R v BDK - [2020] QCA 48

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDK [2020] QCA 48

PARTIES:

R
v
BDK
(appellant/applicant)

FILE NO/S:

CA No 5 of 2019
DC No 675 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns – Date of Conviction & Sentence: 28 November 2018 (Clare SC DCJ)

DELIVERED ON:

20 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

2 March 2020

JUDGES:

Sofronoff P and Philippides and McMurdo JJA

ORDERS:

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of two offences against his long term, on and off partner, being strangulation in a domestic setting (count 1) and assault occasioning bodily harm (count 2), with each offence being a domestic violence offence – whether it was open to the jury, in all the circumstances to find beyond reasonable doubt, that the appellant was guilty of counts 1 and 2 – whether the verdicts of guilty on counts 1 and 2 were unreasonable and insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to three years’ imprisonment for count 1 and 18 months’ imprisonment for count 2 – where the appellant also pleaded guilty to six summary offences for which he was convicted but not further punished (although those convictions were taken into account in sentencing for the other counts) – where the domestic violence offences were of a serious nature – whether the sentences imposed were manifestly excessive in all the circumstances

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

The appellant/applicant appeared on his own behalf
C Cook for the respondent

SOLICITORS:

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

SOFRONOFF P: I agree with Philippides JA.
PHILIPPIDES JA: Background On 28 November 2018, after a trial by jury, the appellant was convicted of two offences committed against his long term, on and off partner, Ms LN, being:
(a)strangulation in a domestic setting on 2 January 2018 (the offence being a domestic violence offence) for which he was sentenced to three years’ imprisonment (count 1); and
(b)assault occasioning bodily harm on 2 February 2018, (the offence also being a domestic violence offence), for which he was sentenced to 18 months’ imprisonment (count 2).
At the commencement of his trial, the appellant pleaded guilty to one count of wilful damage on 2 February 2018 (being a domestic violence offence) for which he was sentenced to six months’ imprisonment (count 3). In addition, at sentence, the appellant pleaded guilty to six summary offences for which he was convicted but…

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 BDK

Details

AGLC: R v BDK [2020] QCA 48
Case: [2020] QCA 48
Decision Date: 20 March 2020

CaseChat Overview and Summary

The appellant in this case was convicted of strangulation in a domestic setting (count 1) and assault occasioning bodily harm (count 2), both of which were domestic violence offences. These charges arose from incidents involving his long-term, on and off partner. The appellant was sentenced to three years’ imprisonment for count 1 and 18 months’ imprisonment for count 2. Additionally, the appellant pleaded guilty to six summary offences for which he was convicted but not further punished, although these convictions were taken into account during sentencing for the other counts.

The legal issues before the court were whether the jury's verdicts of guilty on counts 1 and 2 were unreasonable or insupportable in light of the evidence, and whether the sentences imposed were manifestly excessive. The court had to consider whether the evidence was sufficient to support the jury's findings and whether the sentences were appropriate given the nature of the offences.

The court concluded that the evidence presented was sufficient for a reasonable jury to find the appellant guilty beyond reasonable doubt on both counts. The court found no basis to interfere with the jury’s verdicts as they were supported by the evidence and were not unreasonable. Regarding the sentence, the court held that while the offences were serious, the sentences imposed were not manifestly excessive. The court found that the totality of the sentences, considering the nature of the offences and the appellant’s criminal history, were appropriate.

The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was also refused. The sentences imposed by the trial court were upheld.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against 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.

CITATION:	R v BDK [2020] QCA 48
PARTIES:	R v BDK (appellant/applicant)
FILE NO/S:	CA No 5 of 2019 DC No 675 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Cairns – Date of Conviction & Sentence: 28 November 2018 (Clare SC DCJ)
DELIVERED ON:	20 March 2020
DELIVERED AT:	Brisbane
HEARING DATE:	2 March 2020
JUDGES:	Sofronoff P and Philippides and McMurdo JJA
ORDERS:	1. The appeal against conviction is dismissed. 2. The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of two offences against his long term, on and off partner, being strangulation in a domestic setting (count 1) and assault occasioning bodily harm (count 2), with each offence being a domestic violence offence – whether it was open to the jury, in all the circumstances to find beyond reasonable doubt, that the appellant was guilty of counts 1 and 2 – whether the verdicts of guilty on counts 1 and 2 were unreasonable and insupportable having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to three years’ imprisonment for count 1 and 18 months’ imprisonment for count 2 – where the appellant also pleaded guilty to six summary offences for which he was convicted but not further punished (although those convictions were taken into account in sentencing for the other counts) – where the domestic violence offences were of a serious nature – whether the sentences imposed were manifestly excessive in all the circumstances M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
COUNSEL:	The appellant/applicant appeared on his own behalf C Cook for the respondent
SOLICITORS:	The appellant/applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent