R v Wood

[1994] QCA 544

IN THE COURT OF APPEAL  [1994] QCA 544

SUPREME COURT OF QUEENSLAND

C.A. No. 429 of 1994.

Brisbane

[R v. Wood]

T H E    Q U E E N

v.

DAVID JOHN WOOD

(Appellant)

_____________________________________________________________________

Fitzgerald P.

Pincus J.A.

McPherson J.A.

_____________________________________________________________________

Judgment delivered 14/12/1994

Judgment of the Court
_____________________________________________________________________

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.  RECOMMENDATION OF TRIAL JUDGE WITH RESPECT TO THE SUBJECT OF RELEASE ON PAROLE DELETED.
______________________________________________________________________

CATCHWORDS:CRIMINAL LAW - Sentence - Rape - 7 years with no recommendation for parole - applicant previous history of physical violence towards former defacto and deprivation of her liberty - whether sentence manifestly excessive - whether direction of trial judge that psychological and psychiatric evidence should be taken into account before admitting applicant to parole could be sustained.

Counsel:Applicant appeared on own behalf.

Ms L Clare for the respondent.

Solicitors:Applicant appeared on own behalf.

Director of Prosecutions for the respondent.

Hearing date:30 November 1994.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 14/12/1994

This is an application for leave to appeal against sentence.  The applicant was convicted of rape in the District Court and sentenced to 7 years imprisonment.  The judge also recommended that the relevant authorities satisfy themselves "carefully, having regard to your history of violence towards women, whether you are and remain a risk to the community before you should be released" on parole.  His Honour added that he considered "that that should be on very firm psychological and psychiatric evidence".

The applicant, who was 21 years old at the date of the offence, met the complainant a week before the rape, at a tavern, where she danced and otherwise associated with him.  She gave him her phone number on that evening and subsequently he phoned her with the idea of visiting her at her flat; she did not agree to that.  A few days later he phoned her again and the two had a discussion, and then on the Thursday before the rape (which occurred on a Saturday) there was a further telephone conversation in which it was arranged that the two would go out together.  On the Friday night they did so and the complainant and the applicant went to a restaurant bar for some time, and then to a tavern.  At each place they danced and drank together and also socialised with other people.  According to the complainant's recollection they left for the complainant's flat about 3.15 a.m.  The applicant asked the complainant if it would be alright if he came with her "to see that I got home OK" and that his friends would pick him up later.  While at the flat, and during a period when, according to the complainant's understanding, they were waiting for his friends to arrive, they lay down together on a bed fully clothed.  The complainant said she did this because she was tired, and explained the applicant's presence on the bed with her by saying that she knew his friends would be coming soon and 'I just didn't want to be rude and I just thought we could lay down and talk.  I was just tired.  That's all".   The applicant attempted to kiss the complainant and she refused and told him to call a taxi.  He used the telephone and, as she understood, called a taxi.  She asked him to lock the door behind him when he left.  He tried to kiss her again, but was rebuffed. There was some further discussion between the two, following which he became forceful, got on top of her and forced her legs apart.  She screamed and struggled.

The applicant put a blanket over the complainant's face and she complained of being unable to breathe.  She called loudly for help and was told to "shut up".  The two fell off the end of the bed as they struggled.   The complainant tried to get away and was held down on the floor.   He told her to "shut up" or he would kill her.

At that stage, it appears that the complainant changed her tactics and "just thought that if I calm down that would calm him down".  It seems that she ceased her resistance.  The applicant removed some of the complainant's clothing, tearing her stockings, and had intercourse with her, while she was crying.  He then asked for a kiss and was refused and asked her if she wanted to engage in oral sex and she refused.

At that stage the complainant escaped from her flat, the applicant attempting to prevent her.  She went for help to her next-door neighbour, who was absent.  The police were called.

According to the medical evidence the complainant was left with minor injuries, abrasions and tenderness.  She was, however, induced by the offence to move from her flat.

Among the matters referred to by the sentencing judge were the threat to kill, the degree of physical violence and the lack of remorse.  As to the last, although the applicant gave no evidence at his trial the matter was defended on the basis that the intercourse was consensual and that the elements of the complainant's evidence which suggested otherwise were fabricated.  It should be added that one of the difficulties about this defence was that an elderly woman, living in a flat below the complainant's, was woken by the noise of the incident.  She heard the complainant screaming and subsequently calling for help.

In view of the applicant's age - 22 years - the suggestion that the sentence is too heavy requires consideration.  From the age of about 16 the applicant began to offend; his first convictions were for a number of breaking, entering and stealing offences.  There followed some minor offences and then offences relating to a person described in the applicant's outline as his "ex defacto partner".  Some history relating to that is to be found in the reasons given by this Court in a previous sentence application by this applicant (C.A. No. 184 of 1994, 16 August, 1994).  In the reasons of McPherson J.A. and Ambrose J. the sequence of offences committed by the applicant against the person so described is set out.   In brief, in March 1992 the applicant assaulted that girl and occasioned her bodily harm by hitting her on the back of the head and punching her arms.  She obtained a domestic violence order against him, but three days later he came to her, there was an argument, and he forced her into his car and drove off with her.  Then there was a reconciliation until September 1992, when the pair separated permanently.  In November 1992 a further domestic violence order was obtained against the applicant, and in the same month he pleaded guilty in the District Court to the offences he had committed in March;  he was admitted to probation for 3 years and ordered to perform 240 hours community service.  A few days later he offended again, by following the girl at a time when she was driving her car, forcing her into the front passenger seat and then driving her to another place, where an argument ensued.  He was charged with unlawfully using her car and depriving her of her liberty and given a sentence of 2 years imprisonment, ordered to be suspended after serving 6 months of it;  this Court altered that by removing the suspension, but recommending that the applicant be considered for parole after having served 6 months of the sentence.

It is important to appreciate that the offence with which the Court is currently concerned took place in October 1993, after all the offences relating to the applicant's former "defacto partner".  At the time when he committed the rape, he was the subject of the probation order made in the District Court in November 1992.

The case before us is not one in which punishment imposed for an incident which had no precedent in the applicant's behaviour comes to be considered.  He had previously shown a tendency to force his attentions upon a girl who did not desire them, to the point of physical interference with her.  This had brought him under the notice of the courts and he was made to appreciate that continuing in that sort of conduct would be likely to lead to punishment.  Apart from general deterrence, there is a need to deter the applicant, in particular.

Despite the applicant's youth and the circumstance that, before committing the rape in question, he had never been sentenced to imprisonment, there is no good ground for interfering with the sentence of 7 years imprisonment, nor any basis on which it could be suggested that justice requires an early recommendation for parole.

The judge's recommendation against parole and in particular the reference to "very firm psychological and psychiatric evidence" being needed before the applicant should be released on parole, need to be considered.  It is difficult for psychologists or psychiatrists to be confident in their predictions about the likelihood of re-offending, and it is perhaps improbable that anyone could be "very firm" in saying that the applicant will not re-offend if released on parole.  It is not a case where there is a substantial history of considerable violence, such as to justify a particular judicial warning against releasing the applicant.  It is the better course, in the present case, to say that the question of release on parole should be considered by the relevant authorities on the information before them, but without regard to the recommendation contained in the second last sentence of the primary judge's sentencing remarks.

The order of the Court will therefore be that, subject to deletion of the primary judge's recommendation with respect to the subject of release on parole, the application will be refused.