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

v

R

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 upon trial.  The applicant did not give evidence upon the trial but no doubt upon instructions, the complainant was cross-examined forcibly and it was put to her that she in fact had consented to intercourse.  It is clear then that no remorse whatever was demonstrated by the applicant for the offence of which he was found guilty.

In a pre-sentence report to which reference was made upon sentence, it was observed by the person making it who had discussed matters with the applicant and had evaluated his attitudes and his psychological condition, that a period of detention would serve as a tangible punishment for the offence and give him some opportunity to embark upon programs for personal, social and educational skills.

A number of cases were referred to in support of the applicant's application.  Most of the cases, of course, in offences of this kind must be viewed in the light of the particular facts before the sentencing Judge.  It cannot be the case that uniformity of sentencing requires a detailed analysis of the facts of every case with an attempt made to impose a sentence which is arguably justifiable on grounds of relativity only.

A number of cases were discussed - we were referred to them - but in my view this was a serious rape, it involved a breaking into a house, the forcible rape of a woman living in it and an absence of any remorse.  In my view, the period of detention imposed was within the sound exercise of sentencing discretion.

In my view, the fact that there were no special circumstances placed before the sentencing Judge which would support a reduction of the statutory provision under section 188(1) that he serve 70 per cent before becoming eligible for release cannot support the contention that for that reason alone the sentence ought to have been diminished or reduced, presumably on the basis that had the applicant been an adult he would have become eligible for parole after serving 50 per cent of a sentence imposed upon him.

The legislature under section 188(2) obviously contemplates that where periods of detention are imposed upon children for reasons which no doubt seem good to it, 70 per cent should be served unless there are special circumstances justifying a reduction of the term to be served to 50 per cent.  No special circumstances were advanced in the present case.  In my view, application for leave should be refused.

McPHERSON JA:  I agree.

PINCUS JA:  I agree.

McPHERSON JA:  The application for leave to appeal against sentence is dismissed.