Queensland Law Society

The administration of justice and the 'Bikeway Rapist' case

On 23 February 2010, the so-called 'Bikeway Rapist' had his sentence reduced by nine years, from 25 years to 16 years, with a consequent reduction in the non-parole period.

The offender had been convicted of violently and sexually attacking 11 women in public places around Brisbane over a period of 27 months.  The women he attacked had, as well as the expected sequelae of such violent sexual assaults, sustained substantial physical injuries.

 In sentencing him to 25 years imprisonment, the primary judge in the District Court of Queensland compared the offences to those of other, similar, cases and concluded that each of the rapes should attract a penalty of 25 years imprisonment, with the other various assaults attracting penalties of between three and 10 years.  The sentences were to be served concurrently.

 The offender appealed to the Queensland Supreme Court against the length of the sentence.  The appeal was heard by the Chief Justice and another judge on 16 February 2010, and in a judgment delivered on 23 February 2010, the Court allowed the appeal.

Public anger was such that the Chief Justice went on to radio in Brisbane to address community concerns.  He urged the community to read the judgement, giving special attention to the mitigating circumstances relied upon by the judges who had made the decision.

What are these 'mitigating circumstances' that could possibly support reducing the sentence of someone who has committed crimes of such a nature?  The Penalties and Sentences Act 1992 provides at section 13(1) and (2) that if a person pleads guilty to a crime that they have been charged with, then the court may reduce the sentence that would otherwise have been imposed, and if it does not, then the reason why it has not must be stated in open court (as outlined in section 13(4)).

In this case, the offender not only entered a guilty please, but also advised early after his arrest that he intended to do so, saving an even more substantial police investigation.

The other mitigating factors included in the judgment were:

• the offender's cooperation with the authorities from an early stage, which included his confession to the crimes
• his genuine remorse
• the early intimation of his intention to plead guilty, and his subsequently doing so
• the resulting saving on the resources of the State
• the removal of any prospect of the complainants having to give evidence and by subjected to cross-examination, thereby re-living their experience
• the fact that without his confessions, convictions might not have been obtained on some of the counts
• the absence of any prior criminal history
• his promising prospects of rehabilitation

 The administration of justice is a complex process that is quite demanding.  Justice, as it is to be understood, demands that the needs of the State, the victims, the community and the offender are all addressed in some way.  Did the decision of the primary judge address everyone's needs?  Has the review and revision of the original decision corrected a perceived imbalance by reducing the offender's sentence?  What of the community 'backlash' and the Premier's statement that consideration was being given to appealing to the High Court against the reduction of the sentence?  If leave is given for such an appeal, and the appeal is successful, what message will that send?

Is Justice consistent with lowering a penalty because an offender admits their guilt, or should penalties for crimes be standard with no mitigating factors?  If they were, would the needs of all of those groups that the crime impinges on be met?

Michael Francis is the Chief Contracting Officer in the Office of Special Counsel with the Department of Defence in Brisbane.  He has an interest in Administrative Law, Alternative Dispute Resolution, Commercial Law, Legal Aid, Communications Law and Intellectual Property.  He has previously worked in the Attorney-General's office in Canberra, the Family Court of Australia, and the Department of Broadband and Digital Economy.  Michael was invited to post by the Queensland Law Society's Schools and Community Education Service.