Quinlan v R [2007] NSWCCA 109 (18 April 2007)

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Quinlan v R [2007] NSWCCA 109

FILE NUMBER(S):

2007/126

HEARING DATE(S): 04/04/2007

JUDGMENT DATE: 18 April 2007

PARTIES:

Yohan Joseph Quinlan - Applicant

Crown - Respndent

JUDGMENT OF: McClellan CJ at CL Hoeben J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/51/0046

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 10/10/2005

COUNSEL:

Mr A Haesler SC - Applicant

Ms N Noman - Respondent Crown

SOLICITORS:

SE O'Connor, Solicitor for Legal Aid - Applicant

S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown

CATCHWORDS:

Criminal law - sentence appeal - large number of offences - sentences partially concurrent and partially cumulative - did error arise from the ratio between the aggregate head sentence and the aggregate non-parole period.

LEGISLATION CITED:

Crimes Act 1900

CASES CITED:

R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168

DECISION:

Leave to appeal granted, appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

2007/126

McCLELLAN CJ at CL

HOEBEN J

HALL J

Wednesday 18 April 2007

Yohan Joseph QUINLAN v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Hoeben J.

2 HOEBEN J:

Offences and sentence

The offences for which the applicant was convicted all occurred on the night of 8 December 2004 in Coffs Harbour when the applicant embarked upon a drug fuelled criminal rampage. The offences for which he was convicted were as follows:

Count 1(a) – break and enter with the commission of a serious indictable offence namely sexual intercourse in circumstances of aggravation in that immediately before the commission of that offence he maliciously inflicted actual bodily harm contrary to s122(2) Crimes Act 1900. The maximum penalty for this offence is imprisonment for 20 years. The offence has a standard non-parole period of 5 years.

Count 1(b) – sexual intercourse without consent contrary to s61L Crimes Act. The maximum penalty is imprisonment for 14 years with a standard non-parole period of 7 years.

Count 1(c) – incite to an act of indecency contrary to s61N Crimes Act. The maximum penalty is imprisonment for 2 years.

Count 1(d) – sexual intercourse without consent contrary to s61L Crimes Act. The maximum penalty is imprisonment for 14 years with a standard non-parole period of 7 years.

Count 1(e) – sexual intercourse without consent contrary to s61L Crimes Act. The maximum penalty is imprisonment for 14 years with a standard non-parole period of 7 years.

Count 1(f) – robbery contrary to s94 Crimes Act. The maximum penalty is 14 years imprisonment.

Count 2 – break enter and steal contrary to s112(1) Crimes Act. The maximum penalty is imprisonment for 14 years.

Count 3 – break enter and steal in circumstances of aggravation in that he was armed with an offensive weapon being a knife contrary to s112(2) Crimes Act. The maximum penalty is imprisonment for 20 years with a standard non-parole period of 5 years.

Count 4 – break enter and steal contrary to s112(1) Crimes Act. The maximum penalty is imprisonment for 14 years.

Count 5 – break enter and steal in circumstances of aggravation in that he maliciously inflicted actual bodily harm contrary to s112(2) Crimes Act. The maximum penalty is imprisonment for 20 years with a standard non-parole period of 5 years.

3 The applicant came into custody on other matters on 9 December 2004. He was arrested for the present offences on 17 December 2004. He had served a six months sentence for another break and enter from 29 March 2005 to 28 September 2005. Before that he was serving the balance of his parole from the date of his arrest to 21 February 2005. Accordingly, as a consequence of the other matters, he had already been in custody for about 9 ½ months when he came to be sentenced for these offences.

4 The applicant came before Garling DCJ for sentence on 10 October 2005. His Honour passed the following sentences:

Count 1(a) – imprisonment with a non-parole period of 6 years commencing on 25 August 2005 and expiring on 24 August 2011 with a balance of term of 3 years expiring on 24 August 2014.

Count 1(b) – a term of imprisonment with a non-parole period of 3 years commencing 25 August 2005 and expiring 24 August 2008 with a balance of term of 1 year expiring on 24 August 2009.

Count 1(c) – a term of imprisonment of 1 year commencing 25 August 2005 and expiring 24 August 2006.

Count 1(d) – a term of imprisonment of 3 years commencing 25 August 2005 and expiring 24 August 2008 with a balance of term of 1 year expiring 24 August 2009.

Count 1(e) – a term of imprisonment with a non-parole period of 3 years commencing 25 August 2005 and expiring 24 August 2008 with a balance of term of 1 year expiring 24 August 2009.

Count 1(f) – a term of imprisonment of 2 years commencing 25 August 2005 and expiring 24 August 2007.

