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COURT OF APPEAL [1992] QCA 254

MACROSSAN CJ
DAVIES JA

LEE J

CA No 158 of 1992

THE QUEEN

RUSSELL JAMES WATCHO	Respondent
ATTORNEY-GENERAL OF QUEENSLAND	Appellant
BRISBANE ..DATE 23/07/92
JUDGMENT

230792
THE CHIEF JUSTICE: We are concerned in this case with an appeal by the Honourable the
Attorney-General against sentences imposed for rape.

The respondent was convicted on his plea but he entered that plea rather late. The complainant was forced to give her evidence in committal proceedings and it seems the plea then was entered on the first day of the trial. There was also contest about the associated facts so the complainant was not spared that difficulty.

The respondent was a 23 year old. He had quite a number of previous convictions, including for breaking and entering, but nothing for an offence like the rape with which we are concerned; no sexual offences. He was charged with a total of some nine offences but they all occurred in the case in the course of a continuing episode, quite a long continuing episode in the complainant’s house.

There were offences of entry with intent, indecent assaults occurring in the course of the behaviour and rape, and that is how there came to be four rapes charged and pleaded to.

Effectively, he was sentenced to 10 years, that is, they were the sentences imposed on the rapes. The learned sentencing Judge noted relevant features. He said that the respondent had gained entry to the home of the complainant with the intention of committing an indictable offence, probably stealing. It was while he was in the complainant’s house that the respondent changed his intention and decided to rape the complainant who was there alone apart from the presence of her 4 year old child, who was unfortunately involved; at least, he saw a deal of what was going on.

The respondent threatened the complainant with something - it is described as a garden fork, presumably not a large one, but a garden fork nevertheless. He also threatened consequences to the complainant’s child if she didn’t comply with his demands. He forced her and she had no option but to submit over what I’ve described as a substantial period and in the course of it all of the offences were committed.

The respondent had been in custody for some 10 months prior to being sentenced, the custody being attributable to these offences. The matter of rape and the other sexual offences do not appear to have been pre-planned. They were the consequence of the entry to the house and the presence of the complainant there.

We have been referred to quite a number of other comparative sentences for the purpose of assisting us. They do provide a degree of enlightenment, of course, but all cases in this present category depend to an extent upon their own facts as well as, of course, the general levels of penalties imposed.

Amongst the serious features were the entry with intent into the complainant’s home - a different intent but a reprehensible one with the potential for even more serious consequences, but an entry with intent nevertheless; the violation of the privacy of the complainant’s home; the threats that were made by the respondent, including threats to the child; the holding of a weapon, even though he didn’t use it.

On the other hand, the facts, when examined, show that the respondent was intoxicated; the offences with which we are concerned were, as I’ve already mentioned, not pre-planned and no physical injury, in fact, was caused to the complainant or indeed to her child.

There is no indication of subsequent particular adverse consequences for the complainant, although inevitably in cases of this sort there would no doubt have to be some. The circumstances of the commission of this offence are undoubtedly extremely serious but the offence has been visited with what must be fairly described as a very substantial penalty, taking into account the time in custody attributable to the offences. The custodial term is equivalent to almost 12 years. There was no recommendation whatsoever for early release on parole and I do not, by mentioning that fact, suggest that any was walled for.

Having in mind the circumstances of this case, which I’ve outlined, and indeed the general level of penalties imposed in cases comparable to a greater or lesser degree, I am of the view that the sentences imposed do not call for interference and I would dismiss the application.

DAVIES JA: I agree.

LEE J: I agree.

THE CHIEF JUSTICE: The appeal then of the Attorney is dismissed.

- - - - - - -

In the case of R v Watcho, the appellant, the Attorney-General of Queensland, challenged the sentences imposed on the respondent, Russell James Watcho, for multiple offences including rape, following his conviction. The respondent had entered the complainant's home with the intent to commit an indictable offence, which escalated into multiple sexual assaults, including rape. The respondent was sentenced to a total of 10 years in prison for the rapes, with additional time for other offences committed during the same incident. The Attorney-General argued that the sentences were too lenient given the severity of the crimes.

The legal issues before the Court of Appeal revolved around the appropriateness of the sentences imposed by the trial judge. The Court had to consider the gravity of the offences, which included the violation of the complainant's privacy, the use of threats, and the impact on the complainant and her child. Additionally, the Court needed to weigh the mitigating factors, such as the respondent's intoxication and the absence of physical injury to the complainant and her child. The Attorney-General's appeal focused on the contention that the sentences did not adequately reflect the seriousness of the crimes committed.

The Court of Appeal, led by Macrossan CJ, found that the sentences imposed by the trial judge were appropriate in light of the circumstances of the case and the general levels of penalties for similar offences. The Court considered the severity of the respondent's actions, including the threats made to the complainant and her child, and the substantial time the respondent had already spent in custody. Despite the serious nature of the offences, the Court concluded that the sentences were commensurate with the gravity of the crimes and did not warrant interference. Both Davies JA and Lee J concurred with the Chief Justice's decision.

The appeal was dismissed, and the original sentences were upheld. The Court of Appeal found that the sentences adequately reflected the seriousness of the offences and took into account both the aggravating and mitigating factors. The Court emphasised that each case must be assessed on its own facts, and in this instance, the sentences imposed were deemed appropriate.

R v Watcho

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