R v HCK - [2023] QCA 65

SUPREME COURT OF QUEENSLAND

CITATION:

R v HCK [2023] QCA 65

PARTIES:

R
v
HCK
(appellant/applicant)

FILE NO/S:

CA No 184 of 2021
DC No 242 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville – Date of Conviction and Sentence: 22 July 2021 (Everson DCJ)

DELIVERED ON:

Date of Orders: 22 November 2021
Date of Publication of Reasons: 12 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

18 November 2021

JUDGES:

Fraser and McMurdo and Bond JJA

ORDERS:

Date of Orders: 22 November 2021

1.   The appeal against conviction is dismissed.

2.   The application for leave to appeal against sentence is allowed.

3.   The sentence imposed on 22 July 2021 is varied so that the period of imprisonment to which the appellant was sentenced is reduced from six months to four months.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – INCONSISTENCY BETWEEN FINDINGS OF JURY – INCONSISTENCY BETWEEN DIFFERENT FINDINGS – GENERALLY – where the appellant was tried on three counts of indecent treatment of two children – where the complainants were the appellant’s stepdaughter and her friend – where count 1 and count 3 related to two separate instances involving the appellant’s stepdaughter – where the appellant was convicted on count 1 but acquitted on counts 2 and 3 – where the appellant contended that the verdict was unreasonable or could not be supported by the evidence because of the inconsistency between conviction on count 1 and acquittal on count 3 – whether the verdicts were inconsistent – whether the purported inconsistency rendered the verdict on count 1 unreasonable

CRIMINAL LAW – SENTENCE – INTERPRETATION OF SENTENCING PROVISIONS – where the appellant argued that the sentencing judge had misapplied s 9(4) of the Penalties and Sentences Act 1992 (Qld) – where the appellant argued that the sentencing judge had erred in determining that he must impose a sentence of imprisonment without suspension or parole unless he found exceptional circumstances to exist – whether the sentencing judge thereby erred in exercising of the sentencing discretion

Corrective Services Act2006 (Qld), s 184

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied
R v BCX (2015) 255 A Crim R 456; [2015] QCA 188, cited
R v CX[2006] QCA 409, cited
R v FAR[2018] QCA 317, cited
R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited

COUNSEL:

A C Freeman and P J Willoughby for the appellant/applicant
D Kovac for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: For the reasons given by Bond JA, I joined in the making of the Court’s orders on 22 November 2021.
McMURDO JA: For the reasons given by Bond JA, I joined in the orders…

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 HCK

Details

AGLC: R v HCK [2023] QCA 65
Case: [2023] QCA 65
Decision Date: 12 April 2023

CaseChat Overview and Summary

The case of R v HCK involved an appeal against the appellant's conviction and sentence. The appellant was convicted on count 1 of indecent treatment of a child under 16, but acquitted on counts 2 and 3 which involved similar allegations against the same complainant. The appeal raised issues concerning the inconsistency between the jury's verdicts and the alleged misapplication of sentencing provisions. The appellant argued that the verdicts were inconsistent and that the sentencing judge had erred in applying the Penalties and Sentences Act 1992 (Qld).

The court considered the inconsistency between the verdicts on counts 1 and 3, finding that the jury followed the judge's instructions to consider each charge separately. The court found that the jury might have acquitted on count 3 due to less firm support for the complainant's evidence on that count compared to count 1. The court also examined the sentencing judge's application of section 9(4) of the Penalties and Sentences Act 1992 (Qld), concluding that there was no error in the exercise of sentencing discretion. The appellant's argument that the sentence was manifestly excessive was also rejected.

The appeal against the conviction was dismissed as the inconsistency between the verdicts could be reconciled. The application for leave to appeal against the sentence was allowed, and the sentence was varied from six months to four months imprisonment. The court found that the original sentence was not manifestly excessive and that the sentencing judge had correctly applied the relevant sentencing provisions.

Orders

Orders of the court

Date of Orders: 22 November 2021

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is allowed.

3. The sentence imposed on 22 July 2021 is varied so that the period of imprisonment to which the appellant was sentenced is reduced from six months to four months.

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

In my view the difference between the verdicts could be explicable on the basis that the jury followed the judge’s instruction to consider each charge separately and apply to each count the requirement that all of the elements must be proved beyond reasonable doubt, and took a more cautious view in relation to count 3 because there was less firm support for the complainant’s evidence on that count than there was for count 1.Conclusion The appeal against conviction must be dismissed.The application for leave to appeal against sentenceThe proposed grounds of appeal The appellant identified two proposed appeal grounds. First, a case of specific error, namely that the sentencing judge erred –(a)in finding that the circumstances in this case could not amount to exceptional circumstances within the meaning of s 9(4) of the Penalties and Sentences Act 1992 (Qld); and/or(b)in determining at the outset that a term of imprisonment without any suspension or parole recommendation was warranted unless exceptional circumstances were established without taking account of all the sentencing factors that existed in this case such that the exercise of the sentencing discretion miscarried. Second, that the sentence imposed was manifestly excessive in all the circumstances.Consideration Consequent upon conviction on count 1, the offence of indecent treatment under 16, under 12, under care, s 9(4) of the Penalties and Sentences Act applied. The sentencing judge was obliged:(a)to have regard to the sentencing practices, principles and guidelines applicable when the sentence was imposed rather than when the offence was committed;(b)to note that the principles mentioned in s 9(2)(a) did not apply (i.e., that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable); and(c)to require the offender to serve an actual term of imprisonment, unless there were exceptional circumstances. In this case, at the end of the oral submissions on sentence by counsel for the Crown, the sentencing judge made these observations:“HIS HONOUR: All right. What do you submit for?MR FRANCIS: Well, …, in my submission, a sentence here is, really, one that is between six and 12 months imprisonment. If you – probably six months is rather generous in my – for my submission, based on the violence used – or the threats, I should say – the force. So no threats, no violence, but the force.HIS HONOUR: Yes, yes. I understand your submission.MR FRANCIS: Yes. So – and there’s not necessarily a compelling reason for him to be supervised upon release so it’s open for your Honour to suspend it, but - - -HIS HONOUR: I’m not going to do that.MR FRANCIS: Yes.HIS HONOUR: He’s just getting a flat sentence, whatever it is.MR FRANCIS: Yes.HIS HONOUR: Unless I find exceptional circumstances, as far as I’m concerned, if you go trial and don’t show any remorse - - -MR FRANCIS: No.HIS HONOUR: - - - you don’t get any recommendation from me.”

