R v The Queen - [1996] QCA 75

[1996] QCA 75

COURT OF APPEAL

PINCUS JA
McPHERSON JA
AMBROSE J

CA No 13 of 1996

THE QUEEN

BRISBANE

DATE 21/03/96

JUDGMENT

McPHERSON JA: I will ask my brother Ambrose to deliver the first judgment in this matter.

AMBROSE J: This is an application by a person convicted of rape on 23 December 1994 at Palm Island. At the time of the commission of the offence he was nearly 17 years of age. At the time of sentence he was a year older. He was sentenced to detention for a period of four years and application was made for leave to appeal against that sentence on the ground that it was manifestly excessive in that no greater sentence than three years' detention ought to have been imposed.

He was sentenced to a period of detention because under the Juvenile Justice Act of 1992, section 188 deals with periods of detention being imposed upon children and he was dealt with as a child, having regard to his age at the time he committed the offence. Section 188(1) of the Juvenile Justice Act provides that unless an order is specifically made reducing the period which must be served before the detainee becomes eligible for release, he must serve a period of 70 per cent of the period of detention imposed.

It is said that having regard to this provision, the period of detention imposed upon the applicant was too great, although had there been an order made under section 188(2) for some special circumstances perceived by the sentencing Judge, he could have been eligible for release after serving only 50 per cent of the period and that argument would not be available.

The facts of the case, in my view, constituted a serious rape. The complainant was a 23-year-old woman who had at least two young children. She had returned to a house where she resided with her sister in the early hours of the morning. There was a party going on next door to that house. She entered that house to see if there was a girlfriend of hers there. She did not find her there and walked back into the house where she was living with her sister.

The applicant, without any invitation, walked behind her and closed the door and grabbed her by the throat, pushed her up against the wall saying, "I know you want it." She was then forcibly handled and as far as is relevant to this offence the applicant then eventually overpowered her, saying that he was "going to knock a kid out of her". He punched her, winded her and eventually removing or pushing aside part of her clothing, raped her. She was struggling and protesting. After ejaculating he said to her, "Thanks, see you tomorrow night" and left. Later that day, the applicant sought medical advice. She ultimately made a complaint of rape and injuries were located around the throat and on one of her legs.

The events were canvassed…

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 The Queen

Details

AGLC: R v R [1996] QCA 75
Case: [1996] QCA 75
Decision Date: 21/03/1996

CaseChat Overview and Summary

The appeal is against the sentence imposed on the applicant, who was convicted of rape at Palm Island on 23 December 1994. The applicant was nearly 17 years old at the time of the offence and one year older at the time of sentencing. He was sentenced to detention for four years, and the appeal was made on the grounds that the sentence was manifestly excessive, with a three-year detention period being more appropriate. The case is governed by section 188 of the Juvenile Justice Act of 1992, which mandates that unless an order is made reducing the period that must be served before eligibility for release, the detainee must serve 70% of the detention period imposed.

The legal issue before the court was whether the sentence imposed was within the sound exercise of sentencing discretion, considering the applicant's age at the time of the offence, the seriousness of the offence, and the absence of any special circumstances that would justify a reduction in the term to be served. The court needed to determine if the sentence was excessive or if it was appropriate given the circumstances and the statutory requirements under the Juvenile Justice Act.

The court found that the facts of the case constituted a serious rape, involving a break-in, forcible rape, and the absence of any remorse by the applicant. The court held that the period of detention imposed was within the sound exercise of sentencing discretion. The court observed that the legislature had established that 70% of the detention period should be served unless special circumstances warranted a reduction to 50%. As no special circumstances were presented in this case, the court found no basis to reduce the sentence. The application for leave to appeal against the sentence was dismissed.

The final order was that the application for leave to appeal against the sentence was dismissed, and the sentence of four years' detention remained in place.

Orders