R v HBX - [2019] QCA 155

SUPREME COURT OF QUEENSLAND

CITATION:

R v HBX [2019] QCA 155

PARTIES:

R
v
HBX
(applicant)

FILE NO/S:

CA No 28 of 2019
DC No 1822 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction & Sentence)

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction and Sentence: 26 October 2018 (Rackemann DCJ)

DELIVERED ON:

9 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2019

JUDGES:

Gotterson and Philippides JJA and Bradley J

ORDER:

The application for extension of time be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – SEXUAL OFFENCES – where the applicant was convicted of one count of indecent treatment of a child under 16 under care and one count of sexual assault – where the applicant seeks an extension of time in which to appeal his conviction – where the applicant contended that the verdict was unreasonable or insupportable having regard to the evidence – where the applicant contended that the delay in bringing his appeal was caused by difficulties in acquiring representation – where the applicant contended that there were inconsistencies in the complainant’s evidence, that the complainant had motive to lie, that he was prejudiced by evidence of uncharged acts, and that he should have given evidence at his trial – whether it is in the interests of justice to grant an extension of time in which to appeal against conviction

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where, upon his conviction, the applicant was sentenced to concurrent terms of eight months imprisonment on each offence, cumulative upon a 12 year term of imprisonment he was serving for attempted murder imposed on 4 April 2016 – where a parole eligibility date of 22 November 2025 was made and a declaration as to time served was made – where the complainant was the applicant’s niece – where the applicant was 33 to 34 years old at the time of the offending comprising count 1 and, 41 to 42 at the time of count 2, and 58 at sentence – whether it is in the interests of justice to grant an extension of time in which to appeal against sentence

R v McCandless[2006] QCA 199, considered
R v Quinlan[2012] QCA 132, considered

COUNSEL:

The applicant appeared on his own behalf
S Cupina for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: I agree with the order proposed by Philippides JA and with the reasons given by her Honour.
PHILIPPIDES JA: The applicant was convicted after trial by a jury of one count of indecent treatment of a child under 16 under care and one count of…

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 HBX

Details

AGLC: R v HBX [2019] QCA 155
Case: [2019] QCA 155
Decision Date: 9 August 2019

CaseChat Overview and Summary

The applicant, who was convicted of one count of indecent treatment of a child under 16 under care and one count of sexual assault, appeals against both his conviction and sentence. He seeks an extension of time to appeal his conviction, contending that the verdict was unreasonable or insupportable having regard to the evidence, that the delay in bringing his appeal was caused by difficulties in acquiring representation, that there were inconsistencies in the complainant’s evidence, that the complainant had motive to lie, that he was prejudiced by evidence of uncharged acts, and that he should have given evidence at his trial. The applicant also seeks an extension of time to appeal his sentence, arguing that it was manifestly excessive or inadequate.

The court considered the general principles regarding the grant or refusal of an extension of time in which to appeal a conviction or sentence. These principles include whether the delay in bringing the appeal was reasonable, whether there is a substantial question of law to be argued on the appeal, whether there is a reasonable prospect that the appeal will succeed, and whether it is in the interests of justice to grant an extension of time. The court also considered whether the sentence was manifestly excessive or inadequate.

After considering the applicant’s arguments and the relevant principles, the court found that it was not in the interests of justice to grant an extension of time in which to appeal against conviction or sentence. The court found that the applicant had not shown that there was a reasonable prospect that his appeal would succeed, and that the delay in bringing his appeal was not reasonable. The court also found that the sentence was not manifestly excessive or inadequate.

The application for extension of time is refused.

Orders

Orders of the court

The application for extension of time be 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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v HBX [2019] QCA 155
PARTIES:	R v HBX (applicant)
FILE NO/S:	CA No 28 of 2019 DC No 1822 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction & Sentence)
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction and Sentence: 26 October 2018 (Rackemann DCJ)
DELIVERED ON:	9 August 2019
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2019
JUDGES:	Gotterson and Philippides JJA and Bradley J
ORDER:	The application for extension of time be refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – SEXUAL OFFENCES – where the applicant was convicted of one count of indecent treatment of a child under 16 under care and one count of sexual assault – where the applicant seeks an extension of time in which to appeal his conviction – where the applicant contended that the verdict was unreasonable or insupportable having regard to the evidence – where the applicant contended that the delay in bringing his appeal was caused by difficulties in acquiring representation – where the applicant contended that there were inconsistencies in the complainant’s evidence, that the complainant had motive to lie, that he was prejudiced by evidence of uncharged acts, and that he should have given evidence at his trial – whether it is in the interests of justice to grant an extension of time in which to appeal against conviction CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where, upon his conviction, the applicant was sentenced to concurrent terms of eight months imprisonment on each offence, cumulative upon a 12 year term of imprisonment he was serving for attempted murder imposed on 4 April 2016 – where a parole eligibility date of 22 November 2025 was made and a declaration as to time served was made – where the complainant was the applicant’s niece – where the applicant was 33 to 34 years old at the time of the offending comprising count 1 and, 41 to 42 at the time of count 2, and 58 at sentence – whether it is in the interests of justice to grant an extension of time in which to appeal against sentence R v McCandless[2006] QCA 199, considered R v Quinlan[2012] QCA 132, considered
COUNSEL:	The applicant appeared on his own behalf S Cupina for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent