R v Grace

Case [2022] QCA 10

SUPREME COURT OF QUEENSLAND

CITATION:

R v Grace [2022] QCA 10

PARTIES:

R
v
GRACE, Samuel John
(appellant/applicant)

FILE NO/S:

CA No 150 of 2020
CA No 19 of 2021
DC No 1699 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 13 March 2020; Date of Sentence: 28 July 2020 (Clare SC DCJ)

DELIVERED ON:

11 February 2022

DELIVERED AT:

Brisbane

HEARING DATE:

11 November 2021

JUDGES:

McMurdo JA and Daubney and Boddice JJ

ORDERS:

1.   The appeal against conviction be dismissed.

2.   Leave to appeal against sentence is granted.

3.   The appeal against sentence be allowed.

4.   The sentence on Count 5 be set aside.

5.   The applicant be sentenced to 14 years’ imprisonment for Count 5.

6.   The sentences on the remaining counts, to be served concurrently, otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – MISCARRIAGE OF JUSTICE – INTERFERENCE WITH DISCRETION OR FINDING – PARTICULAR GROUNDS OF APPEAL – where the appellant was found guilty at trial of five counts of rape – where the appellant committed offences against three separate complainants – where the complainants were aged 15 years at the time of the offending – where the pattern of offending against the complainants had the same or similar character – where the primary judge did not exercise discretion and order separate trials – whether the primary judge erred in exercising discretion for joinder – whether the verdicts were unreasonable and not supported by the evidence due to inconsistent accounts of offending – whether the verdicts of guilty are inconsistent with the verdict of not guilty

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was sentenced to 17 years’ imprisonment – where the sentencing judge found the applicant’s conduct predatory – where the sentencing judge did not discount the sentence on the basis of cooperation or remorse – whether the sentence consistent with authorities – whether the sentence was manifestly excessive

Criminal Code (Qld), s 590AA
Evidence Act 1977 (Qld), s 93A

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
R v Colless[2011] 2 Qd R 421; [2010] QCA 26, considered
R v Collins[2018] QCA 277, considered
R v Makary (2018) 274 A Crim R 392; [2018] QCA 257, considered
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, considered
R v Meizer[2001] QCA 231, considered
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

The appellant appeared on his own behalf for the appeal against conviction
C R Smith appeared for the applicant for the sentence application
D Nardone for the respondent

SOLICITORS:

The appellant appeared on his own behalf for the appeal against conviction
Legal Aid Queensland for the applicant for the sentence application
Director of…

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Details
AGLC
R v Grace [2022] QCA 10
Case
[2022] QCA 10
Decision Date

CaseChat Overview and Summary

In the case of R v Grace, the appellant was found guilty at trial of five counts of rape against three separate complainants, all of whom were aged 15 at the time of the offending. The appellant appealed against both his conviction and sentence. The legal issues before the court were whether the primary judge erred in exercising discretion for joinder, whether the verdicts were unreasonable and not supported by the evidence, and whether the sentence was manifestly excessive. The court examined the evidence presented at trial, the pattern of offending, and the credibility of the complainants. The court concluded that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt of each of the counts, and that the verdicts were not unreasonable or unsupportable by the evidence. The court found that the sentence imposed was manifestly excessive, and set aside the sentence on Count 5, reducing it to 14 years' imprisonment. The sentences on the remaining counts were to be served concurrently, otherwise confirmed.

The appellant argued that the primary judge erred in exercising discretion for joinder, as the complainants were not related and had different circumstances. However, the court found that the circumstances of each complainant being sexually assaulted by the appellant revealed a distinctive pattern of behaviour sufficient to amount to a modus operandi, and the probative value of the evidence outweighed any prejudicial effect. The court also found that the verdicts were not unreasonable or unsupportable by the evidence, as TJP gave consistent evidence of the appellant having penetrated her vagina with his penis without her consent. The court noted that the jury found the appellant not guilty of Count 1, which did not give rise to a conclusion that the jury must have had a doubt as to TJP’s reliability and credibility. The verdict was entirely consistent with the jury having accepted TJP as reliable and credible, but giving the appellant the benefit of the doubt in circumstances where she had, later in her evidence, said she could not remember whether the appellant had digitally penetrated her vagina that night.

The court found that the sentence imposed was manifestly excessive, and set aside the sentence on Count 5, reducing it to 14 years' imprisonment. The sentences on the remaining counts were to be served concurrently, otherwise confirmed. The court found that the sentencing judge did not discount the sentence on the basis of cooperation or remorse, and that the sentence was not consistent with authorities. The court concluded that the sentence was manifestly excessive, and reduced the sentence on Count 5 to 14 years' imprisonment. The sentences on the remaining counts were to be served concurrently, otherwise confirmed.

Orders

Orders of the court

1. The appeal against conviction be dismissed.

2. Leave to appeal against sentence is granted.

3. The appeal against sentence be allowed.

4. The sentence on Count 5 be set aside.

5. The applicant be sentenced to 14 years’ imprisonment for Count 5.

6. The sentences on the remaining counts, to be served concurrently, otherwise confirmed.

Background

Background to the litigation

The ground for any appeal against sentence, should leave be granted, is that the sentence imposed was manifestly excessive.Background The applicant was born on 14 October 1985. He was diagnosed as having ADHD at the age of seven, and Asperger's syndrome when aged approximately 15 years. The counts of rape related to three separate complainants. Counts 1 and 2 related to TJP. Both were alleged to have been committed on or about 30 December 2016. It was alleged the appellant digitally penetrated TJP’s vagina without her consent (Count 1) and penetrated the complainant’s vagina with his penis without consent (Count 2). The appellant was convicted of Count 2 and found not guilty of Count 1. Count 3 related to KDLF. That offence, committed on or about 1 March 2017, was particularised as penile penetration of her vagina without consent. Counts 4, 5 and 6 related to RKS. All were committed on 7 May 2017. The rapes were particularised as digital penetration of the complainant’s vagina without consent (Count 4), penile penetration of the complainant’s vagina without consent (Count 5) and digital penetration of the complainant’s vagina without consent (Count 6). Each of the complainants was aged 15 years at the time of commission of the offences. The appellant was aged 31 years. Each of the complainants communicated with the appellant through Facebook Messenger, via the Facebook profile Sam Antonia. There was no dispute at trial that the appellant used the Facebook profile of Sam Antonia. At issue was whether each penetration was without consent.Pre-trial ruling An application for separate trial, brought pursuant to s 590AA of the Criminal Code, was refused on 18 October 2018. It was ruled that the circumstances of each complainant being sexually assaulted by the appellant revealed “a distinctive pattern of behaviour” sufficient to amount to a modus operandi.[1] Each rape was of a female child aged 15 years, in circumstances where the appellant made arrangements for that child to come to his residence, offered them homebrew and, in respect of two, successfully encouraged them to be heavily intoxicated. All of the offending occurred on the appellant’s bed in circumstances where each complainant was lured into the bedroom. Whilst there were differences in the offending itself, the pattern of behaviour had a strong degree of probative force, in circumstances where the credibility of each complainant was in issue, and the evidence of each would highlight the improbability of other, innocent explanation.[1]AB165/40. Those conclusions supported the joinder of the counts. Further, those particular hallmarks supported a conclusion that the probative value of the evidence outweighed any prejudicial effect, such that there ought not to be a severance of the indictment and an order for separate trials in the exercise of any discretion. The risk of improper use of the evidence was able to be properly guarded, by appropriate directions.EvidenceCounts 1 and 2

Evidence

Evidence Before The Court

Those conclusions supported the joinder of the counts. Further, those particular hallmarks supported a conclusion that the probative value of the evidence outweighed any prejudicial effect, such that there ought not to be a severance of the indictment and an order for separate trials in the exercise of any discretion. The risk of improper use of the evidence was able to be properly guarded, by appropriate directions.EvidenceCounts 1 and 2 TJP was interviewed by police on 12 February 2018. In that recording, tendered pursuant to s 93A of the Evidence Act and played to the jury, TJP said she met the appellant a year or two before. He was a friend of her friend’s boyfriend. The appellant told her he was 20 turning 21 and that he was from Los Angeles and had moved to Australia because his brother had been shot and he had to take care of his brother’s children. TJP described the children as two little girls. They did not live with the appellant at the time, but did so later, when she heard them call him dad. She did not realise the appellant was lying to her about his age or the children. TJP had messaged the appellant a few times and, after discovering they did not live far from each other, met him near a bridge before walking back to his house. It was about seven or eight o’clock at night. On the night in question, she was having an argument with her parents. She communicated with the appellant through Facebook.[2][2]The Facebook messages exchanged between TJP and the appellant between September 2016 and 2017 were tendered at trial (Ex 13). Those messages establish the night in question was 30 December 2016. When they arrived at the appellant’s house, the appellant made her drinks. The appellant sold homebrew, which she understood was made up of vodka, bourbon, whiskey and different flavoured alcohol. TJP could not recall how much she drank, but it was “enough to get me wasted”.[3] She described herself as “Pretty close to being blind drunk”.[4] At one point, the appellant went into his room and put on some music on his laptop. TJP was bored by herself, so followed him into the bedroom. She laid on the end of the bed and looked at the laptop. She asked if she could put a few songs on, but the appellant said no.[3]AB454/25.[4]AB454/30. TJP said the appellant after a while “just rolled on top of me, like so he was facing down towards me”.[5] He tried to kiss her and started touching her inappropriately with his hands. TJP said no “I didn’t want to do that”. TJP could not move her head back because it was hitting the bed. The appellant touched TJP on her private genitals, initially on the outside of her vagina and then inside. TJP said she definitely made it clear to the appellant she did not want to but he took his pants off, moved her pants to the side and “just put his dick in me”.[6] The appellant was on top of her, “like holding me down” with his weight.[7] She was unable to push him off. She was trying to stop it the whole time.[5]AB456/10.[6]AB457/20.[7]AB457/50.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Finally, the respondent submits there was no inconsistency in the conviction on Count 1 and acquittal on Count 2. Whilst both counts relied on an acceptance of TJP as honest and reliable, TJP had given evidence that she could not remember whether the appellant had penetrated her with his finger. Given that lack of memory, it was consistent with the jury’s duty to acquit in relation to that count, even though the jury found TJP reliable and credible generally.Consideration The determination of a ground of appeal, that the verdicts of the jury are unreasonable and unsupportable by the evidence, requires this Court to undertake its own independent assessment of the sufficiency and quality of the evidence to determine whether, notwithstanding that there is evidence upon which the jury might convict, it would be dangerous in the circumstances to permit verdicts of guilty to stand.[39][39]SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14]. In undertaking that assessment, due regard must be given to the special advantage of the jury. However, notwithstanding that advantage, if a consideration of the record reveals the evidence had discrepancies or inadequacies, was tainted or otherwise lacked probative force such that there is a significant possibility an innocent person has been convicted, the verdict is to be set aside as unreasonable.[40][40]Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12. A consideration of the record as a whole supports a conclusion that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of each of Counts 2, 3, 4, 5 and 6. TJP gave consistent evidence of the appellant having penetrated her vagina with his penis, without her consent. The date thereof was supported by earlier communications between TJP and the appellant. Her account of sexual intercourse having taken place on that night was supported by later communications sent by the appellant, telling her she was “awesome at sex”. Her account that she was drunk was supported by her reply, “I was drunk”. Whilst there were aspects of her interaction with the appellant in the days and months thereafter which may be said to have been inconsistent with TJP having been raped by the appellant, TJP gave a coherent explanation for those communications. That explanation, to the effect that she had nowhere else to go and the rape did not have a great impact on her having regard to previous experiences, was credible. It also explained the delay in making any complaint. It was open to the jury to accept that explanation. Once the jury did so, it was open to the jury to accept TJP’s evidence as reliable and credible and for the jury to be satisfied beyond reasonable doubt that penetration of her vagina, on the night in question, occurred without her consent and in circumstances where the Crown could exclude, beyond reasonable doubt, a mistaken belief on the part of the appellant that TJP was consenting to such penetrative act. The fact that the jury found the appellant not guilty of Count 1 does not give rise to a conclusion that the jury must have had a doubt as to TJP’s reliability and credibility. Such a verdict was entirely consistent with the jury having accepted TJP as reliable and credible, but giving the appellant the benefit of the doubt in circumstances where she had, later in her evidence, said she could not remember whether the appellant had digitally penetrated her vagina that night. That evidence provided a logical and rational explanation for the jury having been satisfied beyond reasonable doubt as to the appellant’s guilt of Count 2, but giving the appellant the benefit of doubt in respect of Count 1. That verdict does not give rise to a reason for this Court to conclude that it was not open to the jury to be satisfied of the appellant’s guilt of Count 2 beyond reasonable doubt, on a consideration of the whole of the evidence.