R v BCG

Case [2012] QCA 167 19 June 2012

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SUPREME COURT OF QUEENSLAND

CITATION:

R v BCG [2012] QCA 167

PARTIES:

R
v
BCG
(appellant/applicant)

FILE NO/S:

CA No 338 of 2011
DC No 117 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

19 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

12 June 2012

JUDGES:

Chief Justice and Holmes and Muir JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. The appeal against conviction be dismissed;

2. The application for leave to appeal against sentence be granted and the appeal allowed;

3. The sentences imposed in relation to counts one and two be set aside, and that in lieu thereof, the applicant be sentenced to two and a half years imprisonment on count one, and twelve months imprisonment on count two, the terms to be served concurrently.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant convicted of count 1 (maintaining an unlawful relationship) and count 2 (exposing a child to an indecent film) but acquitted of counts 3 and 4 (exposing a child to an indecent film) and count 5 (indecent dealing), which were alleged to have occurred much later than counts 1 and 2 – where appellant admitted conduct the basis of count 2 but denied the conduct alleged in counts 3 and 4 – whether verdicts inconsistent – whether verdicts unsafe and unsatisfactory

CRIMINAL LAW – PROCEDURE – VERDICT – UNANIMOUS AND MAJORITY VERDICTS – where jury quickly returned verdicts on counts 2-5 but was split on count 1 – where jury indicated after six and a half hours deliberation that a unanimous verdict was unlikely but that a majority verdict was possible and the trial judge informed the jury as to the court’s inability to accept a majority verdict until they had been deliberating for eight hours – where after deliberating for just over eight hours the jury returned a unanimous verdict convicting the appellant on count 1 – whether a jury member either compromised his or her verdict or was overborne

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to 3 and a half years imprisonment for count 1 and to 2 years imprisonment for count 2 – where no violence used, no touching underneath clothes, and where no penetration occurred – whether sentence manifestly excessive – where sentence for count 2 concurrent with larger sentence for count 1 – where sentence of 2 years for exposing a child to an indecent film considered excessive – whether sentence should be varied

Ngati v R (2008) 180 A Crim R 384 [2008] NSWCCA 3, cited
R v CAQ[1999] QCA 197, cited
R v Gregory[2011] QCA 86, considered
R v K (1997) 68 SASR 405

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 BCG

Details

AGLC: R v BCG [2012] QCA 167
Case: [2012] QCA 167
Decision Date: 19 June 2012

CaseChat Overview and Summary

The appellant was convicted by a jury of maintaining an unlawful relationship and exposing a child to an indecent film, but acquitted of other related charges. The appellant appealed against the convictions on the basis that the verdicts were unreasonable and unsatisfactory, and sought leave to appeal against his sentences, arguing they were manifestly excessive. The court had to determine whether the jury’s verdicts were legally sound, whether any jurors compromised or were overborne, and if the sentences imposed were appropriate.

The court found that the jury’s verdicts were not inconsistent or unreasonable, despite the jury initially indicating a split on count 1. The court held that the jury’s final unanimous verdict on count 1 was reliable and that no juror had compromised or been overborne. Regarding the sentences, the court acknowledged that the sentence for exposing a child to an indecent film was harsh, especially considering the circumstances of the offence. The court concluded that the sentence was manifestly excessive and should be reduced.

The appeal against conviction was dismissed, but the application for leave to appeal against sentence was granted, and the appeal allowed. The sentences were set aside, and in their place, the appellant was sentenced to two and a half years imprisonment on count one, and twelve months imprisonment on count two, to be served concurrently.

Orders

Orders of the court

1. The appeal against conviction be dismissed;

2. The application for leave to appeal against sentence be granted and the appeal allowed;

3. The sentences imposed in relation to counts one and two be set aside, and that in lieu thereof, the applicant be sentenced to two and a half years imprisonment on count one, and twelve months imprisonment on count two, the terms to be served concurrently.

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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Citations

R v BCG [2012] QCA 167

Most Recent Citation

R v Watson [2017] QCA 82

Cases Citing This Decision

R v Jao [2025] QCA 44
Citation 1 (Para 26)

…fell within a sound exercise of the sentencing discretion. As the sentencing judge observed, sentencing is not a mathematical exercise. [11] R v BCG [2012] QCA 167; R v WAA [2008] QCA 87; R v CCY [2023] QCA 49; R v Cunningham [2008] QCA 289.…
R v CCY [2023] QCA 49
Citation 2 (Para 24)

…criminal history and his personal circumstances, supported a sentence of no more than five years imprisonment. [61] R v FAK [2016] QCA 306; R v BCG [2012] QCA 167; R v WAA [2008] QCA 87; R v NR [2014] QCA 159; R v MDG [2020] QCA 113; R v Miller [2021] QCA 126; R v Johnsone (a pseudonym) [2020] QCA 243; R v Margar…
R v Watson [2017] QCA 82
Citation 3 (Para 23)

…ourse of his sentencing remarks and no submission has been advanced that his Honour in any way misunderstood the case or that he misapplied it. [27][2012] QCA 167.…

See all citing cases →

Cases Cited

R v K [2022] NSWDC 310
Citation 1 (Para 1)

…which that might occur. See R v Muto and Eastey [1996] 1 VR 336, 339; R v VST (2003) 6 VR 569, 575; Ngati v R (2008) 180 A Crim R 384, 392; and R v K (1997) 68 SASR 405. It is worth repeating the commonsensical observations of Doyle CJ in the last mentioned case (pp413-4):…
R v Gregory [2011] QCA 86
Citation 2 (Para 1)

…Notwithstanding the approach taken in R v Gregory [2011] QCA 86, this court should in my view reduce the sentence of two years imprisonment imposed in relation to count two if that sentence is considered manifestly excessive. Allowing a manifestly excessive concurrent term to stand undisturbed may possibly have…
R v Royal [2010] QCA 129
Citation 3 (Para 1)

…ed from the delivery of the verdict on that basis. There is no basis therefore from which this court should reject the asserted unanimity ( R v Royal [2010] QCA 129, para 62). That embraces this court’s rejection of the contention that a previously alone dissenting juror changed his or her mind simply to ensure u…
R v WAA [2008] QCA 87
Citation 4 (Para 1)

…His Honour was referred to cases including R v WAA [2008] QCA 87 which was potentially especially helpful because the prisoner in that case was convicted at trial. The offending in that case was rather more serious than in the present. It is summarized as follows in the reasons for judgment of Muir JA:…
Ngati v R [2008] NSWCCA 3
Citation 5

…ent film considered excessive – whether sentence should be varied Ngati v R (2008) 180 A Crim R 384 [2008] NSWCCA 3, cited R v CAQ [1999] QCA 197, cited R v Gregory [2011] QCA 86, considered R v K (1997) 68 SASR 405; [1997] SASC 6654, cited R v Muto and Eastey [1996] 1 VR 336 ;[1996] VicRp 21, cited R v Royal [201…
R v VST [2003] VSCA 35
Citation 6

…[1996] 1 VR 336 ;[1996] VicRp 21, cited R v Royal [2010] QCA 129, followed R v VST (2003) 6 VR 569; [2003] VSCA 35, cited R v WAA [2008] QCA 87, cited COUNSEL: D R Lynch for the appellant/applicant B J Merrin for the respondent SOLICITORS: Walker Pender for the appellant/applicant Director of Public Prosecutions…
MFA v The Queen [2002] HCA 53
Citation 7 (Para 1)

…nd reasonable doubt that the appellant was guilty on count one, notwithstanding the particular matters ventilated before this court ( MFA v The Queen (2002) 213 CLR 606, 614-615).…
R v Markuleski [2001] NSWCCA 290
Citation 8 (Para 1)

…old of the need to accept the evidence of the complainant beyond reasonable doubt; the jury was given a Markuleski style direction ( R v Markuleski (2001) 52 NSWLR 82); the jury were directed to take into account any reasonable doubt in relation to one offence in assessing the complainant’s credibility on others; and…
R v CAQ [1999] QCA 197
Citation 9 (Para 1)

…o year term imposed in relation to count two to have been manifestly excessive. I would substitute twelve months imprisonment, noting that in R v CAQ [1999] QCA 197, where the prisoner had pleaded guilty, the term imposed for similar offending was 12 months imprisonment.…
Cheatle v The Queen [1993] HCA 44
Citation 10

…are of the power raising the matter in the course of the jury deliberations. Of course, I accept what the High Court said in Cheatley v The Queen (1993) 177 CLR 541 at 552-553 about the significant difference between a deliberative process in which a verdict can be returned only if agreement is reached by all jurors,…
Cheatley v The Queen [1972] HCA 63
Citation 11

…a result of jurors aware of the power raising the matter in the course of the jury deliberations. Of course, I accept what the High Court said in Cheatley v The Queen (1993) 177 CLR 541 at 552-553 about the significant difference between a deliberative process in which a verdict can be returned only if agreement is reached by…
[1997] SASC 6654 [1997] SASC 6654
Citation 12

…cited R v CAQ [1999] QCA 197, cited R v Gregory [2011] QCA 86, considered R v K (1997) 68 SASR 405; [1997] SASC 6654, cited R v Muto and Eastey [1996] 1 VR 336 ;[1996] VicRp 21, cited R v Royal [2010] QCA 129, followed R v VST (2003) 6 VR 569; [2003] VSCA 35, cited R v WAA [2008] QCA 87, cited COUNSEL: D R Lynch fo…

Legislation Cited

Jury Act 1995 (Qld)
1 mention (from Para 1)

CITATION:	R v BCG [2012] QCA 167
PARTIES:	R v BCG (appellant/applicant)
FILE NO/S:	CA No 338 of 2011 DC No 117 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	19 June 2012
DELIVERED AT:	Brisbane
HEARING DATE:	12 June 2012
JUDGES:	Chief Justice and Holmes and Muir JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. The appeal against conviction be dismissed; 2. The application for leave to appeal against sentence be granted and the appeal allowed; 3. The sentences imposed in relation to counts one and two be set aside, and that in lieu thereof, the applicant be sentenced to two and a half years imprisonment on count one, and twelve months imprisonment on count two, the terms to be served concurrently.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant convicted of count 1 (maintaining an unlawful relationship) and count 2 (exposing a child to an indecent film) but acquitted of counts 3 and 4 (exposing a child to an indecent film) and count 5 (indecent dealing), which were alleged to have occurred much later than counts 1 and 2 – where appellant admitted conduct the basis of count 2 but denied the conduct alleged in counts 3 and 4 – whether verdicts inconsistent – whether verdicts unsafe and unsatisfactory CRIMINAL LAW – PROCEDURE – VERDICT – UNANIMOUS AND MAJORITY VERDICTS – where jury quickly returned verdicts on counts 2-5 but was split on count 1 – where jury indicated after six and a half hours deliberation that a unanimous verdict was unlikely but that a majority verdict was possible and the trial judge informed the jury as to the court’s inability to accept a majority verdict until they had been deliberating for eight hours – where after deliberating for just over eight hours the jury returned a unanimous verdict convicting the appellant on count 1 – whether a jury member either compromised his or her verdict or was overborne CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to 3 and a half years imprisonment for count 1 and to 2 years imprisonment for count 2 – where no violence used, no touching underneath clothes, and where no penetration occurred – whether sentence manifestly excessive – where sentence for count 2 concurrent with larger sentence for count 1 – where sentence of 2 years for exposing a child to an indecent film considered excessive – whether sentence should be varied Ngati v R (2008) 180 A Crim R 384 [2008] NSWCCA 3, cited R v CAQ[1999] QCA 197, cited R v Gregory[2011] QCA 86, considered R v K (1997) 68 SASR 405