R v Daphney - [1999] QCA 69

[1999] QCA 69

COURT OF APPEAL

McPHERSON JA
THOMAS JA
WHITE J

CA No 328 of 1998

THE QUEEN

BRIAN JOHN DAPHNEY Applicant

BRISBANE

DATE 16/03/99

JUDGMENT

WHITE J: The applicant, who has made submissions to the Court by telephone and who has had the assistance of a counsellor at the prison, seeks leave to appeal against the sentences imposed upon him in the District Court at Townsville of 15 years' imprisonment in respect of the offences of break and enter a dwelling with intent and for rape.

He was sentenced to lesser penalties in respect of the other offences with which he was charged, namely of break, enter and steal for which he received a term of imprisonment of five years and stealing which attracted a term of imprisonment of two years. Effectively, the applicant seeks a recommendation that he be eligible to apply for release on parole at between eight and ten years. He does not challenge, it seems, the head sentence and he makes this application because of a failure, as he contends, to recognise his plea of guilty.
However, it has been explained to the applicant that this Court has no discretion and neither did the trial Judge to make a recommendation for parole eligibility because this is a serious violent offence and comes within the regime in Part 9A of the Penalties and Sentences Act 1992 which requires 80 per cent of a sentence for such an offence actually to be served.

The applicant pleaded guilty to these offences on 11 September 1998 and was sentenced on that day. He was aged 19 years at the time of sentence and 18 years at the time the offences were committed. He had a lengthy criminal history for a young man including numerous convictions from 1994 for break, enter and stealing, and other property offences. He does not have any previous convictions for crimes of violence.

The circumstances of the offences were that at approximately 10 to 4 in the morning on 16 November 1997, the applicant smashed a window and entered the Osborne Squash Centre at Cranbrook in Townsville. He was discovered and disturbed by police whilst inside the premises. He escaped by removing a glass louvre and pushing out a security grill.

The applicant was not then identified by the police but a latent fingerprint was found on the glass louvre. At about 4 am on the same night the applicant broke and entered the home of the F family by forcing the screen on an open window. Mr and Mrs F resided there with their two young daughters, R, the complainant in the rape charge who was aged four years, and C, aged five years, and Mrs P who is Mrs F's mother.

The applicant did not contest the facts advanced by the Crown on sentence. The applicant stole $100 from Mrs P's handbag which was in the lounge room. The two little girls shared a bedroom down a hallway. The applicant lubricated…

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 [1999] QCA 69
Case: [1999] QCA 69
Decision Date: 16/03/1999

CaseChat Overview and Summary

In the case of R v Daphney, the applicant, Brian John Daphney, sought leave to appeal against the sentences imposed upon him by the District Court at Townsville. The applicant had pleaded guilty to multiple charges, including break and enter a dwelling with intent and rape, for which he received a sentence of 15 years' imprisonment. He also received lesser penalties for other offences of break, enter and steal, and stealing. The applicant sought a recommendation for parole eligibility after between eight and ten years, arguing that his guilty plea had not been properly recognised. The Court of Appeal was asked to consider whether the sentence was manifestly excessive and whether the trial judge had erred in not making a recommendation for parole eligibility.

The legal issues before the Court of Appeal included whether the sentence imposed was manifestly excessive and whether the trial judge had the discretion to make a recommendation for parole eligibility under the Penalties and Sentences Act 1992. The applicant argued that his plea of guilty should have been recognised more fully in the sentencing process. The Crown, on the other hand, contended that the sentence was appropriate given the seriousness of the offences, particularly the rape of a young child, and that the court had no discretion to recommend parole eligibility for such serious violent offences.

The Court of Appeal held that the sentence was not manifestly excessive and that the trial judge had no discretion to make a recommendation for parole eligibility. The Court noted that the applicant's offences were very serious, involving a young child, and that the sentence reflected the gravity of the crimes. The Court also highlighted that the applicant had a significant criminal history, including numerous convictions for property offences, and that he had taken a young child from her home during the commission of the offence. The Court concluded that the sentence was appropriate and within the sound exercise of the trial judge's discretion. The application for leave to appeal was therefore dismissed.

The Court of Appeal ordered that the application for leave to appeal be dismissed. The judges noted that the sentence imposed by the trial judge was appropriate and within the sound exercise of his discretion. The Court also observed that there was no discretion to make a recommendation for parole eligibility for such serious violent offences. The applicant was informed that a copy of the judgment would be sent to him.

Orders