R v Rodriguez[2025] QCA 34

SUPREME COURT OF QUEENSLAND

1. [1]
   BODDICE JA:  The applicant pleaded guilty to one count of rape.  He was sentenced to 5 years’ imprisonment, suspended after serving 20 months’ imprisonment, for an operational period of 5 years.
2. [2]
   The applicant seeks leave to appeal against sentence.  Should leave be granted, he relies on three grounds.  First, the sentencing judge erred in rejecting evidence about the applicant’s reduced moral culpability because of the effects of an undiagnosed Bipolar Spectrum Disorder.  Second, the sentencing proceeding miscarried because the applicant was sentenced other than on the basis that he would receive “full credit” for his guilty plea, when that indication had been given by a different judge before the plea was entered.  Third, the sentence was manifestly excessive.

Offence

3. [3]
   The offence was committed on 10 October 2021.  At that time, the applicant was aged 18 years and had no prior criminal history.
4. [4]
   The complainant was a 19 year old female.  She was the applicant’s friend, having met in high school.
5. [5]
   The offence was committed after the applicant and the complainant had consensual sex in the applicant’s bedroom.
6. [6]
   Sometime later, the applicant sought the complainant’s permission to touch her breasts.  That permission was refused by the complainant.
7. [7]
   The complainant fell asleep.  She was wearing a large t-shirt and underwear.  The complainant awoke to the applicant penetrating her vagina with his penis, from behind.  Her underwear was displaced and the applicant was not wearing a condom.
8. [8]
   The complainant sat up.  She was disorientated and frightened.  At that point, the applicant forcefully pushed her shoulder back down and said, “Go back to sleep.”  The complainant proceeded to cry whilst the applicant continued to have sex with her before he ejaculated inside her vagina.  The applicant then pulled up the complainant’s underwear and whispered, “Now I feel kind of bad.”
9. [9]
   The complainant remained in the applicant’s bedroom and cried silently.  When she gathered her things, she woke up the applicant.  He asked if he had upset her and said, “I’m so sorry.  I don’t know why I did it.”  As the applicant followed her out of the house, he said, “I thought you would be into it.”  The complainant replied, “Why would I be into it?  You just told me to go back to sleep.”
10. [10]
    As the complainant was travelling to her home, she received messages of apology from the applicant, including:

“• ‘I don’t now what to say there is nothing I can say to excuse it or make it any better I am so sorry [complainant], if you need anything pls just let me know that was disgusting of me I don't know what I was thinking I am so fucking sorry’;

• ‘I should’ve stopped regardless of if you wanted to say no idk why I kept going it was so fucking selfish of me, don't blame yourself at all I’m completely 100 percent in the wrong’;
• ‘If you don’t wanna talk or anything rightfully so I just hope you know I am sorry it will never happen again that was such a big mistake’;
• ‘I’m not gonna sit here and tell you why I did what I did, but I just want you to know I had no intention of like hurting you like sort of thing that is not what I’m into at all I should’ve done so many things better I’m so sorry’; and
• ‘Idk why I would think I can do that stuff with you without having discussed it before I shouldn’t assume shit at all that was stupidly fucking reckless I’m just blabbering at this point but holy shit I feel absolutely awful about it now the more I think about it it’s just like holy fuck’.”

11. [11]
    Upon arrival at her house, the complainant wrote a suicide note and took multiple anti-depressant tablets.  About 30 minutes later, the complainant called an ambulance.  She was transported to hospital.
12. [12]
    Later in October 2021, the complainant reported the rape to police.  On 8 November 2021, the complainant participated in a pre-text telephone call with the applicant, at the request of police.  During that conversation the applicant admitted to having non-consensual sex with her.  He asked if she was going to report the offending to police.  The applicant said, “All I’m gonna say is if you tell police, I will kill myself.”

Plea

13. [13]
    The applicant had been committed for trial on 6 May 2022.  An indictment was presented on 21 July 2022.  That indictment included three other unrelated counts.  Those counts were the subject of a successful severance application on 31 May 2023.
14. [14]
    The trial for this count was listed in the week of 29 January 2024.  On that date, the applicant was arraigned and pleaded guilty to the count.
15. [15]
    Prior to the arraignment, the trial judge had noted that the pre-text call contained “pretty distinct admissions”, including “I basically unconsensually fucked you.  Oh, fuck, I raped.  It should never have happened.  That was probably the shittiest thing I’ve done.”  The trial judge then advised counsel:

“… the jury might place significant weight on those statements.  Your client’s perfectly entitled to plead not guilty, and he can do so.  But before there’s any cross-examination of the complainant, I would give full credit to a plea of guilty.”^[1]

Sentence hearing

16. [16]
    The Crown submitted that as the matter had been listed for trial, the applicant’s plea was a late plea.  The Crown also submitted that the sentence should proceed on the basis that the applicant had penetrated the complainant’s vagina with his penis, without her consent, knowing that the complainant was not consenting.  The Crown submitted that relevant factors in support thereof, were the fact that the applicant forcefully pushed the complainant’s shoulder back down when she sat up; told her to go back to sleep; and continued despite the complainant crying and pushing his hands away from her breasts.
17. [17]
    The Crown further submitted that whilst there was evidence that the applicant had, since the offence, been diagnosed with a mental illness, this was not a case where the court would accept that the moral culpability of the applicant was reduced because there was insufficient evidence of a causal connection between any diagnosed disorder and the offending conduct.
18. [18]
    After referring to comparable authorities,^[2] the Crown submitted that a sentence of no less than 5 years’ imprisonment should be imposed, with a release date set at not less than one-third of the term of imprisonment.
19. [19]
    Defence counsel submitted that having regard to the applicant’s youth, no prior criminal history, plea of guilty, genuine remorse, rehabilitation and undiagnosed mental health condition, a sentence of 5 years’ imprisonment was excessive and that a sentence of up to 4 years’ imprisonment would achieve the principles of general and specific deterrence and community denunciation.
20. [20]
    The defence submitted that whilst the facts were accepted, the fact that the offence was committed after consensual encounters between the applicant and the complainant and without any violence associated with the offending as well as the fact that the applicant had been immediately apologetic, rendered it open to the court to sentence him on the basis he had an honest belief that the complainant was consenting, but that it was not reasonable.
21. [21]
    In support of these submissions, the defence relied on two psychological reports.  These reports were obtained in circumstances where the applicant had attended on a consultant psychiatrist some six months after the offence, at which time he was diagnosed to be suffering principally from Bipolar Spectrum Disorder.
22. [22]
    The defence submitted that since that diagnosis, the applicant had commenced seeing a clinical and forensic psychologist and that, with intense and appropriate treatment, that psychologist considered the risk of re-offending was low, provided he did not relapse with cannabis use generally, or as a response to triggers.
23. [23]
    In addition, a consultant psychiatrist had opined that it was likely that the applicant was, to some extent, impacted by the onset of his illness at the time of the offence and that his judgment and decision-making, including consideration of his behaviour and the impact upon others, was likely to have been obscured to some extent.
24. [24]
    Defence counsel submitted that in those circumstances, the applicant’s moral culpability was reduced such that the principles of general and specific deterrence, as well as community denunciation, did not feature heavily.  Further, as the applicant had good rehabilitation prospects with a stabilised mental state and had completed a men’s behavioural change program, a period of actual imprisonment would be deleterious to his rehabilitation.
25. [25]
    After referring to the consequences of the inevitable conviction and the principles of sentencing, defence counsel submitted that the comparable decisions relied upon by the Crown all had more serious features, such that a head sentence of up to 4 years’ imprisonment was appropriate, with that sentence being wholly suspended to reflect the significant mitigating factors.

