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 2011DIVISION:
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 madeORDER:
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
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- AGLC
- R v BCG [2012] QCA 167
- Case
- [2012] QCA 167
- Decision Date
CaseChat Overview and Summary
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
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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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