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

v.

MARTYN WILLIAMSON BEAVER

BRISBANE

..DATE 2/6/92

JUDGMENT

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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

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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

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limited at the time, and that he was quite remorseful. The

doctor expressed the view that the risk of further offences

was extremely low.

The argument which was presented by Ms Wenck on behalf of the

applicant naturally emphasised the unusually early remorse.

In fact, as I have mentioned, it seems that as soon as the

offence was committed, the applicant not only expressed his
sorrow for what had occurred, but volunteered to get the

police, and ultimately went to the police station.

It has troubled me somewhat that in these circumstances the

applicant was not perhaps treated as generously, as regards
recommendation for parole, as some judges might have treated

him. It is possible, as Ms Wenck suggests, that in these

circumstances one could argue that an even more abbreviated
non-parole period could have been set. Ms Wenck has drawn our
attention to one District Court case, which is referred to at

p 7 of the record, in which in somewhat similar circumstances

the recommendation was for parole after three months. It

does, however, appear that there were facts there which are

adequate to distinguish the present case. According to the
statement of the facts which we have, in the weeks leading up

to that offence, the wife had been to a certain extent

encouraging the offender in sexual activities, but stopping

him at the point of intercourse. There was no suggestion in

the present case of conduct of that kind on the part of the

victim.

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It appears to me that, considering the remorse which the

applicant has shown, and the fact that he had a good previous
record, it is possible that the Judge might have treated him
more leniently than he did. However, I am far from thinking

that the sentence imposed was outside the range of permissible

discretion; that is, a sentence of three years with a

recommendation for parole after a period of nine months
appears to me to be a proper one, although not particularly

light, and I would dismiss the application.

MCPHERSON JA: I agree with the order proposed by my brother

Pincus, and I also particularly endorse everything he has said

in the reasons he has given.

DEMACK J: I agree.

McPHERSON JA: The order of the Court is that the

application for leave to appeal is refused.

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