Sentencing remarks

26. [26]
    The sentencing judge found that based on the agreed statement of facts, the applicant was to be sentenced on the basis that he knew the complainant was asleep and not consenting, when he had sexual intercourse with her.
27. [27]
    The sentencing judge recorded that the consequence of the offence involved such betrayal that the complainant had, upon arriving home, attempted to take her own life, having written a suicide note.  Further, although the applicant had participated in a pre-text call on 8 November 2021, in which he had made admissions of having non-consensual intercourse with the complainant, the applicant had engaged in emotional manipulative conduct, telling her that if she told police, he would kill himself.
28. [28]
    The sentencing judge recorded that the applicant was only 18 years of age and had no criminal history at the time of the offending.  The applicant had also pleaded guilty, although that plea was entered on the morning of the trial and was “late”.  The sentencing judge did not accept that the plea was demonstrative of remorse.  It did, however, spare the complainant the further trauma of giving evidence and had assisted in the administration of justice and would therefore be taken into account in the applicant’s favour.
29. [29]
    The sentencing judge recorded that the applicant had been raised in a loving family and had commenced undertaking study, but had desisted in circumstances where there were difficulties with his mental health emerging during his Year 12, with senses of isolation and suicidal ideation.  The applicant had been using illicit substances since Year 11, although he reported abstinence since April 2024.
30. [30]
    The sentencing judge recorded that the applicant had been diagnosed with Bipolar Spectrum Disorder in May 2022, in circumstances where there was a family history and he had reported to his psychiatrist experiencing a two to three week period of irritable mood, increased sex drive, racing thoughts and pressured speech, in around May 2021.  The applicant’s mother had confirmed to the psychiatrist that there had been a period of two to three days in which he had experienced this hypomanic state.
31. [31]
    The sentencing judge recorded that the applicant sought to minimise his conduct in his interview with the forensic psychologist, saying that he did not know that the complainant was asleep; that she had given him permission for her breasts to be touched; and providing an explanation for his apologies.  The sentencing judge found those statements evidenced a lack of remorse, at least at the time of that interview.
32. [32]
    The sentencing judge recorded that that psychologist opined that the applicant’s conduct had been impacted by the onset of his illness.  However in this first report, the psychologist had stated that there was no evidence of a causal link between his illness and his offending, although he had later opined that the applicant’s judgment and decision-making, including consideration of his behaviour and the impact on others, was likely to have been obscured to some extent, such that his moral culpability was reduced at the time of the offending.
33. [33]
    The sentencing judge found that the psychologist had no regard to any medical evidence, or any collateral evidence, in reaching that opinion.  An inference had been drawn from the evidence of a single episode in May 2021 and the applicant’s self-reports, in order to reach that conclusion.  Further, the psychologist did not seem to take into account the possible cumulative effect of the applicant’s consumption of illicit drugs and alcohol, on the night of the offence.
34. [34]
    The sentencing judge found:

“There is nothing in [the psychologist’s] evidence that assists me in understanding how any impairment in your mental functioning was likely to impact on your decision to have sex with a woman who was asleep.  I do not understand how emotional dysregulation, impulsivity, insomnia, increased energy levels or sexual promiscuity impacted on your decision to have intercourse with a woman who was asleep.”^[3]