Ratio Decidendi

Legal Principle Established

The appellant’s counsel accepted that his argument rose and fell on the proposition that it must be inferred from the acquittal on count 3 that the jury entertained doubts as to the reliability or credibility of MRR. He contended that the doubts which the verdict in respect of count 3 reveals that the jury must have had in relation to MRR’s reliability or credibility should have caused the jury to have the same doubts in relation to count 1.Consideration The law concerning the consideration of alleged inconsistent verdicts is well established. The principles are sufficiently set out in MacKenzie v The Queen (1996) 190 CLR 348 at 366 to 368; R v Smillie (2002) 134 A Crim R 100 at 106 to 107; and R v CX [2006] QCA 409 at [33]. Of particular note are the observations of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen at 367 (footnotes omitted) that:“…if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their function as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.” The conviction for count 1 meant that the jury was persuaded beyond reasonable doubt that on an occasion in Townsville and between 1 October 2019 and 23 March 2020, the appellant pulled the 9 or 10-year-old complainant onto his lap and rubbed her backside against his penis, whilst he was sitting on a beanbag and both were clothed. MRR had also alleged that he placed his hand over her mouth whilst he did this. Count 3 involved an allegation by MRR that about a month later the appellant had pulled her on top of him whilst they were lying on a bed and rubbed her vagina against his penis, again whilst both were clothed. She again alleged that the appellant placed his hand over her mouth whilst he did this. The evidence of MRR was similar in relation to the two counts, as is demonstrated by the table below which identifies and compares the substance of the evidence of the complainant in relation to each count: For present purposes, however, the question is not so much a focus on the similarities between the evidence supporting each count, but on whether there were relevant dissimilarities affecting the jury’s assessment of MRR’s evidence, the existence of which might reconcile the guilty verdict for count 1 and the not guilty verdict for count 3, thereby avoiding the inference that the jury must have entertained reasonable doubt as to the reliability or credibility of MRR in respect of count 1. In my view there were two bases by which the two verdicts could properly be reconciled. First, it was entirely possible that the jury acquitted on count 3 not because they entertained doubts as to the reliability or credibility of MRR, but because they were specifically instructed that they could not take a view of the evidence in relation to count 3 which was inconsistent with the acquittal rendered by a jury at a previous trial concerning a closely related count. Second, there were qualitative differences between the evidence in respect of count 1 and count 3, such that the difference between the verdicts could be explicable on the basis that the jury followed the judge’s instruction to consider each charge separately and apply to each count the requirement that all of the elements must be proved beyond reasonable doubt.

CITATION:	R v HCK [2023] QCA 65
PARTIES:	R v HCK (appellant/applicant)
FILE NO/S:	CA No 184 of 2021 DC No 242 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Townsville – Date of Conviction and Sentence: 22 July 2021 (Everson DCJ)
DELIVERED ON:	Date of Orders: 22 November 2021 Date of Publication of Reasons: 12 April 2023
DELIVERED AT:	Brisbane
HEARING DATE:	18 November 2021
JUDGES:	Fraser and McMurdo and Bond JJA
ORDERS:	Date of Orders: 22 November 2021 1. The appeal against conviction is dismissed. 2. The application for leave to appeal against sentence is allowed. 3. The sentence imposed on 22 July 2021 is varied so that the period of imprisonment to which the appellant was sentenced is reduced from six months to four months.
CATCHWORDS:	APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – INCONSISTENCY BETWEEN FINDINGS OF JURY – INCONSISTENCY BETWEEN DIFFERENT FINDINGS – GENERALLY – where the appellant was tried on three counts of indecent treatment of two children – where the complainants were the appellant’s stepdaughter and her friend – where count 1 and count 3 related to two separate instances involving the appellant’s stepdaughter – where the appellant was convicted on count 1 but acquitted on counts 2 and 3 – where the appellant contended that the verdict was unreasonable or could not be supported by the evidence because of the inconsistency between conviction on count 1 and acquittal on count 3 – whether the verdicts were inconsistent – whether the purported inconsistency rendered the verdict on count 1 unreasonable CRIMINAL LAW – SENTENCE – INTERPRETATION OF SENTENCING PROVISIONS – where the appellant argued that the sentencing judge had misapplied s 9(4) of the Penalties and Sentences Act 1992 (Qld) – where the appellant argued that the sentencing judge had erred in determining that he must impose a sentence of imprisonment without suspension or parole unless he found exceptional circumstances to exist – whether the sentencing judge thereby erred in exercising of the sentencing discretion Corrective Services Act2006 (Qld), s 184 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied R v BCX (2015) 255 A Crim R 456; [2015] QCA 188, cited R v CX[2006] QCA 409, cited R v FAR[2018] QCA 317, cited R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited
COUNSEL:	A C Freeman and P J Willoughby for the appellant/applicant D Kovac for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent