R v Danine[2004] QCA 271

SUPREME COURT OF QUEENSLAND

DUTNEY J:  On the 19th of June 2003 the applicant pleaded guilty before Judge Howell in the District Court, to one count of receiving, five counts of burglary and stealing, two counts of burglary with a circumstance of aggravation, two counts of fraud and one count of stealing.

These offences were committed between February and July 2001 and were charged on two separate indictments.  The sentencing process was adjourned by Judge Howell until after the applicant stood trial on three counts of rape alleged to have been committed on the 22nd of February 2002 while the applicant was on bail for the property offences to which I have referred.  The offences of rape were charged on a separate indictment.

On the 23rd of September 2003 a jury convicted the applicant of all three counts of rape after a trial before Judge Hoath.  The applicant was sentenced by Judge Hoath for all the offences, both property offences and the rapes on the 26th of September 2003.

His Honour imposed a sentence of five years imprisonment for each of the rapes to be served concurrently.  He imposed sentences of up to two years imprisonment for the property offences.  The sentences for the property offences were to be served concurrently with each other, but cumulatively on the sentences for the rapes.  The end result was an effective sentence of seven years imprisonment.

The applicant appealed against his convictions on the rape charges.  His appeal was dismissed on the 8th of April 2004.  That appeal is cited as the Queen v Danine, 2004 QCA 102.

Some three months after the dismissal of his appeal against conviction, on the 14th of July 2004 the applicant filed an application for an extension of time within which to seek leave to appeal against the sentences and an application for leave to appeal against sentence.

The explanation offered for failing to file an application for leave to appeal against sentence within time was that the applicant had expected that his appeal against conviction would be successful.  He also asserted some reliance on legal advice.

The complaint about the sentences imposed which the applicant wishes to agitate is that the effective five year sentence for the rapes and the effective two year sentence for the property offences were made cumulative.

I would refuse the application for an extension of time within which to apply for leave to appeal against sentence.  Leaving aside the adequacy of the grounds for the extension of time any appeal against sentence in this case appears bound to fail.

In passing sentence the learned primary Judge had regard to the totality of the sentence he was imposing and fashioned the penalties accordingly.  He specifically said so.

Irrespective of whether the sentence is looked at in its totality as a sentence of seven years imprisonment, or whether the issue of making the sentences cumulative is looked at in isolation, there is no discernible error by the sentencing Judge. 

The facts relating to the rape offences are set out in detail in the reasons given by Justice McPherson for dismissing the appeal against conviction.

The three offences of rape involved digital penetration of the complainant, followed by vaginal penetration by the applicant's penis and, finally, oral penetration of the complainant by the applicant's penis.

The complainant was a 16 year old virgin.  The applicant was then 26 years of age.  Some force was used.  The applicant was on bail for the property offences when he committed the rapes.

It is sufficient for present purposes to say that had the learned sentencing Judge opted to impose a head sentence of seven years for rape and a concurrent sentence of two years for the property offences, it would be hard to argue that it was outside the sentencing range having regard to the circumstances.

The applicant has a criminal record which involves sentences of imprisonment for offences of break, enter and steal in New South Wales in 1995.  Some of the property offences in the indictments were committed while the applicant was subject to notices to appear in relation to earlier property offences also included in the same indictments.

One of the offences involved the breaking and entering of a house where the 87 year old female resident, who was at home at the time, locked herself in a room while the offence took place.  The offences were committed by the applicant to support his drug habit.

A sentence of imprisonment for two years for the property offences in 2001 thus would not seem to be outside the proper sentencing range and, indeed, again, the applicant does not submit that in isolation that sentence is excessive.

Having regard to the fact that the property offences were discrete in time from the rapes, of a different character, and that the rapes were committed while on bail for the property offences, no basis is shown for criticising the imposition of cumulative sentences for the two groups of offences.

Unless it can be shown, even in a preliminary way, that the sentence imposed arguably exceeded the permissible range any grant of leave to proceed further would be futile.  For that reasons I would refuse leave and dismiss the application.

McPHERSON JA:  I agree.

WILLIAMS JA:  I agree.

McPHERSON JA:  The order is that the application is dismissed.