R v B

[1996] QCA 76

[1996] QCA 076

COURT OF APPEAL

DAVIES JA
PINCUS JA
AMBROSE J

CA No 488 of 1995

THE QUEEN

v.

BApplicant

BRISBANE

..DATE 13/03/96

JUDGMENT

PINCUS JA:  This is an application for leave to appeal against a sentence of six years imprisonment.  The applicant was indicted on two counts, one of rape and the other of incest, and he pleaded guilty to both.  The one act of intercourse was the basis of each count.  The primary Judge sentenced the applicant to six years imprisonment for the offence of rape.  As for the incest, His Honour said, "If it be necessary or if it be appropriate to impose a sentence in respect of the charge of incest as well, well, that is a concurrent sentence." 

The use of these expressions was hardly apt if His Honour intended to impose a sentence for the offence of incest.  It is not possible to impose a contingent sentence, on the basis that it is to be effective only if legally permissible.  Further, section 16 of the Code prohibits punishing a person twice for the same act or omission.  It was submitted by
Mrs McGinness on behalf of the applicant, in effect, that we should ignore the remark which His Honour made with respect to the sentence on the charge of incest and that seems to be a proper course. 

The applicant is 36 years of age and has no prior convictions.  The complainant is his younger sister.  Her age is not stated but she is said to be a single parent.  The circumstances of the offence were as follows:  The applicant was driving a vehicle along a road with his sister as passenger.  He pulled off the road into a cane paddock to relieve himself and on returning to the vehicle he asked his sister for a kiss.  He then forcibly kissed her and she tried to get out and away.  He grabbed her, forcibly removing clothing and handling her intimately.  He then pushed her down over the passenger seat, penetrated her from the rear and ejaculated. 

When discussing the matter with the police, he told them that he had been feeling very sad about the death of the father of the complainant and himself, which had occurred about two months earlier.  He also told the police that his sister did not consent to intercourse and that she was crying and shaking during the time when it occurred.  He co-operated fully with the police and pleaded guilty, matters which the primary Judge took into account in fixing the head sentence which, as I have said, was six years.  The primary Judge took the view that the fact the victim was the applicant's sister was an aggravating circumstance when considering the penalty for rape. 

It was said that the applicant and the complainant had been drinking before this incident but it is not submitted, nor does it seem arguable, that that was a mitigating factor. 
Mrs McGinness's principal contention was that the circumstances that there was good co-operation on the part of the applicant, and his previous good record, should have required the Judge not merely to take those matters into account when fixing the head sentence, but to make a recommendation for early release on parole.  It appears to me, having regard to the sentences to which Mrs McGinness has been good enough to refer us, that the sentence could not be said, in the light of the pattern of sentencing, to be one which was particularly lenient.  Nevertheless I regard it as clear enough that it was within the range of a proper exercise of the sentencing discretion.  I am not satisfied that it is manifestly excessive and would dismiss the application.

DAVIES JA:  I agree.

AMBROSE J:  I agree.

DAVIES JA:  The application is refused.

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