R v Costello - [1997] QCA 93

COURT OF APPEAL

[1997] QCA 093

DAVIES JA
McPHERSON JA

MACKENZIE J

CA No 573 of 1996
THE QUEEN
v.

DARREN MICHAEL COSTELLO

(Applicant)

BRISBANE
..DATE 15/04/97
150497 D.1 T8/SB21 M/T COA64/97
MACKENZIE J: The applicant who was 24 years of age pleaded
guilty to a number of offences arising out of an incident, the
culmination of which was the rape of a 14-year old girl, who was
on her way home from a skating rink.

The offences to which he pleaded guilty were rape, disabling with intent to commit rape, four indecent assaults with circumstances of aggravation and assault occasioning bodily harm. The complainant did not know the applicant but from things he said after the offence he apparently knew who she was.

She was walking along the bank of a creek when he tackled her from behind. She told him to stop and began screaming. He pinched her nose shut and blocked her mouth with the rest of his hand for a substantial period. He also punched her in the face several times and told her he had a knife. She had begun to black out when he removed his hand from her nose and mouth.

He then demanded that she remove her pants and when she did not he tried to do so and eventually succeeded. After he had partially undressed himself and pulled her underwear off he committed an act of oral sex on her and inserted his fingers into her vagina. She did not resist because she was afraid he might try to suffocate her again. He then demanded that she rub his penis and forced her to fellate him. Then he raped her.

After he had finished she said she wanted to go home but he tried to persuade her to stay and made a further sexual advance which she resisted. She said she was going and began to walk 150497 D.1 T8/SB21 M/T COA64/97

home. He walked with her and persuaded her to sit in the park with him where he tried to persuade her not to make a complaint to the police. After she became angry and hit him she walked off and saw him walking off in a different direction. She immediately went to a friend's house in a distressed state and made a complaint. The complainant was easily identified from a likeness compiled in accordance with her description and while he admitted being at the skating rink that evening, he denied that he had done anything wrong.

The applicant has a lengthy criminal history. His first recorded conviction occurred on his sixteenth birthday for attempted robbery of a female taxi driver. Some of the subsequent offences are not serious in themselves but throughout them there is a pattern of violence.

However, others are more serious. Most relevantly at the time of the present offences he was on parole for robbery with personal violence whilst armed. This involved an attack with a baseball bat on a heavily pregnant woman in a…

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 Costello

Details

AGLC: R v Costello [1997] QCA 93
Case: [1997] QCA 93
Decision Date: 15/04/1997

CaseChat Overview and Summary

In the case of The Queen v. Darren Michael Costello, the applicant, a 24-year-old man, was convicted of multiple serious offences, including rape, disabling with intent to commit rape, four aggravated indecent assaults, and assault occasioning bodily harm. The crimes were committed against a 14-year-old girl who was attacked while walking home from a skating rink. The court was required to determine whether the sentence imposed by the trial judge was appropriate, and whether it complied with the totality principle in sentencing.

The court examined the nature and severity of the crimes, the applicant's criminal history, and the circumstances surrounding the offences. The applicant had a history of violence, including a recent parole violation for robbery with personal violence while armed. The court also considered the applicant's intellectual capacity, psychological condition, and personality, which were analysed by the trial judge. The applicant was found to have a low IQ, a history of mental health issues, and an anti-social personality disorder.

The Court of Appeal found that the sentence imposed by the trial judge was appropriate and not manifestly excessive. The court considered the applicant's history of violence and concluded that a heavy sentence was not unjustifiable. While the applicant's mental state was relevant, the court determined that it did not warrant a reduction in the sentence. The court also noted that the applicant had attended appropriate courses in prison and had a limited prospect of rehabilitation.

The court allowed the application in respect of count 5 on the indictment, where a circumstance of aggravation had been charged which is not known to the law. In this instance, the court substituted a sentence of five years in lieu of the 13 years imposed on count 5. Otherwise, the application for leave to appeal against sentence was dismissed.

In summary, the Court of Appeal found the sentence imposed by the trial judge to be appropriate and not manifestly excessive, taking into account the nature and severity of the crimes, the applicant's criminal history, and the circumstances surrounding the offences. The court substituted a sentence of five years in lieu of the 13 years imposed on count 5, where a circumstance of aggravation had been charged which is not known to the law. Otherwise, the application for leave to appeal against sentence was dismissed.

Orders