SUPREME COURT OF QUEENSLAND
CITATION:
R v BEA [2023] QCA 78
PARTIES:
R
v
BEA
(appellant/applicant)FILE NO/S:
CA No 138 of 2021
CA No 159 of 2021
DC No 217 of 2021DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Townsville – Date of Conviction: 20 May 2021; Date of Sentence: 14 June 2021 (Lynham DCJ)
DELIVERED ON:
26 April 2023
DELIVERED AT:
Brisbane
HEARING DATE:
13 March 2023
JUDGES:
Dalton JA and Gotterson AJA and Bradley J
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 – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant was convicted after trial of two counts of assault occasioning bodily harm, three counts of common assault, and 13 counts of rape against a single complainant – where the prosecution case rested on the uncorroborated evidence of the complainant – where there were inconsistencies between the complainant’s evidence at trial and the preliminary complaint evidence of other witnesses – where there were inconsistencies between the complainant’s evidence at trial and admissions made by the Crown – where there was a delay of nearly three years between the last of the offending and the complainant’s first complaint to police – where the appellant alleges that the complainant had been diagnosed with borderline personality disorder and bipolar disorder – where the appellant alleges that it was never proved that the complainant did not suffer delusions as a result – whether the primary judge should have warned the jury that it was dangerous to convict on the uncorroborated evidence of the complainant – whether the primary judge should have warned the jury that the appellant had suffered a significant forensic disadvantage due to delay
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the prosecution case rested on the uncorroborated evidence of the complainant – where there were inconsistencies between the complainant’s evidence at trial and the preliminary complaint evidence of other witnesses – where the appellant alleges that the complainant was delusional due to mental health issues – whether the jury’s verdict was unsafe and unsatisfactory
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where, in the course of being cross-examined, the complainant gave evidence that the appellant had been to prison – where defence counsel used this evidence for forensic purposes – where the primary judge directed the jury as to the purposes for which it could use this evidence – whether the admission of the evidence occasioned a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – where the appellant’s counsel at trial referred…
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- AGLC
- R v BEA [2023] QCA 78
- Case
- [2023] QCA 78
- Decision Date
CaseChat Overview and Summary
The court held that the complainant's evidence was not improbable or incredible, and no warning was necessary on that basis. The court found that the trial judge properly directed the jury to consider inconsistencies in the complainant's evidence and assess her credibility. The court concluded that the inconsistencies did not render the verdict unsafe or unsatisfactory. The court found no miscarriage of justice in the comments made by defence counsel or the admission of evidence about the appellant's prior imprisonment. Finally, the court found that the appellant's extensive criminal history and the protracted and controlling nature of his offending justified the trial judge's sentence. The comparison to other cases did not indicate that the sentence was manifestly excessive.
The appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused.
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
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
It is unsurprising that none of the decisions cited by the appellant in his outline was raised at the appellant’s sentencing hearing. In none of them could the offending be considered comparable to the appellant’s offending. As well, none of them involved an offender with a 40-year criminal record, including relevant convictions for indecent assault, aggravated indecent assault, assault occasioning bodily harm, two for common assault, and 12 for contravention of domestic violence orders (including two as aggravated offences).Consideration of the referenced decisions Comparing the criminality of different sexual offenders is an odious, if sometimes necessary, exercise. As the trial judge noted at the sentencing hearing, the decisions in Chinfat, Mason and Saunders, and Mitchell are to be treated with some caution. They predate extensive amendments to s 9 of the Penalties and Sentences Act 1992 (Qld). Since the amendments, s 9(10) requires the court to treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such given the nature of the precious conviction, its relevance to the present offence, and the time that has elapsed. Section 9(10A) requires the court to treat the fact that a conviction is for a domestic violence offence as an aggravating factor unless the court considers it is not reasonable because of the exceptional circumstances of the case. Dated as they are, the sentences in these decisions (of 9, 12, 13, and 15 years’ imprisonment) do not indicate an error in the trial judge’s sentence of 11 years’ imprisonment for the appellant. The appellant was sentenced for offences that were quite different in nature to the single opportunistic offences in Mason and Saunders, Mitchell, Pryor, Sollit, and TAQ. The appellant committed his offences over a three-year domestic relationship. It was protracted offending against a single complainant. I respectfully adopt the trial judge’s view that the concerning overall feature of the appellant’s offending is “the controlling, violent and manipulative way” he dealt with the complainant. The appellant’s sentence called for a different consideration of deterrence than the sentences in Mason and Saunders, Mitchell, Pryor, Sollit, and TAQ. The appellant was undeterred by serving nine months’ imprisonment for three contraventions of a domestic violence protection order committed in April, May, and July 2014. Between his release from custody in May 2015 and the end of the relationship in November 2015, he committed further serious offences, including two rapes. The appellant was not a young offender with no relevant criminal history, like the offender in Heckendorf. The circumstances in NT are perhaps closer to the appellant’s offending. In NT, the defendant committed seven offences over three months, being one rape, two counts of torture, two of deprivation of liberty, one assault occasioning bodily harm while armed, and one common assault. The appellant here committed 18 offences over about three years, including 13 rapes, two counts of assault occasioning bodily harm, and three counts of common assault. In NT, the effective sentence was about 10 years and five months’ imprisonment, considering the 17 months spent in presentence custody. The comparison does not indicate the trial judge erred in sentencing the appellant.