John Barrington Parker v The Queen [2001] FCA 409

FEDERAL COURT OF AUSTRALIA

John Barrington Parker v The Queen [2001] FCA 409 CATCHWORDS CRIMINAL LAW – sentencing – sexual intercourse without consent – whether sentencing judge's errors rendered the sentence defective - not - whether sentence manifestly excessive – not – appeal dismissed. Crimes Act 1900 (ACT), ss 429A, 454 R v Boudelah and Charlston (1991) 28 FCR 176 Dinsdale v R [2000] HCA 54; (2000) 175 ALR 315; (2000) 74 ALJR 1538 Short v R (1994) 49 FCR 556 R v Gell (unreported, 25 June 1998, ACTSC, Crispin J) JOHN BARRINGTON PARKER v THE QUEEN A72/2000 BEAUMONT ACJ, HIGGINS and GYLES JJ DATE: 12 APRIL 2001 CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A72 of 2000

ON APPEAL FROM THE CHIEF JUSTICE OF THE SUPREME COURT OF THE AUSTRAIAN CAPITAL TERRITORY JUDGES: BEAUMONT ACJ, HIGGINS AND GYLES JJ

DATE OF ORDER: 12 APRIL 2001

WHERE MADE: CANBERRA

THE COURT ORDERS THAT: The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

AUSTRAILAN CAPITAL TERRITORY DISTRICT REGISTRY A72 of 2000

BETWEEN: JOHN BARRINGTON PARKER

Appellant

AND: THE QUEEN

Respondent

JUDGES: BEAUMONT ACJ, HIGGINS AND GYLES JJ

DATE: 12 APRIL 2001

PLACE: CANBERRA

REASONS FOR JUDGMENT

THE COURT: 1 On 16 October 2000, the appellant was found guilty by a jury of an offence charged on indictment that he: " . . .on the 7th day of September 1995 at Canberra in the Australian Capital Territory . . .did engage in sexual intercourse with Colleen Burnell without her consent and knowing she did not consent." 2 The appellant was, on 17 October 2000, sentenced by the trial judge, Miles CJ, to eight years imprisonment. A non-parole period of five years was fixed. There having been no previous time in custody, the sentence was expressed to commence on 17 October 2000. 3 Despite the fact that the appellant had, during the trial, denied his guilt, giving sworn evidence that he had not been the person who committed the crime, this appeal was confined, from its inception on 2 November 2000, to the severity of the sentence imposed. 4 After hearing sentencing submissions proffered on 16 October 2000, the Chief Justice sentenced the appellant the next day. The appellant declined the opportunity for an adjournment for the purpose of preparation of a pre-sentence report or any other material which might have assisted the Chief Justice on sentencing. 5 The only material additional to the evidence given at trial was a Victim Impact Statement dated 27 September 1999 and a prior police record relating to the appellant which was tendered without objection. He had no relevant criminal history in his previous 42 years of life. There were only three entries: "· Disobey red light Offence 27/07/1982 Fine $50.00. · Speed Offence 17/10/1982 Fine $50.00. · ACT Destroy/Damage Property Offence 30/08/1999 Convicted with Recognizance." 6 The Chief Justice's remarks on sentencing were as follows: "John Barrington Parker was found guilty by a jury on one count of engaging in sexual intercourse with a 59 year old woman without her consent and knowing that she did not consent. The maximum sentence for the offence is 12 years' imprisonment. The offence occurred at about 9 pm on Thursday, 7 September 1995. The victim came home from work to her darkened house in a Canberra suburb. She opened the front door and then, remembering that rubbish collection was the next day, went and put the bin out in the street. On her return she entered the house and was immediately seized from the rear in what was described as a bear hug. She was forced to the floor and held there for some time. She was then released and at that stage she managed to make out some features of the man who had seized her. The offender then took her to a bedroom at the back of the house where he undressed her and threatened to hurt her unless she did what she was told. He placed a body suit which belonged to her and a pillowcase over her head. After an initial and unsuccessful attempt at penile penetration, he went to the adjoining en suite bathroom. He switched on the light and brought back a plastic bottle of liquid soap. He used the soap to lubricate the victim's private parts which he then penetrated with his fingers and then his erect penis. There was no ejaculation. The prosecution elected to rely on one act of anal penetration by the penis as constituting the offence, but the whole of the circumstances must be taken into account. The offender left after demanding money and then taking a purse. He instructed the woman not to move for 10 minutes. After that time she got up, cleaned and dressed herself and telephoned the police. Fingerprints were found in various places, including on the bottle of liquid soap, but they could not be matched to prints then in the possession of the police. The offence gained some publicity in a local newspaper about a week later. The