R v Young; ex parte

[1999] QCA 335

99.335

COURT OF APPEAL

McPHERSON JA DERRINGTON J MACKENZIE J

CA No 212 of 1999
THE QUEEN
v.
DAMIAN NATHANIEL YOUNG Respondent

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE
..DATE 19/08/99
190899 T7/SJ3 M/T COA199/99
DERRINGTON J: On 28 May 1999 the respondent was sentenced
on two counts; the first of attempted armed robbery on 7
September 1998, for which he was sentenced to three years
probation, and the second for an assault with intent to rape
on 15 November 1998, for which he was sentenced to a 12
months intensive correction order with a declaration that
179 days had been spent in pre-sentence custody in respect
of the offence and that it should be deemed time already
served under the sentence of assault with intent to rape.

It should be noted, because it has some significance, that the charge of assault with intent to rape was substituted by the Crown and a plea of guilty to that was accepted in lieu of the original charge of attempted rape. The charge of attempted armed robbery carries a maximum of 14 years and the charge of assault with intent to rape carries a maximum sentence of seven years imprisonment, but in the present circumstances it is the latter case which is the more serious.

The respondent was a 24-year-old man. He had some learning
difficulties and was a little below normal intelligence. He
appeared to practise unemployment and spent most of his days
taking drugs, particularly marijuana. In respect of the
first count, he had attended at a hairdresser's premises for
a haircut and during the course of that decided to rob the
hairdresser, a female. He produce a Swiss Army knife and
demanded money. She offered him the money in the till but
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he refused it and ordered her to shut up the front door of
the shop. She was able to flee to a neighbouring shop for
help and the respondent ran away. The serious factor about
that is that he produced a knife in the course of that
robbery although in his favour it must be acknowledged that
there is no suggestion that it was a premeditated offence.

The second count occurred in the following November - that is, only two months later - while the respondent was still on bail in respect of the first count.

The respondent was apprehended, indeed on the same day, in respect of the first count and admitted the offence claiming that he had formed the intention only during the course of the haircut and that he wanted money for drugs. He said that he had told the complainant to shut the front door because he had intended to leave by the back door and all of that probably accounts for his admission to bail. However, as I said, while he was on bail within two months he committed the second offence.

He was on a beach and saw a 16-year-old schoolgirl who was
also at the beach which was close to her home. She noticed
him coming towards her so she moved to leave by means of a
walking path. He came up behind her and took her in a
headlock from behind. It might be better to recount the
details given to the learned presiding Judge by the Crown
Prosecutor at the sentencing.
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When she began to walk up the pathway she was aware that
there was someone close behind her so she started to walk
faster. The next thing she knew she felt a grab to her
shoulder and she was grabbed and dragged off the walking
path and into the dunes. She was put in a headlock and
dragged there. She says that he applied so much pressure in
the choker hold that she could not breathe and he had his
hand over her nose and mouth and it made it even more
difficult to breathe.
She said she was trying to fight him off by punching him in
the stomach but she didn't have much movement in her arms
and was running out of breath so she tried to grab his hand
off her face. She was able to pull his hand down a bit from
her mouth and she was able to breathe then. She says that
he pushed her to the ground. She landed on her back and he
still had his hand around her throat and he was trying to
keep his other hand on her mouth. He was kneeling over her,
straddling her with one knee on either side of her body.
She was able to bite him on the hand as hard as she could
and continued to struggle. When she bit him he pulled his
hand away and sat back on his heels and said, "I'll let you

go if you help me."

This observation has been interpreted in different ways. A
psychologist, whose report was obtained for the purpose of
the hearing, seems to interpret it in the most favourable
way possible and called it a cry for help which the learned
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sentencing Judge seems to have adopted. But it seems to
have been overlooked that there was also an alternative
proposition; that he would let her go if she helped him to
perform the act of sexual intercourse.

She replied, "I didn't do anything wrong. I didn't hurt anyone so why are you trying to do this, why are you doing this to me?" and he said, "You have to help me." She thought that he was drunk as he had very slow and indistinct speech. She was able to push him back again and got to her feet and tried to run away. She felt him grabbing at her as she was trying to escape but she was able to push his arms away and ran home immediately. She was quite terrified by the experience and after that suffered considerable distress in the form of loss of concentration at school and she is terrified of going to the beach.

