R v GBF

Case [2019] QCA 4

SUPREME COURT OF QUEENSLAND

CITATION:

R v GBF [2019] QCA 4

PARTIES:

R
v
GBF
(appellant/applicant)

FILE NO/S:

CA No 218 of 2017
DC No 306 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 2 August 2016; Date of Sentence: 4 August 2016 (Wall QC DCJ)

DELIVERED ON:

1 February 2019

DELIVERED AT:

Brisbane

HEARING DATE:

6 November 2018

JUDGES:

Morrison and Philippides JJA and Boddice J

ORDERS:

1.   The appeal against conviction be dismissed.

2.   Leave to appeal sentence be granted.

3.   The appeal against sentence be allowed.

4.   The sentences of nine years imprisonment imposed on each of counts 5 and 6, be set aside.

5.   The applicant be sentenced to two years imprisonment on each of counts 5 and 6, to be served concurrently with each other and the remaining sentences of imprisonment.

6.   The sentences in respect of counts 1, 2, 3 and 7 be confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – whether trial judge misdirected the jury making it easier to convict – whether directions as to lack of consent were inadequate – whether the jury should have been directed to consider honest and reasonable mistake

CRIMINAL LAW – SENTENCE – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the complainant was the appellant’s younger half-sister – where the appellant was aged 33 and 34 years, while the complainant was aged 13 and 14 years – where the offending occurred on family holiday or at family residence – where the appellant was sentenced to nine years imprisonment for each count of rape – where the appellant was also sentenced to nine years imprisonment for each offence of indecent treatment of a child under 16 years – where each offence was a domestic violence offence – whether the sentence was manifestly excessive

Criminal Code (Qld), s 348

Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, cited
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v BBP[2009] QCA 114, cited
R v Conway (2005) 157 A Crim R 474; [2005] QCA 194, cited
R v GAW[2015] QCA 166, cited
R v Goodwin; Ex parte Attorney-General (Qld) (2014) 247 A Crim R 582; [2014] QCA 345, cited
R v Grimley[2017] QCA 291, distinguished
R v KAJ; Ex parte Attorney-General (Qld)[2013] QCA 118, cited
R v KAM (No 2)[2017] QCA 197, cited
R v MCT[2018] QCA 189,…

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Details
AGLC
R v GBF [2019] QCA 4
Case
[2019] QCA 4
Decision Date

CaseChat Overview and Summary

The appeal in R v GBF was brought by the appellant, who was convicted of multiple counts of rape and indecent treatment of a child under 16 years. The complainant in the case was the appellant's half-sister. The appellant was aged between 33 and 34 years during the offending, while the complainant was between 13 and 14 years old. The offences occurred during a family holiday or at the family residence. The appellant was sentenced to nine years imprisonment for each count of rape and for each offence of indecent treatment, with each offence classified as a domestic violence offence.

The appeal raised two main issues for the court. Firstly, whether the trial judge had misdirected the jury, making it easier to convict the appellant. The appellant argued that the jury directions regarding lack of consent were inadequate and that the jury should have been directed to consider the possibility of an honest and reasonable mistake. Secondly, the appellant challenged the excessiveness of the sentence imposed, arguing that it was manifestly excessive given the circumstances of the case.

The court found that the trial judge did not misdirect the jury and that the jury directions were sufficient. The court held that the judge properly instructed the jury on the concept of consent and that there was no error in the directions. Regarding the sentence, the court found that the sentence was manifestly excessive. The court considered the relationship between the appellant and the complainant, the age disparity, and the fact that the offences occurred in a domestic setting. The court concluded that a lesser sentence was appropriate and set aside the original sentences, imposing a sentence of two years imprisonment for each of the counts of rape and indecent treatment, to be served concurrently with the remaining sentences. The sentences in respect of counts 1, 2, 3, and 7 were confirmed.

The court dismissed the appeal against conviction but granted leave to appeal the sentence. The appeal against sentence was allowed, and the sentences of nine years imprisonment imposed on counts 5 and 6 were set aside. The appellant was sentenced to two years imprisonment on each of counts 5 and 6, to be served concurrently with each other and the remaining sentences of imprisonment. The sentences in respect of counts 1, 2, 3, and 7 were confirmed.

Orders

Orders of the court

1. The appeal against conviction be dismissed.

2. Leave to appeal sentence be granted.

3. The appeal against sentence be allowed.

4. The sentences of nine years imprisonment imposed on each of counts 5 and 6, be set aside.

5. The applicant be sentenced to two years imprisonment on each of counts 5 and 6, to be served concurrently with each other and the remaining sentences of imprisonment.

6. The sentences in respect of counts 1, 2, 3 and 7 be confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It was only after SNE told the complainant she did not have anything to hide from her, that the complainant told SNE that something had happened between her and the appellant. The complainant denied she felt she had to make SNE happy. The complainant denied she was only saying something had happened between her and the appellant because that was what they wanted to hear. When people first asked her about her relationship with the appellant she told them nothing had happened because she was scared to tell people what had happened between them.Other Evidence SNE, the complainant’s sister, first met the appellant in Townsville at a ceremony for a deceased family member. After the ceremony, he stayed with SNE’s parents at Condon in Townsville. SNE’s siblings were all living at that residence. SNE had her own residence. The appellant then returned to Ipswich for a period of weeks. The appellant would go back and forth between Townsville and Ipswich. On one occasion, the family drove down to Ipswich. It was probably three or four months after Christmas. SNE, her two children and her mother and step father stayed with one relative, while her siblings, including the complainant, stayed with another relative. The appellant was mainly staying with the other relative. After 6-8 weeks, the family returned to Townsville. Two days later, the appellant came back to Townsville. He lived at Condon until the family moved to Deeragun. At that stage, SNE gave up her residence and moved into the residence at Deeragun. The appellant’s son was also living at these residences. On 24 August 2013, SNE asked the complainant what was going on between her and the appellant. The complainant did not reply. SNE explained she was trying to understand what a 12 year old girl had that was interesting to a 34 year old male, causing him to ring the complainant all the time. Again, the complainant did not answer. SNE asked the complainant to answer that question and she would not mention it again. At that point, the complainant broke down and said the appellant “fucked her”. The complainant was so upset she could not get her words out. Soon after, SNE saw the appellant. She started throwing punches at him. The appellant looked surprised and said he did not know what was going on. SNE told him he was a liar, that he had touched her baby sister. The appellant walked off. SNE went straight back home and told her mother and her sisters. SNE then had a further conversation with the complainant. Her sisters, mother and step-father were present for that conversation. The complainant told SNE the appellant “had her suck him off and went down on her, did oral sex on her and stuff like that”.[9] The complainant was very upset. SNE then took the complainant to the police station.[9]AB80/12. In cross examination, SNE agreed that as the oldest, she had a lot of contact with her younger siblings. She was very protective of all of her siblings. They would mostly do what she told them to do. SNE agreed that prior to the complainant telling her what had happened, she already thought something was going on between the complainant and the appellant. She denied jumping to conclusions.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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