applicant’s particular personality issues – where, in reliance upon R v Colless, the point was made that sentences in respect of digital rape may be expected to be less severe than other forms of rape – where, as was said in R v Wark, there is no rigid compartmentalisation of rape offences into two categories, firstly, digital rape and secondly, penile rape – where it is the particular circumstances which will determine the level of criminality and together with other facts the sentence to be imposed – where R v Keevers; R v Filewood is distinguished because the applicant pleaded guilty at an early time, expressed his remorse, apologised to the complainant in the days following the offence and the degree of premeditation was less – where R v Hennessy is of little utility as a yardstick because it involved two rapes, the second of which involved persistence in the face of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Smith

Details

AGLC: R v Smith [2020] QCA 23
Case: [2020] QCA 23
Decision Date: 21 February 2020

CaseChat Overview and Summary

In the case of R v Smith, the applicant challenged the severity of the sentences imposed on him for sexually assaulting and raping a sleeping woman. The applicant pleaded guilty to five counts of sexual assault and two counts of rape, all of which occurred while the complainant was asleep. The sentences imposed were as follows: one month for the first count, six months for the next three counts, and three years for the two counts of rape. The court set a parole eligibility date after the applicant served nine months in custody. The applicant argued that the sentences for rape were manifestly excessive. The legal issues in this case revolved around whether the sentences for the rape charges were manifestly excessive, taking into account the applicant's cooperation, age, lack of criminal history, and remorse.

The court considered the applicant's cooperation, age, antecedents, and remorse, as well as the need to ensure appropriate supervision in the community. The court distinguished the case from R v Colless, R v Wark, R v Keevers; R v Filewood, and R v HX, as the applicant pleaded guilty at an early time, expressed his remorse, and apologised to the complainant. The court found the sentences for rape to be manifestly excessive.

The court allowed the application for leave to appeal and granted the appeal. The sentences imposed on 2 August 2019 were set aside, and in lieu thereof, the applicant was sentenced to two and a half years' imprisonment, suspended as from 19 February 2020, for an operational period of two and a half years.

Orders

Orders of the court

Date of Orders: 19 February 2020

1. The application for leave to appeal is allowed.

2. The appeal is allowed.

3. Set aside the sentences imposed on 2 August 2019 and in lieu thereof sentence the appellant to two and a-half years’ imprisonment, suspended as from 19 February 2020 for an operational period of two and a-half years.

