Introduction
The issue of offences against a person/s, such as rape is creating legal debate in Australia. The existing legislation in all states and territories of Australia enforces a maximum sentence of life imprisonment. The purpose of this report is to examine the legal concepts of rape sentencing issues in Queensland as well as determine the nature and scope of rape and analyse opposing viewpoints in cases such as the families, victims, judges and offenders involved. Two alternatives to change the existing legislation in Queensland will be created and consider. One recommendation will made to create a more just and equitable outcome when sentencing offenders.
Nature and scope of issue
The legal issue to be considered is rape. A person can be charged with rape if they penetrate the vulva, vagina, mouth or anus of another person’s body that is not a penis without their consent. Criminal Code Act 1899 (Qld) If found guilty, the offender can be sentenced with a maximum penalty of life imprisonment or a minimum sentence of 15 years, however, these sentences are rarely met. (Queensland Sentencing Advisory Council, 2010-2019) For example out of 507 people sentenced for rape, only one person received the maximum sentence. (REFERENCE THE OUTRAGES OF QLD DOC) From 2005-6 to 2016-17, 14.7% of sexual assault offenders received a Non-custodial penalty where instead of prison time, they were required to do; community service (2.9%), given probation (8.3%), fines (1.5%), recognisance (1.8%) and convicted but not further punished (0.2%) (Queensland Sentencing Advisory Council, 2018)
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Sentencing Principles s9 of the Penalties and Sentencing Act 1992
The Penalties and Sentencing Act 1992 have purposes and factors that all judges must consider when sentencing an offender. The purposes that are to be considered are; to punish, rehabilitate, deter, denounce and to protect the community. Factors that judges are to consider are; whether violence has been used, imprisonment should only be imposed as a last resort, how common the offence I and whether the offence is a ‘one off’ or part of a series of offenders. These purposes and factors are considered to create a more just and equitable outcome when sentencing.
Viewpoints of stakeholders R v Utley (2017)
Stakeholders viewpoints are essential in any legal issue as it gives the Parliament input about how the community feels about events that are taking place in society. For example, in the case, R v Utley (2017) QCA 94, stakeholders can be extracted from this such as the community and the offender. In this case the offender is Ivan Bernard Utley who was charged with a head sentence of 10 years imprisonment for one count of rape, one count of burglary with circumstances of aggravation, two counts of assault causing bodily harm whilst armed and one count of common assault. He would have been very relieved with a short sentence of 10 years and perhaps remorseful because of what he did while under the influence of alcohol, however that does not justify his behaviour. The offender received this sentence due to Section 9 of the Penalties and Sentencing Act 1992. The aggravating factor that should have been imposed by the judge was, if the offence involved a weapon, which the offender did use a weapon, that weapon being a smashed vodka bottle that he striked the victim with which created a 1.5cm laceration across the females nose as well as a 4cm laceration across her arm, which required 6 sutures. Mitigating factors that would have been imposed were; no criminal history and an early plea of guilt.
Another important stakeholders view on the legal issue is obviously the victim. The victim would feel, perhaps aggravated knowing that this man, Ivan Utley can practically get away with raping her and assaulting her while only getting a head sentencing of 10 years. The victim was raped and assaulted, imagine how she feels knowing that he only got 10 years imprisonment, even though the maximum sentence is life imprisonment. Knowing that he will be out in 10 years would possibly make the victim fear for her safety. Even though aggravating factors from Section 9 of the Penalties and Sentencing Act 1992, he still received a light sentence.
Legal Alternatives to reform existing law
Criminal Code Act 1899 Chapter 32 Rape and sexual assault Section 349
Legal alternatives in The Criminal Code Act 1899 Chapter 32 - Rape and sexual assault - Section 349 can be made to reform existing laws to create a more just and equitable outcome for the victims, families and communities involved in the case. One alternative can be that a mandatory sentence is created were the minimum sentencing for rape is 20 years imprisonment, which disregards any mitigating factor that would lessen the sentencing. This would create a more just and equitable outcomes for the victims and families involved. However, the issues with mandatory sentencing is that the penalties are rarely met.
Criminal Code Act 1899 Chapter 32 Rape and sexual assault Section 349
Legal alternatives can also be made to reform existing laws. When sentencing an offender, the judge determines the sentence that will be imposed by using the Penalties and Sentencing Act 1992, sentencing guidelines, section 9. The legal alternative that is going to be imposed is that a new principle that the court must regard. That principle being if any weapon was used to force the victim to have sexual interaction with the offender were they penetrate the vulva, vagina, mouth or anus of another person’s body that is not a penis without their consent and/or penetrates the victims mouth to any extent, without the victims consent. Criminal Code Act 1899 (Qld)
Recommendation/s
The recommendation that I am going to impose is going to be the first alternative law which is were if an offender is found guilty of rape, they will be sentenced to a minimum of 20 years imprisonment. This would be the most effective alternative as it would deter the community, and other future offenders from committing such horrendous acts.
References
- Archive.sclqld.org.au. (2019). [online] Available at: https://archive.sclqld.org.au/qjudgment/2017/QCA17-094.pdf [Accessed 12 May 2019].
- Legislation.qld.gov.au. (2019). View - Queensland Legislation - Queensland Government. [online] Available at: https://www.legislation.qld.gov.au/view/html/inforce/current/act-1899-009#sch.1-sec.349 [Accessed 12 May 2019].
- Sclqld.org.au. (2019). Home | Supreme Court Library Queensland. [online] Available at: https://www.sclqld.org.au/ [Accessed 12 May 2019].
- Sentencingcouncil.qld.gov.au. (2019). Maximum penalties. [online] Available at: https://www.sentencingcouncil.qld.gov.au/about-sentencing/maximum-sentences [Accessed 13 May 2019].
- Sentencingcouncil.vic.gov.au. (2019). Sentencing Trends for Rape in the Higher Courts of Victoria 2011-12 to 2015-16 | The Sentencing Advisory Council. [online] Available at: https://www.sentencingcouncil.vic.gov.au/publications/sentencing-snapshots/207-rape-higher-courts-victoria-2011-12-2015-16 [Accessed 13 May 2019].
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