R v Gippo - [2012] QCA 232

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gippo [2012] QCA 232

PARTIES:

R
v
GIPPO, Tuim Teddy
(appellant)

FILE NO/S:

CA No 318 of 2011
DC No 68 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

31 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

7 August 2012

JUDGES:

Margaret McMurdo P and Gotterson JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where appellant pleaded not guilty to three counts of raping his former girlfriend (counts 1, 2 and 4) and one count of depriving her of her liberty (count 5) – where appellant was convicted on counts 1, 2 and 4 and acquitted of count 5 after a jury trial – where evidence was led at trial relating to a domestic violence protection order against the appellant that required him to have no contact with the complainant – where evidence of domestic violence order conflicted with evidence of Family custody order – whether verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where on counts 1 and 2, appellant was sentenced to four years imprisonment; and, on count 4 to six and a half years imprisonment with parole eligibility after three years – whether sentence was manifestly excessive

Criminal Code 1899 (Qld), s 668E(1)

COUNSEL:

The appellant appeared on his own behalf
D L Meredith for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: The appellant pleaded not guilty on 18 October 2011 in the District Court at Cairns to two counts of raping his former girlfriend on 12 February 2009 (counts 1 and 2), one count of raping her on 22 March 2009 (count 4) and one count of unlawfully depriving her of her liberty (count 5). He was discharged on a count of burglary of her home by breaking (count 3). He was convicted after a two day jury trial on counts 1, 2 and 4 and acquitted on count 5. On counts 1 and 2 he was sentenced to four years imprisonment. On count 4, he was sentenced to six and a half years imprisonment with an order that the date he be eligible for parole be fixed at 20 October 2014, that is, after three years. He has appealed against his conviction and seeks leave to appeal against sentence.

His grounds of appeal are:

"1.The Crown relied on relationship evidence relating to a Domestic Violence Protection Order, the particulars of the conditions of which, namely that the Appellant have no contact…

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 Gippo

Details

AGLC: R v Gippo [2012] QCA 232
Case: [2012] QCA 232
Decision Date: 31 August 2012

CaseChat Overview and Summary

In the matter of R v Gippo, the appellant, who had been convicted by a jury on three counts of rape and acquitted on one count of deprivation of liberty, sought an appeal against his convictions and sentence. The appellant had pleaded not guilty to all charges, which related to incidents involving his former girlfriend. The crux of the appeal against conviction centred on the contention that the jury's verdict was unreasonable or not supported by the evidence, particularly in light of conflicting evidence regarding a domestic violence protection order and a Family Court custody order. Additionally, the appellant argued that the sentence imposed was manifestly excessive.

The court considered whether the jury's verdict was unreasonable or not supportable given the evidence. It noted the conflicting evidence about the domestic violence protection order and the Family Court custody order, but held that it was within the jury's province to assess the credibility and weight of this evidence. The court also scrutinised the appellant's argument regarding the sentence, examining whether it was manifestly excessive. The court concluded that the jury's verdict was not unreasonable and that the sentence, while severe, was not manifestly excessive given the nature and circumstances of the offences.

Consequently, the appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused. The appellant's convictions and sentence were upheld.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Gippo [2012] QCA 232
PARTIES:	R v GIPPO, Tuim Teddy (appellant)
FILE NO/S:	CA No 318 of 2011 DC No 68 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	31 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	7 August 2012
JUDGES:	Margaret McMurdo P and Gotterson JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal against conviction is dismissed. 2. The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where appellant pleaded not guilty to three counts of raping his former girlfriend (counts 1, 2 and 4) and one count of depriving her of her liberty (count 5) – where appellant was convicted on counts 1, 2 and 4 and acquitted of count 5 after a jury trial – where evidence was led at trial relating to a domestic violence protection order against the appellant that required him to have no contact with the complainant – where evidence of domestic violence order conflicted with evidence of Family custody order – whether verdict was unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where on counts 1 and 2, appellant was sentenced to four years imprisonment; and, on count 4 to six and a half years imprisonment with parole eligibility after three years – whether sentence was manifestly excessive Criminal Code 1899 (Qld), s 668E(1)
COUNSEL:	The appellant appeared on his own behalf D L Meredith for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent