R v Abg - [2021] QCA 259

SUPREME COURT OF QUEENSLAND

CITATION:

R v ABG [2021] QCA 259

PARTIES:

R
v
ABG
(appellant/applicant)

FILE NO/S:

CA No 203 of 2020
DC No 596 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport – Date of Conviction & Sentence: 11 September 2020 (McGinness DCJ)

DELIVERED ON:

30 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2021

JUDGES:

Holmes CJ and McMurdo and Mullins JJA

ORDERS:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by jury of two counts of sexual assault with a circumstance of aggravation, two counts of rape, one count of sexual assault and four counts of recording in breach of privacy – where all charges arose out of a single 15 minute period where the appellant filmed himself performing sexual acts on the complainant, his former partner, while she was either asleep or unconscious in her bed – where the issues for the jury at trial were whether the complainant had consented to those acts and, if not, whether the appellant had held an honest and reasonable but mistaken belief that she had consented – where the appellant appeals his conviction on the basis that the verdict was unreasonable having regard to the evidence about the nature of his sexual relationship with the complainant and the inconsistent evidence given by the complainant at trial – whether the verdict is unreasonable or cannot be supported

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to four years’ imprisonment on the two counts of rape, with lesser concurrent sentences on the remaining seven counts – where the parole eligibility date was set two months short of the statutory halfway mark – where the appellant appeals the sentence on the ground that it is manifestly excessive, having regard to comparable cases – where the appellant is a man of a mature age with a substantial criminal history primarily comprising domestic violence offences – where there is a limited number of comparable sentencing decisions – whether the sentence imposed is so disproportionately high as to reflect a misapplication of principle by the sentencing judge

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
R v RUJ[2021] QCA 114, considered
R v SAH[2004] QCA 329, considered
R v Smith[2020] QCA 23, considered
R v WAS[2013] QCA 93, considered

COUNSEL:

The appellant/applicant appeared on his own behalf
D Nardone for the respondent

SOLICITORS:

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

HOLMES CJ: The appellant was convicted by a jury of two counts of sexual assault with a circumstance of…

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 Abg

Details

AGLC: R v Abg [2021] QCA 259
Case: [2021] QCA 259
Decision Date: 30 November 2021

CaseChat Overview and Summary

In the case of R v Abg, the appellant was convicted by a jury on multiple counts, including sexual assault with aggravation, rape, and breaches of privacy. The charges stemmed from a single incident where the appellant filmed himself engaging in sexual acts on his unconscious former partner, the complainant. The primary issues for the jury were whether the complainant had given consent and, if not, whether the appellant held a genuine but mistaken belief in her consent. The appellant challenged the conviction, arguing the verdict was unreasonable considering the evidence about the nature of their relationship and the inconsistent testimony of the complainant. Additionally, he appealed the sentence, claiming it was manifestly excessive.

The court addressed the appeal against conviction by examining whether the jury's decision was unreasonable or insupportable based on the evidence. The court found that the jury's conclusion was well-supported by the evidence, particularly considering the complainant's testimony and the nature of the acts committed. The court also noted that the jury was entitled to consider the inconsistencies in the complainant's evidence in weighing her credibility. Consequently, the court dismissed the appeal against the conviction, affirming that the jury's decision was not unreasonable.

Regarding the appeal against sentence, the court assessed whether the sentence was manifestly excessive. The appellant, with a substantial criminal history involving domestic violence, was sentenced to four years' imprisonment for the rape charges, with lesser concurrent sentences for other offences. The court considered the principles of sentencing and the appellant's criminal history but found that the sentence was proportionate and not manifestly excessive. The court also noted the parole eligibility date was set reasonably short of the statutory halfway mark. Therefore, the appeal against the sentence was dismissed.

The final orders were that the appeal against conviction was dismissed, and the application for leave to appeal against the sentence was refused. The appellant's conviction and sentence were upheld by the court.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v ABG [2021] QCA 259
PARTIES:	R v ABG (appellant/applicant)
FILE NO/S:	CA No 203 of 2020 DC No 596 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Southport – Date of Conviction & Sentence: 11 September 2020 (McGinness DCJ)
DELIVERED ON:	30 November 2021
DELIVERED AT:	Brisbane
HEARING DATE:	17 September 2021
JUDGES:	Holmes CJ and McMurdo and Mullins JJA
ORDERS:	1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by jury of two counts of sexual assault with a circumstance of aggravation, two counts of rape, one count of sexual assault and four counts of recording in breach of privacy – where all charges arose out of a single 15 minute period where the appellant filmed himself performing sexual acts on the complainant, his former partner, while she was either asleep or unconscious in her bed – where the issues for the jury at trial were whether the complainant had consented to those acts and, if not, whether the appellant had held an honest and reasonable but mistaken belief that she had consented – where the appellant appeals his conviction on the basis that the verdict was unreasonable having regard to the evidence about the nature of his sexual relationship with the complainant and the inconsistent evidence given by the complainant at trial – whether the verdict is unreasonable or cannot be supported CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to four years’ imprisonment on the two counts of rape, with lesser concurrent sentences on the remaining seven counts – where the parole eligibility date was set two months short of the statutory halfway mark – where the appellant appeals the sentence on the ground that it is manifestly excessive, having regard to comparable cases – where the appellant is a man of a mature age with a substantial criminal history primarily comprising domestic violence offences – where there is a limited number of comparable sentencing decisions – whether the sentence imposed is so disproportionately high as to reflect a misapplication of principle by the sentencing judge Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited R v RUJ[2021] QCA 114, considered R v SAH[2004] QCA 329, considered R v Smith[2020] QCA 23, considered R v WAS[2013] QCA 93, considered
COUNSEL:	The appellant/applicant appeared on his own behalf D Nardone for the respondent
SOLICITORS:	The appellant/applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent