R v Press - [1997] QCA 7

IN THE COURT OF APPEAL	[1997] QCA 007
SUPREME COURT OF QUEENSLAND

C.A. No. 489 of 1996

Brisbane

[R. v. Press]

THE QUEEN

MICHAEL ROBERT PRESS Appellant
(Applicant)

Fitzgerald P.
McPherson J.A.
Fryberg J.

Judgment delivered 14 February 1997

Joint reasons for judgment of Fitzgerald P. and McPherson J.A. Separate dissenting reasons of Fryberg J.

APPLICATION GRANTED AND APPEAL ALLOWED TO THE EXTENT OF REDUCING SENTENCE OF IMPRISONMENT IMPOSED ON COUNT 3 (RAPE) FROM NINE YEARS TO SEVEN YEARS. THERE BE A CORRESPONDING REDUCTION FROM FOUR TO THREE YEARS IN THE PERIOD OF IMPRISONMENT TO BE SERVED BEFORE THE APPLICANT IS CONSIDERED FOR PAROLE. ALL OTHER SENTENCES, ORDERS OR RECOMMENDATIONS MADE BELOW NOT TO BE DISTURBED.

CATCHWORDS: CRIMINAL LAW - Appeal against sentence - Rape - Aggravation - Sentencing - R. v. Stirling (C.A. 205 of 1996) applied.

Counsel:	Appellant appeared on his own behalf Mr D. Meredith for the respondent
Solicitors:	Appellant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent
Hearing Date:	4 February 1997

JOINT REASONS FOR JUDGMENT - FITZGERALD P. & McPHERSON J.A.

Judgment delivered 14 February 1997

On pleas of guilty in the District Court at Maroochydore, the applicant was convicted and sentenced to concurrent terms of imprisonment of three years for burglary, three years for indecent assault with a circumstance of aggravation, and nine years for rape. A recommendation was made that he be considered for parole after serving four years of the sentence. This is his application for leave to appeal against the sentence for rape on the ground that it is excessive.

The offences were committed in the early hours of the morning of 21 October 1995. The complainant, who was 17 years old, lived in a unit with her boyfriend. His parents lived in another unit in the same block. She went to bed at 11.30 p.m. on the night of 20 October leaving her boyfriend watching television. She was partly wakened at 4.30 a.m. by someone climbing into bed with her. She thought it was her boyfriend. He started to lick her vagina and put his fingers into it (count 2). He rolled her over on her stomach and had intercourse with her. She then rolled on to her back again, pushing him away, and heard the applicant (as it was) say “Can I turn the light on?”. At this she became aware that it was not her boyfriend. He turned the light on and she screamed. The applicant attempted to hold the complainant down on the bed, but she pushed him off and ran from the room. Her boyfriend woke, came to the bedroom, and apprehended the applicant, who was dressed only in a shirt. Her boyfriend and his stepfather, who had been summoned from the other unit, then set about punching the applicant.

The applicant had apparently entered the unit through a window after removing a flyscreen. However, when interviewed by police, he had no recollection of the events at the unit, and…

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 Press

Details

AGLC: R v Press [1997] QCA 7
Case: [1997] QCA 7
Decision Date: 14/02/1997

CaseChat Overview and Summary

The Court of Appeal in Queensland heard an appeal by Michael Robert Press against his sentence for rape. The applicant, who had pleaded guilty to the offence, as well as to burglary and indecent assault with aggravation, was sentenced to concurrent terms of imprisonment. The appeal focused on the nine-year sentence for rape, which the applicant claimed was excessive. The court considered the circumstances of the offence, which involved the applicant entering a 17-year-old girl's home through a window and engaging in sexual activity with her, which caused significant emotional and psychological trauma.

The legal issues before the court were whether the sentence for the rape was excessive and if the appeal should be granted. The court examined the seriousness of the offence, the lack of violence, and the applicant's cooperation with the police. The court also considered the applicant's personal history, including his alcohol dependency and his cooperation with authorities during the investigation. In addition, the court took into account the physical assault the applicant received from the victim's boyfriend and his stepfather after the crime, which had left some residual permanent disability.

The Court of Appeal concluded that while the sentence imposed on the applicant was high, it was not outside the ambit of the sentencing judge's discretion. The court found that the sentence for rape should be reduced from nine years to seven years, with a corresponding reduction in the period of imprisonment to be served before the applicant is considered for parole. The other sentences, orders, and recommendations made below were not to be disturbed. The court emphasised the importance of considering the impact on the victim and the potential for sentences in similar cases to "creep" upwards without careful consideration.

Orders