THE QUEEN V GRAHAM EDWARD LOVE
S.C.C. Nos 283-4 of 1985

Supreme Court of the Northern Territory of Australia Asche J.
4th and 9th September 1986

Sentence - rape - prosecutrix in deep sleep - unaware of penetration - accused's admission - previous good character
accused good worker but with drinking problem - excellent references and immediate employment available - 18 months delay in bringing accused to trial - exceptional circumstances of the offence - principles applicable - suspended sentence.

Cases referred to:-
R v Dixon (1975) 22 A.C.T.R. 13
McSporran v Nusky (1972)' 4 S.A.S.R. 282
Duncan v R (1982) 42 A.L.R. 746

Counsel for the Crown Solicitor for the Crown

Counsel for the Accused Solicitor for the Accused

Mr R. Wallace

Crown Solicitor for the Northern Territory
Mr T. Pauling Q.C. Loftus & Cameron

asc860094a

asc860094

THE SUPREME COURT OF THE NORTHERN TERRITORY

sec Nos 283-284 of 1985

THE QUEEN

and

GRAHAM EDWARD LOVE

CORAM:	ASCHE J.
9 September 1986

The accused is charged that on 24 March 1985, at Darwin, he unlawfully assaulted the prosecutrix with intent to have carnal knowledge of her, which assault was accompanied by the following circumstance of aggravation, namely, that the accused had carnal knowledge of the prosecutrix.

That offence arises out of section 192 of the Criminal Code, and may be said to encompass the crime of rape.	The circumstances are somewhat unusual, and require some analysis.

On 18 March 1985 or thereabouts, the prosecutrix and a girlfriend commenced travelling between Sydney and Darwin. In her evidence, when being asked the reason for this travel, the prosecutrix said: "Family hassles, sick of living in Sydney, and wanted a change of lifestyle".

She and her friend arrived in Darwin on 24 March, and on arrival she had not slept for somewhere between 48 and 72 hours.
It appears that she had been given some "stay awake" pills and this was the reason why she had remained without sleep for that period.

The driver who had given them a lift in his truck took them to the Parap hotel.	There the prosecutrix's friend met a man whom she had known before and it was arranged that the 2 girls would stay at the Ross Smith Hostel in this man's  room.

They went to the Parap hotel where they met the accused who knew the man who had offered them accommodation.	Drinks were purchased and the prosecutrix had one can of beer at that time.	She had not had anything to eat that day and not surprisingly felt the effects of the beer.

She found herself in conversation with the accused and there is nothing to suggest that she was unwilling to talk to him. Her friend left the hotel at about 3 pm and she left the prosecutrix and the accused talking and drinking.

The prosecutrix believes that she had about 4 cans of beer; the accused thinks that it was rather more like 8.	There is some suggestion that at one stage the prosecutrix had her arm around the accused, but that is denied by the prosecutrix.

At about 6.30 the friend of the prosecutrix and her male friend returned to the hotel and there was some talk about the four going out to eat.	The prosecutrix said that she wanted to go back to the hostel, and the accused then suggested that she could have a shower and lie down in his room.	He had rooms at a motel nearby.

The accused assured her that she would be quite safe and that afterwards they would go out for a meal.	The accused and the prosecutrix then went to the room, which the accused occupied, and she sat on the bed.	She then lay down on the bed and there was some discussion in which the accused suggested that she and her friend could stay at this motel and he mentioned that the cost of accommodation was reasonably cheap.

The prosecutrix then went to sleep and it seems to have been a fairly profound sleep.	Again, this is not surprising bearing in mind the fact that she had been awake for so long and had travelled a long distance and had consumed a number of cans of beer.

When she was asleep the accused first kissed her, and he says that she made no objection to that, and then he rolled her over on her back, took off her jeans and underpants, took off his own pants, handled her sexually and in the process apparently gave what is known as a love bite on her

neck, and finally had sexual intercourse with her.	That is to say that he penetrated her although he withdrew before ejaculation.	During the whole of this time, the prosecutrix remained asleep.

There is then some difference between the account of the accused and the prosecutrix.	The accused says that after he had withdrawn, he got up and went to the bathroom, and that when he returned he found the prosecutrix sitting up in bed and crying, and then she grabbed him by the neck and said something  like "Rape is a criminal offence", and then ran out of the room.

The prosecutrix says that she woke up with the accused still on top of her, and it was then that she grasped him by the neck and said "Rape is a criminal offence, you bastard.	Get off me, or I'll kill you."	She says that the accused then did get off her.

What makes this case unusual is that the prosecutrix herself was unable to say whether sexual intercourse had taken place.	In her evidence in the court below she says that she fell asleep, and: "The next thing I remember after that is I woke up and found Graham on top of me.	He was totally naked, and I was naked from the waist down."	She says she was shocked and reached up and grabbed him by the throat and used the words that I have already set out, and she says that he then got up and she ran out into the roadway and was very upset.

At page 17 of the depositions she was asked these questions:

When Graham was lying on top of you - I want you to think fairly carefully about this - do you know whether he had penetrated you?
---I wouldn't know.
Q.	Do you know whether he ejaculated?--­
A.	I wouldn't know.

The prosecutrix, as she ran out into the roadway, heard the accused say something to the effect like, "It looks like I've fucked it up again."

When she ran to the roadway she found her friend, and the police were notified, and the prosecutrix was taken for examination, and again the unusual feature of this case is that on speaking to the police, she was unable to tell them whether she had been penetrated.

The police interviewed the accused, and it is fair to say that had this matter proceeded to trial, the evidence of penetration could only have come from the admission that was then made by the accused.

The accused was born on 14 January 1959.	He was therefore
26 at the time the offence was committed.

He was arrested on 24 March 1985 and he was bailed on the following day.	As Mr Pauling, who appears for the accused,

points out, he has had this matter hanging over his head for some 18 months, and it is not suggested that that was any fault of his.	He has had no prior convictions and he stands before the court therefore as a person of good character.
Indeed he appears to be a very good worker, and since moving to Darwin he has obtained employment and his employer has given a very satisfactory  reference in a letter of 29  August, and I should say that I am assured that the employer was prepared to give evidence to the court if necessary.

The employer says that this accused is a man of integrity and honesty, and a respected and dedicated employee, and an industrious, honest, reliable and respected worker.

I am told, and have no reason to doubt it, that there is employment open for the accused if he were to be available for it.

The accused is the eldest of 8 children, having 4 brothers and 3 sisters.	According to the antecedent report he had a normal upbringing.	He completed up to third year at high school.	His parents separated during his last year at school, and he remained with his mother and found employment as a labourer, and then moved to Sydney where he stayed with an aunt for about 4 years.	He then travelled on a working holiday throughout Australia, returning to Sydney again,  then for the next 3½ years travelled throughout New South Wales finding work when he could.	He ultimately came to

Darwin where he found work, and as I have mentioned, proved a satisfactory worker.

He had a relationship with a woman in Albury, and indeed  that relationship produced twins.	That relationship ceased after about 3 years, and the reason why it ceased is perhaps one of the reasons why the accused is present in this court, and that was the accused's addiction to drink.

It appears that the family of the woman with whom he lived were originally supportive of him, but when he continued to drink he was eventually asked to leave, which he did.	I am told that he has offered to support his children, but his offers of payment have been refused.	It appears that the woman with whom he lived, desires to cease all contact with him.

That brings me to his basic problem, and that is the alcohol.	It is one of these cases where a man can be an excellent worker during his working periods, but spends his

non working periods drinking. drinking problem.

He has an acknowledged

Since October 1985 his family on both sides have been supportive of him, knowing of the trouble that he is in. His mother has remarried, and his mother and stepfather on their side, have expressed their support for him, and their wish to help him.	On the other side, his father, who also

knows of the problems which face the accused, is now supportive and wishing to help him.	Several of his brothers have visited him in Darwin to help him face the problems he is now going through, and his younger brother is now with him.

