R v Danine - [2004] QCA 271

SUPREME COURT OF QUEENSLAND

CITATION:

R v Danine [2004] QCA 271

PARTIES:

R
v
DANINE, Ashir
(applicant)

FILE NO/S:

CA No 221 of 2004
DC No 615 of 2003
DC No 1269 of 2003
DC No 1261 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for extension (sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

2 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

2 August 2004

JUDGES:

McPherson, Williams JJA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDERS:

Application for extension of time within which to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABONDONMENT – where delay brought about because applicant thought his earlier appeal against conviction would be successful – where cumulative sentences called for – where sentence imposed does not arguably exceed the permissible range – where grant of leave to proceed further would be futile

R v Danine [2004] QCA 102; CA No 323 of 2003, 8 April 2004, cited

COUNSEL:

Applicant appeared on his own behalf
BG Campbell, for the respondent

SOLICITORS:

Applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for respondent

DUTNEY J: On the 19th of June 2003 the applicant pleaded guilty before Judge Howell in the District Court, to one count of receiving, five counts of burglary and stealing, two counts of burglary with a circumstance of aggravation, two counts of fraud and one count of stealing.

These offences were committed between February and July 2001 and were charged on two separate indictments. The sentencing process was adjourned by Judge Howell until after the applicant stood trial on three counts of rape alleged to have been committed on the 22nd of February 2002 while the applicant was on bail for the property offences to which I have referred. The offences of rape were charged on a separate indictment.

On the 23^rd of September 2003 a jury convicted the applicant of all three counts of rape after a trial before Judge Hoath. The applicant was sentenced by Judge Hoath for all the offences, both property offences and the rapes on the 26th of September 2003.

His Honour imposed a sentence of five years imprisonment for each of the rapes to be served concurrently. He imposed sentences of up to two years imprisonment for the property offences. The sentences for the property offences were to be served concurrently with each other, but cumulatively on the sentences for the rapes. The end result was an effective sentence of seven years imprisonment.

The applicant appealed against his convictions on the rape charges. His appeal was dismissed on the 8th of April 2004. That appeal is cited as the Queen v Danine, 2004 QCA 102.

Some three months after the dismissal of his appeal against…

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 Danine

Details

AGLC: R v Danine [2004] QCA 271
Case: [2004] QCA 271
Decision Date: 2 August 2004

CaseChat Overview and Summary

The case of R v Danine involved the appellant, Danine, who sought an extension of time to appeal against his sentence. The appellant had been convicted and sentenced by the District Court of Queensland. The primary issue for the court was whether the appellant's application for an extension of time to appeal against the sentence should be granted. This required the court to consider the reasons for the delay in filing the appeal and whether the grant of leave to appeal would be futile. The court also had to assess whether the sentence imposed arguably exceeded the permissible range, as well as whether the cumulative sentences warranted any reconsideration.

The court noted that the appellant had delayed in filing his appeal because he believed his earlier appeal against his conviction would be successful. Despite this, the court found that the appellant's reasons for the delay did not justify an extension of time. Furthermore, the court held that the grant of leave to proceed with the appeal would be futile, as the sentence imposed did not arguably exceed the permissible range and the cumulative sentences were appropriate. The court determined that the appeal was unlikely to succeed, and thus denied the application for an extension of time.

In light of the above considerations, the court concluded that the application for an extension of time within which to appeal against the sentence should be refused. The appellant's argument that his earlier appeal against conviction would have been successful did not provide sufficient grounds for an extension of time. Additionally, the court found that the sentence imposed did not exceed the permissible range, and the cumulative sentences did not warrant further review. Consequently, the court upheld the original sentence and dismissed the appeal.

No further orders were made by the court in relation to the appeal or the sentence imposed. The decision to refuse the application for an extension of time stands, and the appellant is not permitted to appeal against the sentence within the extended time period.

Orders

Orders of the court

Application for extension of time within which to appeal against sentence refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Danine [2004] QCA 271
PARTIES:	R v DANINE, Ashir (applicant)
FILE NO/S:	CA No 221 of 2004 DC No 615 of 2003 DC No 1269 of 2003 DC No 1261 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for extension (sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	2 August 2004
DELIVERED AT:	Brisbane
HEARING DATE:	2 August 2004
JUDGES:	McPherson, Williams JJA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDERS:	Application for extension of time within which to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABONDONMENT – where delay brought about because applicant thought his earlier appeal against conviction would be successful – where cumulative sentences called for – where sentence imposed does not arguably exceed the permissible range – where grant of leave to proceed further would be futile R v Danine [2004] QCA 102; CA No 323 of 2003, 8 April 2004, cited
COUNSEL:	Applicant appeared on his own behalf BG Campbell, for the respondent
SOLICITORS:	Applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for respondent