R v Harvey

[1994] QCA 515

[1994] QCA 515COURT OF APPEAL

FITZGERALD P
PINCUS JA
LEE J

CA No 354 of 1994

THE QUEEN

v.

SHANE EDWARD HARVEY  Applicant

BRISBANE

..DATE 26/10/94

JUDGMENT

PINCUS JA:  The applicant is here today by counsel to complain of a sentence of rape imposed in the District Court on 5 August 1994.  He is now 25 years of age and was 24 at the time when the rape was committed.  The sentence of which the complaint is made is 12 years' imprisonment with a recommendation for parole after six years.

The rape which was the subject of the plea of guilty occurred in these circumstances.  The complainant was forced into a toilet block near the Royal Brisbane Hospital one afternoon.  It was in daylight.  The applicant forced the complainant into a cubicle of the toilet and raped her and engaged in other sexual acts with her.  He punched her.  He threatened her in a way which would have made her think that she was in some danger and forced her to masturbate him and matters of that sort.  She promptly complained and he was apprehended, charged and pleaded guilty.

The criminal record of the applicant is extensive.  It consists principally in numerous offences of breaking and entering and a number of offences of stealing, but there are two previous sexual offences recorded and, more seriously, another offence of rape which was committed in May 1993 and in respect of which the applicant was on bail at the time when he committed the present offence in January 1994. 

This really appalling record of bad behaviour has taken a sexual course, for which one looks for a reason, which is perhaps supplied by the report of Dr Wiltshire, a  psychologist.  Dr Wiltshire tested the applicant and found him to be mentally deficient.  He has a reading age of seven and his IQ, as tested, is 67.  He is described as being mildly intellectually impaired and the psychologist's opinion is in effect that he could do simple repetitive work but only if supervised.  The psychologist's opinion is that he is quite likely to re-offend.  No doubt that is difficult to predict, but the experience in recent years of his behaviour is such as to make one think that he is certainly a danger to women and not merely a danger in that he may sexually interfere with them, but perhaps one day he may carry out the threats of the kind which he made to this victim.

The rape in respect of which the applicant was on bail at the time of the one with which we are concerned attracted a sentence of imprisonment of eight years with a recommendation that the applicant be considered for parole after serving three years.  The sentence of which complaint is now made is, as I have mentioned, one of 12 years with a recommendation after six years and, taking into account the fact that the dates of commencement of the sentences are slightly different, it is nevertheless substantially true to say that the practical punishment imposed for the present rape is an additional four years head sentence and an additional three years non-parole period. 

It is quite a bad rape and it is difficult to imagine that any sensible or serious argument could be advanced in favour of the proposition that the punishment is too heavy.  Counsel for the applicant who advanced his argument succinctly and responsibly did, however, suggest that the Court should consider reducing somewhat the non-parole period which, as I have mentioned, is six years. 

What the Judge said about it is in effect that, taking into account the plea of guilty and the fact that the applicant was said to be trying to do something about his tendency to commit crimes, he reduced what would otherwise have been a head sentence of 14 years to 12 years.  He did not make any special recommendation in respect of parole, that is he made a recommendation the effect of which is that the applicant will become eligible for parole at what might be described as the ordinary time.

It is, as it seems to me, impossible to hold that in so treating the matter His Honour erred.  Indeed it is difficult to know what His Honour could have done other than to impose a heavy penalty upon this applicant.  It has to be said that one must be concerned for his future, that is one could not feel any confidence that when he is released people would be safe from him in view of his mental state, and one would hope that every effort would be made to improve his behaviour while he is in prison.  Nevertheless that is a matter for the authorities and not for us.

The conclusion at which I have arrived is that the sentence which the Judge imposed was a sound one, and by no means heavy, and I would dismiss the application.

THE PRESIDENT:  I agree.

LEE J:  I agree.

THE PRESIDENT:  The application is refused.
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