R v GY

Case [2007] QCA 103 30 March 2007

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SUPREME COURT OF QUEENSLAND

CITATION:

R v GY [2007] QCA 103

PARTIES:

R
v
GY
(appellant/applicant)

FILE NO/S:

CA No 321 of 2006
DC No 425 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

30 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

19 March 2007

JUDGES:

Williams JA, Muir and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where appellant was convicted of maintaining a sexual relationship with a child under 16 years who was in his care and four counts of indecent treatment of a child under 16 years who was in his care – where appellant was acquitted on other indecent dealing charges – where appellant alleges that counsel did not tender evidence according to his instructions – where appellant contends that the trial judge’s directions on maintaining were inadequate and wrong – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – WHEN REFUSED – PARTICULAR OFFENCES – SEXUAL OFFENCES – where sentence of four years imprisonment for maintaining with lesser concurrent sentences for other offences imposed – whether sentence manifestly excessive

Nudd v The Queen (2006) 225 ALR 161, applied
R v C[2000] QCA 145, CA No 391 of 1999, 22 March 2000, considered
Rv S[2001] QCA 54; CA No 238 of 2000, 21 February 2001, considered
R v R[2001] QCA 488; CA No 93 of 2001, 13 November 2001, considered
TKWJ v The Queen (2002) 212 CLR 124, cited
Tully v The Queen (2006) 81 ALJR 391, cited

COUNSEL:

J T Bradshaw for the appellant (pro bono)
B G Campbell for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: The appellant was convicted after a trial in the District Court at Cairns on 24 November 2006 of one count of maintaining a sexual relationship with a child under 16 years who was under his care, and four counts of indecent treatment of a child under 16 years who was in his care. He lodged a Notice of Appeal against conviction and application for leave to appeal against sentence on 29 November 2006. Therein the grounds of appeal against conviction were stated to be the failure of the trial judge to direct the jury of the danger of finding the appellant guilty on the uncorroborated testimony of the complainant and the inconsistency between the jury verdicts of not guilty on counts 2 and 3 and the finding of guilty…

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 GY

Details

AGLC: R v GY [2007] QCA 103
Case: [2007] QCA 103
Decision Date: 30 March 2007

CaseChat Overview and Summary

The appellant, GY, was convicted of maintaining a sexual relationship with a child under 16 years who was in his care, as well as four counts of indecent treatment of a child under 16 years who was in his care. The appellant was acquitted on other indecent dealing charges. The appellant sought to appeal against his conviction, alleging that his counsel had not presented evidence according to his instructions and that the trial judge's directions on maintaining were inadequate and incorrect. The appellant contended that these issues led to a miscarriage of justice. Additionally, the appellant appealed against the sentence of four years imprisonment for maintaining, with lesser concurrent sentences for other offences, arguing that the sentence was manifestly excessive.

The legal issues before the court were whether the appellant's counsel's conduct and the trial judge's directions amounted to a miscarriage of justice, and whether the sentence imposed was manifestly excessive. The court considered the appellant's arguments regarding the failure of counsel to tender evidence as instructed, the adequacy of the trial judge's directions on maintaining, and the proportionality of the sentence. The court concluded that the appellant's claims regarding the conduct of counsel and the trial judge's directions were without merit. The court found that the trial judge had provided clear and comprehensive directions on the concept of maintaining, and that any alleged deficiencies in the directions did not result in a miscarriage of justice. Additionally, the court found that the sentence imposed was not manifestly excessive, taking into account the gravity of the offences and the need for general deterrence.

The appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused. The court held that there was no miscarriage of justice and that the sentence was appropriate. The final orders of the court were to dismiss the appeal against conviction and to refuse the application for leave to appeal against sentence.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v GY [2007] QCA 103

Most Recent Citation

R v WAA [2008] QCA 87

Cases Citing This Decision

R v SDS [2022] QCA 106
Citation 1 (Para 24)

…d in circumstances which might indicate that the present case involved a manifestly excessive sentence. [114][2013] QCA 288. [115][2008] QCA 87. [116][2007] QCA 103.…
R v FAK [2016] QCA 306
Citation 2 (Para 31)

…that they supported a sentence between four and six years. In doing so the Court adopted what had been said in R v SAG :[139] [138]Including: R v GY [2007] QCA 103; R v SAG [2004] QCA 286; R v MAH [2005] QCA 13; R v L [2002] QCA 268; R v SAH [2004] QCA 329; R v M [2003] QCA 443; R v C [2000] QCA 145; R v S [2001…
R v AAR [2014] QCA 20
Citation 3 (Para 1)

…A [13] and R v GY [14] demonstrated that the sentence of five years imprisonment was manifestly excessive. [12][2013] QCA 288. [13][2008] QCA 87. [14][2007] QCA 103.…
R v Winchester [2013] QCA 166
Citation 4 (Para 1)

…The applicant relied upon the sentence of four years imprisonment which was not disturbed in R v GY [2007] QCA 103. The sentence was imposed after a trial and the offender was not remorseful. More serious features of that offence were that the complainant was aged between six and 14 years and the relationship was…
R v BBS [2009] QCA 205
Citation 5 (Para 1)

…ere, again, substantially older, 12-13 years) and R v T (2000) 113 A Crim R 439; and for the applicant, in addition, R v HAN [2008] QCA 106, R v GY [2007] QCA 103, R v MAH [2005] QCA 13 and R v BAT [2005] QCA 82. Mr Hoare submitted that a sentence of four and a half years would have been appropriate, allowing for…
R v UC [2008] QCA 194
Citation 6 (Para 1)

…tion and it is reasonable to conclude that he was satisfied with it. He may well have considered it favourable to his client. On balance, it was. [28][2007] QCA 103…
R v CAE [2008] QCA 177
Citation 7

…992) 62 A Crim R 383, cited R v Christensen [2007] QCA 370, cited R v Fahey and Ors [2001] QCA 082, cited R v GY [2007] QCA 103, discussed R v Lewis [1994] 1 Qd R 613; [1992] QCA 223 cited R v MAH [2005] QCA 13, discussed R v R [1998] QCA 268, discussed R v S [2001] QCA 54, discussed R v Schubring [2004] QCA 418,…
R v HAN [2008] QCA 106
Citation 8 (Para 1)

…A number of authorities were referred to the sentencing Judge at the hearing including R v GY [2007] QCA 103, R v SAG [2004] QCA 286, R v MAH [2005] QCA 13, R v L [2002] QCA 268, R v SAH [2004] QCA 329 and R v M [2003] QCA 443 many of which discussed the distinction between digital and penile rape where more seve…
R v WAA [2008] QCA 87
Citation 9 (Para 1)

…bout six to 14 years. The conduct included the appellant’s rubbing his penis against the complainant’s vulva sometimes achieving ejaculation. [14][2007] QCA 103.…

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Cases Cited

Tully v The Queen [2006] HCA 56
Citation 1 (Para 1)

…an area of the law where minds have differed as to the directions which are necessary. So much was recognised by the High Court in Tully v The Queen (2006) 81 ALJR 391. Ultimately I have come to the conclusion that in the context of this trial the directions given by the learned trial judge as to uncharged acts were…
Nudd v The Queen [2006] HCA 9
Citation 2 (Para 1)

…retion vested in counsel as to the best way of conducting the defence case. The question was further considered by the High Court in Nudd v The Queen (2006) 225 ALR 161. It is sufficient to refer to a passage in the judgment of Gleeson CJ at 166 where he said:…
TKWJ v The Queen [2002] HCA 46
Citation 3 (Para 1)

…iscarriage of justice, but, as has often been said, an appellant raising that contention carries a "heavy burden" (see, for example, TKWJ v The Queen (2002) 212 CLR 124 at 147). As McHugh J pointed out on that page, ordinarily an accused person is held to the way in which counsel has presented the defence case. In co…
R v R [2001] QCA 488
Citation 4 (Para 1)

…In the course of argument reference was made to R v C [2000] QCA 145, R v S [2001] QCA 54 and R v R [2001] QCA 488. The offender in R v C maintained a sexual relationship over a four year period when the complainant was aged six to 11 years. The offending involved touching and digital penetration of the girl's ge…
R v S [2001] QCA 54
Citation 5 (Para 1)

…In the course of argument reference was made to R v C [2000] QCA 145, R v S [2001] QCA 54 and R v R [2001] QCA 488. The offender in R v C maintained a sexual relationship over a four year period when the complainant was aged six to 11 years. The offending involved touching and digital penetration of the girl's g…
R v C [2000] QCA 145
Citation 6 (Para 1)

…In the course of argument reference was made to R v C [2000] QCA 145, R v S [2001] QCA 54 and R v R [2001] QCA 488. The offender in R v C maintained a sexual relationship over a four year period when the complainant was aged six to 11 years. The offending involved touching and digital penetration of the girl's ge…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v GY [2007] QCA 103
PARTIES:	R v GY (appellant/applicant)
FILE NO/S:	CA No 321 of 2006 DC No 425 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	30 March 2007
DELIVERED AT:	Brisbane
HEARING DATE:	19 March 2007
JUDGES:	Williams JA, Muir and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where appellant was convicted of maintaining a sexual relationship with a child under 16 years who was in his care and four counts of indecent treatment of a child under 16 years who was in his care – where appellant was acquitted on other indecent dealing charges – where appellant alleges that counsel did not tender evidence according to his instructions – where appellant contends that the trial judge’s directions on maintaining were inadequate and wrong – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – WHEN REFUSED – PARTICULAR OFFENCES – SEXUAL OFFENCES – where sentence of four years imprisonment for maintaining with lesser concurrent sentences for other offences imposed – whether sentence manifestly excessive Nudd v The Queen (2006) 225 ALR 161, applied R v C[2000] QCA 145, CA No 391 of 1999, 22 March 2000, considered Rv S[2001] QCA 54; CA No 238 of 2000, 21 February 2001, considered R v R[2001] QCA 488; CA No 93 of 2001, 13 November 2001, considered TKWJ v The Queen (2002) 212 CLR 124, cited Tully v The Queen (2006) 81 ALJR 391, cited
COUNSEL:	J T Bradshaw for the appellant (pro bono) B G Campbell for the respondent
SOLICITORS:	No appearance for the appellant Director of Public Prosecutions (Queensland) for the respondent