Count 2 – a term of imprisonment of 2 years commencing 25 August 2011 and expiring 24 August 2013.

Count 3 – a term of imprisonment with a non-parole period of 3 years commencing on 25 August 2011 and expiring 24 August 2014 with a balance of term of 2 years expiring 24 August 2016.

Count 4 – a term of imprisonment of 2 years commencing 25 August 2011 and expiring on 24 August 2013.

Count 5 – a term of imprisonment with a non-parole period of 3 years commencing 25 August 2011 and expiring 24 August 2014 with a balance of term of 2 years expiring on 24 August 2016.

5 The total effect of the sentences passed by his Honour was a period of imprisonment with a non-parole period of 9 years commencing 25 August 2005 and expiring 25 August 2014 with a balance of term of 2 years expiring 24 August 2016.

Background facts

6 In order to understand the appeal and the rationale behind the sentences passed by his Honour it is necessary to set out in some detail the circumstances of each offence. The offences in count 1 all involved the same victim, who cannot be named but who is referred to as “RL”.

7 Just after midnight on 8 December 2004 the applicant forced open the ground floor window of the unit in which RL resided. He then made his way to the end of the victim’s bed. The victim woke up and saw him. He had a cap pulled down over his face. The victim approached the applicant and told him to get out of the house. The applicant then punched her in the mouth causing her to stumble backwards. The applicant then ordered the victim to “suck my penis”.

8 Fearing for her safety the victim knelt down on the bed and the applicant forced his penis into her mouth. The victim said “I can’t do this, I’m bleeding”. The victim was allowed to go to the bathroom to wash out her mouth. The applicant entered the bathroom and again forced the victim against her will to perform fellatio on him. This occurred while the victim was kneeling on the bathroom floor.

9 The victim was experiencing pain and said “I can’t because my lip hurts”. Despite her complaints the applicant forced her to continue. While this was occurring the applicant continually flicked a cigarette lighter on and off while holding it next to the victim’s head.

10 Shortly afterwards the victim was taken to the kitchen where the applicant again forced her to kneel on the floor and perform fellatio on him. After a short time the applicant ejaculated into the victim’s mouth. He was not wearing a condom. When the victim tried to wash out her mouth the applicant filled a glass up with hot water, mixed Sorbelene cream with it and then said “drink it and swallow it”. The victim drank some of it and spat the rest out.

11 The applicant forced the victim to pull up her panties after which he inserted his fingers into her vagina while standing behind her. Before doing so the victim saw the applicant place a small cigarette lighter on the stove. The applicant engaged in this activity for between two and five minutes in a violent fashion causing discomfort to the victim.

12 The victim was taken to her bedroom where she sat on her bed. The applicant sat in front of her flicking the lighter on and off in front of her face. He then lit the lighter and pushed the flame against the front of the victim’s neck causing immediate pain to her. The applicant picked up a pair of scissors waved them about and only put them down when the victim said “I’m pregnant you can’t do that”.

13 The applicant said to the victim “finger yourself”. He told her to take off her underpants, which she did. The victim placed her fingers into her vagina and began crying. The applicant forced her to lie down and to continue with that activity. The victim complied because she was afraid for her safety.

14 The applicant picked up a plastic drink bottle containing water and emptied its contents. He forced the victim to lie back on the bed on her back. He forced the small end of the plastic bottle into the victim’s vagina.

15 The applicant forced the victim onto her stomach and inserted a 25 cms rain stick into her vagina. He forced the stick in and out repeatedly. This caused pain to the victim who was fourteen weeks pregnant at the time. Despite the victim’s complaints of pain, the applicant continued to force the stick in and out of her vagina before stopping. The applicant then said to the victim:

“I’ll kill you. I know where your brother your father and your mother live. I don’t want to hurt you. I just wanted to have sex.”

16 During the whole ordeal the applicant continually demanded that the victim give him money. At some stage she handed him $15 in cash.

17 After the applicant left her unit, the victim was unable to sleep and early the next morning she saw her local doctor. She had a puncture injury to the lower right lip and a superficial burn to her chest near her shoulder. She was traumatised and required counselling.

18 Count 2. John and Rebecca Sadler and their five year old daughter occupied a cabin. John Sadler had left the premises at about 5pm. At about 12.30am on 8 December 2004 Ms Sadler heard a noise in the kitchen area. When she called out thinking it was her husband, the applicant came into her room. He was armed with a knife in his left hand and said “Just give me the car keys”. The applicant was waving the knife around and again asked for cash and the car keys. He moved the knife from hand to hand on a number of occasions and appeared agitated.

