R v Holbeck

Case [2017] QCA 319

SUPREME COURT OF QUEENSLAND

CITATION:

R v Holbeck [2017] QCA 319

PARTIES:

R
v
HOLBECK, Michael Anthony
(appellant/applicant)

FILE NO/S:

CA No 106 of 2017
DC No 1384 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane: Date of Conviction: 20 April 2017 (Devereaux SC DCJ)

DELIVERED ON:

Orders delivered ex tempore on 17 October 2017
Reasons delivered 22 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2017

JUDGES:

Sofronoff P and McMurdo JA and Boddice J

ORDER:

Orders delivered ex tempore 17 October 2017:

1.   The appeal against conviction is dismissed.

2.   Application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted by a jury of three counts of indecent treatment of a child under 16 years and two counts of carnal knowledge of a child under 16 years, and not guilty of one count of indecent treatment of a child under 16 years and one count of carnal knowledge of a child under 16 years – whether the appeal should succeed

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to an effective head sentence of 18 months imprisonment, suspended after serving six months imprisonment for an operational period of two years, imposed on the Counts of carnal knowledge of a child under 16 years – whether leave to appeal against sentence should be granted

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v Carmichael & Armbruster [2009] QCA 41, considered
R v Clapham [2017] QCA 99, cited
R v GAW[2015] QCA 166, applied
R v Phillips [2009] 2 Qd R 263; [2009] QCA 57, considered

COUNSEL:

The appellant/applicant appeared on his own behalf
J A Wooldridge for the respondent

SOLICITORS:

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

  1. SOFRONOFF P:  I agree with the reasons of Boddice J.

  2. McMURDO JA:  I agree with Boddice J.

  3. BODDICE J:  On 20 April 2017, a jury found the appellant guilty of three counts of indecent treatment of a child under 16 years and two counts of carnal knowledge of a child under 16 years, and not guilty of one count of indecent treatment of a child under 16 years and one count of carnal knowledge of a child under 16 years.

  4. The appellant was convicted and, in respect of the counts of carnal knowledge, sentenced to 18 months imprisonment, suspended after having served six months imprisonment for an operational period of two years.  The appellant was sentenced to six months imprisonment and placed on probation for two years for the offences of indecent treatment of a child under 16 years.  The sentences were ordered to be served concurrently.

  5. The appellant appealed his…

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Details
AGLC
R v Holbeck [2017] QCA 319
Case
[2017] QCA 319
Decision Date

CaseChat Overview and Summary

In the case of R v Holbeck, the appellant was convicted by a jury of three counts of indecent treatment of a child under 16 years and two counts of carnal knowledge of a child under 16 years. He was acquitted of one count of indecent treatment of a child under 16 years and one count of carnal knowledge of a child under 16 years. The court was required to determine whether the appeal against conviction should succeed and if the applicant should be granted leave to appeal against sentence. The court held that the appeal against conviction should be dismissed as the verdicts of the jury were not unreasonable or inconsistent with the evidence presented. The verdicts of not guilty of counts 1 and 2 but guilty of counts 3, 4, 5, 6 and 7 on the indictment were entirely consistent with the drawing of a distinction as to the appellant's state of knowledge on the occasions of sexual contact. The court also held that the application for leave to appeal against sentence should be refused, as the sentence imposed was well within a proper exercise of the sentencing discretion. The court found that the appellant did not have the mitigating factor of co-operation shown by an early plea of guilty, but despite that circumstance, the appellant was only required to serve one third of the sentence of imprisonment.

The court further noted that the appellant did not establish any basis for setting aside the jury’s verdicts of guilty on counts 3, 4, 5, 6 and 7 on the indictment. The court found that there was no dispute that the acts of sexual intercourse took place on the occasions set out in the indictment and that the images had been sent by the appellant to the complainant. The court concluded that the verdicts of the jury were not unreasonable and that the sentence imposed was not manifestly excessive. The court referred to the principles for determining whether a verdict is unreasonable, stating that the conviction must be set aside if it would be dangerous in all the circumstances to allow the verdict of guilty to stand. However, the court found that the verdicts of the jury were reasonably open to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted.

