R v ABL

Case [2024] QCA 110

SUPREME COURT OF QUEENSLAND

CITATION:

R v ABL [2024] QCA 110

PARTIES:

R
v
ABL
(appellant/applicant)

FILE NO/S:

CA No 171 of 2022
CA No 78 of 2023
DC No 23 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 25 July 2022; Date of Sentence: 24 August 2022 (Lynham DCJ)

DELIVERED ON:

11 June 2024

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2024

JUDGES:

Morrison and Dalton JJA and Brown J

ORDERS:

1.   Application for leave to adduce further evidence, refused.

2.   Appeal against conviction dismissed.

3.   Leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of one count of deprivation of liberty (count 1), four counts of rape (counts 2-5) and one count of attempting to pervert justice (count 6) – where the appellant pleaded guilty to the count of deprivation of liberty and not guilty to the remaining counts – where the appellant contends he was forced to plead guilty by his counsel, his legal representatives at the trial did not follow the instructions he gave them concerning witnesses to be called; and he was prevented from giving evidence – whether there is a significant possibility that an innocent person has been convicted

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE IN ALL THE CIRCUMSTANCES – where the appellant was sentenced to 18 months imprisonment for count 1, three years imprisonment for count 2, nine years imprisonment for each of counts 3, 4 and 5, and 12 months imprisonment for count 6 – where 795 days of pre-sentence custody was declared as time served – where 847 days were not declared as time already served on the basis that the appellant was already serving a sentence that had been imposed in 2018 – where the appellant contends that the sentence which should have been imposed was six to seven years with the full amount of pre-sentence custody and parole eligibility effective from the date of the appeal hearing – whether the sentences were manifestly excessive – whether the sentences were subject to specific errors

Penalties and Sentences Act 1992 (Qld), s 159A

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, applied
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, cited
R v BDR[2022] QCA 85, cited
R v Lacey[2013] QCA 292, cited
R v Leighton[2014] QCA 169, considered
R v Miller (2021) 8 QR 221; [2021] QCA 126, cited
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175,…

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Details
AGLC
R v ABL [2024] QCA 110
Case
[2024] QCA 110
Decision Date

CaseChat Overview and Summary

In the case of R v ABL, the appellant appealed against his conviction and sentence. He was convicted of deprivation of liberty, four counts of rape, and attempting to pervert justice. The appellant pleaded guilty to deprivation of liberty but contested the remaining charges. The appeal against conviction hinged on the argument that the verdict was unreasonable and there was a significant possibility the appellant was innocent. The appeal against sentence argued that the sentences were manifestly excessive and contained specific errors.

The court considered the arguments regarding the appeal against conviction, focusing on whether the evidence supported the verdict and if there was a significant possibility the appellant was innocent. The court found the evidence sufficiently supported the verdict, and there was no significant possibility of an innocent person being convicted. The appeal against sentence was assessed against the principles of manifest excess, which require a misapplication of sentencing principles. The court found no such misapplication and that the sentences were appropriate given the nature of the offences and the submissions from both parties.

Ultimately, the court dismissed the appeal against conviction and refused leave to appeal against sentence. The court concluded that the sentences were not manifestly excessive or inadequate, and no errors were found in the sentencing process. The final orders included the refusal of an application to adduce further evidence, dismissal of the appeal against conviction, and refusal of leave to appeal against sentence.

Orders

Orders of the court

1. Application for leave to adduce further evidence, refused.

2. Appeal against conviction dismissed.

3. Leave to appeal against sentence refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In addition to oral evidence, the exhibits included photographs of various properties, Facebook messages between the appellant and complainant, transcripts and video recordings of interviews, and transcript and audio recordings of the Arunta calls made by the appellant.Evidence of the complainant The complainant said she was living with RME in February 2018 at an address behind Kmart.[12] She was a good friend of RME, having known her most of her life. She also knew DGE, who was RME’s stepson.[12]To which I shall refer as the Kmart house. In February 2018, she was using methylamphetamines, both by smoking and injection. She had also been a cannabis user since she was 15 years old. She met the appellant in February 2018, and they became friends. They communicated using Facebook messenger. On one particular day the appellant and the complainant exchanged messages, planning to meet and hang out. The appellant picked the complainant up in a car and they went back to where he was staying. Their intention was to “hang out and pretty much get high together … with methylamphetamines”. When she arrived at the house, DGE was there and two other men. The complainant and all the others were “smoking pipes of methylamphetamines”. She identified the other two men as being DGE’s drivers. DGE arranged for his drivers to take the appellant and the complainant to a different house at Kelso.[13] This was because DGE’s partner did not want them to remain.[13]To which I shall refer as the Kelso house. As they drove from DGE’s house, the complainant said she was in the back seat on the passenger side, and the appellant was behind the driver. The complainant had an Apple iPad which she had borrowed because she did not have a phone. She also had a few clothes and other belongings with her. When they got to the Kelso house the complainant and the appellant went inside, and the two drivers went upstairs. The complainant put all of her belongings onto the bed in one of the bedrooms and as she did so DGE’s Galaxy tablet “dropped out of … everything that I’d picked up off the back of the floor of the car”. The complainant explained that the tablet had been sitting on the middle console in the car and fell off as they were driving. When she got out of the car she simply scooped everything up and then threw it onto the bed. The appellant “just started going off”, saying that the complainant had tried to steal from DGE. She attempted to explain to the appellant that she did not know that it was there but “he lost it”. Then followed a description of the events at the house:(a)the appellant made her walk upstairs; she had no choice because the appellant was “losing it … and his words to me were, ‘you’re not going anywhere. Get upstairs now. I am ringing [DGE]’”;(b)the complainant had to sit on a couch in the lounge room; the appellant stood in the kitchen with the complainant’s borrowed Apple iPad; she said “I wasn’t allowed to contact anyone, talk to anyone. He had taken it off me and told me to sit right there and he was ringing [DGE]”;(c)the appellant seemed to become obsessed with a person called ADU and used the iPad to tell ADU that he had the complainant “held hostage at this house”;[14][14]AB 140 line 20; the transcript says a name other than the complainant but in context it was the complainant being held hostage.(d)the appellant telephoned DGE and told him that the complainant was trying to steal from him; soon after that DGE arrived; he was accompanied by the appellant’s half-brother BRO;[15][15]BRO was also referred to in evidence by his nickname, Nick Nack.(e)the complainant was still sitting on the couch, and was not able to leave it;(f)the complainant explained to DGE what had happened with Galaxy tablet; at that time the appellant was still standing in the kitchen, going through the borrowed iPad;(g)the appellant and DGE went to a bedroom where they had a conversation; meanwhile the complainant remained where she was, “terrified”;(h)DGE left, having handed the appellant a packet of methylamphetamines in crystal form;(i)the complainant noticed a car wrench on the bench and went to pick it up, but the appellant told her that she was not going anywhere; he said “you’re not leaving the house”;(j)the appellant injected himself with methylamphetamines, and then made the complainant get on her knees and put her arm out; he then injected her with the same needle that he had just used; he said “If you want to act like a putrid whore, I am going to treat you like one”;(k)at that point the appellant was naked having taken off his clothes after injecting himself with methylamphetamines;(l)the complainant begged him not to inject her and to stop; she explained that she did not want it at that time, “like, not there and then … with everything that had already happened … I didn’t want it … I didn’t even want to be on my knees but I had to”;(m)the complainant said that the appellant called her a “putrid mutt”, and that “if I wanted to act like a putrid mutt, he’s going to treat me like a putrid mutt”;(n)at that point the appellant put his penis in her mouth and “made me give a … head job”; the appellant “just kept telling me to suck it”; she told him that he did not have to do it, and that he could just let her go and she would not tell anyone; she just “begged him not to” but the appellant was holding the wrench up near her head and “just making me do it”;(o)the appellant stopped because he wanted her to do something else; he told her that she “had to lick his asshole” and to “stick my finger in it while I was … licking it”; she was still in the kitchen on her knees; she did what he asked;(p)the appellant then made her get up and go to the lounge room; she was then naked, having been told she had to take her clothes off; the curtains in the lounge room were then shut, having been wide open before;(q)the appellant made her go into the bedroom and get on all fours; he used the word “dog” when telling her to do so; in the bedroom was a single mattress on the ground, with nothing on it;(r)the appellant inserted his penis in her vagina and started having sex with her;(s)the complainant said she “just wanted it to be over” and did not do anything with her body;(t)the appellant stopped and told her to get into the shower; she got up and walked, with the appellant walking behind her with the wrench; she said the wrench “never left his hand, pretty much”; when in the shower the appellant told her to get up onto the part where people washed their hands, told her to open her legs and then inserted his penis in her vagina and stared having sex again;(u)while he was doing that he was “getting me to, like, kiss him, like grabbing my – yeah, it was just yuck”; (v)the complainant told the appellant that she “just wanted it to be over”, asking him to stop;(w)the appellant then made her get into the shower and started soaping himself and the complainant; he then got her to sit on the ledge of the bath and to lift her leg; he then inserted his penis in her vagina; she was telling him to stop;(x)the appellant ceased when he heard a noise; he ran out of the bathroom and into the lounge room, then came back with her clothes and threw them at her, telling her to get dressed;(y)he then told her to sit on the couch again, but “this time he wanted me to lay down on the couch with my face in the couch”; at that point HRO arrived; the complainant was sitting on the couch; she was scared, because she had told him to stop and he did not listen, and if she told him she wanted to leave, “that wasn’t going to happen”;(z)when HRO walked into the room, the appellant said to her, “I am holding her hostage for [DGE] because she tried to take [DGE’s] Samsung Galaxy”; at that point HRO “lost it”, and “she went off” and started yelling; (aa)the appellant kept repeating that the complainant had tried to steal from DGE and “so I’m holding her hostage”;(bb)while the appellant and HRO were yelling at each other, the complainant was sitting on the couch and crying; HRO told the appellant that she was not leaving the house without the complainant, and was taking the complainant down to help wash her car; they went downstairs but the appellant followed them, telling HRO that the complainant “wasn’t go anywhere”;(cc)the complainant smoked some marijuana, sitting on the stairs in front of the house; she described herself as “stressed”, and “emotions running wild”;(dd)the complainant did not think she would be allowed to leave the house; at that point a police van went past and the appellant stood in front of her saying “just don’t move, cunt”; he still had the wrench in his hand; he said “Don’t move, cunt, because, if you do, I’ll hit you”; and(ee)HRO and the appellant had an argument about whether HRO would take the complainant with her; HRO and the complainant got into a car and the appellant jumped into the backseat; they drove for a while and then the appellant jumped out of the car, taking the Apple iPad with him, the complainant did not see the appellant after he had jumped out of the car.