19 Ms Sadler directed the applicant to the living room where a laptop computer was located. By this time her daughter was in the bedroom with her, having come in when she heard voices. Her daughter was upset and crying. The applicant told Ms Sadler on a number of occasions “Shut that fucking kid up”.

20 When Ms Sadler went into the living room she noticed that the glass door was open. She ran from the cabin with her child and sought help nearby. She was six months pregnant at the time of the offence. The applicant took various items from the cabin.

21 Count 3. A number of Korean students were residents in a three bedroom double storey townhouse. At some time after 12.30am on 8 December Ms Bae was in her bedroom watching a movie. She was alone. The other girls were in another bedroom. At about 1.30am the applicant entered Ms Bae’s bedroom. He said “Don’t move give me your wallet”. He was carrying a knife in his right hand. She described it as having a black plastic handle with a silver cutting blade like a breadknife. The applicant held the knife out and touched her on the left shoulder with it. The applicant demanded that Ms Bae give him a laptop computer. He gave her the computer bag and told her to put her necklace in it. While Ms Bae was packing the bag, the applicant was holding the knife and moving it back and forth from one hand to the other.

22 The applicant took the computer bag, put it over his shoulder and pointed the knife at Ms Bae saying “Go”. She walked in front of the applicant and he pressed the knife into her back. She went to bedroom number two and stood in the middle of the room while the applicant searched the wardrobe and around the room. He kept pointing the knife at her. He asked Ms Bae about the third bedroom and was told that the other girls were sleeping there. The applicant said “If you’re lying I’ll kill you”.

23 The applicant went into the bedroom where the other girls were sleeping and turned on the light. Ms Bae followed him into the room. The applicant told her to find money and she pretended to do so while trying to wake one of the girls. There was a wallet on a desk in the room. Ms Bae took some money from the wallet. As she was handing the money to him Ms Bae noticed that the applicant was not concentrating on the knife. She grabbed the knife from his hand and threw it on the bed. The applicant then ran from the room.

24 Ms Bae and the other girls pursued the applicant and as he was climbing out the window, they were able to pull his jumper from him and retrieve the computer bag.

25 Count 4. Mr Dowsett and Ms Bull resided in a two bedroom unit on the second floor of a block of units. At about 10.15pm on 8 December 2004 Mr Dowsett noticed a light in the hallway and saw the applicant in the lounge-room. The applicant walked towards Mr Dowsett saying “I’ll stab you. I’ll stab you”. The applicant’s head was covered with a white type of t-shirt and he was motioning with what seemed to be a piece of stick.

26 The applicant ran to the lounge-room, picked up a laptop which was still connected to power and a printer and tried to remove it. Mr Dowsett tried to get the laptop from the applicant saying “You’re not taking that with you. Just put it back put it down”. Mr Dowsett punched the applicant on the chin and was successful in retrieving his laptop computer.

27 Count 5. Ms Saiko was a Japanese national on holidays in Australia. She was staying at the Park Beach Hotel/Motel in Coffs Harbour. At about 10.40pm on 8 December 2004 she heard noises outside her door. She remained seated on her bed really scared. The door suddenly burst open and the applicant was standing there.

28 Ms Saiko stood up and started screaming. The applicant said “Give me money or I will kill you”. He repeated this many times. The victim held her hands up to protect herself and tried to leave the room. The applicant punched her in the face, hitting her left eye near the eyebrow. She was wearing glasses which fell off and she fell to the floor unable to see. The applicant again demanded money.

29 The victim stood up and got her bag from near the pillow. The bag contained her wallet, about $330 in cash and other items including various credit cards, a driver’s licence and personal items. Ms Saiko then ran from the room and did not see the applicant leave her room.

Remarks on sentence

30 Having reviewed the facts his Honour noted that the applicant was only 20 years of age. He was of Aboriginal background. He had a criminal record which dated back to 2002. His convictions included a number of break and enters, take and drive a conveyance, maliciously inflict grievous bodily harm and aggravated indecent assault. On 24 December 2003 he had been sentenced to 12 months imprisonment for a break enter and steal offence. He was on parole for that offence at the time when the present offences occurred.

31 Evidence was given by the applicant’s grandmother. His mother was 16 when she gave birth to him. The applicant was thereafter raised by his grandmother. His mother also lived with them and the applicant thought that his mother was his sister. She died when he was 15 years of age. It was only during the last four or five years of her life that the applicant learned that she was his mother. He was apparently badly affected by her death. His grandmother said that it was only after her death that he commenced offending and using illegal drugs and abusing alcohol.