35. [35]
    The sentencing judge recorded that after the sentence had been reserved, a report had been received from the applicant’s treating psychiatrist in which it was opined that it was “plausible” that there was a causal connection between the symptomatic effects of his Bipolar Spectrum Disorder and the offending behaviour.  The treating psychiatrist also opined that there were strong indications that the applicant was in a hypomanic episode or mood state when he committed the offence.
36. [36]
    The sentencing judge recorded that it was not clear where that evidence came from “other than perhaps the self-report” and it was not clear whether the treating psychiatrist likewise was proceeding on the basis that the offending occurred because he thought the complainant was awake and consenting.  Further, as the applicant was being sentenced on the basis he knew the complainant was asleep and not consenting, the sentencing judge could not understand how the impairment and mental functioning so affected his judgment that his moral culpability was reduced, noting, “Your heightened sex drive or hypersexuality provides no explanation for why you would choose to rape a woman.”
37. [37]
    After recording that the relevant considerations in exercising the sentencing discretion were whether the applicant’s mental state, as a matter of fact, involved such an impairment of mental functioning as to materially reduce moral culpability, the sentencing judge found that, at best, there was perhaps some degree of impaired mental functioning, but that there was no evidence of a well-founded expert opinion of impaired mental functioning which materially reduced the moral culpability.
38. [38]
    The sentencing judge recorded that the applicant’s mental illness did, however, have relevance to the structure of the sentence, noting that the applicant engaged in treatment over the last two years and that the treating psychiatrist opined that he was a low risk of sexual offending, provided he did not relapse with cannabis use.  The sentencing judge also recorded that the applicant was complying with his medication and had completed a men’s behavioural change program.
39. [39]
    The sentencing judge found that the principle that imprisonment should be imposed as a last resort, did not apply to the applicant’s offence.  The applicant’s conduct involved the unwanted exertion of force or power, by forcing his penis into the complainant’s vagina, without her consent and pushing the complainant down when she sat up.  The sentencing judge accepted that the applicant did not use gratuitous violence, but found that at the forefront of sentencing was “the need to protect the community from the risk of you re-offending and the impact upon the victim”.
40. [40]
    The sentencing judge recorded that the impact upon the complainant was “unsurprisingly” profound.  Apart from a significant attempt to take her own life immediately after the offending, the complainant had described having a constant fear of men, a shattered sense of trust and experiencing violent flashbacks, as well as sleepless nights and overwhelming anxiety.
41. [41]
    The sentencing judge accepted that the applicant’s risk of re-offending in a sexual way was low, if he abstained from cannabis use and that the applicant had made some steps towards rehabilitation, although it was not complete.
42. [42]
    The sentencing judge concluded:

“The maximum penalty against which I must consider all of these features is life imprisonment.  Your offending was serious because it involved a significant breach of the trust the complainant had in you.  You knew she was asleep.  You violated her in an appalling way which has had profound consequences on her.  Whilst you expressed remorse initially, you have minimised your offending to the psychologist and did not enter a plea of guilty until the morning of your trial in circumstances where I accept the prosecution’s case was, as a result of your admissions, a strong one.

Your young age at the time of the offending remains a relevant feature, as does the absence of any previous convictions.  Some leniency is often extended to youthful first offenders because of the hope that they can be rehabilitated.  At the time of this offending, you were a youthful first offender.  You remain a young man with a significant mental illness and I accept that there will be some hardship to you in the prison environment, which I will take into account.

The sentence I impose must act to denounce your conduct on behalf of the Queensland community and must deter you and others from committing the very serious offence of rape.  These are the paramount features, in my view, that impact upon the exercise of my discretion.

In order to take into account the mental illness that you have which, as I have indicated, will impact upon your experience in custody, I will impose a sentence that allows me to suspend it rather than ordering your release on parole.  Whilst I consider that the supervision offered by parole would be of benefit to you and the Queensland community, you have demonstrated a commitment to your own rehabilitation, you have stable accommodation and the support of your parents.  Obtaining employment, which you intend to do, will also act as a protective factor.

Balancing all of these features up together, I consider that the appropriate sentence is one of five years’ imprisonment, which I will suspend after you have served 20 months for an operational period of five years.  You must not commit another offence punishable by imprisonment in the next five years if you are to avoid being dealt with for the suspended term of imprisonment.”^[4]

