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

v.

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 conversation he accused her of sleeping with people at the neighbour's house and called her a slut and a liar. He then commenced to assault her causing her to cry. He then told her to suck his penis. When she said that she didn't want to, he threatened her and she did so. He then had intercourse with her against her will. She was frightened and crying. This was the first count of rape.

He then lost his erection and told her she would have to make it go hard again by sucking it. When she protested he said he didn't care and she did as she was told, again because she was frightened. This was the count of indecent assault.

After his penis became erect he forced her to have intercourse with him again. Again she was crying and the intercourse hurt her. He continued to abuse her. After he had ejaculated he made her sleep on the floor in his room. When he went to sleep she went to the police.

When examined she had bruising and redness of the genital area.

At the vaginal entrance there was a cut which was deep and at

least two centimetres long.

The respondent showed no remorse for his conduct. He told a false story to the police and, as appears from what we have said, defended the charges.

It is not entirely clear why, given the degree of violence involved in these offences and the fact that the respondent went to trial, the learned sentencing judge imposed a sentence of only three years and, as well, made the recommendation for eligibility for release on parole after only six months. No doubt the respondent's youth was a relevant factor and his Honour was correct in taking that into account. But there were two other matters which he appeared to take into account which, in our view, he was wrong to do.

The first is that he said that he took a more lenient view of rapes which take place within an existing de facto relationship.

We would not accept that, as a general proposition, it is necessarily right to do so. There may well be circumstances, which we do not attempt to define comprehensively, in which the existence of such a relationship will have a significant bearing upon the Court's decision as to the appropriate sentence, for example, because it is relevant to the offender's state of mind.

No doubt, where there is a married or de facto relationship, there may be greater scope for a genuine belief on the part of the man that the woman has or is likely to consent to sexual intercourse. And where that mistake is honest but unreasonable, it may be relevant to take it into account in sentencing the offender. But that was not this case. Here the respondent could have had no doubt that the complainant was not consenting to intercourse. The degree of violence, the insults and more importantly, the complainant's protests and tears, in our view, made it plain beyond any doubt that she was not consenting to any of this conduct.

Secondly, his Honour said that he accepted that alcohol played a part in the affair. No doubt it did. But by his reference to it his Honour implied that this was a factor which should reduce the sentence which he might otherwise have imposed. We do not agree. See Rosenberger C.A. No. 375 of 1994, 21 November 1994.

The respondent, not surprisingly, relied on the decision of this Court in Beaver C.A. No. 114 of 1992, 2 June 1992, in which a sentence of three years' imprisonment for rape with a recommendation that the offender be eligible for parole after a period of nine months was not reduced by this Court on an appeal by him, though it was said that he was perhaps not treated as generously, as regards recommendation for parole, as some judges might have treated him. However, there were a number of factors in that case, not present in this, which justified some leniency. The parties there had been married for 12 years but had separated for about three weeks. This had had a considerable effect on the applicant offender. His rejection by his wife, according to a psychiatrist, had disturbed him and triggered powerful emotions because he was emotionally dependent on her. His conduct, though violent, was apparently uncharacteristic and, immediately on the conclusion of the rape he cried, expressed remorse and offered immediately to go to the police, which he did. All of those factors distinguish that case from this.

The cases most strongly relied on by way of analogy by the appellant were Hunt C.A. No. 305 of 1994, 12 September 1994 and Day C.A. No. 247 of 1993, 13 September 1993. In the first of these the applicant, who was 45 years of age, was convicted, after a trial, of two offences of rape, one of assault occasioning bodily harm and one of indecent assault by way of anal intercourse. He was sentenced to an effective term of seven years. He had a previous conviction which involved entering a dwelling house of a woman with whom he had had a relationship and there committing an assault on her. The circumstances of this case were similar to those of the previous conviction. The complainant and the applicant had formerly been in a de facto relationship. On the occasion in question the applicant arrived at the complainant's house but the complainant would not let him in. He forced an entry and then violently assaulted her. It is sufficient to say that the acts of rape and anal intercourse in that case were preceded and accompanied by greater violence than this. It was unfortunately a relationship which, like this, had been accompanied by violence.

The application for leave to appeal was refused. The Court was disinclined to accept the prior existence of an intimate relationship as a mitigating factor.

In Day a term of six years' imprisonment was imposed, after a trial upon the applicant, a 33 year old man convicted of rape of a 25 year old woman whom he had known for some years and who, after meeting him at a nightclub, returned to his residence with him. No violence was involved other than that necessarily involved in the rape.

These and other cases referred to show in our view that the sentence imposed in this case was outside the scope of a sound sentencing discretion and as we have mentioned earlier the learned sentencing judge took into account as mitigating factors two matters which were not, in the circumstances, of agreed importance. It was conceded by the respondent's counsel that, had this been a rape between strangers, the appropriate range would have been between five and seven years. As we have indicated, we can see no reason to distinguish this case from one in which the parties are strangers. We therefore think that an appropriate sentence is one of five years' imprisonment. However, because of the youth of the respondent and the lack of any relevant previous convictions, we would be inclined to recommend that he be eligible for parole after two years of that term.

During the course of argument reference was made to the recent decision of the High Court in Everett and Anor v. The Queen, H8 and H9 of 1994, 26 October 1994. It is sufficient, for the purposes of this appeal, to say that, because the sentence imposed by the learned sentencing judge was outside the scope of a sound sentencing discretion and was imposed after taking into account irrelevant considerations, the learned sentencing judge's error is sufficient to justify interference by this Court with the sentence imposed.

The appeal is therefore allowed, the sentence imposed below set aside and in lieu thereof a sentence of five years' imprisonment imposed. We add a recommendation that the respondent be eligible for parole after serving two years of that term.