32 The applicant told a psychologist that when he broke into the unit of KL he had no intention of committing a sexual offence. He said that he was very drug effected and had very little memory of the actual incident. The applicant told her that he was very ashamed of what he had done and felt sorry for the victim and would apologise to her if he had the opportunity.

33 His Honour accepted that the applicant had pleaded guilty to a large number of charges. Although the plea of guilty was not entered at the earliest possible time its utilitarian value was considerable given the number and complexity of the charges. Accordingly his Honour allowed in the applicant’s favour the benefit of a 25 percent discount on sentence.

34 His Honour accepted that there was little planning in the offences. His Honour also accepted that the applicant felt genuine remorse for what he had done. His Honour took into account that the applicant’s awareness of the consequences of his actions would have been adversely effected by the drugs which he had taken. His Honour found that there were special circumstances. He identified these as the applicant’s youth and his need for rehabilitation.

35 A number of the offences to which the applicant had pleaded guilty provided for a standard non-parole period. By reference to what this Court said in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 his Honour considered the level of seriousness of the offences. In relation to count 1(a) his Honour concluded that this offence was well above the mid range for that particular offence. He regarded the criminality in that matter as being very high. His Honour’s brief summary of the features of the count 1 offences says it all:

“In counts numbered 1 a young lady is at home in her bed. She is entitled to feel safe in her home. The prisoner breaks into it. He then abuses her. He commits a number of sexual offences. He punches her in the mouth. She is bleeding. He forces his penis into her mouth. He even makes her drink some mixture of cream and water. He flicks the lighter on and off. He pushes the flame against the front of her neck. He threatens her with scissors. He is told she is pregnant, although I accept that he would not have known that until he was told. He forces a stick into her vagina. He calls her a fat slut and a whore and he steals some money. His treatment of her demands a very substantial sentence.”

36 His Honour appreciated that he had to sentence for each individual offence and then determine to what extent the sentences should be cumulative and concurrent. His Honour noted that because counts 2 to 5 involved separate and discrete episodes of criminality there was a strong argument that each should be accumulated. His Honour, however, felt that the result of doing so would produce a sentence which was excessive. Accordingly his Honour built a considerable amount of concurrency into the sentences.

37 In view of the way in which the appeal was argued, it is necessary to have regard to what his Honour said in the sentencing proceedings when it was pointed out to him that although in relation to each individual sentence the s44 ratio was preserved as between the parole and non-parole periods, the effect of the sentences as a whole was to produce a result which had a parole period which was less than one-third of the non-parole period. His Honour said that he understood that this was so but that on the one hand he was not prepared to reduce the non-parole period because to do so would produce an inadequate sentence but on the other hand he was not prepared to increase the parole period because to do so would produce an excessive sentence (T.3-4 - 27 April 2006).

Appeal

His Honour erred with regard to the relationship between the length of the aggregate head sentence and the aggregate non-parole period.

38 There was only one ground of appeal.

39 Senior counsel for the applicant put the submissions on behalf of his client succinctly and with commendable brevity. While accepting that there was no requirement under statute for the total effect of a number of sentences to reflect a parole period which was equal to or greater than one-third of the non-parole period, it was submitted that this was a result which should have occurred in this case. This was because of his Honour’s finding of special circumstances based on the applicant’s youth and the need for rehabilitation.

40 Having said that it was accepted on behalf of the applicant that if this Court were of the opinion that no lesser sentence should have been passed by the sentencing judge then that was the end of the matter and the appeal must fail.

41 It is regrettable that his Honour did not incorporate into his Remarks on Sentence the exchange with counsel which followed the passing of the sentences and to which I referred. Nevertheless in the circumstances of this case it is appropriate to have regard to what was said by his Honour since it makes clear that his Honour was well aware of the principle of totality and of the effect of the sentences which he had passed, but was not prepared to make any alteration. In other words the comparatively short parole period did not occur as a result of some oversight by the sentencing judge, but was fully appreciated by him.

42 There is no need to repeat or review the sequence of offences committed by the applicant on 8 December 2004. For the offences in Count 1, his Honour in his Remarks on Sentence has done this more than adequately. For most of the victims the events of this day will be indelibly imprinted on their memories. The level of criminality, both individually and cumulatively, was very high indeed. Even allowing for the applicant’s strong subjective case I am not persuaded that any lesser sentences could have been properly passed by the sentencing judge in respect of these matters. Accordingly the ground of appeal must fail.

43 The orders which I propose are as follows:

(i) Leave to appeal is granted.

(ii) The appeal is dismissed.

44 HALL J: I agree with Hoeben J.

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LAST UPDATED: 19 April 2007