R v Ivey - [1997] QCA 247

IN THE COURT OF APPEAL	[1997] QCA 247
SUPREME COURT OF QUEENSLAND

C.A. No. 68 of 1997

C.A. No. 181 of 1997

Brisbane

Before Macrossan CJ

Fitzgerald P
Thomas J

[R v. Ivey]

THE QUEEN

RUSSELL CHARLES IVEY

(Appellant)
Macrossan C.J.
Fitzgerald P.
Thomas J.

Judgment delivered 19 August 1997

Separate reasons for judgment of each member of the Court; Macrossan C.J. and Fitzgerald P. concurring as to the orders made, Thomas J. dissenting in part.

APPEAL AGAINST CONVICTION DISMISSED.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED
INSOFAR AS IT RELATES TO THE SENTENCE OF 14 YEARS’ IMPRISONMENT
FOR RAPE.
APPEAL ALLOWED IN RESPECT OF THAT SENTENCE WHICH IS SET ASIDE AND
A SENTENCE OF IMPRISONMENT FOR 11 YEARS SUBSTITUTED. THE
SENTENCES IN RESPECT OF THE OTHER OFFENCES AND THE OTHER ORDERS
MADE BELOW STAND.

against appellant because she was afraid of him - whether that evidence made the verdicts unreasonable, unsafe and unsatisfactory. SENTENCE - appellant sentenced to total of 14 years’ imprisonment - prior convictions for rape and violence - jealous obsession with complainant causing her to live in fear of him - whether sentence of 14 years manifestly excessive.

Counsel:	The applicant/appellant appeared on his own behalf. Mrs L. Clare for the respondent.
Solicitors:	The applicant/appellant appeared on his own behalf. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	13 May 1997.

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 19/08/1997

I agree with the reasons stated by the President for dismissing the appeal against conviction and in that respect there is nothing I need to add.

At the hearing of the appeal the appellant was self-represented and the appeal notice as originally drafted had not sought to raise any challenge to the sentences imposed below. In the course of the submissions, attention was directed to the sentences including particularly the substantial one of fourteen years for rape. After some discussion the appellant conveyed that he wished the sentences to be considered if his appeal against conviction should not succeed. The Court indicated that it would add a consideration of the sentences to its review of the matter.

The Court is always concerned to ensure that so far as is reasonably practicable there is an appropriate consistency in the levels of sentences imposed. Although precise comparisons can rarely be made between the circumstances of different cases, the Court will intervene when there is such a departure from broadly indicated sentencing levels that a sentence under appeal appears to be manifestly excessive.

The facts involved in the commission of the offences in the present case have been set out by the President and most of the details need not be repeated. The appellant and the complainant had previously been in an intimate relationship and the appellant was unable to accept that the relationship had been finally terminated by the complainant. He was obsessively emotionally involved and was so unwilling to let her go, she was forced to change addresses in an attempt to…

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 Ivey

Details

AGLC: R v Ivey [1997] QCA 247
Case: [1997] QCA 247
Decision Date: 19/08/1997

CaseChat Overview and Summary

The appeal against conviction was dismissed by the Supreme Court of Queensland, but the application for leave to appeal against the sentence was granted in part. The appellant, Russell Charles Ivey, appealed against his conviction for breaking and entering, indecent assault, and rape, and the sentence of fourteen years' imprisonment imposed for these offences. The appeal against conviction was based on four grounds, including the trial judge's failure to properly direct the jury on evidence of corroboration and the distinction between evidence of recent complaint and evidence of corroboration. The appeal against sentence focused on the severity of the fourteen-year imprisonment term for rape.

The Court of Appeal held that the appeal against conviction should be dismissed, as the jury's verdicts were not unreasonable, unsafe, or unsatisfactory. The Court also held that the fourteen-year imprisonment term for rape was manifestly excessive and should be substituted with a sentence of eleven years' imprisonment. The Court found that the appellant's history, including a previous conviction for rape and his dangerous propensity, justified a higher sentence. However, the sentences for the other offences and the other orders made below would stand.

Orders