Background

Background to the litigation

The applicant challenges the sentences on the basis that they are manifestly excessive.Agreed schedule of facts The applicant was 23 years old at the time of the offence. He knew the complainant and they had a platonic relationship. The complainant had made it clear she did not want a relationship with him, and had no sexual interest in him. The complainant had explained that she had “women’s issues” which was why she did not have a partner and could not hold a relationship. She had undergone surgery on a few occasions and would sometimes get sick. The applicant was aware that she had difficulties with her mental health. The applicant was unaware that the complainant had endometriosis, which made sex painful and traumatising, with the pain lasting for days into a week. The complainant would end any sexual intercourse because of the pain, and would be unable to attend school or work. On Friday, 1 June 2018 the complainant contacted the applicant to have him get her some cannabis. This was the first occasion when the applicant had been to the complainant’s unit. They discussed how the complainant’s six year old niece had just died, and that her dog died a week before, so that the complainant was in a state of grief. The applicant arrived about 10.00 pm and he and the complainant went to get some alcohol. When they returned to the complainant’s unit they each had some alcohol and smoked some cannabis. The cannabis looked strange and the complainant enquired whether it was laced. The applicant replied that, to his knowledge, it was not. Together they smoked a second joint. The complainant had half of another drink. The complainant said the applicant could stay over at her unit, as she did not want him getting into trouble with the police for driving under the influence. The complainant took a Valium (a prescribed medication) and began to feel “zoned out”. She and the applicant were in the bed together watching TV, and the complainant went to sleep. The applicant was lying on her shoulder. The complainant dimly recalled the applicant shaking her awake. She recalled “feeling like she was paralysed, unable to move her legs or body”. She became aware that the applicant was kissing her on the mouth,[1] but did not wake up or respond to it. After that, the complainant had no recollection until waking up a bit before 4.20 am, in pain with the applicant’s fingers in her vagina.[1]Count 1. The only source of information as to what occurred in the interval, beyond extrapolation, came from the applicant’s interview with police. His account continued the narrative from when the complainant was falling asleep. It was:(a)she was falling asleep and he put his head on her shoulder, and they were watching TV; “after a few episodes [of the TV show] I … tried to hold her hand. She accepted it … I’m not sure if it was because she was nearly tired and she didn’t know what she was doing”;(b)once the complainant was asleep the applicant pushed her over to try and retrieve the laptop power cord from under her body; she woke momentarily so he removed the cord and she went back to sleep;(c)once the complainant was asleep the applicant kissed her on the lips, but she did not respond;[2](d)the applicant then “went to feel her vagina … I gave myself access … by opening up her pants … I slipped my hand in”;[3](e)the applicant then pulled his pants down below his waist so that nothing was covering his penis and “I put her hand on my penis … I grabbed her hand and put it on there”; the applicant said that at some point he “probably had some premature ejaculation happening … it went on her hand”;[4](f)the applicant then inserted his finger into the complainant’s vagina, describing it sliding in and out;[5] he had moved her legs apart on an angle to allow him to gain access;(g)while the complainant’s hand was on his penis the applicant pushed the front of the complainant’s bra over the top of her breasts, and he squeezed her breasts, albeit according to him, only softly;[6](h)the applicant then moved his hand back down, slid it underneath her clothing and rubbed her vagina in a circular motion around the clitoris area;[7] and(i)the applicant then inserted his finger for a second time into the complainant’s vagina.[8][2]Count 1.[3]Count 2.[4]Count 3.[5]Count 4.[6]Count 5.[7]Count 6.[8]Count 7.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Noting that the sentence must be one to deter others who were inclined to violate a woman sleeping in her own bed, and recognising the applicant’s co-operation, age, antecedents and remorse, the learned sentencing judge said there was a need to ensure appropriate supervision in the community. Her Honour, in that context, referred to the fact that this was a victim violated whilst unconscious, with an anticipated added burden of fear of the unknown and worry about the extent of what she could not remember.Consideration Counsel for the applicant has advanced a number of matters in support of the contention that the sentences imposed, and in particular those for the two counts of rape, were manifestly excessive. In truth the application concerned only the sentences for rape. In reliance upon R v Colless[13] the point was made that sentences in respect of digital rape may be expected to be less severe than other forms of rape. The passage referred to in Colless is as follows:[14]“While the Criminal Code establishes the same maximum penalty, whether the rape be accomplished by penetration by the penis or digitally, it is reasonable to observe that without additional aggravating features (weapons, extra brutality, threats of serious harm, premeditation, residual injury etc), a rape accomplished digitally may generally be seen to be somewhat less grave than a rape accomplished by penile penetration. That is because it may be less invasive, would not carry a risk of pregnancy, and would ordinarily carry substantially reduced risk of infection …”[13][2010] QCA 26; [2011] 2 Qd R 421.[14]Colless at [17]. I do not consider that the court in Colless was attempting to lay down an overriding principle. The use of phrases such as “may generally be seen” and “somewhat less grave” point very clearly to that conclusion. Rather, it was simply an observation as to factors which might be relevant in the consideration of the offence of rape. As was said in R v Wark[15] there is no rigid compartmentalisation of rape offences into two categories, firstly digital rape and secondly penile rape. In each case “it is the particular circumstances which will determine the level of criminality and together with other facts the sentence to be imposed”. Accepting as a general proposition that penile rape will attract a higher sentence than digital rape or oral rape, there may be cases calling for punishment as great or exceeding those involving penile penetration.[15][2008] QCA 172 at [36]-[38]. Before the sentencing judge, as before this Court, reliance was placed upon two decisions in particular, R v Keevers; R v Filewood[16] and R v HX.[17] The applicant seeks to distinguish those decisions not just by their different facts, but also because each was a sentence imposed after a trial. By contrast the applicant pleaded guilty at an early time, expressed his remorse and made an apology to the complainant in the days following the offence.[16][2004] QCA 207.[17][2005] QCA 91.

CITATION:	R v Smith [2020] QCA 23
PARTIES:	R v SMITH, Aidan Daniel (applicant)
FILE NO/S:	CA No 202 of 2019 DC No 229 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville – Date of Sentence: 2 August 2019 (Clare SC DCJ)
DELIVERED ON:	Date of Orders: 19 February 2020 Date of Publication of Reasons: 21 February 2020
DELIVERED AT:	Brisbane
HEARING DATE:	18 February 2020
JUDGES:	Holmes CJ and Morrison and McMurdo JJA
ORDERS:	Date of Orders: 19 February 2020 1. The application for leave to appeal is allowed. 2. The appeal is allowed. 3. Set aside the sentences imposed on 2 August 2019 and in lieu thereof sentence the appellant to two and a-half years’ imprisonment, suspended as from 19 February 2020 for an operational period of two and a-half years.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to five counts of sexual assault and two counts of rape – where all counts arose from assaults carried out while the complainant, a friend of the applicant, was asleep – where the sentences imposed were as follows: (a) Count 1: one month imprisonment; (b) Counts 2, 3 and 6: six months’ imprisonment; (c) Counts 4 and 7 (rape): three years’ imprisonment; and (d) Count 5: eight months’ imprisonment – where a parole eligibility date was set after serving nine months in custody – where the applicant challenges the sentences on the basis that they are manifestly excessive – where the application concerned only the sentences for rape – whether the sentences for rape are manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was assessed by a psychologist – where the psychologist assessed the risk of reoffending as quite low – where a more protected environment than the general population would be appropriate given the applicant’s particular personality issues – where, in reliance upon R v Colless, the point was made that sentences in respect of digital rape may be expected to be less severe than other forms of rape – where, as was said in R v Wark, there is no rigid compartmentalisation of rape offences into two categories, firstly, digital rape and secondly, penile rape – where it is the particular circumstances which will determine the level of criminality and together with other facts the sentence to be imposed – where R v Keevers; R v Filewood is distinguished because the applicant pleaded guilty at an early time, expressed his remorse, apologised to the complainant in the days following the offence and the degree of premeditation was less – where R v Hennessy is of little utility as a yardstick because it involved two rapes, the second of which involved persistence in the face of…