R v Bull

Case [2012] QCA 74 30 March 2012

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Bull [2012] QCA 74

PARTIES:

R
v
BULL, Bryan Desmond
(appellant/applicant)

FILE NO/S:

CA No 207 of 2011
DC No 125 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

30 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2012

JUDGES:

Chesterman and White JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal against conviction dismissed.1.

Application for leave to appeal against sentence granted.2.

Appeal against sentence allowed to the extent of setting aside the sentence imposed in the District Court on 15 July 2011 and substituting a sentence of three years and six months’ imprisonment for the count of rape. The date on which the applicant is to be eligible for parole should be fixed at 14 April 2013.3.

Declaration that two days of pre-sentence custody, 14 and 15 July 2011, is time already served under the sentence.4.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted following a trial of one count of rape but was acquitted of two counts of rape – where prosecutor misstated evidence and error not corrected by defence counsel or the trial judge – where trial judge did not direct the jury in accordance with R v Markuleski – whether verdict unreasonable because of inconsistency with the acquittals

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted following a trial of one count of rape but was acquitted of two counts of rape – where the appellant sentenced to five years’ imprisonment – where no parole eligibility date was set – whether the sentence imposed was manifestly excessive

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
R v BBE[2006] QCA 532, cited
R v LR [2005] 1 Qd R 435; [2005] QCA 368, cited
R v M[2003] QCA 443, cited
R v MAI [2005] QCA 36, cited
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 250, cited
R v MBF[2008] QCA 61, cited
R v SBL[2009] QCA 130, cited
R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited

COUNSEL:

H C Fong for the appellant/applicant
T A Fuller for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

CHESTERMAN JA: On 15 July 2011, after a four day trial in the District Court at Ipswich, the appellant was convicted of one count of rape but acquitted of two others. He was sentenced to five years imprisonment. He appeals against the conviction and applies for leave to appeal against the sentence.

The conviction…

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 Bull

Details

AGLC: R v Bull [2012] QCA 74
Case: [2012] QCA 74
Decision Date: 30 March 2012

CaseChat Overview and Summary

The appeal, heard by the Court of Criminal Appeal of Western Australia, involved the appellant who was convicted in the District Court of one count of rape but acquitted on two other counts of rape. The appellant challenged both the conviction and the sentence, arguing that the verdict was unreasonable due to its inconsistency with the acquittals, and that the sentence was manifestly excessive. The prosecutor had misstated evidence during the trial, which was not corrected by defence counsel or the trial judge. Additionally, the trial judge did not direct the jury in accordance with the principles set out in R v Markuleski. The appellant was sentenced to five years' imprisonment with no parole eligibility date set.

The court considered whether the conviction was unreasonable due to the inconsistency with the acquittals, given the prosecutor's misstatement of evidence and the trial judge's failure to properly direct the jury. The court found that the misstatement of evidence and the failure to correct it did not render the verdict unreasonable. However, the court found that the sentence imposed was manifestly excessive. The court granted leave to appeal against the sentence and allowed the appeal to the extent of setting aside the original sentence and substituting a sentence of three years and six months' imprisonment for the count of rape, with parole eligibility set at 14 April 2013. The court also declared that the two days of pre-sentence custody, 14 and 15 July 2011, were time already served under the sentence.

In summary, the appeal against the conviction was dismissed, but the appeal against the sentence was allowed. The original sentence of five years' imprisonment was deemed manifestly excessive and was substituted with a sentence of three years and six months' imprisonment, with parole eligibility set at 14 April 2013. The two days of pre-sentence custody were considered time already served under the new sentence.

Orders

Orders of the court

Appeal against conviction dismissed.1.

Application for leave to appeal against sentence granted.2.

Appeal against sentence allowed to the extent of setting aside the sentence imposed in the District Court on 15 July 2011 and substituting a sentence of three years and six months’ imprisonment for the count of rape. The date on which the applicant is to be eligible for parole should be fixed at 14 April 2013.3.

Declaration that two days of pre-sentence custody, 14 and 15 July 2011, is time already served under the sentence.4.

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.

Citations

AGLC Citation

R v Bull [2012] QCA 74

Most Recent Citation

R v GAP [2012] QCA 193

Cases citing this decision · 6 of 6 shown

R v WBN
[2020] QCA 203 Para 7

…t the sentence imposed was within the sound exercise of the sentencing discretion. [274][2013] QCA 44. [275][2013] QCA 186. [276][2013] QCA 374. [277][2012] QCA 74. Consideration…
R v Ruiz; Ex parte
[2020] QCA 72 Para 6

…Cases were cited to her Honour which involved similar offending but which were more serious than the present case; thus, in R v Bull [2012] QCA 74, the offender was convicted of rape after pleading not guilty. He had been looking after a girl aged between 11 and 12 years. He used force to rape his victim. On his…
R v Lewis-Grant
[2015] QCA 252 Para 7

…of seven years was manifestly excessive. They are R v Bull ,[19] R v M ,[20] R v BBS ,[21] and R v D .[22] The Crown added R v Choomwantha .[23] [19][2012] QCA 74. ( Bull ) [20][2003] QCA 443. ( M ) [21][2009] QCA 205. ( BBS ) [22][2003] QCA 88. ( D ) [23][2014] QCA 115. ( Choomwantha )…
R v MCB; Ex parte
[2014] QCA 151 Para 1

