R v O'Toole & Missen

[1992] QCA 15

IN THE COURT OF APPEAL [1992] QCA 015

SUPREME COURT OF QUEENSLAND

C.A. No. 268 of 1991 C.A. No. 255 of 1991

Before the Court of Appeal

The President

Mr Justice Davies

Mr Justice Byrne

T H E Q U E E N

v.

O'TOOLE

- and - MISSEN

JUDGMENT - THE COURT

Delivered the 6th day of March 1992

MINUTES OF ORDER: In each case leave to appeal is granted, each appeal is allowed and in each case the sentence of eleven years imprisonment is set aside and a sentence of nine and half years imprisonment is substituted.

CATCHWORDS: Criminal Law - Sentence - Applicants sentenced to 11 years for rape to be served concurrently with sentence for several other offences - whether sentences higher than those for broadly comparable offences - whether in order to achieve discernible consistency in sentencing Court should interfere - sentence of 9 1/2 years substituted.

Counsel:Mr. P. Alcorn for the Applicant, O'Toole

Ms. K. Wenck for the Applicant, Missen

Mr. P. Rutledge for the Crown

Solicitors:  Legal Aid Office (Queensland) for the Applicants

Director of Prosecutions for the Respondent
Hearing date:7th February, 1992

JUDGMENT - THE COURT

Delivered the 6th day of March 1992

O'Toole and Missen have applied for leave to appeal against

their sentences for rape on the ground that the sentences are

manifestly excessive.

On 2nd April, 1991 the complainant went with the applicants and another man, all of whom she had met that day, to smoke some marijuana. When the complainant indicated she wished to return home, she was driven to a secluded area and raped by Missen.

She was then forced into the back seat of a motor vehicle and

raped by O'Toole and forced to engage in oral sexual activity with the third man while Missen drove the vehicle. Missen then moved to the back seat of the vehicle and again raped the complainant who was then forced to engage in oral sexual activity with O'Toole. The complainant was subjected to actual violence and was also threatened in an attempt to dissuade her from reporting the offences.

Each of the applicants pleaded not guilty but was convicted by a jury in the District Court at Maroochydore on 6th September 1991. In addition to the convictions on three charges of rape,

for which each was sentenced to 11 years imprisonment, each was

convicted of a number of other offences; namely, unlawful use of a motor vehicle used for the purpose of facilitating the commission of an indictable offence (5 years imprisonment), deprivation of liberty (3 years imprisonment) and two offences

of procuring an act of gross indecency (5 years imprisonment). In addition, Missen was convicted of stealing and sentenced to

two years imprisonment. All the other sentences were made

concurrent with the sentences for rape. No reference was made

by the sentencing Judge to parole.

At the time they were convicted and sentenced, Missen was

21 years of age, single and unemployed and O'Toole was 24 years

of age, single and unemployed (although he had been employed at the time of the offence). Missen had been in custody for five months following his arrest on 6th April, 1991 and O'Toole had been in custody for three months after he was arrested but had

been granted bail prior to trial. Each had a substantial

criminal history from the age of 17 years and each had previously been in prison. O'Toole's offences substantially

related to offences of dishonesty, but included possession of a prohibited plant and breach of probation. Missen had a worse

criminal history, with convictions for offences of dishonesty, possession of a dangerous drug, dangerous driving, arson of a

motor vehicle, wilful damage and a number of offences involving violence, one of which related to an assault of a sexual nature upon a female. He had only been released from prison about a fortnight prior to the offences and had spent a significant part

of the previous three years in prison.

Since, so far as possible, there should be a discernible consistency in sentencing, this Court is required to compare the applicants' sentences with other sentences in circumstances which are broadly comparable. There are a few instances in which sentences as high as those of the applicants have been imposed in broadly similar circumstances. However, the preponderance of cases in which the circumstances are sufficiently analogous to be useful for comparative purposes indicate that the maximum

sentence imposed for conduct such as that of the applicants would usually not exceed ten years imprisonment, including any period spent in prison prior to the trial and conviction. In

the circumstances, the sentences imposed are manifestly

excessive.

It was not suggested that this Court should differentiate

between the applicants save to the extent that, if each receives

the same sentence and serves the same period of imprisonment

after conviction, Missen will serve two months longer than O'Toole in total because of the additional period he spent in

prison prior to the trial. It is not suggested that this would

be inappropriate because there are some differences in their

circumstances, including Missen's considerably more extensive
criminal history.

The sentences of eleven years imprisonment should be set aside and a sentence of nine and a half years substituted. In each case leave to appeal is granted and appeal is allowed and in each case the sentence of eleven years imprisonment is set

aside and a sentence of nine and a half years imprisonment is
substituted.

In each case leave to appeal is granted, each appeal is allowed and in each case the sentence of eleven years imprisonment is set aside and a sentence of nine and half years

imprisonment is substituted.