The respondent rang the police after the girl had escaped from him. He used a public telephone and told the police what he had done, and while he was still talking to him the police were able to arrange for a squad car to go to the telephone booth and pick him up.

The learned trial Judge took into account that the attempted
armed robbery was spontaneous and she called it naive. She
acknowledged that the commission of the assault with intent
to rape was committed while he was on bail and that that
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aggravated the latter offence. She was of the view that
both offences were probably a cry for help.

Having regard to the respondent's general acceptance of his lifestyle of not working and spending his days on drugs it is rather difficult to adopt too easily the sympathetic psychologist's view of that as a cry for help. Her Honour also noted that there was a risk of further serious offending, that there was a need for close supervision and she felt that that could best be achieved through orders of probation and intensive correction.

The matter of the provision of some assistance to the respondent by way of counselling and training is, with respect, valid as a consideration, but that is not at all sufficient to justify the imposition of a suitable sentence in this case in respect of the offences, particularly the one relating to an intent to rape, without full regard to their gravity.

The respondent must be given appropriate consideration for
his intellectual deficit, such as it is, for the fact that
he gratuitously surrendered to the police and pleaded guilty
timeously and has demonstrated some remorse for his offence
or offences, though that seems to be reasonably limited.
Nevertheless, he should be given full consideration for the
remorse that he showed by way of his early pleas. The more
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serious aspect of the first offence has already been noted,
that he used a weapon to menace the victim on that occasion.

The sentences imposed are manifestly inadequate for offences of this description, particularly the offence of violence involving a young girl with an intention of raping her. Conduct of that description is so serious and such a threat to the community that the considerations of rehabilitation, strong as they must be, are not nearly sufficient to counter the need for a custodial prison sentence to act as a deterrent both for the respondent and the public in general.

The respondent obviously has some serious lack of control

of his behaviour which is aggravated by his use of drugs and
alcohol, and in respect of the latter, of course, he should
also receive some counselling. The psychologist described
his fault as merely a matter of poor judgment, but it is
obviously a matter of self control.

Having regard to the fact that this is an Attorney's appeal the Court must be circumspect in the length of the sentence that is imposed in substitution for those imposed below. It would be appropriate in those circumstances to impose a prison sentence of three years in respect of the count of assault with intent to commit rape and two years in respect of the count of armed robbery.

In respect of those matters it should be declared that he has already spent 179 days in presentence custody. There 190999 D.1 T08/LZG14 M/T COA199/99

should be a recommendation that he be eligible for parole
after 12 months; that figure taking into account all the
factors that might be available to him by way of mitigation,
including his early plea of guilty. This also includes the
fact that he has already served some period of his intensive
correction order and takes into account his personal
intellectual deficiency.

I would therefore uphold the appeal, set aside the sentences imposed below and impose the sentences which I have described subject to, of course, the recommendation for early parole and the declaration as to the period already served.

McPHERSON JA: Yes, I agree.

MACKENZIE J: I agree. These were acts of impulsive
violence, the first involved a weapon, the second involved
dragging a young girl into the sandhills and assaulting her
with intent to rape. Even allowing for the mitigating
factors referred to by Mr Justice Derrington, and taking
into account the fact that the order will require the
respondent to be taken into prison some time after the
initial disposition of the matter I am quite satisfied that
the sentences originally were manifestly inadequate and
agree with the order proposed to be made.
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MRS CLARE: In those circumstances I would seek an order for
a warrant-----

McPHERSON JA: A warrant, yes.

MRS CLARE: -----for the arrest of the respondent.

McPHERSON JA: Yes. The appeal is allowed, the sentence imposed will be in the terms specified by Mr Justice Derrington, and a warrant will issue for the arrest of the respondent. Such warrant will lie in the Registry for seven days or until further order.

MR RAFTER: Yes, seven days is satisfactory, thank you, Your

Honour.

McPHERSON JA: That is the order of the Court.

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