R v Tappi

[1996] QCA 46

COURT OF APPEAL

[1996] QCA 046

MACROSSAN CJ
PINCUS JA

DAVIES JA

Appeal No 420 of 1995
THE QUEEN
v.

EDWARD JOHN TAPPI	Appellant
BRISBANE ..DATE 06/02/96
JUDGMENT
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THE CHIEF JUSTICE: The applicant was convicted of an offence committed in 1994 of indecently dealing with a girl under the age of 12. He was sentenced on 22 September of last year to a term of imprisonment of six years. There is no doubt that the term imposed resulted from the applicant's very bad criminal history to which I shall refer in a moment. The complainant in this case was 10 years of age at the time the offence was committed.

The complainant girl had been in a group which had spent time at a hotel and after the various events of the evening had run their course up to a certain point she was again in a group including her mother at the house where the mother, the complainant and her brother were staying. The applicant, a member of the group, had been drinking, obviously to a considerable extent. Members of the group went to sleep at various locations in the house. The complainant's story, supported by other evidence was that when she was asleep, the applicant commenced to interfere with her sexually.

She was awakened in her position sleeping on a mattress on the floor of a room by feeling the applicant's hand on her bottom underneath the knickers she was wearing. He was reaching around to her vagina. She had been sleeping on her stomach on the mattress. The applicant, she said, then pulled her pants down to her ankles and apart from touching her on and around the area of her vagina, he started licking her on her bottom. The applicant commenced to threaten the complainant when he appreciated she was awake and did so in extreme terms. He said he would kill everyone in the house and the complainant would be

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the first if she didn't let him touch her. He was whispering this to her. The complainant became, understandably enough, very upset and commenced to cry and she called out. The result was that others in the house were awakened, came to see what was going on and once it was appreciated what had happened the applicant was ejected from the household.

He did not go without something of a struggle, or at least a fair measure of resistance, and he denied the complainant's accusations. He did not plead guilty at the trial which resulted, but was found guilty only at the end of that trial by the jury's verdict. There was no suggestion that the applicant had penetrated the complainant's body in the course of his interference with her as I have described it. The history which I have described as being a very bad one involved, on the Crown counsel's summary, five convictions for rape, two of attempted rape, one of abduction, one of child stealing and one of indecent assault on a girl. He was actually still on parole in respect of a 10 year sentence which had been imposed in connection with four rape convictions in 1986.

Apart from a number of offences committed by the applicant at an early age in his career, the outline of his offences for present purposes can be commenced when he was dealt with by Magistrates Courts and County Courts in the south. He was born on 27 April 1954 so that in November 1977 when, as I calculated it, he would have been 23 years of age, he was sentenced to an effective five year term in respect of various offences of abduction, rape and attempted rape. He was ordered to serve a minimum of three. Passing over offences of a different kind which appear in his

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record such as an offence of dishonesty, one sees again that in June 1981 he was sentenced to a total of three years in connection with child stealing, unlawful assault and indecent assault on a girl under 16.

In February 1986 he was sentenced to various terms totalling 10 years with an order that eight should be served for different charges of rape. This indeed is an extremely bad criminal history with its involvement in offences of a sexual kind. The sentencing Judge observed that the applicant's criminal history was extremely bad and that it was necessary to impose a sentence which would deter. He noted the opinion expressed by a psychiatrist that the applicant had a long-term anti-social personality disorder. He expressed the view that the applicant had shown no remorse whatsoever for his actions, really offering no defence to the matters charged against him in the present case but putting the Crown to proof.

The Prosecutor below submitted that an appropriate range was four to six years imprisonment and the sentencing Judge noted that the applicant's counsel below accepted that submission although submitting also that it would be appropriate to make an early recommendation for parole. The sentencing Judge thought there was no justification for making a recommendation for early parole and that part of his sentence appears completely beyond criticism, especially when it is recalled that the applicant was on parole at the time the present offence was committed. In this Court, counsel for the applicant invites our attention to the circumstances of the offence. The worst aspect of it, it could be said, was that it was accompanied by threats of a dire

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nature and the girl was extremely upset.

On the other hand, the offence involved was not one of a long duration, although it also has to be said that it came to an end only when, fortunately, others intervened to stop the applicant's conduct. There was no penetration of the young girl's body and there is no specific evidence of long term extreme effects upon the girl, although no doubt, it was an episode that she would not easily forget.

It comes down then largely, in deciding the substance of this present application, to considering the extent to which the sentencing Judge was entitled to impose a sentence of the order that he did because of the applicant's very bad criminal history. Our attention was directed to the High Court case of Veen v. R. No 2 (1988) 164 CLR 465 and particular reference was made to that case at page 477, where in the judgment of four of their Honours, it was said that it is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender or shows his dangerous propensity or shows a need to impose punishment to deter the offender and other offenders from committing further offences of a like kind.

It is fair to observe in the present case that reprehensible though the applicant's conduct was, the offence involved in his actions was not of the very worst kind, that is was not in the category of the worst offences which the Court unfortunately encounters from time to time. It was drawn to our attention that the maximum penalty which is provided by the Code in the circumstance of the present case, is one of

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10 years imprisonment.

Counsel for the applicant before us submitted that the range which should have been imposed in all of the circumstances, that is taking into account the criminal history, amongst other things, was three to five years imprisonment. He submitted that the range would be significantly lower if it were not for the criminal history.

He made the submission that the sentence which should have been imposed was one of the four years. Counsel for the Crown submitted, consistently in this respect, with what had been submitted below, that the range was four years to six years. The applicant had a difficult childhood and had been institutionalised at a very early age.

He had been drinking to a considerable extent on the night of the offence. None of this, of course, defends him or excuses him in respect of what he did on the night in question. I am nevertheless left with the impression that the sentence imposed was one which, in all the circumstances, particularly having in mind the facts of the offence itself and the prior criminal history, was one which was excessive.

There can be no doubt that a sentence at this level would not have been imposed, except for the criminal history. The fact of the criminal history, however, does not, in my opinion, justify a sentence at this level when one looks at what was done on the night in question.

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I would favour allowing the application and the appeal and setting aside the sentence imposed below and substituting in lieu a term of four years imprisonment.

PINCUS JA: In respect of the most serious offences in the record, that is the 1986 rapes, I have taken into account the circumstances of those rapes. They all occurred on the one night, apparently with a woman with whom the applicant had been drinking and it does not appear that they were accompanied by violent acts; the appellant's purposes were achieved by threats.

The case is one which, in my view, the sentence is simply too high, when one has regard to what must be the primary matter and that is the actual acts for which the applicant has been punished. I would agree with the reasons of the Chief Justice and with the order His Honour proposes.

DAVIES JA: I agree with the reasons of the Chief Justice and the order which His Honour proposes.

THE CHIEF JUSTICE: The order will then be as I have indicated.

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