R v Marabe

[2000] QCA 183

COURT OF APPEAL

de JERSEY CJ
McMURDO P
DEMACK J

CA No 39 of 2000

THE QUEEN

v.

PURAGO MARABE  Applicant

ROCKHAMPTON

..DATE 16/05/2000

JUDGMENT

THE CHIEF JUSTICE:  The applicant is a 33 year old man from Papua New Guinea.  While he was on bail for a charge of rape, which was subsequently discontinued, but otherwise without previous criminal history, he entered two houses in the early morning on Magnetic Island by opening closed but unlocked doors.  He interfered with a sleeping person in each house, one a 26 year old male and the other a 29 year old female.

The applicant placed his hand on the inside upper thigh of the man and he kissed the woman on the forehead, placing his hands at the same time on her shoulders.  He left each house after being ordered out a number of times.  He had been drinking.  The sentencing Judge accepted that the female complainant especially had been emotionally disturbed by what occurred, and that was hardly surprising.

The applicant ultimately pleaded guilty and was sentenced to 16 months’ imprisonment, calculated by working from 18 months and allowing for 77 days in custody for other alleged offending which did not, however, lead to conviction.  The circumstances that the applicant had no prior convictions, pleaded guilty and used no violence, plainly work in his favour.  However, there were other aspects to those features.  He was on bail when he committed these offences, his pleas were late and he invaded the security of people asleep in their houses at night-time.  That his behaviour was odd, to say the least, cannot obscure the circumstance that he did commit burglaries. 

In this area where general deterrence is especially important, I consider the 16 month term imposed, calculated on that basis, not to be susceptible of challenge on appeal. 
Mr Chowdhury referred us to Knight, Court of Appeal 370 of 1995, but it is distinguishable, in my view, especially because of that complainant’s apparently robust approach to the crime, which was certainly not the case here, and because of the aspect of the prior association between the complainant and the prisoner. 

The point now made, however, is that the applicant should have been given credit, in a way, also for a period of 80 days covering the period 14 May 1999 to 2 August 1999 for which he was on remand for these offences and others.  The others concern alleged indecency which has not yet been dealt with.  It may, for argument sake, result in acquittals.  He would then, were that period not now to be reflected in some way in relation to this sentence, be left in the unsatisfactory situation where he had served time in respect of allegations subsequently dismissed.

This is not a case where the 80 days can be declared time served in respect of these sentences of 16 months, because the applicable legislative provision refers to time served solely by reference to the particular offence before the Court.  However, there is in the interests of fairness, good point in reflecting some credit for time served in circumstances such as these at the earliest opportunity, as here, upon the sentencing for these offences albeit that the fate of the other allegations remains undetermined.  That has been the Victorian approach and it is an approach recently endorsed by the Court of Appeal in Queensland in the case of Ainsworth.

I, for my part, would in these circumstances be persuaded to reduce the 16 month terms by three months reflecting approximately the 80 days served between those two dates.  This matter was raised before the learned sentencing Judge and he took the view, with the acquiescence, indeed express agreement, of both legal representatives that any credit for that 80 days on remand would fall to be accorded at the time of sentencing in respect of the subsequent allegations or charges when they came before the Court. 

It is subsequent developments in the law, to which I have referred, which now, to my mind, warrant our interfering with these sentences to that extent.  I would therefore allow the application and set aside in each case the sentence of
16 months’ imprisonment, substituting a sentence in each case of 13 months’ imprisonment.

THE PRESIDENT:  I agree.

DEMACK J:  I agree.

THE CHIEF JUSTICE:  That is the order to be made.

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