The final orders of the court were delivered ex tempore on 17 October 2017. The appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused. The court found that the appellant did not establish any basis for setting aside the jury’s verdicts of guilty on counts 3, 4, 5, 6 and 7 on the indictment and that the sentence imposed was not manifestly excessive. The court held that the verdicts of the jury were not unreasonable and that the sentence imposed was well within a proper exercise of the sentencing discretion.

Orders

Orders of the court

Orders delivered ex tempore 17 October 2017:

1. The appeal against conviction is dismissed.

2. Application for leave to appeal against sentence is refused.

Background

Background to the litigation

On 17 October 2017, the Court ordered that the appeal against conviction be dismissed and that leave to appeal the sentence be refused. These are my reasons for joining in those orders.Background The appellant was born on 5 April 1986. He was aged 29 years at the date of the offences and 31 years at the date of sentence. All of the counts pertained to the one female complainant. She was born on 12 August 2001. She was aged 14 years at the time of the offences.Crown case The offences of which the appellant was convicted all were committed on 31 December 2015. The Crown case was that on that date the appellant had engaged in sexual acts with the complainant and later taken an indecent photograph of her and exposed her to an indecent photograph of himself. Count 3 was that the appellant licked the complainant’s vagina. Count 4 was that the appellant had penile intercourse with the complainant. Count 5 was that the appellant had penile intercourse with the complainant. Count 6 was that the appellant took a photograph of the complainant’s backside and legs. Count 7 was that the appellant sent the complainant a photograph of his genitals. The two counts of which the appellant was found not guilty were alleged to have occurred on one occasion between 1 December 2015 and 20 December 2015. The Crown case was that the appellant had engaged in sexual acts with the complainant. Count one alleged the appellant licked her vagina. Count two alleged he had penile intercourse with the complainant. At trial, it was not in issue that sexual contact had occurred on each of the occasions in question. At issue was whether the Crown could exclude that the appellant believed on reasonable grounds that the complainant was of and above the age of 16 years at the time of the sexual contact.EvidenceComplainant’s evidence The complainant initially spoke to police on 22 January 2016 and subsequently on 3 February 2016. Those interviews were recorded and admitted pursuant to s 93A of the Evidence Act. In her initial interview, the complainant stated she first met the appellant through friends of her mother who lived near the appellant. That first meeting was about one month before the first alleged occasion of sexual contact. Over time, the complainant started to attend the appellant’s residence. The complainant said the first occasion that sexual acts occurred was at the appellant’s house. The appellant said he liked her and asked if she like him. The appellant asked her if she wanted to have sex. The complainant said she did not think it would be a good thing. The appellant kept talking about it and then said “let’s go to the room”. The appellant took the complainant into his bedroom, took off her clothes and started “licking me out”.[1] The complainant said it felt nice and she went along with it.[1]AB 173/18. The complainant said the appellant then took off his pants and climbed on top of the complainant. The appellant put his penis into the complainant’s vagina. After about 10 minutes, the appellant suggested they go into the shower and “do it”.[2] The appellant turned the shower on and the complainant lay down in the shower. The appellant was on top. The complainant later described herself as not really lying down, just sitting down with one leg up.[2]AB 185/45.

Evidence

Evidence Before The Court

At trial, it was not in issue that sexual contact had occurred on each of the occasions in question. At issue was whether the Crown could exclude that the appellant believed on reasonable grounds that the complainant was of and above the age of 16 years at the time of the sexual contact.EvidenceComplainant’s evidence The complainant initially spoke to police on 22 January 2016 and subsequently on 3 February 2016. Those interviews were recorded and admitted pursuant to s 93A of the Evidence Act. In her initial interview, the complainant stated she first met the appellant through friends of her mother who lived near the appellant. That first meeting was about one month before the first alleged occasion of sexual contact. Over time, the complainant started to attend the appellant’s residence. The complainant said the first occasion that sexual acts occurred was at the appellant’s house. The appellant said he liked her and asked if she like him. The appellant asked her if she wanted to have sex. The complainant said she did not think it would be a good thing. The appellant kept talking about it and then said “let’s go to the room”. The appellant took the complainant into his bedroom, took off her clothes and started “licking me out”.[1] The complainant said it felt nice and she went along with it.[1]AB 173/18. The complainant said the appellant then took off his pants and climbed on top of the complainant. The appellant put his penis into the complainant’s vagina. After about 10 minutes, the appellant suggested they go into the shower and “do it”.[2] The appellant turned the shower on and the complainant lay down in the shower. The appellant was on top. The complainant later described herself as not really lying down, just sitting down with one leg up.[2]AB 185/45. The appellant started having intercourse with the complainant in the shower. After another five or 10 minutes, the appellant said he “just came”.[3] The appellant and the complainant returned to the bedroom where they were “just cuddling and stuff.”[4][3]AB 187/10.[4]AB 189/18. Whilst they were lying on the bed, the appellant asked if he could take a photo of them in bed together. The complainant said no, she did not want him to take photos of her because she was naked. The complainant eventually agreed to photographs being taken of her. The appellant used his mobile phone to take three photographs. The complainant then left and went home. The complainant said the appellant was aware of her age. She had told him she would be in Grade 10 next year. The appellant asked how old that would make her and the complainant replied “I’m like, 15”.[5][5]AB 194/10-20. The complainant said after that incident the appellant kept texting her. He asked the complainant to send naked pictures. The complainant did not answer the texts. At one point the appellant texted the complainant with a picture of his penis.[6][6]AB 192/40. The complainant said one day she left her telephone with her mother’s friend, WW. He saw one of the text messages from the appellant. The message asked if the appellant could have a nude photograph of the complainant and could she try to get nude photographs of people for him. The complainant did not answer back.

