R v Fenton - [2015] QCA 125

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fenton [2015] QCA 125

PARTIES:

R
v
FENTON, Barry James
(appellant/applicant)

FILE NO/S:

CA No 202 of 2014
CA No 232 of 2014
DC No 337 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns – Unreported, 17 July 2014 (Conviction); 12 August 2014 (Sentence)

DELIVERED ON:

Orders delivered ex tempore on 26 June 2015
Reasons delivered 10 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2015

JUDGES:

Margaret McMurdo P and Holmes JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 26 June 2015:

1.   Dismiss the appeal against conviction.

2.   Grant the application for leave to appeal against sentence on count 1 and allow the appeal.

3.   Refuse the application for leave to appeal against sentence on counts 2 – 12.

4.   Set aside the sentence on count 1 and substitute a sentence of nine years imprisonment with the parole eligibility date fixed at 26 June 2015.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted of one count of maintaining a sexual relationship with a child, three counts of indecent treatment of a child under 16, one count of common assault and five counts of rape – where the appellant was acquitted of one count of common assault and one count of assault occasioning bodily harm – where the appellant argued that the verdicts of guilty were unreasonable because they were inconsistent with the acquittals – where there was a different quality to the complainant’s evidence in respect of the counts of which the appellant was acquitted – where the complainant’s evidence in respect of the counts of which the appellant was convicted was supported by other evidence – whether there was a rational basis for distinguishing between the verdicts

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to ten years imprisonment for maintaining a sexual relationship with a child – where the sentencing judge proceeded on the basis that there was an ongoing sexual relationship which lasted for longer than the period charged – where the complainant gave evidence that she had been raped countless times, but expressed uncertainty as to what constituted rape – whether the sentencing discretion ought to be re-exercised – whether the sentence was manifestly excessive

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12, considered
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied
R v C; ex parte A-G (Qld)[2003] QCA 134, considered
R v D [1996] 1 Qd R 363; [1995] QCA 329, applied
R v DBC; ex parte A-G (Qld)[2012] QCA 203, cited

R v SAG (2004) 147…

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 Fenton

Details

AGLC: R v Fenton [2015] QCA 125
Case: [2015] QCA 125
Decision Date: 26 June 2015

CaseChat Overview and Summary

The appellant, in the Supreme Court of New South Wales, appealed against his conviction and sentence in relation to a series of charges involving a child. The appellant was found guilty of maintaining a sexual relationship with a child, three counts of indecent treatment of a child under 16, one count of common assault and five counts of rape. However, he was acquitted of one count of common assault and one count of assault occasioning bodily harm. The appellant argued that the verdicts of guilty were unreasonable because they were inconsistent with the acquittals. The appellant also sought to appeal against his sentence on the ground that it was manifestly excessive.

The court examined whether the verdicts of guilty were reasonable and rational in light of the acquittals. The court noted that there was a different quality to the complainant’s evidence in respect of the counts of which the appellant was acquitted, as opposed to the counts of which the appellant was convicted. The court found that the complainant’s evidence in respect of the counts of which the appellant was convicted was supported by other evidence, and that there was a rational basis for distinguishing between the verdicts. The court therefore dismissed the appeal against conviction. The court also considered the appellant’s appeal against sentence, and found that the sentence on count 1 was manifestly excessive. The court allowed the appeal against sentence on count 1 and substituted a sentence of nine years imprisonment with the parole eligibility date fixed at 26 June 2015.

The court refused the application for leave to appeal against sentence on counts 2 – 12. The court found that the sentence on counts 2 – 12 was not manifestly excessive or inadequate. The court set aside the sentence on count 1 and substituted a sentence of nine years imprisonment with the parole eligibility date fixed at 26 June 2015.

Orders

Orders of the court

Delivered ex tempore on 26 June 2015:

1. Dismiss the appeal against conviction.

2. Grant the application for leave to appeal against sentence on count 1 and allow the appeal.

3. Refuse the application for leave to appeal against sentence on counts 2 – 12.

4. Set aside the sentence on count 1 and substitute a sentence of nine years imprisonment with the parole eligibility date fixed at 26 June 2015.

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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CITATION:	R v Fenton [2015] QCA 125
PARTIES:	R v FENTON, Barry James (appellant/applicant)
FILE NO/S:	CA No 202 of 2014 CA No 232 of 2014 DC No 337 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Cairns – Unreported, 17 July 2014 (Conviction); 12 August 2014 (Sentence)
DELIVERED ON:	Orders delivered ex tempore on 26 June 2015 Reasons delivered 10 July 2015
DELIVERED AT:	Brisbane
HEARING DATE:	13 April 2015
JUDGES:	Margaret McMurdo P and Holmes JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 26 June 2015: 1. Dismiss the appeal against conviction. 2. Grant the application for leave to appeal against sentence on count 1 and allow the appeal. 3. Refuse the application for leave to appeal against sentence on counts 2 – 12. 4. Set aside the sentence on count 1 and substitute a sentence of nine years imprisonment with the parole eligibility date fixed at 26 June 2015.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted of one count of maintaining a sexual relationship with a child, three counts of indecent treatment of a child under 16, one count of common assault and five counts of rape – where the appellant was acquitted of one count of common assault and one count of assault occasioning bodily harm – where the appellant argued that the verdicts of guilty were unreasonable because they were inconsistent with the acquittals – where there was a different quality to the complainant’s evidence in respect of the counts of which the appellant was acquitted – where the complainant’s evidence in respect of the counts of which the appellant was convicted was supported by other evidence – whether there was a rational basis for distinguishing between the verdicts CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to ten years imprisonment for maintaining a sexual relationship with a child – where the sentencing judge proceeded on the basis that there was an ongoing sexual relationship which lasted for longer than the period charged – where the complainant gave evidence that she had been raped countless times, but expressed uncertainty as to what constituted rape – whether the sentencing discretion ought to be re-exercised – whether the sentence was manifestly excessive Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12, considered MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied R v C; ex parte A-G (Qld)[2003] QCA 134, considered R v D [1996] 1 Qd R 363; [1995] QCA 329, applied R v DBC; ex parte A-G (Qld)[2012] QCA 203, cited R v SAG (2004) 147…