R v Penniment [1992] QCA 110

Court of Appeal (Qld)|1992-04-29|Before: MacRossan CJ, Davies JA, Pherson JA

COURT OF APPEAL [1992] QCA 110

THE CHIEF JUSTICE: This is an application for leave to appeal against sentence.

The applicant pleaded guilty to three counts involved in the same continuing episode. One was entering of a dwelling house at night with intent; the second count was rendering the occupant, a young female, in the dwelling house incapable of resistance by methods calculated to choke, as described in the Crown's submission and then, finally, the third count was rape. All offences took place on 14 December, 1990. The applicant was sentenced on 17 January, 1992.

The sentences imposed were these respectively: 10 years for entering a dwelling house at night with intent; 12 for the acts of rendering the occupant incapable of resistance; and 15 years for the rape. The learned sentencing Judge added a recommendation that the applicant be considered for parole after he had served six years of that sentence.

The facts may be outlined briefly. The complainant was a 23 year old; she was asleep in her bed at a hotel in suburban Brisbane or in an annexe to that hotel. Some time a little before midnight the applicant, having broken and entered the room, attacked her. The applicant knew that the complainant's boyfriend was away and he entered the room with the intention of having sex with her.

His attack upon her was prolonged. The details are there before us. It is certain we can see that he applied an appalling degree of force. He choked her to the point of unconsciousness more than once. He made a number of violent threats to her. He appeared indifferent to the outcome of his actions and their effect upon the girl.

He was affected by liquor and he did make an early plea of guilty. It should also be recorded that he spent six months in custody before being sentenced, that custody being attributable to the offences with which we are concerned.

No-one has suggested that this was other than a case in the extremely bad category since a residence is broken into and a violent and prolonged series of actions occurred in the course of the rape.

Counsel for the applicant, however, says that the sentences imposed were nevertheless beyond the permissible range. The sentencing Judge accurately enough identified the features of seriousness and imposed then a head sentence of 15 years. Taking into account the pre-sentence custody, that can be regarded as equivalent to 16 years. He did, however, make a parole recommendation after six years had been served because of the early plea of guilty which he noted, and also the applicant's attempts to overcome his serious drinking problem.

There is no doubt that this bad case has been visited with a penalty which must be described as severe. However, it appears to be within a range justified by decisions of this Court in recent times. Three of those upon which the Crown most definitely and distinctly relies in argument before us are the cases of Gerrits, Giinke and Cox.

One is still left with the impression that the sentence here, even with the parole recommendation, leaves this at what could be fairly described as the top of the range but in my opinion no sufficient reason has been shown to disturb the sentence in respect of any of the offences.

McPHERSON JA: Yes, I agree. It is doubtless not necessary to add that the emotional impact on the complainant is as serious as one is accustomed to discover in cases of this kind.

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