R v Stephens - [1994] QCA 507

IN THE COURT OF APPEAL [1994] QCA 507

SUPREME COURT OF QUEENSLAND

C.A. No. 411 of 1994

Brisbane

[The Queen v. Stephens]

BETWEEN:

THE QUEEN

KANE RAYMOND STEPHENS

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

PINCUS J.A. DAVIES J.A. LEE J.

Judgment delivered 28/11/94
Judgment of the Court

APPEAL ALLOWED. SENTENCE IMPOSED BELOW SET ASIDE AND IN LIEU THEREOF A SENTENCE OF FIVE YEARS' IMPRISONMENT IMPOSED. RECOMMEND THAT RESPONDENT BE ELIGIBLE FOR PAROLE AFTER SERVING TWO YEARS OF THAT TERM.

CATCHWORDS:CRIMINAL LAW - Attorney General's appeal against sentence - respondent convicted of two counts of rape and one of indecent assault - complainant was a woman with whom respondent had been living in a de facto relationship - sentence of three years imprisonment imposed with recommendation for release on parole after having served six months - sentencing judge appeared to take into account more lenient view of offences having occurred within existing relationship - whether irrelevant consideration - whether ingestion of alcohol an irrelevant consideration - whether sentence imposed was outside range of sound sentencing discretion.

Counsel:	Mr D L Bullock for the appellant Mr A Rafter for the respondent
Solicitors:	Director of Prosecutions for the appellant Legal Aid Office for the respondent

Hearing Date: 18 November 1994

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 28/11/94

This is an Attorney's appeal against a sentence of three years' imprisonment with a recommendation that the respondent be eligible for release on parole after serving six months of that term. The respondent was convicted after a trial in the District Court of two counts of rape and one of indecent assault, both upon a young woman with whom he was, at the time, living in a de facto relationship. The offences occurred on 4 January 1993. The respondent was convicted and sentenced on 14 September 1994. He was 21 at the date of commission of the offences and 22 at the time of his conviction and sentence. He had a minor criminal record but none for offences relevant to these offences and none since 1989.

The respondent and the complainant met in Melbourne in 1992. They commenced living in a de facto relationship in Brisbane in about November of that year. From shortly after the commencement of that relationship he assaulted her at least once a day. From about this time they slept in separate bedrooms in the unit which they occupied but continued having a sexual relationship about once a week

On Saturday, 2 January 1993 the respondent, having told the complainant to leave, then threatened to shoot her if she did. He then held a gun pointed at her. On Sunday, 3 January 1993 he left the unit about 8.30 p.m. to go out and she visited a neighbour arriving back at about 10.30 p.m. She went to bed in her own bed.

The respondent came home at about 12.30 a.m., entered her room, took his clothes off and asked where she had been. During the course of their…

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 Stephens

Details

AGLC: R v Stephens; ex parte Attorney-General (Qld) [1994] QCA 507
Case: [1994] QCA 507
Decision Date: 28/11/1994

CaseChat Overview and Summary

The Court of Appeal heard an appeal by the Attorney-General against the sentence imposed on Kane Raymond Stephens by the District Court. Stephens was convicted of two counts of rape and one count of indecent assault against a woman with whom he had been in a de facto relationship. The District Court sentenced Stephens to three years' imprisonment, with a recommendation for parole eligibility after serving six months. The Attorney-General appealed, arguing that the sentence was unduly lenient. The appeal focused on whether the sentencing judge erred in considering the de facto relationship and the influence of alcohol as mitigating factors.

The Court of Appeal found that the sentencing judge had erred in taking into account the existence of the de facto relationship as a mitigating factor, as there was no doubt that the complainant was not consenting to any of the conduct. The Court also disagreed with the judge's consideration of alcohol as a factor that should reduce the sentence. The Court found that the sentence of three years' imprisonment was outside the range of a sound sentencing discretion, particularly when compared to other cases where the appropriate range was between five and seven years. The Court concluded that an appropriate sentence in this case would be five years' imprisonment, with parole eligibility after two years due to Stephens' youth and lack of prior relevant convictions.

The Court of Appeal allowed the appeal, set aside the original sentence, and imposed a sentence of five years' imprisonment. They also recommended that Stephens be eligible for parole after serving two years of that term. The decision underscores the importance of considering appropriate sentencing guidelines and the relevance of mitigating factors in criminal sentencing.

Orders