The Queen v Regan[1997] QCA 477

THOMAS J:  The applicant was convicted of two counts of unlawful carnal knowledge of a girl under the age of 16.  On each count he was sentenced to six months' imprisonment.

At the time of the offences in 1995 the complainant was 14 and the applicant 21 years old.  The applicant was a friend of the complainant's older brother and had known her for most of her life.  There was no romantic attachment between them. 

On the day in question, after leaving school on a Friday afternoon the complainant went to a party at a friend's house.  She consumed alcohol and at about 11.30 p.m. formed the intention of going to her brother's house.  However, on the way, in the company of others, including the applicant, she continued to drink at other locations, including the beach, at a hotel and went to two houses consecutively in Cleveland.

The record reveals a rather tawdry exploitation of a girl affected by liquor.  The learned sentencing Judge described the circumstances in this way:

"The complainant went into a room and laid down on a mattress.  Whilst on the mattress you removed the complainant's pants and your clothing and had intercourse with her.  The complainant, at that time, said she did not want to.  Later, you left that residence and went to another house.  At that time, you kept asking the complainant to go upstairs but she declined.  Later, whilst the complainant was having a shower you got into the shower with her and, again, had intercourse with her.  Whilst it is not alleged that either act of intercourse was without the complainant's consent it is a case where the complainant had, at least, expressed some reluctance to have intercourse."

The complainant was, before the first of these events, a virgin.  Plainly, she was exploited.  The applicant pleaded guilty on the morning of the trial which had been scheduled.  The learned sentencing Judge observed that the community had not been saved any money, or resources, as the trial had been ready to proceed and that no remorse had been shown on the applicant's part.  The complainant had continued to believe that she was required to give evidence at the trial.  Accordingly, His Honour considered that the applicant was deserving of little, if any, credit in relation to his pre-sentencing conduct.

The circumstances urged in mitigation are that there was no great disparity in the ages of the applicant and the complainant, although a matter of degree must attend that submission.  Further, he was not in a position of trust.  No force was used to commit the offences.  It was also mentioned that the applicant had a reasonable work record in recent years and that he had family support.

It was mentioned before us that he had obtained bail pending the appeal and that he was currently employed.  We were urged to take this into account in a submission which urged this Court to continue to give him the benefit of the freedom which he has obtained. 

Unfortunately, the applicant has an unfortunate criminal history for a young man.  It includes convictions for receiving, breaking and entering with intent and stealing in 1993 for which he was given community-based orders. 

Unfortunately, he seems not to have taken the opportunities offered, as those orders were followed by breaches of probation, breaches of a fine option order and breach of a community service order leading to his resentencing on the original offences of dishonesty and being required to serve imprisonment of nine months.

His record also shows him to have been convicted of an assault occasioning bodily harm, wilful and unlawful damage to property and aggravated assault on a female, which we were told related to what seems to be a jealous reaction taken out on his girlfriend when she was discovered in a compromising situation.  He has also been convicted of two assaults occasioning bodily harm committed subsequently to the present offences and apparently whilst he was on bail for them.

It was submitted that the learned sentencing Judge placed insufficient weight on certain features and too much weight on deterrence.  However, it seems to me that deterrence is a valid consideration in a case of this nature.  It was submitted that non-custodial orders were within the range.  However it seems to me that custodial orders were also within the range.

Reference was made to Snow ex parte Attorney-General, CA 359 of 1996, 7 October 1997, and to cases therein mentioned, which suggest that the period of the present sentence is comfortably within the available range.  I do not consider that any error has been shown or that the sentence was manifestly excessive.  I would refuse the application.

McPHERSON JA:  I agree.

DOWSETT J:  I also agree.

McPHERSON JA:  The order is the application is dismissed.