Decision

Reasons for decision

Once that conclusion was reached there is no basis to conclude that a requirement that the appellant serve six months in actual custody rendered the sentence manifestly excessive. The appellant did not have the mitigating factor of co-operation shown by an early plea of guilty. Despite that circumstance, the appellant was only required to serve one third of the sentence of imprisonment.Conclusions The appellant did not establish any basis for setting aside the jury’s verdicts of guilty on counts 3, 4, 5, 6 and 7 on the indictment. The appellant also did not establish that the sentences imposed were manifestly excessive.

Ratio Decidendi

Legal Principle Established

A consideration of the relevant authorities supports the conclusion that the sentence imposed was well within a proper exercise of the sentencing discretion. The appellant’s own counsel at sentence conceded a head sentence of two years’ imprisonment would be appropriate. The appellant’s counsel also accepted that exceptional circumstances had not been demonstrated to support a sentence that did not require the appellant to serve a period in actual custody.ConsiderationConviction There was no dispute at trial that the acts of sexual intercourse took place on the occasions set out in the indictment. There was also no dispute that the images had been sent by the appellant to the complainant. At issue was whether the prosecution had excluded that the appellant had a reasonable belief that the complainant was aged 16 years at the time of the acts of intercourse. On this issue, it was open to the jury to draw a distinction as to the appellant’s state of knowledge at the time of the first occasion of sexual interaction (counts 1 and 2) and the second occasion (counts 3, 4, 5, 6 and 7). That distinction arose because on the appellant’s own version to police he became concerned that the complainant was under the age of 16 years at the time he engaged in the act of sexual intercourse “doggy style”. A consideration of the text messages supported a conclusion that that position was adopted on the first occasion of sexual interaction, not the second occasion, as the complainant stated in evidence. Once the jury accepted that the appellant had concerns as to the complainant’s age at the time of the first sexual contact, it was open to the jury to draw a distinction as to the appellant’s state of knowledge on the second occasion of sexual contact. The verdicts of not guilty of counts 1 and 2 but guilty of count 3, 4, 5, 6 and 7 on the indictment are entirely consistent with the drawing of such a distinction. That distinction provides a logical, rational, basis for the verdicts of not guilty of counts 1 and 2 but guilty of counts 3, 4 and 5 in respect of the counts of sexual intercourse. The verdicts of the jury are not inconsistent.[23] The verdicts of not guilty of counts 1 and 2 do not support a finding of a miscarriage of justice in respect of the convictions for counts 3, 4, 5, 6 and 7.[23]R v GAW [2015] QCA 166 at [19]-[23]. The verdicts of the jury are also not unreasonable. The principles for determining whether a verdict is unreasonable were recently restated in R v Clapham:[24]“… The question is not whether there is as a matter of law evidence to support the verdict. Even if there is evidence upon which a jury might convict, the conviction must be set aside if ‘it would be dangerous in all the circumstances to allow the verdict of guilty to stand’. The Court is required to make an independent assessment of the sufficiency and quality of the evidence at trial and decide whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted.”[24][2017] QCA 99 at [4]-[5].