R v Robinson [1997] QCA 66

These events, or at least the events which began in the room where the daughter was sleeping, took place in the presence of the little girl who is only five years old. The applicant forced the complainant from the top of the stairs to the main bedroom where he told her to remove her pants and then threw her on the bed. He ordered her to say "fuck me" to him, and then penetrated her with his finger causing her pain. At his command she masturbated him so that he could obtain an erection, and he then entered her vagina with his penis. The process was repeated when his erection failed.

In all these matters she complied with his instructions or orders because of her extreme fear. Eventually, the applicant fell asleep and the complainant made good her escape taking her daughter with her. She went to the Redcliffe Hospital where she was found to have severe bruising to the face and head, slight bruising and abrasions to her elbow, left knee and chest, a fractured rib and bruising and tenderness to the vaginal area. She was passing blood in her urine.

The Judge, as I said, sentenced the applicant to imprisonment for six years. It is now said that that sentence is manifestly excessive. In my view, that cannot be correct. The case invites comparison, in a way that I think makes it look unduly favourable to the applicant, with the recent decision of this Court in R v. McIlvaney (CA 427 of 1996).

There a sentence of 10 years for rape was reduced on appeal to eight years. There was no plea of guilty in that case. The matter went to trial but the degree of physical force used by McIlvaney was much less severe than what we see here. Some force was used by him, but, practically speaking, there was no violence of any kind; and certainly nothing of the nature or extent exhibited here. The offender in that case was 33 years of age, whereas the applicant here is 29 years old.

The applicant has a prior conviction for assault and another conviction for assault occasioning bodily harm to a policeman. His problem appears to stem from drink, and he was affected by alcohol on the occasion on which he committed this rape.

In the case of McIlvaney the victim was the sister-in-law of the accused. She allowed the applicant into her home or unit when he called one evening, and she offered him a cup of coffee. So far, I have deliberately not mentioned that the applicant in the present case was, or had been, in a de facto relationship with the complainant and had, after that relationship had ended, been permitted to continue living in the house under an understanding that he would move out as soon as he could find alternative accommodation. The decision in R v. Stephens [1994] QCA 507; (1994) 76 A.Crim.R. 5, shows that the Court is not more lenient to a rape offender because the rape took place within an existing relationship. That decision applies here, and it is right to say that no attempt was made to suggest otherwise.

The only, or the primary points, made in support of the application in this instance is that the sentence was influenced, first, by what may be described as an illegitimate reference to or consideration of the fact that the offence involved domestic violence; and secondly (and this may be part of the first proposition as well) that the Judge improperly took account of matters such as the violence or the injuries that were suffered, which had originally been the subject of a further count in the indictment charging grievous bodily harm. The prosecution withdrew that count before plea in consequence of the indication that the applicant would plead guilty to rape.

By that concession, of course, the applicant escaped having the conviction for grievous bodily harm appear on his record. That, to my mind, is a far cry from saying his violent treatment of the complainant is something that may not be taken into account on sentencing.

Even, according to what was said in Re D [1995] QCA 329; [1996] 1 Qd.R. 363, at 403, such a matter must be excluded only if it is "conduct which did not form part of" the offence being punished.

Here, the applicant's violence did form part of the offence of rape but, in any event, the sentencing tribunal always is, in my view, entitled to look at the nature of the acts committed in the course of the offence in order to determine the quality and seriousness of the offence preparatory to arriving at an appropriate point in the sentencing range at which to pitch the penalty as well as in ascertaining the character and disposition of the offender.

When all these matters are considered, and whether or not it is right to say that the Judge was precluded from taking into account the need to deter domestic violence, it seems to me that, far from being manifestly excessive the sentence here was, comparatively speaking, at the lower end of the range for offences of rape of this character.

In my opinion, therefore, the application for leave to appeal should be dismissed.

WHITE J: I agree also. The violence shown by the complainant was relevant to the question of the appropriate sentence imposed for the rape. This conduct, admittedly, induced some compliance to the rape. I am, however, of the view that the learned sentencing Judge did give the impression that he was considering this violent pre rape conduct as separate conduct in a passage appearing at page 24 of the record calling for particular condemnation and this is recognised to be impermissible if it is seen to be reflected in the sentence

Re Dales [1995] QCA 329; (1995) 80 A.Crim.R. 50.

However, I am not persuaded that the applicant has established that the sentence imposed was, in any way, manifestly excessive and this is so even having regard to the cases of Hunt and Stephens.

McPHERSON JA: The application for leave to appeal against sentence is dismissed.