He has been on bail until just recently when he, on his own request, did not continue with the bail, and has been in prison since 1 September.

Mr Pauling tells me he has found that a very unpleasant experience indeed, and I am prepared to accept that he has a full appreciation of the very unpleasant fate which lies before anybody sentenced to a term of imprisonment.

It is obvious that at the time of this offence he had consumed a great deal of beer and this is not disputed.	By pleading guilty he has relieved the prosecutrix of the embarrassment of giving evidence, in circumstances which no doubt would have caused her considerable distress.

It is quite obvious that no violence was at any time employed by him, and indeed, if one accepts the account of the prosecutrix, immediately she objected to what he was doing, he desisted.

So that one has a situation which, while it is true, can be described as rape, and which should not in any way be

minimised as suggesting that what the accused has done is not a most serious offence, it is not accompanied by the signs or indicia of many rape situations.	It was not done in company, the prosecutrix was not put in fear, there was no physical violence, and indeed, the prosecutrix herself was not aware that sexual intercourse had taken place.

As I say, those factors are mitigating factors, but I do not wish to suggest that the courts do not - and should not, whenever rape is shown to have occurred, take the most serious view.

Mr Pauling has referred me to the case of Duncan v R (1982)
47 A.L.R. at page 746, where the Full Court of the Supreme Court of Western Australia considered that the sentencing Judge had erred in the exercise of his discretion in holding that imprisonment must be imposed when it did not have to be.

The circumstances there were certainly not as grave as the circumstances here as they referred to offences against the Bankruptcy Act, but the principle remains the same to this extent that even in dealing with the case of rape, and while there are judicial statements to the effect that the court will regard that offence as highly serious, one should not commence with the view that imprisonment must be imposed.	I would however, make it plain that in virtually every case imprisonment should be imposed.

It has been very difficult to discover cases of a similar nature as this in order to assist in the sentencing process. Indeed the cases to which Mr Pauling has referred me are really cases where relatively short sentences were imposed, but they do not bear any particular resemblance to this case.

Perhaps the best way in which those cases can assist is to indicate that sentences as low as 2 years or less have been imposed even when violence has been inflicted.	Mr Pauling has referred me to the matter of R v Peleide (unrep - N.T. - Muirhead J. - 26/11/75) where 2 accused were charged and pleaded guilty to the offence of rape.	That was a case in which a girl was brought to a ship by another person and the
2 accused entered a cabin, which the girl was occupying, and threatened her and raped her.

They were not Australians and His Honour took into account particularly that they had explicitly instructed counsel that they did not wish the girl to be called to give evidence before a jury, and that they were under the influence of liquor at the time when the matter occurred, and he hoped that the authorities in their country of origin would take cognizance of what had occurred in Australia.
His sentence was 12 months imprisonment but he ordered their release in 2 months time upon their entering into a bond.

That is certainly a very light sentence and if one were to compare the circumstances of that case with the present case, one would conclude that since no violence was used in the present case that the present case is less serious than that one.

I note, however, the remarks of Wells Jin	the matter of McSporran v Nusky (1972) 4 SASR 282, 287, where he says:

"Reference to other cases can be useful if they simply indicate a fairly general level of penalties, but as I see the law, they cannot
be used as the basis of compact, logical reason of a syllogistic kind.

I note one other case which may be of some use in the Australian Sentencing Digest, page 117, 401.01.	That   was the case where an accused picked up a hitchhiker, and then turned off into a bush track and said that he wanted sexual intercourse.	The hitchhiker refused, and she then ran off, and he followed and caught her and raped her.	A sentence of 2 years with 6 months non parole period was imposed by the Court of Criminal Appeal.	Although it is true that the accused had previously been of good character that stil seems to have been a very mild sentence in the circumstances.

But again, I emphasise that these examples can only help insofar as they suggest that there are cases in the lower range of punishment for this offence.	I am assisted by the

observations of Fox Jin	the matter of R v Dixon (1975) 22 ACTR 13, and at page 17 His Honour says:

"In some cases, persons convicted of rape are released on a bond.	In 1973 in New South Wales this was the case with 5 out of 46 convicted persons.	In England and Wales there is a much wider range of sentence available than is the case here or in New South Wales.	In 1971 (the latest figures available to me) of 254 people
convicted in the higher courts of England and Wales
6 were conditionally discharged, 11 were released on probation, 2 were fined and 18 given suspended sentences."

His Honour then goes on with certain other figures, and His Honour then discusses the general principles of punishment, and I will return to that in a moment.	I am also assisted by His Honour's comments at page 20, which reflect my own view:

"When, therefore, a court has to consider whether to send a young person to gaol for
the first time, it has to take into account the likely adverse effects of a gaol sentence.
A distinct possibility, particularly if the sentence  is a long one, is that the person sent to gaol will come out more vicious, and distinctly more anti-social in thoughts and deed than when he went in.	His own personality may well be permanently impaired in a serious degree.		If he could be kept in gaol for the rest of his life, it might be possible to ignore the consequences  to society, but he will re-enter society and often while still young.	His new-found propensities  then have to be reckoned with.	A substantial
minority of persons who serve medium or
long gaol sentences soon offend again."

While I do not suggest that that is a precept for never putting a first offender into gaol, it does makes one pause and return to the question of balancing the seriousness of the offence, and the way in which society might react to leniency extended to an offence considered abhorrent, with the possible benefit to the accused and to society generally if a milder punishment is inflicted.

Turning briefly to the general approaches to criminal punishment, I remark that so far as deterrence to the  accused is concerned, I have no doubt that this was  something quite out of character with him, and if the matter remained there I have no doubt that he has been sufficiently deterred by the present prosecution, the 18 month delay and worry about the effect of the trial and the present imprisonment.	I am satisfied that he will not show any propensity of this nature again.

Similarly, there is not, in my view, any point in approaching this by way of what might be called the protective or preventive basis for criminal punishment. That is to say society, in my view, do not need to be protected against this particular accused.	If released he
will not, in my view, be a threat to others, although he may very well be a threat to himself, if he continues to be addicted to alcohol.

Likewise it is not necessary to consider the retributive philosophy.	While this is a serious matter, there is nothing which suggests that he should be visited with the heaviest penalties of the law in the sense that society is seeking retribution for what he has done.

There remains however the deterrence to others, and it is this which has given me the most concern.	If the courts do not emphasise that the crime of rape is an abhorrent crime, and will almost always carry with it a sentence of imprisonment, it may well be that society could properly criticise the courts for failing in their duty.	There must however be cases which are exceptional, and there must be cases in which it would be understood that a sentence of imprisonment is not necessary.

I make it perfectly clear therefore that I regard this as a most exceptional case, and if any person considers that the course I propose to take might suggest that a person committing rape might not find himself facing a severe sentence, then that will be a misreading of the principles I have set out here, and a misreading of the emphasis I have placed upon the very unusual circumstances of this case.

I am prepared to accept the previous good character of the prisoner, the support of his family, the support of his employer, the fact that he will not, in my view, have the slightest propensity to offend again, and the fact that he can become a useful member of society.

In addition to those matters, I bear in mind and accept that he has suffered a great deal of remorse, and that he has suffered a great deal of mental anguish in having this matter hanging over him for a period of 18 months, and that through no fault of his own.

In all those circumstances, I believe that the offence warrants a recognition that it is a serious offence, but that the accused should be given the opportunity to expiate what he has done, and it seems to me in this particular case, that it would be quite unproductive and indeed counterproductive to the interests of society if he were to go to gaol.

I indicate therefore the seriousness of the offence by imposing a period of 3 years imprisonment, but I suspend that period forthwith, upon the accused entering into a bond to be of good behaviour for three years and to obey the lawful directions of the Department of Correctional Services.

The orders will be:
I record a conviction;
I sentence the accused to 3 years imprisonment;

I suspend the sentence forthwith on the accused entering into a bond in his own recognizance of $2000 to be of good behaviour for 3 years and to obey the lawful directions of an officer appointed by the Department of Correctional Services.