R v Ban - [2004] QCA 416

SUPREME COURT OF QUEENSLAND

CITATION:

R v BAN [2004] QCA 416

PARTIES:

R

v

BAN
(applicant)

FILE NO/S:

CA No 273 of 2004
DC No 475 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

3 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

3 November 2004

JUDGES:

Davies and McPherson JJA, Fryberg J

ORDER:

1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence granted. Appeal allowed. Set aside sentences imposed on counts 4, 6 and 7 and in lieu thereof a sentence of 18 months is imposed on each count.

CATCHWORDS:

CRIMINAL LAW – Appeal and new trial – Appeal against sentence – Appeal by convicted persons – Applications to reduce sentence – When granted – Particular offences – Offences against the person – Sexual offences

R v Harkin (1989) 38 A Crim R 296, cited

R v W [2000] QCA 321; CA No 141 of 2000, 8 August 2000, referred to

COUNSEL:

K M McGinness for the applicant
T A Fuller for the respondent

SOLICITORS:

Legal Aid (Queensland) for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FRYBERG J: On 29 July this year, the appellant was acquitted in the District Court on one count of maintaining a sexual relationship with his elder daughter, another of indecent dealing with the same daughter and a third of raping that daughter.

At the same time he was convicted on one count of indecent dealing with that daughter and another of common assault upon her and of two counts of indecent dealing with his younger daughter.

He now appeals against his conviction on the last two counts and seeks leave to appeal against the sentences of imprisonment for two years to be served concurrently for each of the three counts of indecent dealing. The sole ground of the appeal against the convictions is that they are unreasonable and cannot be supported by the evidence.

It is unnecessary to go into the circumstances of the three acquittals. They were probably due to doubts held by the jury regarding identification. The appellant did not himself give evidence. It is however necessary to consider some of the evidence relating to the appellants older daughter as well as that specifically relating to the younger one.

The younger daughter was born in February 1985. She was nearly five years younger than her sister. The offences were alleged to have occurred when she was aged about nine, which puts them after the offence of indecent dealing with the sister.

In contrast to the position with her sister, it is not alleged that there had been any molestation of her except on the two occasions charged. Each offence was alleged to have occurred on a Thursday night when the complainant's mother was regularly out. The offences were alleged to have occurred one to two weeks apart.

The complainant had been suffering pain in her tailbone for some time prior…

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 Ban

Details

AGLC: R v Ban [2004] QCA 416
Case: [2004] QCA 416
Decision Date: 3 November 2004

CaseChat Overview and Summary

The appellant, Ban, appealed against his conviction and sentence for sexual offences against several victims. The case was heard in the court of appeal. The appellant challenged both his conviction and his sentence, arguing that the trial judge had erred in various respects and that his sentence was excessive.

The court considered several issues, including whether there were any errors in the trial judge's directions to the jury and whether the evidence was sufficient to support the conviction. The court also considered whether the sentence imposed was appropriate in all the circumstances. The court found that there were no errors in the trial judge's directions and that the evidence was sufficient to support the conviction. However, the court found that the sentence imposed was excessive and granted leave to appeal against the sentence.

The court allowed the appeal against the sentence. The court set aside the sentences imposed on counts 4, 6 and 7 and in lieu thereof imposed a sentence of 18 months on each count. The appeal against the conviction was dismissed.

The appeal against the sentence was allowed and the sentences imposed on counts 4, 6 and 7 were set aside. In their place, the court imposed a sentence of 18 months on each count. The appeal against the conviction was dismissed.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence granted. Appeal allowed. Set aside sentences imposed on counts 4, 6 and 7 and in lieu thereof a sentence of 18 months is imposed on each count.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v BAN [2004] QCA 416
PARTIES:	R v BAN (applicant)
FILE NO/S:	CA No 273 of 2004 DC No 475 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	3 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	3 November 2004
JUDGES:	Davies and McPherson JJA, Fryberg J
ORDER:	1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence granted. Appeal allowed. Set aside sentences imposed on counts 4, 6 and 7 and in lieu thereof a sentence of 18 months is imposed on each count.
CATCHWORDS:	CRIMINAL LAW – Appeal and new trial – Appeal against sentence – Appeal by convicted persons – Applications to reduce sentence – When granted – Particular offences – Offences against the person – Sexual offences R v Harkin (1989) 38 A Crim R 296, cited R v W [2000] QCA 321; CA No 141 of 2000, 8 August 2000, referred to
COUNSEL:	K M McGinness for the applicant T A Fuller for the respondent
SOLICITORS:	Legal Aid (Queensland) for the applicant Director of Public Prosecutions (Queensland) for the respondent