R v Q - [1994] QCA 390

IN THE COURT OF APPEAL [1994] QCA 390

SUPREME COURT OF QUEENSLAND

C.A. No. 248 of 1994

Brisbane

[R. v. Q]

THE QUEEN

v.
Q

Applicant

Macrossan CJ Fitzgerald P Pincus JA

Judgment delivered 06/10/94

Each member of the Court delivering separate reasons, the Chief Justice and the President concurring, Mr Justice Pincus dissenting.

Application granted. Appeal allowed to the extent only of adding a recommendation that the applicant be considered for parole after serving 3½ years of his nine year sentence. The sentences otherwise imposed for the offences involved, including the sentence of nine years, remain unaltered.

CATCHWORDS: CRIMINAL LAW - Sentence - rape and indecent assault of complainant at gunpoint - whether early recommendation for parole should be made - whether the nine year head sentence manifestly excessive - effect of youth, remorse, good record, prospects of rehabilitation, early guilty plea, co-operation.

Counsel:	Mr A. Rafter for the Applicant Ms L. Clare for the Crown
Solicitors:	Patrick T. Murphy for the Applicant Director of Prosecutions for the Crown

Hearing Date: 01/09/94

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 06/10/1994

The applicant seeks leave to appeal against a sentence

imposed for rape committed upon a seventeen year old girl. At

the date of the offence the applicant was a twenty-three year

old with no prior criminal history. He was well known to the complainant, having lived for a time in the complainant's household with her mother and father and her sister, M, to whom

he was engaged to be married.

The applicant had been charged with ten offences and on 20

May 1994 pleaded guilty to each of them and was accordingly

sentenced. The District Court Judge who dealt with the matter was invited to impose a global sentence which seems to have been taken to mean that he should proceed by considering the overall

criminality of the offences which had all been committed in the course of one continuing episode. This resulted in the longest custodial term, one of nine years, being imposed for the offence of rape in respect of which the application for leave to appeal is brought.

The offences to which the applicant pleaded guilty and for which he was sentenced to custodial terms of varying length to be served concurrently were: one count of housebreaking for

which a term of four years was imposed; one of rape, nine years; two of indecent assault, two years in each case; one of

attempted rape, three years; and on each of the others, one count of deprivation of liberty, one count of going armed in public to cause fear, two counts of assault and one count of

unlawful killing of an animal, twelve months. It was ordered that the terms of imprisonment imposed should have effect on and

from 12 July 1993, that being the date from which the applicant

had been continuously in custody in connection with the

offences. No recommendation for parole was made by the
sentencing judge.

On the hearing of the…

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 Q

Details

AGLC: R v Q [1994] QCA 390
Case: [1994] QCA 390
Decision Date: 6/10/1994

CaseChat Overview and Summary

The case of R v Q involved an appeal against a sentence imposed on the applicant, Q, for the offence of rape. Q, who was 23 years old at the time of the offence and had no prior criminal history, committed the offence against a 17-year-old girl, who was the sister of his former fiancée. The applicant broke into the victim's home, killed the family cat, and then raped the victim at gunpoint. The District Court imposed a sentence of nine years imprisonment for the offence of rape, as well as concurrent terms for other associated offences. The applicant sought leave to appeal against the sentence, arguing that it was manifestly excessive and that a recommendation for early parole should be made.

The Court of Appeal considered the application and, while each judge delivered separate reasons, the Chief Justice and President concurred that the application should be granted, and the appeal allowed to the extent of adding a recommendation that the applicant be considered for parole after serving 3½ years of his nine-year sentence. The judges acknowledged the seriousness of the offence and the need for a substantial custodial term, but also took into account the applicant's youth, remorse, good record, prospects of rehabilitation, early guilty plea, and co-operation. The Chief Justice and President concluded that the considerations favouring a moderately advanced opportunity for parole were sufficiently compelling to justify interference.

Pincus JA, however, dissented from the majority decision. He found that the applicant's remorse was not genuine, as he had given misleading accounts of the events to a psychiatrist and the police. Pincus JA also considered the sentence imposed by the primary judge to be within the range of a sound exercise of discretion, and therefore dismissed the application.

In summary, the Court of Appeal granted the applicant's appeal to the extent of adding a recommendation that he be considered for parole after serving 3½ years of his nine-year sentence. The sentences for the other associated offences remained unaltered.

Orders