R v Bull

Case [2012] QCA 74


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

  1. 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.

  1. The conviction…

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Details
AGLC
R v Bull [2012] QCA 74
Case
[2012] QCA 74
Decision Date

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

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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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