Decision

Reasons for decision

There is no basis upon which to set aside the sentences imposed.Conclusion I propose the following orders:1. Application for leave to adduce further evidence, refused.2. Appeal against conviction dismissed.3. Leave to appeal against sentence refused. DALTON JA: I agree with the orders proposed by Morrison JA and with his reasons. BROWN J: I agree with the reasons of Morrison JA and the orders proposed by his Honour.

Ratio Decidendi

Legal Principle Established

The appellant contends that the sentence which should have been imposed was six to seven years, with the full amount of pre-sentence custody taken into account (including 847 days that were not declared), and parole eligibility effective from the date of the appeal hearing.Consideration The principles appropriate to consideration of manifest excess in a sentence are well established. In R v Pham[112] the High Court said: “Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”[112](2015) 256 CLR 550; [2015] HCA 39, at [28] (7). Citation omitted. At the sentencing hearing the Crown proposed an appropriate sentence of nine to 10 years, whereas the defence proposed eight to nine years, and no serious violent offence declaration. The defence also submitted that the parole eligibility date could be delayed beyond halfway in that event.[113][113]AB 40. As to the pre-sentence custody the following matters assist an analysis of its impact:(a)the appellant was sentenced in the Townsville Magistrates Court on 11 June 2018, for two unrelated offences committed later on the same day as the present offences;(b)he received a sentence of three years imprisonment with a parole eligibility date 14 June 2019; that was the product of having committed those offences while on parole for other offences;(c)while in custody the appellant was interviewed by police on 19 June 2020, at which time his parole had just been granted;(d)therefore the period in custody between 11 June 2018 and 19 June 2020 could be said to be entirely attributable to the previous sentencing in the Magistrates Court;(e)the appellant was given a notice to appear on the present charges on 19 June 2020, and was not released on parole; and(f)the previous sentence expired on 11 June 2021. As revealed by the sentencing remarks and approach referred to above, the sentence imposed was the result of the instinctive synthesis approach.[114] The sentencing judge balanced a number of sentencing considerations, having regard to the submissions made by both sides, the yardstick authorities, the appellant’s prejudicial upbringing and the competing views on that as such as whether to declare the time in pre-sentence custody and if so, how much.[114]As to which see Markarian v The Queen (2005) 228 CLR 357. The appellant submits that the three-year jail sentence given in 2018 should have been made to run concurrently with the sentences imposed after the trial. On that basis he contends that all of the time in pre-sentence custody should have been taken into account, and deemed time served. There are a number of difficulties confronting acceptance of that submission. First, contrary to the appellant’s submission, the offending which was the subject of the sentence in 2018 was not linked to the offences the subject of this application. True it is that all of the offences were committed on 22 February 2018, but not as part of one event. The 2018 offences were of unlawful use of a motor vehicle and burglary. By their nature they were quite distinct offences.