…inst which to measure the sentence in this case: R v M [2003] QCA 443; R v SAH [2004] QCA 329; R v BBE [2006] QCA 532; R v AAD [2008] QCA 4; R v Bull [2012] QCA 74; R v GAP [2012] QCA 193 and R v Lee [2012] QCA 313. Before the learned sentencing judge, counsel for both the prosecution and defence had referred to…
R v Bolton; Ex parte
[2014] QCA 128 Para 1

…ded guilty at first instance, he had sought, unsuccessfully, to withdraw that plea. [3][2003] QCA 443. [4][2012] QCA 313. [5][2008] QCA 4. [6][2012] QCA 74.…
R v GAP
[2012] QCA 193 Para 1

…t held that the appropriate sentence was between three and four years imprisonment and resentenced the applicant to imprisonment for 3½ years. [57][2012] QCA 74.…

View all 6 citing cases →

Cases cited in this decision · 10 of 10 shown

R v SBL
[2009] QCA 130 Para 1

…e of her evidence on count one was illogical or unreasonable. As Applegarth J noted in a judgment, with which Margaret Wilson J and I agreed, R v SBL [2009] QCA 130 at [32]:…
R v MBF
[2008] QCA 61 Para 1

…R v MBF [2008] QCA 61 was a case in which the Court refused to extend time to appeal against sentence because although severe, it would not be disturbed had an appeal been instituted. The offender pleaded guilty to one count of rape and one of indecent treatment. He was 28 years of age and, when the offences wer…
R v BBE
[2006] QCA 532 Para 1

…In R v BBE [2006] QCA 532 an intellectually impaired 21 year old man pleaded guilty to twice raping his five year old niece. On the first occasion he inserted his fingers into the child’s vagina and left them there for about 20 seconds penetrating to a depth of about 2 cms. He told police that when he realised wh…
R v LR
[2005] QCA 368

…Kenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v BBE [2006] QCA 532, cited R v LR [2005] 1 Qd R 435; [2005] QCA 368, cited R v M [2003] QCA 443, cited R v MAI [2005] QCA 36, cited R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 250, cited R v MBF [2008] QCA 61, cited R v SBL [2009] QCA 130, cited…
R v MAI
[2005] QCA 36 Para 1

…In R v MAI [2005] QCA 36 the offender was a 53 year old man who indecently dealt with his 15 year old daughter who was described as “a troubled and vulnerable young person”. She went to live with her father after an unsatisfactory and disturbed childhood and adolescence. The three offences were a single incident…
R v M
[2003] QCA 443 Para 1

…R v M [2003] QCA 443 was a case in which the offender was probably in his thirties. He was convicted of one count of raping his six year old son and two counts of indecently treating him. He and the child’s mother had married in 1990 and separated 10 years later. About a year after the separation the boy was left…
R v Smillie
[2002] QCA 341

…] NSWCCA 250, cited R v MBF [2008] QCA 61, cited R v SBL [2009] QCA 130, cited R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited COUNSEL: H C Fong for the appellant/applicant T A Fuller for the respondent SOLICITORS: Legal Aid Queensland for the appellant/applicant Director of Public Prosecutions (Queens…
R v Markuleski
[2001] NSWCCA 290

…LR [2005] 1 Qd R 435; [2005] QCA 368, cited R v M [2003] QCA 443, cited R v MAI [2005] QCA 36, cited R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 250, cited R v MBF [2008] QCA 61, cited R v SBL [2009] QCA 130, cited R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited COUNSEL: H C Fong for the appellant/app…
R v Douglass
[2001] NSWCCA 250

…; [2005] QCA 368, cited R v M [2003] QCA 443, cited R v MAI [2005] QCA 36, cited R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 250, cited R v MBF [2008] QCA 61, cited R v SBL [2009] QCA 130, cited R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited COUNSEL: H C Fong for the appellant/applicant T A Fuller f…
Mackenzie v The Queen
[1996] HCA 35

…lity date was set – whether the sentence imposed was manifestly excessive MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v BBE [2006] QCA 532, cited R v LR [2005] 1 Qd R 435; [2005] QCA 368, cited R v M [2003] QCA 443, cited R v MAI [2005] QCA 36, cited R v Markuleski (2001) 52 NSWLR 82; [2001]…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Bull [2012] QCA 74
PARTIES:	R v BULL, Bryan Desmond (appellant/applicant)
FILE NO/S:	CA No 207 of 2011 DC No 125 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	30 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	7 March 2012
JUDGES:	Chesterman and White JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeal against conviction dismissed.1. Application for leave to appeal against sentence granted.2. Appeal against sentence allowed to the extent of setting aside the sentence imposed in the District Court on 15 July 2011 and substituting a sentence of three years and six months’ imprisonment for the count of rape. The date on which the applicant is to be eligible for parole should be fixed at 14 April 2013.3. Declaration that two days of pre-sentence custody, 14 and 15 July 2011, is time already served under the sentence.4.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted following a trial of one count of rape but was acquitted of two counts of rape – where prosecutor misstated evidence and error not corrected by defence counsel or the trial judge – where trial judge did not direct the jury in accordance with R v Markuleski – whether verdict unreasonable because of inconsistency with the acquittals CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted following a trial of one count of rape but was acquitted of two counts of rape – where the appellant sentenced to five years’ imprisonment – where no parole eligibility date was set – whether the sentence imposed was manifestly excessive MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v BBE[2006] QCA 532, cited R v LR [2005] 1 Qd R 435; [2005] QCA 368, cited R v M[2003] QCA 443, cited R v MAI [2005] QCA 36, cited R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 250, cited R v MBF[2008] QCA 61, cited R v SBL[2009] QCA 130, cited R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited
COUNSEL:	H C Fong for the appellant/applicant T A Fuller for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent