R v Bolton

[2005] QCA 335

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bolton [2005] QCA 335

PARTIES:

R
v
BOLTON, Luke Alan
(applicant)

FILE NO/S:

CA No 119 of 2005
DC No 7 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Gympie

DELIVERED ON:

9 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2005

JUDGES:

McMurdo P, Keane JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - where applicant pleaded guilty to one count of rape and one count of doing grievous bodily harm - where applicant had used a knife in order to allow him to violently rape a young woman - where the complainant had grabbed the knife in the course of struggling with the applicant and done serious damage to three of her fingers - where the applicant held the knife to the complainant's neck during the course of the rape - where the applicant was a young man with no previous criminal history - where the applicant had given differing accounts of the incident that revealed a lack of insight into the offence he had committed - where the learned sentencing judge found that the applicant was not genuinely remorseful for his behaviour - where the applicant was sentenced to ten years imprisonment with an automatic serious violent offence declaration under Pt 9A Penalties and Sentences Act 1992 (Qld) - whether the sentence imposed was manifestly excessive

R v Basic [2000] QCA 155; (2000) 115 A Crim R 456, distinguished

R v Mallie [2000] QCA 188, CA No 49 of 2000, 17 May 2000, considered

COUNSEL:

T D Martin SC for the applicant
M J Copley for the respondent

SOLICITORS:

Ryan & Bosscher for the applicant

Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P:  I agree with Keane JA's  reasons for refusing this application for leave to appeal against sentence.

1. The applicant used a knife to threaten the complainant into submission.  This resulted in cuts to her hand amounting to grievous bodily harm.  The information the complainant supplied to the prosecutor at sentence was that she then had a continuing mild disability, limiting movement in her hand.  In addition to the use of knife, the offence of rape involved considerable physical violence including stuffing a cloth into the complainant's mouth and unprotected penile penetration of her vagina.  The experience was undoubtedly a terrifying one for the complainant.  The psychiatric assessment and the pre-sentence report tendered at sentence do not suggest especially promising prospects of rehabilitation for the applicant, although they note that he may well benefit from psychiatric assessment and future psychological counselling.