R v BBP

Case [2009] QCA 114 5 May 2009

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

R v BBP [2009] QCA 114

PARTIES:

R
v
BBP
(appellant)

FILE NO/S:

CA No 250 of 2008
DC No 140 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

5 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2009

JUDGES:

McMurdo P, Keane and Chesterman JJA
Separate reasons for judgment of each member of the Court,

each concurring as to the order made

ORDERS:

Appeal against conviction dismissed and application for leave to appeal sentence is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where there were discrepancies between complainants and other witnesses evidence – where there were issues relating to timing and the complainant’s age when events occurred – whether it was reasonably open for jury to reach a guilty verdict given these inconsistencies

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where direction to jury relating to pre-recorded child evidence was required by s 21AW(2) of the Evidence Act 1977 (Qld) – where trial judge paraphrased requirements of section – whether trial judge erred in these directions

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant was sentenced to 8 years imprisonment for rape – whether this sentence was excessive given the specific circumstances of the offence and other comparable cases

Evidence Act 1977 (Qld), s 21AW(2), s 93A

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, followed
R v Casey, unreported, Court of Appeal, Qld, CA 262 of 1991, 3 March 1992, considered
R v Hellwig [2007] 32 Qd R 17; (2006) 161 A Crim R 489; [2006] QCA 179, considered
R v KU & Ors; ex parte A-G (Qld)[2008] QCA 154, considered

COUNSEL:

The appellant appeared on his own behalf
M Copley SC for the respondent

SOLICITORS:

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

McMURDO P: I agree with Chesterman JA's reasons for dismissing the appeal against conviction and refusing the application for leave to appeal against sentence.

KEANE JA: I have had the advantage of reading the reasons for judgment prepared by Chesterman JA. I agree that, for the reasons given by his Honour, the appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused.

CHESTERMAN JA: After a three day trial the appellant was, on 24 September 2008, convicted of raping his niece, [the complainant] on an occasion between 25 July 2002 and 24 April 2004, and, on the same occasion, indecently dealing with her. He was sentenced to eight…

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 BBP

Details

AGLC: R v BBP [2009] QCA 114
Case: [2009] QCA 114
Decision Date: 5 May 2009

CaseChat Overview and Summary

The appeal in R v BBP involved the appellant contesting their conviction for rape, along with an application for leave to appeal the sentence. The appellant argued that the jury's verdict was unreasonable and that there was a miscarriage of justice due to misdirections given to the jury in relation to pre-recorded child evidence, as well as the excessiveness of the sentence imposed. The primary legal issues before the court were whether the jury's verdict was reasonably open given the discrepancies in the evidence and whether the trial judge's directions regarding the child evidence were correct. Additionally, the court needed to determine if the sentence of eight years imprisonment was manifestly excessive.

The court examined the discrepancies in the evidence, including inconsistencies between the complainants and other witnesses, as well as issues regarding timing and the complainant's age at the time of the alleged events. The court found that despite these inconsistencies, it was reasonably open for the jury to convict the appellant based on the evidence presented. The court also assessed the trial judge's directions to the jury regarding the pre-recorded child evidence, concluding that while the judge paraphrased the statutory requirements, the essence of the direction was correctly conveyed and did not constitute a misdirection. Finally, the court considered the sentence imposed and determined that it was not manifestly excessive in light of the specific circumstances of the offence and comparable cases.

The appeal against the conviction was dismissed as the court found the verdict to be reasonably open on the evidence. The application for leave to appeal the sentence was also refused, as the sentence was not found to be manifestly excessive. The court's final orders were that the appeal against the conviction be dismissed and the application for leave to appeal the sentence be refused.

Orders

Orders of the court

Appeal against conviction dismissed and application for leave to appeal sentence is refused

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v BBP [2009] QCA 114

Most Recent Citation

R v Hargraves & Stoten [2010] QCA 328

Cases Citing This Decision

R v MEC [2024] QCA 203
Citation 1 (Para 10)

…h affect the comparability of the ultimate sentence imposed on him. The observation of the Court (at [44]) on the comparable authorities of R v BBP [2009] QCA 114, R v Dendle [2019] QCA 194 and EP that had been put before the sentencing judge in OAD supported the proposition that, if the offender had been found g…
R v Oad [2024] QCA 189
Citation 2 (Para 15)

…There was a significant impact on the complainant. The parties relied on the comparable authorities, including R v RAC [2008] QCA 185, R v BBP [2009] QCA 114, R v PAM [2011] QCA 36, R v Dendle [2019] QCA 194, and R v EP [2020] QCA 109. Deterrence, denunciation and community protection were highly relevant matter…
R v WBM [2020] QCA 107
Citation 3 (Para 12)

…riate. The prosecutor submitted that the sentence might extend very close to 10 years, and it was a question of how to structure the sentence. [1][2009] QCA 114. [2][2013] QCA 118.…
R v RBC [2020] QCA 99
Citation 4 (Para 14)

…applied an appropriate discount, I think, to your plea of guilty in respect of all of your offending.” [5][2014] QCA 340. [6][2013] QCA 118. [7][2009] QCA 114. [8]AB 52 lines 35-43.…
R v WBL [2020] QCA 88
Citation 5 (Para 27)

…dequate sentence, but, in the circumstance of the child being under his care, a four year term would not have been a heavy sentence.[7] [7]cf R v BBP [2009] QCA 114, where a term of eight years from the rape of the applicant’s niece, aged 9 or 10, was not disturbed, although that was imposed after a trial.…
R v WBK [2020] QCA 60
Citation 6 (Para 1)

