R v Daphney[1999] QCA 69

COURT OF APPEAL

McPHERSON JA

THOMAS JA

WHITE J

CA No 328 of 1998

THE QUEEN

v

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 himself with margarine taken from the refrigerator in the kitchen.  Margarine stains were found on the child's sheets and on the floor near her bed.  He raped her anally, which was confirmed by the presence of his sperm in samples taken from the child's rectum, clothing and underwear.

In the course of the attack upon the child it seems that the applicant took her outside into a nearby laneway and returned her to the house before leaving.  The child complained to her mother at about 4.30 am of a man who had been in her room and that "her bum was sore".  Her sister gave some corroborating evidence.  Police were contacted and the child was taken to hospital where an examination revealed dried blood clots within the anal orifice, a circle of bruising over the outer perianal skin, a small tear at the entry of the anus and blood stains on her underpants.

Neither child was able to offer a very detailed chronology of the events which had occurred that night.  The applicant was identified by the fingerprint left on the glass louvre at the squash centre.  He was questioned about the rape when he was being questioned about the break and enter, and after initial denials admitted that he had broken and entered the F's home and stolen money.

He said that he had digitally penetrated the complainant in her anus when she appeared in the kitchen but denied intercourse.  He told the police that he was affected by alcohol and was looking for cash.  By his plea of guilty it was clear that he accepted that he had raped the child.

The effect of these events upon the F family has been very serious.  His Honour the learned sentencing Judge received statements from the parents and Mrs P.  The two girls have sleeping problems including bad nightmares and awake screaming.  The complainant child has barely controllable tantrums.  She was started on preventative medication with serious side effects in case she had been infected with the Aids virus or other diseases.

Although it now appears after subsequent tests that the applicant is free from such serious diseases, there is still some possibility of infection manifesting itself and it is a continuing fear for the parents.  The family moved from Townsville to a country town to deal with their collective anxieties with attendant financial losses in respect of their home, jobs and career prospects.  The move may have longer term consequences for the children's education.

The applicant, who is poorly educated, wrote a brief note of apology to the F family which his Honour accepted as some sign of remorse together with his plea of guilty.  The children were thereby protected from giving evidence at the committal or trial and these factors were noted by the learned sentencing Judge as mitigating factors.

His Honour rightly recognised these as very serious offences calling for appropriately severe punishment.  He imposed the sentence of 15 years in respect of the two serious crimes mentioning that the sentences would have been higher but for the guilty pleas and, presumably, the letter of apology demonstrating some remorse.

As I have mentioned the offence of rape is a schedule offence under the Penalties and Sentences Act and by virtue of s 161A(a)(i)(A) and (ii) is a serious violent offence in respect of which the applicant must serve 80 per cent of the sentence imposed if a sentence of 10 years or more is imposed. 

This factor does not permit any reduction of what is otherwise a proper sentence, Siganto v. The Queen, a decision of the High Court of Australia, of 1998.  His Honour observed that he considered the applicant a danger to the community and on his past record would be likely to continue offending and these were matters to which he was entitled to have regard. 

The sentences of Luke, CA No 342 of 1996 of 4 March 1987, Losch, CA No 248 of 1980 of 3 March 1981, Currie, CA No 320 of 1996 of 2 October 1996 and Gerritts, CA numbers 158 and 192 of 1991, a decision of 4 October 1991 suggest that this was not a light punishment to have imposed upon the applicant, a relatively young man. 

However, the complainant here was little more than an infant and the applicant sought her out in her bedroom, armed with the means to effect his purpose.

He already had money which was his acknowledged purpose in breaking and entering the home.  This was no opportunistic encounter, if that be much of an excuse.

He took the child away from her home into the night, which is another bad feature of this case. The adverse effect on the family has been extensive and enduring.

Although his Honour might have made a greater adjustment for the plea of guilty and the remorse, not to have done so does not, in my view, mean that the sentence is manifestly excessive and outside the exercise of a sound sentencing discretion.

I would refuse the application for leave to appeal against the sentence.

McPHERSON JA:  I agree.  The application should be refused.

THOMAS JA:  I also agree.

McPHERSON JA:  The order of the Court therefore is that the application for leave to appeal is dismissed.

Mr Daphney, if you are still there, the Court will direct the Registrar to send to you a copy of what Justice White and we have said in dismissing your application.  You can expect it to arrive within the next week or so.