offender's wife had some suspicion that he was involved and questioned him about it. He brushed off the questions and his wife took it no further until some 4 years later when she reported what she knew to the police. Consistently with the jury's verdict, I find it established that the offender, a health and sports enthusiast, was absent from his home on the pretence that he was merely out jogging and used the opportunity to commit the offence. Police conducted a search late last year at his previous home and where he was then living and found clothing consistent with what the victim described as worn by her assailant. He was arrested and fingerprinted. The print of his right thumb was found to match that of a latent print on the soap bottle. An offence of sexual intercourse without consent may be of greater or lower degree of seriousness, but the facts thus described indicate an offence of great seriousness and in my view well within the most serious category. Aggravating factors include the invasion of the victim's home and privacy, the theft of her clothing, that is to say the body suit from a clothes line in the yard, the humiliating and degrading use of the soap, the physical aggression and threats against the woman in the darkness and the persistence in attempting penetration. I regard the theft of the wallet as an attempt to disguise the nature of the offence in order to make it look partly like a robbery and to deflect attention from those investigating from someone otherwise appearing to lead a life of regularity and respectability. The extent to which the offence was the result of premeditation is not clear. The conduct of the offender suggests some familiarity with the layout of the house. The offender was also a member of the club where the woman worked and may have been familiar with her work hours and habits. On the other hand, he may have been on the premises with the original intent of stealing from the clothes line and took the opportunity to get into the house when the woman unexpectedly left the front door open and took the rubbish bin out to the street. The issue of premeditation in relation to the sexual assault would in my view have to be resolved in favour of the offender. However, the background of being in the backyard at night for the purpose of stealing clothing from the line is disturbing enough in itself and in my view a substantial aggravating factor. It should also be said that the victim suffered no physical injury and presented to the Commonwealth Medical Officer as composed in the early hours of the next day. However, a Victim Impact Statement indicates the extent of the psychological trauma, by now all too familiar in these sorts of cases. The woman has become nervous, she has developed defensive habits in relation to her own security and she has sold the house which she obviously kept so immaculately and which the offender defiled. The offender was born on 2 November 1957. He is an electrician by trade and has been with his present employer for some 10 years and a previous employer for a similar period. He has distinguished himself at sport and has organised sporting activities at his children's school. He has no prior convictions of relevance. His marriage broke up some 15 months ago and he has not seen his wife and children since he was arrested and granted bail. The conviction and sentence may well have a devastating effect on the welfare of his family. Although he called no evidence on sentence and did not raise character in the trial, he has to be given some credit for the absence of previous convictions of relevance. On the other hand, there can be no leniency or discount for contrition. On the facts, there is in my view a strong indication that he is in need of psychiatric attention which would be in the interests of the community as well as his own. But until he comes to terms with what he has done, that course would not appear to be practicable. In many ways he remains a mystery. The sentence must reflect a strong element of general deterrence and perhaps more importantly the abhorrence with which the general community regards the conduct constituting the offence. In short, in the absence of mitigating psychological or psychiatric factors, the offence calls for heavy punishment. Stand, Mr Parker. You are sentence to 8 years' imprisonment and I fix a non-parole period of 5 years. Both periods are to commence today. I do not wish to lecture you or to rub salt into the wound but I am obliged to explain to you what that means. I do not think it needs much explanation. You will have to serve a minimum period of 5 years in prison at the end of which you may be eligible for release on parole. During the remaining 3 years you must accept parole supervision and if you are in breach of that supervision or commit any further offence you will have to serve the remaining 3 years."