R v Rosenberger; ex parte Attorney-General

[1994] QCA 488

IN THE COURT OF APPEAL [1994] QCA 488

SUPREME COURT OF QUEENSLAND

C.A. No. 375 of 1994.

Brisbane

[Attorney-General v. Rosenberger]

T H E Q U E E N

v.

BRIAN DAVID ROSENBERGER

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

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Fitzgerald P.
Pincus J.A.
Lee J.
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Judgment delivered 21/11/1994
Judgment of the Court
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APPEAL AGAINST SENTENCE ALLOWED. SENTENCE IMPOSED BELOW ON THE COUNT OF RAPE SET ASIDE. IN LIEU, ORDER THAT THE RESPONDENT BE SENTENCED TO 9 YEARS IMPRISONMENT, WITH A RECOMMENDATION THAT HE BE CONSIDERED FOR PAROLE AFTER 3 YEARS AND 6 MONTHS. SENTENCE IMPOSED ON COUNT OF BURGLARY CONFIRMED.

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CATCHWORDS:CRIMINAL LAW - rape - respondent 18 year old broke into nursing home and raped 86 year old woman - respondent had been drinking very heavily prior to the offence - sentence of 6 years with parole recommendation after 2 years imposed - trial judge below appeared to have taken intoxication into account - whether intoxication should be taken into account as a factor in sentencing - whether sentence manifestly inadequate.

Counsel:Mr M Byrne QC for the appellant.

Mr P S Hardcastle for the respondent.

Solicitors:Director of Prosecutions for the appellant.
O'Sullivans for the respondent.
Hearing Date:26 October 1994.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21/11/1994

This is an Attorney-General's appeal against sentence. The respondent pleaded guilty to charges of burglary and rape in the District Court at Roma, the offences having been committed in December 1992 when the applicant was 18 years of age. He broke into a nursing home about 1.00 a.m. and raped an 86-year-old woman, a person in failing health. The sentence for the rape was six years with a recommendation for parole after two years; the sentence for the burglary was 18 months.

On the night in question the respondent had drunk a considerable quantity of alcohol and was evidently intoxicated.

He was able to gain entry to the complainant's room because one of the external doors which should have been locked was not. Somewhat oddly, the record contains no account from the complainant of the circumstances of the rape. A medical examination showed the complainant to exhibit signs of having recently had non-consensual sexual intercourse, but there were no injuries observed other than inflammation, tenderness and abrasions in the area of the vagina; the doctor described the entrance to the vagina as being excoriated, which means abraded.

Medical opinion was to the effect that since the rape the complainant had experienced an accelerated decline in health; in particular, a condition of angina from which she had previously suffered had markedly increased and there had been an increase in the degree of anxiety suffered. She was described as suffering from insomnia, depression and attacks of acute anxiety. The law's duty to protect helpless women against this sort of treatment hardly needs stressing.

When questioned by the police, the respondent claimed to have no recollection of being near the nursing home on the night of the offences and it was suggested to the sentencing judge that he had changed his plea late - just before the trial - because it was not until then that forensic evidence convinced him that he was the offender. As counsel for the respondent agreed in this Court, it is impossible to tell whether the respondent's claimed amnesia was in truth experienced by him.

The respondent's criminal record consisted of an offence of breaking, entering and stealing committed a few months before the rape, two offences of stealing committed after the rape and other, relatively minor, offences.

The primary judge mentioned that the respondent had evinced remorse and referred to the absence of external injuries in the complainant; but it appears likely that the principal reason why such an apparently light sentence was imposed, in respect of this barbarous offence, was that his Honour thought the respondent was very drunk at the time. In his remarks on sentence the judge described the offence as having been committed "in the context of a bout of heavy drinking" and his Honour had earlier made other remarks on that subject:

"The most difficult aspect of this case from the sentencing point of view is the alcohol. You don't have to convince anybody in the courtroom, I would expect, of the revolting character of the offence itself, viewed objectively. Obviously, his state of intoxication has to be very significant ..."

In this Court, counsel for the respondent did not suggest that the respondent's state of intoxication should be a mitigating factor, but because the primary judge appears to have treated it as important, it is desirable to discuss the matter.

In a number of cases, Bradley (1980) 2 Cr.App.R.(S) 12 is

referred to; there Lord Widgery C.J. said:

"This Court finds nothing in the case to indicate that that sentence was other than entirely correct. It is said that he was in drink. So he was. But the day is long past when somebody can come along and say 'I know I have committed these offences, but I was full of drink'. If the drink is induced by himself, then there is no answer at all."

In Lane (1990) 53 S.A.S.R. 480 at 485 Matheson J., after referring to Bradley, mentioned two earlier South Australian appellate decisions on the point, one of which is authority for the view that intoxication sometimes aggravates the penalty and sometimes mitigates it; the second contains this statement:

"The ingestion of alcohol very frequently explains why an offence occurred. It is very unusual for it to be a mitigating factor ..." (486).

Bradley has been referred to in Victoria, in Redenbach (1991) 52 A.Crim.R. 95 at 99, where the Court of Criminal Appeal also referred to Tucker and Lewis as a previous decision of the same Court; the relevant passages are to be found in (1989) 43 A.Crim.R. 377 (especially at 379). It was there held that self- ingestion of drugs by an offender did not mitigate the offences in question. In Redenbach itself the Court said:

"Where, on the other hand, the Court is satisfied that there is something which, whether wholly or partly, excuses the taking of drink or drugs, it will treat that circumstance as going in mitigation, as where a drunken man who had committed an armed robbery showed that his alcoholism was the result of the painful disease from which he suffered ...".

Leaving aside the possibility just mentioned, it appears that ordinarily intoxication, whether by alcohol or other drugs, will not mitigate penalty. The Courts deal with many cases involving offences, particularly of personal violence, said to have been committed by people who are drunk and sometimes drunkenness is put forward as an excuse for a rape, as it seems to have been here. The proper policy appears to be generally to decline to give an offender the benefit of a reduction in sentence on the ground of his drunkenness at the time of the offence.

Once that conclusion is accepted, then little can be said in favour of the sentence imposed. The prospect that the perpetrator of a rape on an aged and unwell woman may perhaps be released on parole after serving as little as two years can hardly be viewed with equanimity.

The appeal will be allowed and the sentence for rape imposed below set aside. In lieu, the respondent will be sentenced to nine years' imprisonment for the rape, but in view of his youth and the plea of guilty, a recommendation will be added that he be considered for release on parole after having served three years and six months of that term. The burglary sentence will stand.