R v Beaver - [1992] QCA 238

COURT OF APPEAL [1992] QCA 238

PINCUS JA
MCPHERSON JA

DEMACK J

CA NO 114 of 1992

THE QUEEN

MARTYN WILLIAMSON BEAVER

BRISBANE

..DATE 2/6/92

JUDGMENT

PINCUS JA: This is an application for leave to appeal

against sentence.

The applicant was convicted of rape and sentenced by His

Honour Judge Boyce on 3 April 1992. His Honour sentenced the

applicant to three years' imprisonment with a recommendation

that he be eligible for parole after a period of nine months.

The applicant's offence was committed on 17 October 1991 in

these circumstances. He had been married for 12 years but

differences arose and he left the matrimonial house on 27

September 1991. He called on his wife late one evening after

being separated from her for three weeks, and requested her to

have intercourse with him, and she refused. Eventually he

took her by force. He had intercourse with her and also

engaged in various other sexual activities. According to her
version of events, she ultimately did acquiesce in sexual

intercourse, although unwillingly, and that seems not to be

disputed.

During the course of the incident the applicant used violence

towards her. The statement in the record shows that it

induced her to call for help from neighbours. The applicant

grabbed his wife around the neck with one arm, covered her

mouth with the other, pulled her into the room and flung her

around, held her in a headlock; the more she fought, the more

the grip was tightened. According to her account of events,

the grip was so tight that she couldn't talk and thought at

one stage she was going to die. It seems unnecessary to

detail all the various sexual activities in which the

applicant required his wife to engage, but one should be
mentioned, and that is that the applicant put his penis in her
mouth, and she says that this caused her pain, and she

subsequently experienced pain in speaking.

As soon as the intercourse was concluded, the applicant

crouched on the floor, cried and said he was sorry, and said, "Do you want me to go to the police, or are you going to ring them?" She said, "If you don't go to the police I will ring

them anyway." He inquired whether the station was open and she

said that she thought so, and he in fact then went to the
police station.

The wife suffered some superficial but not serious injuries, she was distressed, and it seems not to be in dispute that she subsequently felt insecure, had difficulty in speaking, suffered from some fear, and had trouble with her voice box.

The material before the Court includes a psychiatric report

from a Dr Rodney Hall, who says, in effect, that his view is

that the applicant was emotionally dependent on his wife; that

her rejection of him was very disturbing to him, and triggered

powerful emotions; that his self-control would have been

limited at the time, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Beaver

Details

AGLC: R v Beaver [1992] QCA 238
Case: [1992] QCA 238
Decision Date: 2/06/1992

CaseChat Overview and Summary

In the Court of Appeal, the case of R v Beaver involved an application for leave to appeal against a sentence imposed on the applicant, Martyn Williamson Beaver. Beaver was convicted of rape and was sentenced by Judge Boyce on April 3, 1992, to three years' imprisonment with a recommendation for parole eligibility after nine months. The offence occurred on October 17, 1991, when Beaver, who had been separated from his wife for three weeks, forced himself upon her against her will. During the incident, Beaver used violence, causing his wife to suffer some injuries and distress. He also engaged in various sexual activities, including forcing his wife to perform oral sex, which caused her pain. Immediately after the assault, Beaver expressed remorse and went to the police station.

The primary legal issue before the court was whether the sentence imposed was outside the range of permissible discretion. The court had to consider the nature of the offence, the circumstances leading up to it, and the applicant's remorse and previous record. The applicant's legal representative argued that Beaver's early display of remorse and his actions immediately following the offence should have warranted a more lenient sentence, possibly with an even shorter non-parole period.

The court found that, while Beaver's remorse was notable, the sentence imposed was within the permissible range of judicial discretion. Pincus JA observed that the sentence of three years with a recommendation for parole after nine months was appropriate, though not particularly lenient. Both McPherson JA and Demack J agreed with Pincus JA's reasoning and the proposed order. The Court ultimately dismissed the application for leave to appeal.

The order of the Court was that the application for leave to appeal was refused.

Orders