Consideration

43. [43]
    It is appropriate to first consider the ground that the sentence imposed was manifestly excessive, as, if that ground succeeds, the sentencing discretion is to be re-exercised and there would be no need to consider the first two grounds.
44. [44]
    The principles relevant to this ground are not in dispute.  To succeed, it is not enough for the applicant to establish the sentence was different or even markedly different to comparable cases.  The applicant must establish that the sentence is so different as to demonstrate misapplication of principle, or that it is unreasonable or plainly unjust.^[5]
45. [45]
    The applicant submits that the sentence of 5 years’ imprisonment, was itself manifestly excessive.  Whilst any offence of rape is serious, this offence was committed by an extremely youthful offender with no prior criminal history, in circumstances where there was no material age disparity, no gratuitous violence and the applicant was suffering from an undiagnosed mental health condition.  Further, there were significant mitigating features, including immediate expressions of remorse, a plea of guilty saving the complainant the trauma of giving evidence and genuine attempts at rehabilitation, which rendered the risk of sexual re-offending low.
46. [46]
    Whilst a consideration of the comparable authorities supports a conclusion that each involved factors not present in the applicant’s offending, it does not follow that a sentence of 5 years’ imprisonment for the applicant’s offence was manifestly excessive.
47. [47]
    The offence of rape committed by the applicant was objectively serious.  It was committed in circumstances where a request to touch the complainant on the breasts had been specifically refused; the applicant proceeded to have sexual intercourse with the complainant, knowing that she was asleep and, upon awaking, the applicant had forcefully pushed her down, telling her to go back to sleep.  Whilst there was not an age disparity, the circumstances of their friendship meant that the betrayal involved the grossest breach of trust.  Further, the applicant proceeded with the act of intercourse, to ejaculation, despite the complainant’s obvious distress.
48. [48]
    In addition to those circumstances, whilst the applicant had expressed remorse immediately and repeated it in later conversations, he had sought to manipulate the complainant into not complaining to police, by threatening to kill himself should she do so.  That was reprehensible conduct which would only have added to the complainant’s profound distress, particularly as she herself had been so impacted by the events that she had written a suicide note and attempted suicide, immediately upon arrival back to her home after the offence.
49. [49]
    The seriousness of the circumstances of the offence were such that, even allowing for the applicant’s extreme youth, a plea of guilty with real utility in saving the complainant from the trauma of giving evidence, the existence of his undiagnosed mental health condition, significant steps towards rehabilitation and expressions of remorse, the sentencing factors of general deterrence and denunciation loomed large.
50. [50]
    Against that background, a sentence of 5 years’ imprisonment fell within a sound exercise of the sentencing discretion, particularly as that sentence was accompanied by certainty of release by ordering its suspension after serving a period of actual imprisonment.
51. [51]
    However, the requirement that the applicant serve one-third of that sentence in actual prison, did not fall within a sound exercise of the sentencing discretion.
52. [52]
    The applicant had entered a plea of guilty which had real utility.  He had no relevant criminal history.  He had undertaken substantial rehabilitation.  He was a low risk of sexual re-offending.  Those factors, in themselves, warrants suspension after serving one-third of the sentence in actual prison.
53. [53]
    The applicant, however, had significant other mitigating factors, including extreme youth and an undiagnosed mental health condition, which was now stable.  Those factors meant the impact of incarceration was likely to be significantly greater.
54. [54]
    The presence of those significant mitigating factors supports a conclusion that the imposition of a sentence which was suspended after serving one-third of the sentence in actual custody, was plainly unjust.  Such a sentence was manifestly excessive.
55. [55]
    It is necessary, therefore, to re-exercise the sentencing discretion.
56. [56]
    For the reasons given previously, the applicant’s criminality, even allowing for his significant mitigating factors, warrants a sentence of imprisonment of 5 years.  The offence of rape was objectively serious, involving a gross betrayal purely for his own sexual gratification.  The applicant persisted notwithstanding the complainant’s obvious distress.
57. [57]
    However, his significant mitigating factors supports a suspension of that sentence after serving significantly less than one-third of that sentence.  The applicant’s submission that the sentence be suspended immediately does not however accord with the seriousness and circumstances of the offending.
58. [58]
    I would vary the applicant’s sentence such that the sentence of 5 years’ imprisonment be suspended after the applicant has served a period of 12 months’ imprisonment, for an operational period of 5 years.
59. [59]
    This conclusion renders it unnecessary to consider the first two grounds.

Orders

60. [60]
    I would order:

1. Leave to appeal sentence granted.
2. Appeal against sentence allowed.
3. The sentence below be varied to insert “12 months” for “20 months”.

61. [61]
    BROWN JA:  I agree with the reasons of Boddice JA and the orders proposed by his Honour.
62. [62]
    GOTTERSON AJA:  I agree with the orders proposed by Boddice JA and with his Honour’s reasons for them.