R v Henderson - [2013] QCA 146

SUPREME COURT OF QUEENSLAND

CITATION:

R v Henderson [2013] QCA 146

PARTIES:

R
v
HENDERSON, Paul Malcolm
(appellant/applicant)

FILE NO/S:

CA No 43 of 2013
DC No 9 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Bowen

DELIVERED ON:

14 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

5 June 2013

JUDGES:

Holmes and Muir JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal against conviction dismissed.1.

Application for leave to appeal against sentence refused.2.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of unlawful stalking with a circumstance of aggravation – where the appellant and complainant never met but communicated through a dating website, Facebook and text messages – where the appellant’s texts became increasingly offensive and abusive – where the complainant asked the appellant to leave her alone – where the complainant reported the appellant to the police – where the appellant continued to text the complainant – where the appellant appeals against conviction – where the trial judge did not direct the jury as to the statutory meaning of “circumstances” – whether a direction was necessary where the evidence was limited to the relevant circumstances

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the appellant was convicted of unlawful stalking with a circumstance of aggravation – where the appellant was sentenced to imprisonment for a period of 18 months with a parole release date fixed after five months – where the appellant applies for leave to appeal against sentence on the ground that the trial judge failed to evaluate properly the appellant’s true culpability – whether the sentencing discretion miscarried

Criminal Code 1899 (Qld), s 359A, s 359B, s 359C

R v Macdonald[2008] QCA 384, cited

COUNSEL:

T A Ryan for the appellant/applicant
M R Byrne QC for the respondent

SOLICITORS:

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

HOLMES JA: I agree with the reasons of Mullins J and the orders she proposes.

MUIR JA: I agree with the reasons of Mullins J and the orders she proposes.

MULLINS J: The appellant was convicted on 6 February 2013 after a two day trial before a jury of one count of unlawful stalking with a circumstance of aggravation. The charge was particularised that the unlawful stalking occurred between 7 February and 19 April 2011 and that for one of the acts constituting the unlawful stalking the appellant intentionally threatened to use violence against the complainant. The appellant was sentenced to imprisonment for a period of 18 months with a parole release date fixed at 6 July 2013. A restraining order was also made pursuant to s 359F of the Criminal Code

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 Henderson

Details

AGLC: R v Henderson [2013] QCA 146
Case: [2013] QCA 146
Decision Date: 14 June 2013

CaseChat Overview and Summary

In the matter of R v Henderson, the appellant faced conviction for unlawful stalking with an aggravating circumstance, despite never having met the complainant. Their interactions were limited to communications through a dating website, Facebook, and text messages. The appellant's texts grew increasingly offensive and abusive, prompting the complainant to ask the appellant to leave her alone and subsequently report the matter to the police. Despite the complainant's requests and police involvement, the appellant continued to text her. The appellant appealed against the conviction and the sentence, challenging the trial judge's handling of the jury direction and the sentencing evaluation.

The primary legal issues before the court were whether the trial judge's omission to direct the jury on the statutory meaning of "circumstances" constituted a misdirection or non-direction, and if so, whether this affected the outcome given the limited evidence of the relevant circumstances. Additionally, the court had to determine if the trial judge's evaluation of the appellant's culpability and subsequent sentencing discretion was proper.

The court found that the trial judge's omission did not amount to a misdirection or non-direction, as the evidence presented was sufficiently clear to allow the jury to understand the statutory context without explicit direction. The court held that the jury could reasonably infer the meaning of "circumstances" from the evidence provided. Furthermore, the court concluded that the trial judge had properly evaluated the appellant's culpability and exercised the sentencing discretion appropriately, thereby dismissing the appeal against the conviction and denying the application for leave to appeal the sentence.

Orders

Orders of the court

Appeal against conviction dismissed.1.

Application for leave to appeal against sentence refused.2.

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.

CITATION:	R v Henderson [2013] QCA 146
PARTIES:	R v HENDERSON, Paul Malcolm (appellant/applicant)
FILE NO/S:	CA No 43 of 2013 DC No 9 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Bowen
DELIVERED ON:	14 June 2013
DELIVERED AT:	Brisbane
HEARING DATE:	5 June 2013
JUDGES:	Holmes and Muir JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeal against conviction dismissed.1. Application for leave to appeal against sentence refused.2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of unlawful stalking with a circumstance of aggravation – where the appellant and complainant never met but communicated through a dating website, Facebook and text messages – where the appellant’s texts became increasingly offensive and abusive – where the complainant asked the appellant to leave her alone – where the complainant reported the appellant to the police – where the appellant continued to text the complainant – where the appellant appeals against conviction – where the trial judge did not direct the jury as to the statutory meaning of “circumstances” – whether a direction was necessary where the evidence was limited to the relevant circumstances CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the appellant was convicted of unlawful stalking with a circumstance of aggravation – where the appellant was sentenced to imprisonment for a period of 18 months with a parole release date fixed after five months – where the appellant applies for leave to appeal against sentence on the ground that the trial judge failed to evaluate properly the appellant’s true culpability – whether the sentencing discretion miscarried Criminal Code 1899 (Qld), s 359A, s 359B, s 359C R v Macdonald[2008] QCA 384, cited
COUNSEL:	T A Ryan for the appellant/applicant M R Byrne QC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent