R v O'Brien - [1998] QCA 80

COURT OF APPEAL

[1998] QCA 080

PINCUS JA DAVIES JA FRYBERG J

CA No 418 of 1997
THE QUEEN
v.

MARTIN DANIEL O'BRIEN	Applicant
BRISBANE ..DATE 06/03/98
JUDGMENT
060398 T22/JB M/T COA34/98

FRYBERG J: On 30 October 1997 the applicant pleaded guilty in the District Court at Southport to one count of assault occasioning bodily harm, one count of indecent assault with circumstances of aggravation, one count of rape and one count of attempted rape. He now applies for leave to appeal against sentence of imprisonment for 11 years on the count of rape.

The offence took place shortly after 6 a.m. on Sunday, 26 January 1997. The victim, a 33-year-old woman, was taking an early morning walk from her home at Nerang. It was, of course, daylight, although it was an overcast morning. As she walked past a local park she was seized from behind by the applicant.

He pinned her arms and said, "Just do as I say and I won't hurt you. I am going to fuck you." He dragged her by the hair and her shorts to a nearby toilet block and then to an area of bushland. Her screams for help were heard by a passer-by and she called the police. Meanwhile the applicant bashed the victim's head against the ground a few times and also punched her on the head a number of times. These actions were the subject of count 1.

He then frogmarched his victim down a gully and through a stream toward the river bank. In this area he pushed her to the ground, pulled up her top and squeezed her left nipple hard. He also pulled her shorts aside and inserted his finger into her vagina. She asked why he was doing this and he replied, "Because I want to fuck you." This conduct was the subject of count 2.

After forcing her to walk for a distance the applicant again

2 JUDGMENT

060398 T22/JB M/T COA34/98

forced her to the ground face down. Up to this point he had forcibly prevented her from seeing his face and he continued to do so. He made her bend over and said, "Do you like arse fucking?" She dissuaded him from sodomy but he ripped her underpants off so violently he caused her injury.

While she was kneeling with her head down he raped her. She attempted to persuade him to stop without success. She pleaded with him not to ejaculate inside her and said, "You haven't got any diseases, have you, because I'm pregnant." He replied, "No." He ejaculated on to the ground. She was, in fact, pregnant, although she only suspected that was so at the time.

While she was pleading with him he twice told her that he might "keep" her. Out of the corner of her eye she saw him ejaculate and she said, "Haven't you come yet?" He said, "I'm going to teach you that it takes a long time to come." He then tried to rape…

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 O'Brien

Details

AGLC: R v O'Brien [1998] QCA 80
Case: [1998] QCA 80
Decision Date: 6/03/1998

CaseChat Overview and Summary

In the case of R v O'Brien, Martin Daniel O'Brien, the applicant, sought leave to appeal against his sentence of 11 years of imprisonment for the offence of rape, which was imposed by the District Court at Southport. The Court of Appeal was tasked with deciding whether the sentence was manifestly excessive and whether it adequately reflected the mitigating factors presented by the applicant. The appeal was grounded on the assertion that the sentencing judge had given insufficient weight to the applicant's plea of guilty, his remorse, his good work record, and his prospects for rehabilitation.

The court meticulously examined the nature and circumstances of the crime, which involved a brutal assault, including acts of indecency, battery, and rape, committed against a 33-year-old woman. The court considered the victim's severe physical and psychological trauma, which persisted even after the attack. The sentencing judge had acknowledged the applicant's significant alcohol dependency and found that he likely suffered from memory loss due to this dependency. Despite this, the Crown contested the applicant's claim of having no memory of the attack. The sentencing judge also noted the applicant's previous criminal history and his persistence in the attack despite the victim's claim of being pregnant.

The Court of Appeal found that while the head sentence of 11 years was within the appropriate range, it did not sufficiently account for the mitigating factors. The judges referenced several cases where the courts had considered similar factors and had imposed sentences of varying lengths. The Court concluded that the sentence imposed, without a recommendation for early parole, was not adequately balanced with the mitigating factors presented by the applicant. Therefore, the Court allowed the application for leave to appeal and recommended that the applicant be considered for parole after serving four years of the sentence.

Orders