The Queen v McIlvaney[1997] QCA 16

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 427 of 1996

Brisbane

[R. v. McIlvaney]

T H E    Q U E E N

v.

PAUL ALEXANDER McILVANEY

(Applicant) Appellant

Fitzgerald P.

Davies J.A.

McPherson J.A.

Judgment delivered 4 March 1997

1.APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED;

2.APPEAL AGAINST SENTENCE ALLOWED BY REDUCING THE TERM OF 10 YEARS IMPRISONMENT IMPOSED FOR RAPE (COUNT 3) TO A TERM OF IMPRISONMENT FOR 8 YEARS;

3.APPEAL AGAINST CONVICTION DISMISSED.

Judgment of the Court

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 4 March 1997

The appellant was convicted of indecent assault and rape for which he was sentenced to concurrent terms of imprisonment of seven and 10 years.  He appeals against his conviction and also applies for leave to appeal against sentence.

As regards the appeal, the sole ground is that the verdicts are unsafe and unsatisfactory.  The 24 year old complainant is his wife’s sister and the offences took place in his mother-in-law’s unit where the complainant was staying at the time.  At about 9.30 on the evening in question the appellant went there looking for his wife.  The complainant let him in and offered him a cup of coffee.  According to his account of it, there was some talk about a pre-existing pecuniary liability due from her to the appellant and his wife, and the complainant offered to discharge the liability by providing sexual favours to him.  They then had sexual intercourse with her consent. 

The complainant gave evidence denying this version of events.  She said she had not consented to sexual intercourse.  In the course of cross-examination the following matters were put to her by counsel for the defence:

“MR MCLAUGHLIN:During the course of this sexual interlude, you said to my client, ‘Paul, you can do it, but I’m not on the pill, don’t come inside me’.  I put it to you, what do you say about that? --- I did say that.

You did say that, did you? --- Yes, I did.

You can do it’ ---?--- I ---

--- or, ‘you can do it, Paul’, did you say that?

HIS HONOUR:Just a moment.  Triple barrel question.  And you speak over the witness when she’s explaining.  Carry on.

MR MCLAUGHLIN:Thank you Your Honour.

HIS HONOUR:Carry-on? --- I said, ‘I’m not on the pill’.

Yes.

MR MCLAUGHLIN:And what I put to you is that you said to my client, ‘You can do it Paul, but I’m not on the pill, don’t come inside me’? --- I didn’t say, ‘You can do it Paul’.

You didn’t say that?

HIS HONOUR:Did you say, ‘Don’t come inside me’? --- Yes, I did say that.

MR MCLAUGHLIN:Well, I’m putting it to you, not only did you say that, but you said, ‘You can do it, Paul, but don’t come inside me’.  And that’s the reason that he didn’t ejaculate inside you, because you’d given your permission - you’d given your consent - to this sexual act which had taken place, but it was on the proviso that he don’t ejaculate inside you, and that’s why he removed his penis before he ejaculated in you, he ejaculated over you?  What do you say to that? --- I don’t understand what you’re saying.

Well, see, I’m simply putting it to you ...you consented to having sex with my client on the proviso he didn’t ejaculate inside of you?  --- No.  I didn’t consent.”

It is evident from the verdicts returned that the jury accepted that the complainant had not said “you can do it” even if she had asked the accused not to ejaculate inside her, or insisted that he not do so.  It was plainly within the province of the jury to arrive at that conclusion.  The matter was one for them to decide.  The verdicts of guilty are substantiated by evidence that her repeated screams for help were heard by residents of a nearby unit in the block, who went to investigate, and also that a medical examination shortly after the incident disclosed abrasions, bruising or soreness on the complainant’s arms, chest, abdomen and buttocks.

Given these circumstances, it would have been surprising if the appellant had been acquitted.  The verdicts of guilty were obviously justified on the evidence led by the prosecution, and the appeal against conviction must be dismissed.

On the other hand, the sentence of imprisonment for 10 years seems unduly severe, particularly having regard to recent decisions of this Court in R. v. Stirling (C.A. 205 of 1996) and R. v. Press (C.A. 489 of 1996) in each of which sentences of imprisonment for nine years were reduced to seven years, with recommendations for parole.  Force was used in committing the offences in the present case and the appellant threatened to hurt the complainant, who is now undergoing treatment, estimated to last two years, for post-traumatic stress disorder.  The offence of assault, of which the appellant was also convicted, was accompanied by a circumstance of aggravation consisting of an act of fellatio, which the complainant was compelled to undertake.  Nevertheless, the degree of force used and the circumstances of the rape generally were somewhat less serious here than in R. v. Sorby (C.A. 102 of 1995), where the appellant was also convicted of an act of sodomy on the complainant.  In that case this Court refused an application for leave to appeal against a sentence of imprisonment for nine years in what was described as “a very bad case”.

The appellant is 32 years old with children aged six and three years.  He has a few recorded convictions most of which were sustained for offences of dishonesty when he was a child or adolescent, although in 1993 in Melbourne he received a suspended sentence of 3 months imprisonment for recklessly causing injury.  He does not merit a recommendation for early parole.  Nevertheless, accepting the recent decisions as suggesting appropriate sentencing standards in such  cases, the head sentence here appears to us to be excessive.  The application should be granted and the appeal against sentence allowed by reducing the term of 10 years imprisonment imposed for rape (count 3) to a term of imprisonment for 8 years.  As has been said, the appeal against conviction is dismissed.