The Queen v Y[1998] QCA 451

COURT OF APPEAL

PINCUS JA

THOMAS JA

CHESTERMAN J

Appeal No 334 of 1998

THE QUEEN

v.

Y   

  (Applicant) Appellant

BRISBANE

DATE 26/11/98

JUDGMENT

PINCUS JA:  The applicant was convicted after a trial of two offences committed in July 1997:  attempted rape and rape. The sentences imposed were four years for the first offence I have mentioned and eight years for the second.

The applicant was 27 years of age when the offences were committed and the complainant was then 16. There is a family connection in that the complainant is a cousin of the applicant's wife. The complainant's evidence was to the effect that on the occasion in question she was home alone when she received a phone call from the applicant asking if he could come over and talk to her. She agreed. He arrived and after some conversation he said, "I know you want me". She tried to get him to leave but, using force, he took her into another room, pushed her to the ground and pulled her shorts and underpants off. He tried to put his penis into her vagina and then into her anus, but was unable to do so. He then rolled her over, put his penis into her anus and ejaculated over her back.

The applicant did not admit either the attempt or the rape. His story was that after some conversation with the complainant the two of them started rubbing each other. He said she rubbed her pelvic area against his, lowered his trousers and then hers and started stroking his genital area. A little while later he ejaculated. The jury were evidently satisfied that this version of events was incorrect.

The rape of which the applicant was convicted was an act of anal intercourse, not vaginal. He was properly charged with rape because of the definition of "carnal knowledge" which came into effect on 1 July 1997, shortly before the offence was committed.

In favour of the applicant it must be noted that he had no criminal history and was said to have a good work history. Also in favour of the applicant is the circumstance that there was nothing put before the Court to suggest that there was a particular or unusual adverse consequence of these events so far as the complainant was concerned - although, as Mr Meredith pointed out, one would assume that there must have been some consequence.

We were referred to a number of authorities on each side in support of the proposition, put forward by Mr Rafter, that the offences were not ones meriting the punishment which was imposed of eight years, and in support of the proposition, put forward by Mr Meredith for the Crown, that the sentences imposed were within range. It seems to me clear enough that if one examines the unreported cases to which we were referred the sentence is rather high. The question which has concerned me is whether it is sufficiently high to warrant our interference.

I do not propose to deal exhaustively with the cases which have been discussed, but I will mention some of them. We were referred to F (CA No. 418 of 1996, 6 December 1996). The applicant there was convicted of raping a 13-year-old girl and indecently dealing with her on a number of occasions. He was the de facto husband of the complainant's mother. He had a minor criminal history. There was no remorse and there was a trial. Thomas J. remarked, in giving reasons in that case, that there was no gratuitous violence and there were no threats. But there was persistence, His Honour said, over a period of seven months - a circumstance which, in my view, makes the case look rather worse than the present. A sentence of eight and a half years imprisonment was said to be in the range, although possibly towards the higher end of it. F's case throws doubt upon the propriety of the present sentence.

In Quarrell (CA No. 248 of 1994, 6 October 1994) the complainant was 17 and the applicant 23. Like this applicant, Quarrell had no prior criminal history. There were a number of offences committed including house breaking, indecent assault, attempted rape, deprivation of liberty, rape and going armed in public to cause fear. The longest sentence imposed was nine years for the rape. The case was clearly worse than the present one because in Quarrell the complainant was threatened with a gun and she acted under threat of being shot. She was penetrated twice. The applicant made her take his penis in her mouth and perform other sexual acts. There was no significant criminal history and there were pleas of guilty. It was held that the applicant had good prospects of rehabilitation and was remorseful. And, as Mr Meredith has pointed out, it was said that he did not embark on his course of conduct in a rational frame of mind. The sentence was reduced to the extent of making the non-parole period three and a half years. One has the impression that Quarrell's sentence of nine years makes this sentence of eight years seem, again, a little high.

Then we were referred to Sorby (CA No. 102 of 1995, 27 April 1995) where a nine year sentence was imposed for rape which was considerably worse than the present. But in the leading judgment, that of Mr Justice Ambrose, His Honour said that a heavier sentence could well have been open. So, it does not seem to me that is of any great assistance.

In Hunt (CA No. 305 of 1994, 12 September 1994) there were two rapes, each committed on the applicant's former de facto wife. In addition there was a conviction of a charge of indecent assault by way of anal intercourse. There, there was what was usually called a home invasion. There was no remorse and significant violence was used. There was a trial and there had been a previous conviction for an offence of violence. The sentence of seven years does not accord well with the present sentence, but I notice that Mackenzie J. said that a sentence of more than seven years might have been justified.

Press (CA No. 489 of 1996, 14 February 1997) is a very unusual case for reasons which I do not discuss. A sentence of nine years for rape and other offences was reduced to seven years. I do not, myself, find the case of great assistance because of the peculiar circumstances which are mentioned in it.

None of the authorities mentioned is quite close enough to be directly applicable but the impression one gains from looking at them, and from general experience of other similar cases which have come before this Court, is that the sentence of eight years is rather high. Although I am impressed by the argument of Mr Meredith to the contrary, it appears to me that it is too high and that a more appropriate sentence would have been six years and six months.

I would, for myself, grant the application, allow the appeal with respect to the sentence for rape and reduce the sentence of eight years for that offence to six years and six months.

THOMAS JA:  I agree. I am influenced in the present case by the fact that there was no evidence of physical injury or abnormality as a result of the applicant's acts. No material was given to the sentencing Court in relation to any effect upon the victim. It may also be noted that no comparable cases were referred to the learned sentencing Judge.

We have had the benefit of an analysis of cases, notably those referred to by Mr Justice Pincus, and of others referred to in argument. I am comfortably satisfied that the appropriate sentencing response in the present circumstances was at a level of approximately six and a half years. And that the sentence of eight years was manifestly excessive. I accordingly agree with the orders proposed.

CHESTERMAN J:  I agree with that the application should be allowed and the order should be as proposed by Mr Justice Pincus. I agree with the reasons given by both my brothers.

PINCUS JA:  The orders will be: application granted with respect to the sentence for the rape. As to that offence the appeal will be allowed and the sentence reduced from eight years to six years and six months.