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[1994] QCA 440
Court of Appeal (Qld)
1994-09-12
Fitzgerald P, Davies JA, MacKenzie J
Original judgment source is linked above.
The applicant's defence was that consensual intercourse had happened. The sentencing Judge took the view that the applicant had demonstrated no remorse whatsoever. That view was plainly open to him in the circumstances. He took into account the community's interest in the imposition of a substantial period of imprisonment and he regarded a case of Spencer as being comparable. It was submitted to us that Spencer was a more serious offence than the present offence. There is, of course, always some danger in trying to relate circumstances of different offences in a mechanical way but I am satisfied on reading the learned sentencing Judge's remarks that he conducted a balancing exercise which took into account various circumstances peculiar to each case and treated Spencer on that basis alone.
It was submitted that in a case of this kind the fact that the offence has arisen from an intimate relationship is a factor which, in at least some circumstances, produces a lower sentence. I would not be prepared to accept that as a general statement although in some circumstances arising out of intimate relationships, there may be found to be mitigating circumstances.
The circumstances of this offence were quite violent and it was conceded that in the event that strangers were involved, a sentence of somewhat more than seven years may have been justified. In all of the circumstances, I am not persuaded that the sentencing discretion has miscarried and, in the circumstances, I would refuse the application.
THE PRESIDENT: I agree. Counsel for the applicant relied on two decisions, Spencer and Beaver, Spencer being CCA No 80 of 1991 and Beaver being CA No 114 of 1992 which, taken in isolation, might provide at least some foundation for his argument, especially the latter, that is, Beaver. However, I am satisfied that on a wider approach, the sentences in this case are certainly not out of the range of a range of a proper sentencing discretion. Indeed, counsel for the applicant accepted that if the complainant and the applicant had been strangers, a sentence of 10 years would not necessarily have been out of range.
It followed that he had to submit that the previous relationship between the applicant and complainant meant that a sentence more than three years lighter was nonetheless manifestly excessive. That submission cannot be accepted without rejecting the possibility that a prior relationship which has been terminated may, in some circumstances, be relevant to the degree of criminality involved in the offence of which a person is convicted and there is nothing in the previous relationship between the complainant and the applicant in this case which, in my opinion, which properly bears upon the level of the sentence to which the applicant should be exposed. I therefore agree with the order proposed.
THE PRESIDENT: The order of the Court is application for leave to appeal against sentence refused.
R
Hunt [1994] QCA 440