R v Eastwell - [1992] QCA 109

COURT OF APPEAL	[1992] QCA 109
MACROSSAN CJ DAVIES JA McPHERSON JA
CA No 31 of 1992
THE QUEEN
v.
ANTHONY CLYDE EASTWELL

(Applicant)

BRISBANE

... DATE 29/04/92

JUDGMENT

THE CHIEF JUSTICE: The applicant seeks leave to appeal against sentences imposed in respect of an episode involving both attempted rape and some associated incidents and offences.

The offences occurred on 24 February, 1991 and the applicant was sentenced on 16 January, 1992. The offences were: attempted rape and the sentence imposed for that matter was 10 years; unlawful detention which related to the time the complainant was kept in the applicant's taxi cab - he being a taxi driver when the offences occurred - and the penalty imposed for the unlawful detention was a term of imprisonment of two and a half years; two further incidents of indecent assault, one of them with a circumstance of aggravation, and these two offences attracted the penalties respectively of two and half years and five years imprisonment. They were part of a continuing episode.

The facts in outline were these. The applicant is a taxi driver and at a shopping centre car park, in the early hours of the morning, he drove up to a 20 year old woman who was alone at that place. Even though she did not have the money to pay the fare, that having emerged, the taxi driver offered to drive her to her destination saying something to the effect that she should not worry about having no money and that she should just hop in because young girls should not be out at night by themselves.

On the way to the destination he detoured off the highway, took her to a secluded area and then the criminal episodes commenced.

He said that if she was not going to pay him, she would have to have intercourse with him. Then a prolonged determined assault upon her occurred. He stripped her completely naked in the course of this; various intimate activities ensued, all of which she was endeavouring to resist as best she could. He used threats and a degree of violence was also employed. She was detained for a significant period, continuing to struggle. He terrified her, there is no doubt.

His activities were briefly restrained when a security vehicle came up and approached them. He sent that vehicle and its occupants off with some excuse for what was going on. When that vehicle came back to investigate further, the applicant drove his taxi off but the girl, while the vehicle was in motion, managed to jump out doing herself some injury. The vehicle was moving at speed. She had to escape naked. She went to an adjoining residence, I believe, and the episode so far as the physical aspects were concerned came to an end there.

However, the girl was left with a substantial psychological aftermath. There was evidence that she has significant trouble relating in any way with the opposite sex at the present time…

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 Eastwell

Details

AGLC: R v Eastwell [1992] QCA 109
Case: [1992] QCA 109
Decision Date: 29/04/1992

CaseChat Overview and Summary

The applicant in this case, Anthony Clyde Eastwell, sought leave to appeal against the sentences imposed by the lower court for a series of offences including attempted rape, unlawful detention, and indecent assault. The events occurred on 24 February 1991, and Eastwell was sentenced on 16 January 1992. The Court of Appeal was asked to determine whether the sentences imposed were manifestly excessive given the circumstances of the case.

The legal issues before the Court of Appeal were whether the sentences imposed on Eastwell were excessive and manifestly disproportionate to the nature and circumstances of the offences. The appeal hinged on the severity of the sentence for attempted rape, which was 10 years imprisonment, and whether this was appropriate given the attempted nature of the offence and Eastwell's lack of prior convictions. The Court also considered the impact on the victim, both physically and psychologically, and the breach of trust inherent in the role of a taxi driver.

The Court of Appeal concluded that while the attempted rape was particularly serious, the absence of prior convictions and the fact that it was an attempted, rather than completed, rape were significant mitigating factors. The Chief Justice noted that the 10-year sentence was severe but not manifestly excessive given the circumstances. The Court recommended that Eastwell be considered for parole after serving three and a half years, reflecting his previously unblemished record and the significant impact on his family. The other judges agreed with this assessment and the proposed outcome.

The Court of Appeal allowed the application to the extent of recommending parole consideration after three and a half years for the attempted rape sentence, but refused the appeal in all other respects. The Court's order was that Eastwell be considered for parole after serving the specified term of the sentence for the attempted rape offence.

Orders