R v Daphney - [2010] QCA 236

SUPREME COURT OF QUEENSLAND

CITATION:

R v Daphney [2010] QCA 236

PARTIES:

R
v
DAPHNEY, Harry Junior Graham
(appellant/applicant)

FILE NOS:

CA No 97 of 2010
SC No 469 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

3 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2010

JUDGES:

Holmes, Muir and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The appeal against conviction for count 5 be allowed and that conviction be set aside, otherwise the appeal against conviction be dismissed;

2.    The endorsement on the nine count indictment be amended in conformity with these reasons;

3.    The application for leave to appeal against sentence and the appeal against sentence be allowed;

4.    The sentences, other than the sentences imposed for counts 8, 9 and the further offences not included on the nine count indictment, be set aside, and the following terms of imprisonment be substituted:

Count 1  Eleven years

Count 2  Four years

Each of counts 3, 4 and 7   Four years

Count 6  Two years

5.   The terms of imprisonment be served concurrently;

6.   It be declared, in respect of count 1, that the appellant has been convicted of a serious violent offence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – appellant was charged with three counts of rape on a nine count indictment – appellant was arraigned in bulk and one count of rape was omitted – appellant was convicted of and sentenced for three counts of rape – whether there was a miscarriage of justice – whether sentences should be set aside and the sentencing discretion exercised afresh

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESIVE OR INADEQUATE – appellant convicted of taking a child for immoral purposes (count 1), deprivation of liberty (count 2), rape (counts 3-5), indecent treatment of a child under 16 (under 12) (counts 6-7), assault occasioning bodily harm (armed) (count 8), assault occasioning bodily harm (count 9) and the further offences of assault occasioning bodily harm (armed) and breach of a protection order – appellant sentenced to 15 years imprisonment for each of counts 1, 3, 4, 5, 6 and 7, three years for count 2, four years for count 8, two years for count 9, three years for the further offence of assault occasioning bodily harm (armed) and six months for breaching a protection order – complainant in counts 1-7 an 11 year old child who the appellant detained overnight and digitally raped multiple times – appellant had relevant criminal history – appellant incorrectly sentenced for three rape offences when he was only convicted of two – whether sentence manifestly excessive

R v Bielefeld [2002] QCA 369, considered
R v D [2003] QCA 88, considered
R v Daphney [1999] QCA 69

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 Daphney

Details

AGLC: R v Daphney [2010] QCA 236
Case: [2010] QCA 236
Decision Date: 3 September 2010

CaseChat Overview and Summary

The appellant in this matter, Daphney, was convicted of multiple serious offences, including taking a child for immoral purposes, deprivation of liberty, and various assaults and breaches of a protection order. The convictions arose from a nine count indictment, however, one count of rape was omitted during the arraignment. The appellant was convicted of three counts of rape, despite only being charged with two, leading to an appeal against both the conviction and the sentence. The primary issues before the court were whether the omission of a count during arraignment constituted a miscarriage of justice and whether the sentence was manifestly excessive or inadequate.

The court determined that the omission of a count of rape during arraignment was an irregularity that amounted to a miscarriage of justice. This was a significant procedural error that affected the fairness of the trial and therefore warranted the setting aside of the conviction for the fifth count of rape. In relation to the sentence, the court found that while the appellant's criminal history warranted a severe sentence, the original sentences imposed were manifestly excessive. The court adjusted the sentences for counts 1, 2, 3, 4, 6 and 7, with the new sentences to be served concurrently, ensuring that the punishment was proportionate to the crimes committed.

The court's final orders included setting aside the conviction for the fifth count of rape and amending the indictment to reflect this change. Additionally, the sentences for counts 1, 2, 3, 4, 6 and 7 were set aside and replaced with new sentences. The sentences for counts 8, 9 and the further offences not included on the nine count indictment remained unchanged. The court also declared that the appellant had been convicted of a serious violent offence in respect of count 1.

Orders

Orders of the court

1. The appeal against conviction for count 5 be allowed and that conviction be set aside, otherwise the appeal against conviction be dismissed;

2. The endorsement on the nine count indictment be amended in conformity with these reasons;

3. The application for leave to appeal against sentence and the appeal against sentence be allowed;

4. The sentences, other than the sentences imposed for counts 8, 9 and the further offences not included on the nine count indictment, be set aside, and the following terms of imprisonment be substituted:

Count 1 Eleven years

Count 2 Four years

Each of counts 3, 4 and 7 Four years

Count 6 Two years

5. The terms of imprisonment be served concurrently;

6. It be declared, in respect of count 1, that the appellant has been convicted of a serious violent offence.

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 Daphney [2010] QCA 236
PARTIES:	R v DAPHNEY, Harry Junior Graham (appellant/applicant)
FILE NOS:	CA No 97 of 2010 SC No 469 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	3 September 2010
DELIVERED AT:	Brisbane
HEARING DATE:	24 August 2010
JUDGES:	Holmes, Muir and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal against conviction for count 5 be allowed and that conviction be set aside, otherwise the appeal against conviction be dismissed; 2. The endorsement on the nine count indictment be amended in conformity with these reasons; 3. The application for leave to appeal against sentence and the appeal against sentence be allowed; 4. The sentences, other than the sentences imposed for counts 8, 9 and the further offences not included on the nine count indictment, be set aside, and the following terms of imprisonment be substituted: Count 1 Eleven years Count 2 Four years Each of counts 3, 4 and 7 Four years Count 6 Two years 5. The terms of imprisonment be served concurrently; 6. It be declared, in respect of count 1, that the appellant has been convicted of a serious violent offence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – appellant was charged with three counts of rape on a nine count indictment – appellant was arraigned in bulk and one count of rape was omitted – appellant was convicted of and sentenced for three counts of rape – whether there was a miscarriage of justice – whether sentences should be set aside and the sentencing discretion exercised afresh CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESIVE OR INADEQUATE – appellant convicted of taking a child for immoral purposes (count 1), deprivation of liberty (count 2), rape (counts 3-5), indecent treatment of a child under 16 (under 12) (counts 6-7), assault occasioning bodily harm (armed) (count 8), assault occasioning bodily harm (count 9) and the further offences of assault occasioning bodily harm (armed) and breach of a protection order – appellant sentenced to 15 years imprisonment for each of counts 1, 3, 4, 5, 6 and 7, three years for count 2, four years for count 8, two years for count 9, three years for the further offence of assault occasioning bodily harm (armed) and six months for breaching a protection order – complainant in counts 1-7 an 11 year old child who the appellant detained overnight and digitally raped multiple times – appellant had relevant criminal history – appellant incorrectly sentenced for three rape offences when he was only convicted of two – whether sentence manifestly excessive R v Bielefeld [2002] QCA 369, considered R v D [2003] QCA 88, considered R v Daphney [1999] QCA 69