R v McNamara

[1996] QCA 433

IN THE COURT OF APPEAL	[1996] QCA 433
SUPREME COURT OF QUEENSLAND

C.A. No. 399 of 1996

Brisbane

Before Fitzgerald P.
Pincus J.A.
Derrington J.

[R. v. McNamara]

THE QUEEN

v.

MORTON WAVERLEY McNAMARA

Appellant

Fitzgerald P.
Pincus J.

Derrington J.

Judgment delivered 8 November 1996.

Joint reasons for judgment of Fitzgerald P. and Derrington J., separate reasons of Pincus J.A. concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE IS GRANTED, AND
APPEAL AGAINST SENTENCE ALLOWED.
THE SENTENCE IMPOSED IN RESPECT OF THE OFFENCE OF BREAKING AND
ENTERING A DWELLING IN THE NIGHT-TIME WITH INTENT TO COMMIT AN
INDICTABLE OFFENCE IS TO STAND. SENTENCE OF FOUR YEARS’
IMPRISONMENT IN RESPECT OF THE OFFENCE OF ATTEMPTED RAPE IS SET
ASIDE, AND IN LIEU A SENTENCE OF IMPRISONMENT FOR THREE YEARS IS
SUBSTITUTED.

prior to committing the offences and had become heavily intoxicated
- prosecution accepted that this was not a particularly serious
example of attempted rape and that a lesser sentence to that imposed
would have been appropriate.
Rosenberger [1995] 1 Qd.R. 677

Kanaveilomani (C.A. 130 of 1993, unreported, 15 June 1994)

Counsel:	The appellant appeared on his own behalf. Mr P. Ridgway for the respondent.
Solicitors:	The appellant appeared on his own behalf. Queensland Director of Public Prosecutions for the respondent.
Hearing Date:	31 October 1996.

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND DERRINGTON J.

Judgment delivered 8 November 1996

The appellant has appealed against his conviction in the District Court at Maryborough on 14 August 1996 of two offences on 13 January 1996; namely, that he entered the dwelling house at Hervey Bay of one Lisa Anne Goldsbury in the night-time with intent to commit an indictable offence therein and that he attempted to commit rape upon Ms Goldsbury. The applicant was sentenced to imprisonment for one year on the first count and four years on the second count, the sentences to be served concurrently. He has also applied for leave to appeal against his sentences, and, more particularly, the sentence of imprisonment for four years on the charge of attempted rape.

The appellant represented himself before this Court and spoke briefly to his only ground of appeal, which was that the complainant “... fabricated her evidence ...”. He told the Court that, on the advice of his legal advisers, he did not give evidence at his trial. Although he denied his guilt in statements to this Court when discussing his conviction appeal, later, when discussing his application for leave to appeal against sentence, he seemed to accept that he had committed the offences.

However that might be, there was plainly evidence upon which the jury could properly convict the appellant, and, in the absence of any suggestion of error or discernible miscarriage of justice, the appeal against conviction must be dismissed.

In order to deal with the application for leave to appeal against the sentence imposed in respect of the appellant’s conviction for attempted rape, it is necessary to say something more of the facts.

On the night of Friday, 12 January 1996, Ms Goldsbury and a girlfriend returned from a nightclub to Ms Goldsbury’s parents’ home at about 3.00 a.m., talked and watched television for a period, and then the complainant’s friend left and the complainant went to sleep. She wakened to find an unknown male on top of her. Her bed sheet was no longer covering her, and her nightdress was up around her neck. The male had a shirt but no pants or underwear on. He had his hand on his penis which he was trying to insert into her vagina. She was not able to force him off her, but was eventually able to deceive him and manage to get inside the room of a friend who was staying in the house, and lock the door. The appellant had followed the complainant, and was calling out to her. The complainant and her friend managed to escape and drove a short distance to the home of a male friend who returned with them. A little later, the appellant who had departed returned and was taken away by the complainant’s friend. There was evidence that the complainant was very distressed.

The applicant is 28 years of age, and has some prior criminal convictions. However, none of his offences were sexual in nature or involved violence, and he had not previously been in prison. In his sentencing remarks, the trial judge said he placed little weight upon the appellant’s previous convictions and that, although the appellant had taken the matter to trial, that was understandable having regard to the extent of his alcohol consumption on the night in question and he considered that the appellant had demonstrated some remorse. It appears that the appellant had argued with his mother that day and, although not normally a heavy drinker, had become heavily intoxicated.

Before this Court, the prosecution accepted that this was not a particularly serious example of attempted rape and that a sentence of imprisonment for three years on that offence would have been appropriate. That is consistent with the decision of this Court in Kanaveilomani (C.A. 130 of 1993, unreported, 15 June 1994).

In our opinion, the discrepancy between such a sentence and that imposed is sufficient to warrant the interference of this Court. The sentence of imprisonment for four years in respect of the offence of attempted rape should be set aside and, in lieu, a sentence of imprisonment for three years imposed. The sentence imposed in respect of the other offence of breaking and entering a dwelling in the night-time with intent to commit an indictable offence should stand.

In summary, we would dismiss the appeal against conviction, but grant the application for leave to appeal and allow the appeal against sentence. The sentence imposed in respect of the offence of breaking and entering a dwelling in the night-time with intent to commit an indictable offence should stand, but the sentence of four years’ imprisonment in respect of the offence of attempted rape should be set aside and, in lieu, a sentence of imprisonment for three years substituted.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 8 November 1996

I have read the joint reasons of the President and Derrington J. and agree with their Honours’ conclusions; I propose to make a remark about one aspect of the matter. This is that the appellant, although he did not rely on it as a reason for reducing the sentence imposed on him, was said to have been drunk at the time he committed the offence. It has been decided that intoxication is not generally a circumstance going in mitigation; the leading case is Rosenberger (1995) 1 Qd.R. 677.

Of course, many of the criminal cases which come before the courts, particularly those involving violence, are committed by people who claim to have been drunk at the time. Once this was often accepted as lessening the offender’s criminality; but now the practice is otherwise. The present is a case in which the ordinary rule is applicable; accordingly, I have not regarded it as being a point in the applicant’s favour that he is said to have been drunk when he attempted to rape his victim.

I should add that there is room for difference of view as to whether the sentence imposed below is at a level warranting alteration by this Court; but having had occasion to review the recent decisions in relation to comparable offences, I agree with the opinion of the President and Derrington J. that the sentence should be reduced. I agree with the orders their Honours propose.