…rcumstances of the applicant’s offending. [17][2019] QCA 4 at [121] (Boddice J, Morrison and Philippides JJA agreeing). [18][2009] QCA 114 at [52] (Chesterman JA, McMurdo P and Keane JA agreeing). [19][2019] QCA 194.…
R v GBF [2019] QCA 4
Citation 7 (Para 5)

…nor plainly unjust, such as to give rise to an inference that there had been a failure to properly exercise the sentencing discretion. [22] R v BBP [2009] QCA 114; R v KAM (No 2) [2017] QCA 197.…
R v Bouttell [2018] QCA 52
Citation 8 (Para 9)

…The prosecutor referred the sentencing judge to R v Breckenridge [1998] QCA 136, R v Miller [2012] QCA 168, R v Lee [2012] QCA 239, and R v BBP [2009] QCA 114. In this application the respondent relied upon Breckenridge , Miller and Lee . In Breckenridge the sentencing judge reduced a notional sentence of six yea…
R v KAM (No 2) [2017] QCA 197
Citation 9

…In R v BBP [2009] QCA 114, the applicant was convicted, after a trial, of raping his niece who was nine or 10 years old at the time. He was sentenced to eight years imprisonment and three years for an offence of indecent dealing against her. His appeal against conviction was dismissed and he was refused leave to…
R v SCQ [2017] QCA 49
Citation 10 (Para 11)

…e prosecutor placed reliance upon a number of cases including R v SAG ,[71] R v CBO [72] and R v BPP .[73] [71][2004] QCA 286. [72][2016] QCA 24. [73][2009] QCA 114.…
R v Kao; R v TAF [2016] QCA 283
Citation 11 (Para 11)

…onsiderations in the exercise of the sentencing discretion. [17] R v TP; R v SBA [2007] QCA 169; R v H [2003] QCA 147; R v P [2001] QCA 25; R v BBP [2009] QCA 114.…
R v BCW [2014] QCA 340
Citation 12 (Para 1)

…ded that, taking both those cases as yardsticks, they in fact supported the sentence imposed, as did a third case, R v BBP .[4] [3][2004] QCA 445. [4][2009] QCA 114.…
R v KAJ; Ex parte Attorney-General (Qld) [2013] QCA 118
Citation 13 (Para 1)

…years, but “you will be imprisoned for almost a year longer than you would have been if I applied the normal tariff.” [1][2009] QCA 114. [2][2011] 1 Qd R 439 at [158].…
R v PAM [2011] QCA 36
Citation 14 (Para 1)

…licant's counsel, in light of the timely guilty plea, that a head sentence of seven to eight years imprisonment was appropriate, was rightly made. [6][2009] QCA 114. [7][2009] QCA 253. [8](2008) 184 A Crim R 153; [2008] QCA 106. [9][2004] QCA 445.…
R v Hargraves & Stoten [2010] QCA 328
Citation 15 (Para 1)

…reasonable doubt that the [accused] was guilty".[13] [13] M v The Queen (1994) 181 CLR 487 at 493; MFA v The Queen (2002) 213 CLR 606 at 615; R v BBP [2009] QCA 114 at [12].…

See all citing cases →

Cases Cited

R v KU; ex parte Attorney-General (No 2) [2008] QCA 154
Citation 1 (Para 1)

…In R v KU & Ors; ex parte A-G (Qld) [2008] QCA 154 at [158] the Court said:…
R v Hellwig [2006] QCA 179
Citation 2 (Para 1)

…It was pointed out in R v Hellwig [2006] QCA 179 (at para [28]) that the subsection requires a trial judge to give four instructions:…
MFA v The Queen [2002] HCA 53
Citation 3

…1AW(2), s 93A M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, followed R v Casey , unreported, Court of Appeal, Qld, CA 262 of 1991, 3 March 1992, considered R v Hellwig [2007] 32 Qd R 17; (2006) 161 A Crim R 489; [2006] QCA 179, considered R v KU & Or…
M v the Queen [1994] HCA 63
Citation 4

…ence and other comparable cases Evidence Act 1977 (Qld), s 21AW(2), s 93A M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, followed R v Casey , unreported, Court of Appeal, Qld, CA 262 of 1991, 3 March 1992, considered R v Hellwig [2007] 32 Qd R 17; (20…

Legislation Cited

Evidence Act 1977 (Qld) 21AW(2)
2 mentions (from Para 1)

CITATION:	R v BBP [2009] QCA 114
PARTIES:	R v BBP (appellant)
FILE NO/S:	CA No 250 of 2008 DC No 140 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	5 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	3 April 2009
JUDGES:	McMurdo P, Keane and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDERS:	Appeal against conviction dismissed and application for leave to appeal sentence is refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where there were discrepancies between complainants and other witnesses evidence – where there were issues relating to timing and the complainant’s age when events occurred – whether it was reasonably open for jury to reach a guilty verdict given these inconsistencies CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where direction to jury relating to pre-recorded child evidence was required by s 21AW(2) of the Evidence Act 1977 (Qld) – where trial judge paraphrased requirements of section – whether trial judge erred in these directions CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant was sentenced to 8 years imprisonment for rape – whether this sentence was excessive given the specific circumstances of the offence and other comparable cases Evidence Act 1977 (Qld), s 21AW(2), s 93A M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, followed R v Casey, unreported, Court of Appeal, Qld, CA 262 of 1991, 3 March 1992, considered R v Hellwig [2007] 32 Qd R 17; (2006) 161 A Crim R 489; [2006] QCA 179, considered R v KU & Ors; ex parte A-G (Qld)[2008] QCA 154, considered
COUNSEL:	The appellant appeared on his own behalf M Copley SC for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent