R v Benjamin

Case [2012] QCA 188

SUPREME COURT OF QUEENSLAND

CITATION:

R v Benjamin [2012] QCA 188

PARTIES:

R
v
BENJAMIN, Trevor James
(applicant/appellant)

FILE NO/S:

CA No 335 of 2011
DC No 180 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

13 July 2012

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2012

JUDGES:

Margaret McMurdo P and North and Henry JJ
Separate reasons for judgment of each member of the Court, North and Henry JJ concurring as to the orders made, Margaret McMurdo P dissenting in part

ORDERS:

1.  The application for leave to appeal against sentence is granted.

2.  The appeal is allowed.

3.  The sentence imposed at first instance is set aside and instead the applicant is sentenced to nine years imprisonment.

4.  The applicant is declared to be convicted of a serious violent offence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to one count of rape – where the applicant hit the complainant from behind when she was exercising causing her to fall to the ground and raped her – where complainant suffered injuries including bruising, lacerations and other marks and bits of skin missing from various parts of her body – where some of her injuries required suturing and she had a chronic headache – whether the sentence of 11 years was manifestly excessive in all the circumstances

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the applicant submits the violence was used for the purpose of overcoming resistance – whether the sentencing judge erred in concluding the offence involved gratuitous violence of a significant degree

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the applicant was automatically deemed to be convicted of a serious violent offence at first instance – whether the applicant should be declared to be convicted of a serious violent offence where his term of imprisonment reduced beneath ten years

Penalties and Sentences Act 1992 (Qld), s 161B(3)

R v Adcock; ex parte the Attorney-General[1994] QCA 525, considered
R v Basic (2000) 115 A Crim R 456; [2000] QCA 155, considered
R v Bolton[2005] QCA 335, considered
R v Costello[1997] QCA 93, considered
R v Dowden[2010] QCA 125, considered
R v Flew[2008] QCA 290, considered
R v Kahu[2006] QCA 413, considered
R v Mallie[2000] QCA 188, considered
R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered
R v Newman[2007] QCA 198, considered
R v O’Brien[1998] QCA 80, considered
R v Purcell[2010] QCA 285, considered
R v Soper [1994] QCA 254, considered
R v Wark[2008] QCA 172, considered

COUNSEL:

R A East for the applicant/appellant
D P Jones for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant

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Details
AGLC
R v Benjamin [2012] QCA 188
Case
[2012] QCA 188
Decision Date

CaseChat Overview and Summary

The case of R v Benjamin involved the applicant who had pleaded guilty to one count of rape. The incident occurred when the applicant attacked the complainant from behind while she was exercising, causing her to fall and subsequently raping her. The complainant sustained significant injuries, including bruising, lacerations, and missing skin, some of which required suturing. She also suffered from a chronic headache. The applicant was sentenced to 11 years in prison, and he appealed against the sentence, claiming it was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive, given the circumstances of the offence. The applicant argued that the violence used was necessary to overcome resistance, and thus the sentencing judge erred in concluding that the offence involved gratuitous violence of a significant degree. Additionally, the applicant contended that he should not be deemed to have been convicted of a serious violent offence, as his term of imprisonment was reduced beneath ten years.

The court granted the application for leave to appeal against the sentence. It found that the sentence of 11 years was indeed manifestly excessive in all the circumstances. The court recognised that while the offence was severe, the sentence did not adequately reflect the applicant's culpability. The court allowed the appeal, set aside the original sentence, and imposed a sentence of nine years imprisonment. Additionally, the court declared that the applicant should be convicted of a serious violent offence, despite the reduced term of imprisonment.

The final orders of the court were to grant the application for leave to appeal against sentence, allow the appeal, set aside the sentence of 11 years, and impose a sentence of nine years imprisonment. Furthermore, the court declared the applicant to be convicted of a serious violent offence.

Orders

Orders of the court

1. The application for leave to appeal against sentence is granted.

2. The appeal is allowed.

3. The sentence imposed at first instance is set aside and instead the applicant is sentenced to nine years imprisonment.

4. The applicant is declared to be convicted of a serious violent offence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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