R v P[2001] QCA 25

COURT OF APPEAL

McPHERSON JA

MACKENZIE J

MULLINS J

CA No 298 of 2000

THE QUEEN

v.

PApplicant

BRISBANE

DATE 09/02/2001

JUDGMENT

MULLINS J: The applicant applies for an extension of time within which to apply for leave to appeal against the sentence of eight years' imprisonment imposed for one count of rape and for which the applicant was convicted on 25 November 1999.  It was count 1 on the indictment. 

The offence was committed between 1 April and 31 July 1983. The complainant was 12 and a half years old and the stepdaughter of the applicant. The applicant and the complainant's mother had married in April 1978. At the same trial the applicant was also convicted of two counts of rape against the same complainant which occurred in December 1988 and between 1 March 1989 and 30 April 1989 respectively. They were counts 2 and 3 on the indictment.

The applicant was sentenced on 25 November 1999 to eight years' imprisonment on each of the three counts. The applicant appealed against his convictions on each count. The appeal against conviction on count 1 was dismissed. The appeal against the convictions on counts 2 and 3 was allowed and a new trial was ordered. The Director of Public Prosecutions has now decided not to proceed with a retrial on counts 2 and 3.

It is submitted on behalf of the applicant that until the decision was made by the Director of Public Prosecutions not to proceed with a retrial on counts 2 and 3 it was premature for the applicant to seek a review of his sentence on count 1 only. That approach is not disputed by the Director of Public Prosecutions.

The applicant now invites the Court to follow the approach of this Court in Murphy CA 562 of 1996, 3 March 1997. It is submitted on behalf of the applicant that consistently with that approach in Murphy the sentence which should now be imposed for count 1 is seven years' imprisonment.

Leave to extend time is opposed on the basis that there is no prospect of a successful appeal in relation to the sentence. It is submitted on behalf of the Crown that a sentence of eight years' imprisonment for a single count of rape in the circumstances of the offence cannot be said to be manifestly excessive. 

The circumstances of the offence were that it was a Saturday morning and the complainant was on the lounge watching television.  Her mother was out shopping. The applicant came and sat down on the lounge and started touching her on the area of the chest and vagina. She said to him, "Stop, don't do that," and got up to walk away. The applicant grabbed the complainant and pushed her down. He said to her, "If you have sex with me I'll stop touching you," to which she replied, "No." The complainant was on her back and the applicant was on top of her so that she could not move. The applicant then had sexual intercourse with the complainant. At the conclusion the applicant threatened to harm the complainant or her mother if a complaint were made.

The applicant's counsel's outline relies on as comparable cases Cummins, CA 376 of 1989, 2 May 1990 and Press, CA 489 of 1996, 14 February 1997.  In each case the sentence imposed for one count of rape was seven years.  In Cummins, there was no relationship of trust between the parties.  In Press, there was a belated guilty plea and Press had been beaten by the complainant's boyfriend and his stepfather and left with some residual permanent disability.

Counsel for the Crown relies on Casey, CA 262 of 1991, 3 March 1992; Haar, CA 351 of 1991, 24 June 1992; and McKenzie, CA 219 of 1999, 20 August 1999. I accept the submission that these decisions support the sentence imposed on the applicant of eight years having regard to the age of the complainant at the time of the offence and the aggravating circumstance that a relationship of trust had existed between the applicant and the complainant at the time of the offence.

Notwithstanding that the sentence of eight years imposed for count 1 was imposed at the same time as the concurrent sentences for counts 2 and 3, the issue on this application is the relationship of the sentence imposed for count 1 to the circumstances of that offence. The approach taken in Murphy was appropriate in that case having regard to the facts of that case and the multiple offences for which the applicant in that case had been convicted and in respect of which his appeal had been successful.

I therefore do not consider that there is any prospect that the applicant would be able to show in the circumstances of this offence that the sentence of eight years' imprisonment for a single count of rape was manifestly excessive. It is therefore futile to extend the time for applying for leave to appeal against the sentence. I would therefore refuse the application.

McPHERSON JA: I agree.The result would be the same if the application were granted and the appeal ultimately allowed, the sentence set aside and the sentencing discretion re-exercised in this Court. If such a process were to be gone through a sentence of eight years' imprisonment for the surviving single conviction against the applicant would, as the reasons of Justice Mullins have shown, be appropriate. So much is in fact conceded by counsel before us. That being so, this application has no real prospect of success and the application should be dismissed.

MACKENZIE J: I agree. I accept that there may be some cases, of which Murphy is an example, where the quashing of other convictions on the same indictment may oblige the Court to reconsider afresh the level of sentencing for the remaining count or counts. However, I think that the present case is different from Murphy. The sentence of eight years for the remaining count is not objectively manifestly excessive. That count was clearly the worst on the indictment upon which the applicant was convicted. 

The girl was 12 and a half years of age.  He was in a position of trust. The other offences occurred five years and six years later when she was a more mature woman. The  sentencing Judge recognised the remaining count as clearly the worst. It is implicit in his reasons where he noted that some force was used to effect the purposes of count 1 and that in the second case he had generally used violence to secure compliant and submissive submission by the complainant in respect of those acts. I agree with the reasons of Justice Mullins generally and with the orders proposed.

McPHERSON JA: The order is that the application to extend time is dismissed.