R v Sorby - [1995] QCA 251

[1995] QCA 251

COURT OF APPEAL

DAVIES JA
MOYNIHAN J
AMBROSE J

CA No 102 of 1995

THE QUEEN

SORBY, Jamie Applicant

BRISBANE

DATE 27/04/95

JUDGMENT

DAVIES JA: I will ask Mr Justice Ambrose to deliver his reasons first.

AMBROSE J: This is an appeal by a man convicted of two offences committed on 8 May 1994. The first was a rape and the second was, as it is described these days, an indecent assault aggravated by the fact that it involved sodomy. Both offences were committed within a short time of each other and might be regarded as two aspects of the one piece of criminal activity.

The appellant is 27 years of age. He was sentenced to imprisonment for nine years, an appropriate order being made to take into account time that he had already spent in custody, which was solely referable to the offences of which he was convicted.

He did have a prior criminal record. He had been sentenced to terms of imprisonment previously. They had been property offences and drug offences and some street offences and I do not think they do more than indicate his general background and they do not have any specific relevance to the nature of the offences committed on this occasion.

The circumstances of the case may be stated shortly. The complainant with her fiance, with whom she was then cohabiting, met the applicant at a party in a caravan park. Conversation turned to the fact that the complainant and her young man were anxious to find accommodation outside the caravan park and the applicant told them that he knew of an old house that was available for rental at $50 per week.

Subsequently, excited by this prospect, the complainant approached the applicant and asked about it, and he said that he would take her to see his mother who knew all about it. She accompanied him and in fact when they approached the derelict house, in which apparently the applicant was residing in rather primitive conditions, he suddenly took hold of her, holding her in a vice-like grip preventing her movement.

She was naturally afraid and the fear was not lessened by his observation to her that he wanted to, as he said, fuck her. He threw her inside the fence so that she fell with her back down on the ground, jumped on top of her, threatened to kill her. She said she was terrified. He told her that she could scream as much as she liked, but nobody would hear her.

He covered her mouth and nose. She struggled as best she could to avoid his attentions, clenching her legs together tightly, but he was a very strong young man and eventually he managed to penetrate her with difficulty. The difficulty apparently caused him some anger and in the course of having intercourse with her, he, as it is said, pounded her, causing her pain and breathlessness.

She continued to cry and call out for her…

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 Sorby

Details

AGLC: R v Sorby [1995] QCA 251
Case: [1995] QCA 251
Decision Date: 27 April 1995

CaseChat Overview and Summary

In the case of R v Sorby, the applicant, Jamie Sorby, appealed against his conviction for two serious offences committed on May 8, 1994. The first offence was rape, and the second was an indecent assault aggravated by sodomy. Sorby was sentenced to nine years in prison, with time already served accounted for. The appeal centred around the severity and appropriateness of the sentence imposed.

The primary legal issue for the court was whether the sentence imposed by the sentencing judge was appropriate given the nature and severity of the crimes committed. The court considered the brutality of the attacks, the impact on the victim, and Sorby's lack of remorse. Additionally, the court had to determine if there was any miscarriage of the sentencing discretion by the judge. The appeal hinged on whether the sentence was excessively lenient or whether it adequately reflected the seriousness of the crimes.

The court found that the sentencing judge had carefully considered the circumstances of the case, including the brutality of the attacks and the impact on the victim. The judge described Sorby's conduct as very brutal and noted the victim's physical inability to resist due to her slight build. The court held that the sentence of nine years was appropriate and that it may even have been open to the judge to impose a heavier sentence. Consequently, the appeal was dismissed, and the application for leave to appeal was refused.

Orders