R v McNamara - [1996] QCA 433

IN THE COURT OF APPEAL	[1996] QCA 433
SUPREME COURT OF QUEENSLAND

C.A. No. 399 of 1996

Brisbane

Before

Fitzgerald P.
Pincus J.A.
Derrington J.

[R. v. McNamara]

THE QUEEN

MORTON WAVERLEY McNAMARA

Appellant

Fitzgerald P.
Pincus J.
Derrington J.

Judgment delivered 8 November 1996.

Joint reasons for judgment of Fitzgerald P. and Derrington J., separate reasons of Pincus J.A. concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE IS GRANTED, AND
APPEAL AGAINST SENTENCE ALLOWED.
THE SENTENCE IMPOSED IN RESPECT OF THE OFFENCE OF BREAKING AND
ENTERING A DWELLING IN THE NIGHT-TIME WITH INTENT TO COMMIT AN
INDICTABLE OFFENCE IS TO STAND. SENTENCE OF FOUR YEARS’
IMPRISONMENT IN RESPECT OF THE OFFENCE OF ATTEMPTED RAPE IS SET
ASIDE, AND IN LIEU A SENTENCE OF IMPRISONMENT FOR THREE YEARS IS
SUBSTITUTED.

prior to committing the offences and had become heavily intoxicated
- prosecution accepted that this was not a particularly serious
example of attempted rape and that a lesser sentence to that imposed
would have been appropriate.
Rosenberger [1995] 1 Qd.R. 677
Kanaveilomani (C.A. 130 of 1993, unreported, 15 June 1994)

Counsel:	The appellant appeared on his own behalf. Mr P. Ridgway for the respondent.
Solicitors:	The appellant appeared on his own behalf. Queensland Director of Public Prosecutions for the respondent.
Hearing Date:	31 October 1996.

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND DERRINGTON J.

Judgment delivered 8 November 1996

The appellant has appealed against his conviction in the District Court at Maryborough on 14 August 1996 of two offences on 13 January 1996; namely, that he entered the dwelling house at Hervey Bay of one Lisa Anne Goldsbury in the night-time with intent to commit an indictable offence therein and that he attempted to commit rape upon Ms Goldsbury. The applicant was sentenced to imprisonment for one year on the first count and four years on the second count, the sentences to be served concurrently. He has also applied for leave to appeal against his sentences, and, more particularly, the sentence of imprisonment for four years on the charge of attempted rape.

The appellant represented himself before this Court and spoke briefly to his only ground of appeal, which was that the complainant “... fabricated her evidence ...”. He told the Court that, on the advice of his legal advisers, he did not give evidence at his trial. Although he denied his guilt in statements to this Court when discussing his conviction appeal, later, when discussing his application for leave to appeal against sentence, he seemed to accept that he had committed the offences.

However that might be, there was plainly evidence upon which the jury could properly convict the appellant, and, in the absence of any suggestion of error or discernible miscarriage of justice, the appeal against conviction must be dismissed.

In order to deal with the application for leave to appeal against the sentence imposed in respect of the appellant’s conviction for attempted rape, it is necessary…

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 McNamara

Details

AGLC: R v McNamara [1996] QCA 433
Case: [1996] QCA 433
Decision Date: 8/11/1996

CaseChat Overview and Summary

In the case of R v McNamara, the appellant, Morton Waverley McNamara, was convicted in the District Court at Maryborough on 14 August 1996 of two offences committed on 13 January 1996. He was found guilty of entering the dwelling house of Lisa Anne Goldsbury at Hervey Bay in the night-time with intent to commit an indictable offence and of attempting to rape Ms Goldsbury. McNamara was sentenced to one year's imprisonment for the first offence and four years for the second, to be served concurrently. The appellant appealed against his conviction and sentence, and applied for leave to appeal against the sentence. The appeal against conviction was dismissed, while the appeal against sentence was allowed, resulting in a reduction of the sentence for the attempted rape offence.

The key legal issue in this case was whether the appellant's conviction was based on proper evidence and whether the sentence imposed for the offence of attempted rape was appropriate. The appellant argued that the complainant had fabricated her evidence and that he had not given evidence at his trial due to advice from his legal advisers. However, there was sufficient evidence to support the jury's decision, and no suggestion of error or miscarriage of justice was presented. The other legal issue was whether the sentence imposed for the offence of attempted rape was proportionate to the gravity of the offence. The prosecution accepted that this was not a particularly serious example of attempted rape and that a sentence of imprisonment for three years would have been appropriate.

The Court of Appeal concluded that there was no miscarriage of justice in the appellant's conviction, and the appeal against conviction was dismissed. However, the Court found that the sentence imposed for the offence of attempted rape was disproportionate and should be reduced. The prosecution's acceptance that a sentence of imprisonment for three years would have been appropriate, in line with the decision in Kanaveilomani, led the Court to set aside the four-year sentence and substitute a three-year sentence instead. The sentence for the other offence, breaking and entering a dwelling in the night-time with intent to commit an indictable offence, was left unchanged.

In summary, the Court of Appeal dismissed the appeal against McNamara's conviction but granted the application for leave to appeal and allowed the appeal against sentence. The sentence imposed in respect of the offence of breaking and entering a dwelling in the night-time with intent to commit an indictable offence remained unchanged, while the sentence of four years' imprisonment for the offence of attempted rape was set aside and replaced with a sentence of imprisonment for three years.

Orders