R v Daniel - [1997] QCA 139

IN THE COURT OF APPEAL	[1997] QCA 139
SUPREME COURT OF QUEENSLAND

C.A. No. 455 of 1996

Brisbane

[R. v. Daniel]

THE QUEEN

MAYNARD DANIEL

(Applicant)

Fitzgerald P.
McPherson J.A.
Moynihan J.

Judgment delivered 30 May 1997

Separate reasons for judgment of each member of the Court; McPherson J.A. and

Moynihan J. concurring as to the order made; Fitzgerald P. dissenting.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL LAW - sexual offences - sentence - Aboriginal offenders - appeal against sentence of eight years’ imprisonment for three counts of rape - applicant and complainant lived in Aboriginal community - complainant was a member of applicant’s extended family - offences committed within short period of time when applicant and complainant affected by alcohol - applicant came from disadvantaged background and poor quality of life - whether applicant should receive lower sentence because of his membership of deprived and dysfunctional community.

Charlie, Uhl and Nagamarra (Supreme Court, W.A., No. 96 of
1987, unreported, 14 August 1987)
Clinch (1994) 72 A.Crim.R. 301
Fernando (1992) 76 A.Crim.R. 58
Minor (1992) 59 A.Crim.R. 227
Neal v. R. (1982) 149 C.L.R. 305
Rogers and Murray (1989) 44 A.Crim.R. 301
Russel (1995) 84 A.Crim.R. 386
Woodley, Boogna and Charles (and others) (1994) 76 A.Crim.R.
302

Counsel:	Mr S. Hamlyn-Harris for the applicant. Mr T. Henry for the respondent.
Solicitors:	Legal Aid Office for the applicant. Queensland Director of Public Prosecutions for the respondent.
Hearing Date:	3 December 1996

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 30 May 1997

This is an application for leave to appeal against sentences imposed in the District Court at Cairns on 2 October 1996. On 30 September, the applicant pleaded guilty to three offences of rape committed on 8 March that year, and on 2 October he was sentenced to imprisonment for eight years for each offence, the sentences to be served concurrently. It was submitted for the applicant that the sentences are manifestly excessive and that the appropriate sentence for each offence was imprisonment for six years.

Both the applicant and the complainant are members of the Aboriginal community
at Kowanyama, where the complainant, who was aged 20 years when the offences
were committed, resides with her mother. The applicant was born on 16 April 1970,
and was aged 25 years when the offences were committed.
On the date of the offences, both the complainant and the applicant were drinking in
the canteen at Kowanyama, and were observed by others to be on friendly but not
affectionate terms. The applicant left the canteen first, and went to the home of
another member of the community where he and others played cards and consumed
alcohol. The complainant was at the canteen from 10.00 a.m. to about 10 p.m. when
it closed, and was intoxicated when she departed. She went to the house where the
applicant and others were playing cards but, after a period, left the house and
commenced to walk home.
The applicant caught up with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Daniel

Details

AGLC: R v Daniel [1997] QCA 139
Case: [1997] QCA 139
Decision Date: 30/05/1997

CaseChat Overview and Summary

The case of R v Daniel is an application for leave to appeal against a sentence of eight years' imprisonment for three counts of rape committed by the applicant, Maynard Daniel, against a member of his extended family in the Aboriginal community of Kowanyama. The applicant and the complainant were both affected by alcohol at the time of the offences. The applicant, who has a criminal history of violent offences, was sentenced by the District Court at Cairns. The applicant's counsel argued that the sentences were manifestly excessive and that the appropriate sentence for each offence was imprisonment for six years. The Court of Appeal, consisting of Fitzgerald P, McPherson J.A., and Moynihan J., examined the legal principles and relevant authorities concerning the sentencing of Aboriginal offenders. The Court held that while the Court of Appeal recognised that there are often two victims involved in offences committed by Aborigines, especially drunken Aborigines, one the victim of the offence and the other the offender, whose race has been tragically affected by the colonisation of this country, harsh treatment, dispossession, the separation of children from families, the introduction of European diseases, and the misuse of alcohol and, more recently, other drugs, the Court could not accept that, in principle, Aborigines who inflict violent crimes on their communities while intoxicated should be accorded special treatment by the imposition of lighter sentences than would otherwise be appropriate having regard to the circumstances of the offence and other relevant factors, including considerations personal to the offender. The Court of Appeal found that the District Court had considered the relevant principles and circumstances of the case and imposed an appropriate sentence. The Court of Appeal refused the application for leave to appeal against the sentence.

Orders