R v Utley

Case [2017] QCA 94

SUPREME COURT OF QUEENSLAND

CITATION:

R v Utley [2017] QCA 94

PARTIES:

R
v
UTLEY, Ivan Bernard
(applicant)

FILE NO/S:

CA No 280 of 2016
DC No 281 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville – Date of Sentence: 16 September 2016

DELIVERED ON:

19 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

10 March 2017

JUDGES:

Fraser and Philippides JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – OTHER MATTERS – where the applicant was convicted of one count of rape, one count of burglary with circumstances of aggravation, two counts of assault occasioning bodily harm whilst armed, and one count of common assault – where the applicant received a head sentence of 10 years on the count of rape – where the length of the head sentence imposed necessitated the declaration of a serious violent offence – where the applicant must then serve at least 80 per cent of the head sentence imposed – where the applicant contends the learned trial judge failed to take account of the applicant’s pleas of guilty, causing a miscarriage of the sentencing process – where the applicant additionally contends that the sentence imposed was excessive in all of the circumstances – whether leave to appeal the sentence should be granted

Penalties and Sentences Act 1992 (Qld), s 13

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Cobb[2016] QCA 333, considered
R v Mallie[2000] QCA 188, considered
R v Newman(2007) 172 A Crim R 171; [2007] QCA 198, considered
R v Safi[2015] QCA 13, applied
R v Richards[2008] QCA 211, considered
R v Rix[2014] QCA 278, considered

COUNSEL:

M J Copley QC for the applicant
V A Loury QC for the respondent

SOLICITORS:

Arthur Browne and Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of Boddice J and the order proposed by his Honour.

  2. PHILIPPIDES JA:  I have had the advantage of reading the reasons for judgment of Boddice J.  I agree with those reasons and the order proposed.

  3. BODDICE J:  On 16 September 2016, the applicant pleaded guilty to one count of rape, one count of burglary with circumstances of aggravation, two counts of assault occasioning bodily harm whilst armed and one count of common assault.  He was sentenced to an effective head sentence of 10 years imprisonment.  As a consequence, there was automatically a declaration the applicant had been convicted of a serious violent offence, necessitating he serve 80 per cent of that…

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Details
AGLC
R v Utley [2017] QCA 94
Case
[2017] QCA 94
Decision Date

CaseChat Overview and Summary

In the matter of R v Utley, the applicant sought leave to appeal against his sentence. The applicant, who has no prior criminal history, was convicted of various offences including rape, burglary with aggravation, and assault occasioning bodily harm whilst armed. The applicant was sentenced to a head term of 10 years for the rape charge, which necessitated the declaration of a serious violent offence. The applicant contended that the trial judge failed to appropriately recognise his pleas of guilty, resulting in a miscarriage of the sentencing process. Furthermore, the applicant argued that the sentence imposed was excessive in all the circumstances.

The legal issues before the court were whether the sentencing judge failed to appropriately recognise the applicant's pleas of guilty, and whether the sentence imposed was manifestly excessive. The court considered the principles of sentencing in relation to pleas of guilty and the overall proportionality of the sentence. The court also considered the seriousness of the offences, the applicant's background, and the need for deterrence and rehabilitation.

The court found that the sentencing judge did not fail to appropriately recognise the applicant's pleas of guilty, and that the sentence imposed was not manifestly excessive. The court held that the sentence reflected the seriousness of the offences and was proportionate to the applicant's offending. The court also noted that the applicant's pleas of guilty were considered by the sentencing judge, and that the sentence imposed was not disproportionate to the applicant's offending. Accordingly, the application for leave to appeal was refused.

No further orders were made.

Orders

Orders of the court

The application for leave to appeal be refused.

Background

Background to the litigation

The applicant seeks leave to appeal that sentence. Two grounds are relied upon by the applicant. First, the sentencing judge failed to appropriately recognise the pleas of guilty causing a miscarriage of the sentencing process. Second, the sentence imposed was manifestly excessive in all the circumstances.Background The applicant was born on 1 December 1971. He is indigenous and has no prior criminal history. The applicant was aged 42 years at the time of commission of the offences of 6 February 2014. He was aged 44 years at sentence. The offences, whilst committed on the same day, arose out of two separate incidents involving two separate female complainants. Each complainant was in a different house. In respect of the first complainant, the applicant pleaded guilty to one count of unlawful assault. The remaining counts were committed against the second complainant.Offences On the afternoon of 5 February 2014, the applicant had been drinking alcohol at his local hotel with a male friend. He had also consumed some Valium. They were joined around midnight by the friend’s partner, who was the first complainant. The applicant then travelled to the friend’s house where he consumed alcohol for a further period of time. That consumption included the drinking of spirits. Some time in the early hours of the following morning the applicant’s friend and the first complainant left his friend’s house. The first complainant later returned to the house. The applicant remained at the house throughout this time. He fell asleep. At some point he awoke. The applicant said he had a hypodermic needle and syringe in his arm. He felt irrational and left the house. He returned to the house and assaulted the first complainant. The applicant held her on the floor and choked her. The first complainant was able to successfully resist his attack and flee the scene. The applicant then left that house and walked further down the road to another house. The second complainant was in that house. The applicant entered the second complainant’s house through an unlocked door. He was armed with a broken vodka bottle. Prior to entering that house, the applicant had shaken the doors of two other houses. The applicant used the vodka bottle to strike the complainant, causing a 1.5 cm laceration to the bottom of her nose. The applicant then forced the second complainant into the bedroom. He tried unsuccessfully to penetrate her vaginally. The complainant, fearing she was going to die, assisted the applicant to achieve entry of his penis into her anus. The applicant did not use a condom. Throughout that act, the applicant held the vodka bottle to the complainant. As a consequence, she sustained a number of lacerations, including a 4 cm laceration to her shoulder blade requiring six sutures. The second complainant was able to escape and ran naked into the street. The applicant remained in the house. Police subsequently arrived at the scene. His behaviour with police was described as irrational and completely out of character. Police described him as going in and out of consciousness. Other witnesses described him as screaming out in a strange way.Sentencing remarks

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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