R v DCH - [2024] QCA 239

SUPREME COURT OF QUEENSLAND

CITATION:

R v DCH [2024] QCA 239

PARTIES:

R
v
DCH
(applicant)

FILE NO/S:

CA No 107 of 2024
DC No 2579 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 1 May 2024 (Clare SC DCJ)

DELIVERED ON:

26 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

10 October 2024

JUDGES:

Bowskill CJ and Bond JA and Vaughan AJA

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the applicant was convicted after trial of serious sexual offences against two young children – where count one related to maintaining an unlawful sexual relationship with child A, a child under 16 years, over a period of more than six years and count two related to maintaining an unlawful sexual relationship with child B, a child under 16 years, over a period of four years – where the applicant was sentenced to six years’ imprisonment on count two and four and a half years’ imprisonment on count one, to be served concurrently – where child B gave evidence that the applicant’s conduct caused scratches to her vaginal area – where, during the trial, the jury were provided with written particulars of each count – where defence counsel submitted, and the judge allowed, that the jury be directed to deliver a special verdict in relation to count two that asked, in the event of a guilty verdict on that count, whether they were satisfied the fourth particular (penetration of child B’s vagina) had been established – where the jury found the applicant guilty of all counts but, in relation to count two, could not reach a unanimous finding about the fourth particular – where the learned judge found that the jury’s inability to agree on the fourth particular was unlikely to be because of any doubt about her honesty, but rather a doubt about the reliability of her memory of that particular – where the learned judge made a finding of fact for the purpose of the sentence that the applicant did cause scratches to child B’s vaginal area, on two occasions – whether the learned judge erred by not requiring the jury to also return a special verdict in relation to the third particular of count two (touching child B’s vaginal area with his hand underneath her underwear) – whether the learned judge failed to apply the correct test for fact finding on sentencing, pursuant to s 132C of the Evidence Act 1977 (Qld) – whether the learned judge failed to take into account relevant considerations

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant contends the learned judge erred by allowing the factual finding in relation to the applicant causing scratches to child B and consideration of a particular case (

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 DCH

Details

AGLC: R v DCH [2024] QCA 239
Case: [2024] QCA 239
Decision Date: 26 November 2024

CaseChat Overview and Summary

The applicant, convicted of serious sexual offences against two children, appeals against his sentence, arguing that the trial judge erred in various respects, including by not requiring a special verdict on certain facts and by applying an incorrect test for fact-finding. The applicant was convicted of maintaining an unlawful sexual relationship with child A over six years and with child B over four years. He was sentenced to six years on the second count and four and a half years on the first count, to be served concurrently. The applicant contends that the trial judge erred by not requiring the jury to return a special verdict in relation to the third particular of count two, which concerned touching child B’s vaginal area with his hand underneath her underwear. The applicant also argues that the trial judge applied the incorrect test for fact-finding on sentencing and failed to consider relevant factors, leading to a manifestly excessive sentence.

The court considered whether the trial judge erred by not requiring a special verdict on the third particular of count two and whether the judge applied the correct test for fact-finding on sentencing. The court found that the trial judge did not err in not requiring a special verdict on the third particular, as the jury's inability to reach a unanimous finding on the fourth particular was unlikely due to doubt about the child's honesty but rather due to doubt about the reliability of her memory. The court further held that the trial judge correctly applied the test for fact-finding on sentencing, finding that the judge was entitled to consider the particular case of R v CCY. The court found that the sentence imposed was not manifestly excessive, taking into account the gravity of the offences and the need for deterrence and denunciation.

The application for leave to appeal against sentence is refused. The court determined that the trial judge did not err in his handling of the jury's verdict and the fact-finding process on sentencing, and that the sentence imposed was not manifestly excessive. The court's decision upholds the original sentence, and the applicant's appeal against the sentence is dismissed.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

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

Full text does not contain this section.

CITATION:	R v DCH [2024] QCA 239
PARTIES:	R v DCH (applicant)
FILE NO/S:	CA No 107 of 2024 DC No 2579 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 1 May 2024 (Clare SC DCJ)
DELIVERED ON:	26 November 2024
DELIVERED AT:	Brisbane
HEARING DATE:	10 October 2024
JUDGES:	Bowskill CJ and Bond JA and Vaughan AJA
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the applicant was convicted after trial of serious sexual offences against two young children – where count one related to maintaining an unlawful sexual relationship with child A, a child under 16 years, over a period of more than six years and count two related to maintaining an unlawful sexual relationship with child B, a child under 16 years, over a period of four years – where the applicant was sentenced to six years’ imprisonment on count two and four and a half years’ imprisonment on count one, to be served concurrently – where child B gave evidence that the applicant’s conduct caused scratches to her vaginal area – where, during the trial, the jury were provided with written particulars of each count – where defence counsel submitted, and the judge allowed, that the jury be directed to deliver a special verdict in relation to count two that asked, in the event of a guilty verdict on that count, whether they were satisfied the fourth particular (penetration of child B’s vagina) had been established – where the jury found the applicant guilty of all counts but, in relation to count two, could not reach a unanimous finding about the fourth particular – where the learned judge found that the jury’s inability to agree on the fourth particular was unlikely to be because of any doubt about her honesty, but rather a doubt about the reliability of her memory of that particular – where the learned judge made a finding of fact for the purpose of the sentence that the applicant did cause scratches to child B’s vaginal area, on two occasions – whether the learned judge erred by not requiring the jury to also return a special verdict in relation to the third particular of count two (touching child B’s vaginal area with his hand underneath her underwear) – whether the learned judge failed to apply the correct test for fact finding on sentencing, pursuant to s 132C of the Evidence Act 1977 (Qld) – whether the learned judge failed to take into account relevant considerations CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant contends the learned judge erred by allowing the factual finding in relation to the applicant causing scratches to child B and consideration of a particular case (