THE PRESIDENT: The applicant pleaded guilty in the Mackay District Court on 24 January this year to one count of burglary; one count of stealing; two counts of assault occasioning bodily harm; one count of sexual assault; and one count of rape.

The sentence was adjourned until 4 February to allow the defence to obtain a psychiatric report. The applicant was then sentenced to 10 years’ imprisonment in respect of the rape and to lesser concurrent sentences in respect of the other offences.

In respect of the rape, a declaration was made that the applicant was convicted of a serious violent offence under Part 9A of the Penalties and Sentences Act 1992. The declaration was in any case automatic because the sentence was for 10 years.

The complainant was a 37 year old woman who was alone in her Mackay home as her husband was away working in Weipa. She fell asleep in her bed, naked, with the lights on. The applicant broke into the house some time after this but before midnight. After making determined efforts to enter the house in circumstances where it must have been obvious to him that the lights were on and the car was in the garage; this strongly suggested the presence of someone in the house.

The applicant entered the complainant’s bedroom and turned off the light. She awoke to find the applicant crouching at the bottom of her bed, she sat up and told him to get out. He said he wanted a cigarette. He then punched the complainant, knocking her backwards. He punched her with both fists about five or six times. At some stage the complainant lost control of her bladder. She injured her thumb whilst trying to protect herself. She pleaded with the applicant not to hit her. He manoeuvred her so that she was lying across the bed. He touched her breasts and leant on top of her. He removed his wallet from his pants. The complainant thought at first that this movement was to produce a knife. She was very frightened. He then exposed his penis and grabbed her hand, making her masturbate him to gain an erection. After doing so, he raped her. He tried to kiss her. She said, “I’m sorry I can’t, my mouth hurts. My name is K, please don’t hurt me. I haven’t done anything to you, why do you want to hurt me?”

The applicant said he would not hit her again. After he finished having intercourse with her he pulled up his pants and despite his earlier assurances, again punched her in the face. He then stood up and punched her with both fists a further four or five times. Once more the complainant pleaded with him not to hit her.

The applicant stood back and the complainant bravely kicked him in…

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 Mallie

Details

AGLC: R v Mallie [2000] QCA 188
Case: [2000] QCA 188
Decision Date: 17/05/2000

CaseChat Overview and Summary

In the case of R v Mallie, Zane Llewellyn Mallie appealed against his sentence for multiple offences, including burglary, stealing, assault occasioning bodily harm, sexual assault, and rape. Mallie had broken into a woman's home, assaulted her, and raped her while she slept. He was sentenced to 10 years' imprisonment for the rape and lesser concurrent sentences for the other offences. The sentence was at the lower end of the appropriate range of 10 to 14 years' imprisonment, taking into account his plea of guilty and the mitigating factors.

The court had to determine whether the sentence imposed by the sentencing judge was manifestly excessive. Mallie argued that the appropriate range was eight to 10 years' imprisonment, relying on the case of R v Chinfat. However, the court found that the case of R v Coghlan and R v Grienke, which involved similar offences and circumstances, were more relevant. These cases supported the sentencing judge's determination that the appropriate range was 10 to 14 years' imprisonment. The court also considered Mallie's young age, limited criminal history, and substance abuse at the time of the offence as mitigating factors. However, the seriousness of the offence, the violence involved, and the significant impact on the complainant weighed heavily in favour of a higher sentence.

The court found that the sentence imposed was at the bottom end of the appropriate range and gave proper weight to Mallie's plea of guilty, which saved the complainant from having to relive her experience in the witness box. The court also noted that Mallie had reasonable prospects of rehabilitation, as he was addressing his substance abuse. However, the court emphasised that the offence itself was extremely frightening and serious, and the sentence properly balanced the competing factors in the case. The appeal was dismissed, and the sentence was upheld.

Orders