R v Horvath - [2014] QCA 344

SUPREME COURT OF QUEENSLAND

CITATION:

R v Horvath [2014] QCA 344

PARTIES:

R
v
HORVATH, Sandor Jozsef
(appellant)

FILE NO/S:

CA No 35 of 2014
DC No 1794 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction – Further Orders

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Holmes and Morrison JJA and Philip McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The appellant is sentenced to nine months and 29 days imprisonment on count 1.1.

prisonment on count 4.The appellant is sentenced to six months im2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL ALLOWED – where the appellant was convicted, after a trial, of five counts of indecent treatment of a child under 16, in three instances with the aggravating circumstance that she was under 12 years – where three of those counts were set aside on appeal – where the appellant falls to be re-sentenced on the two remaining counts – where the appellant has already served nine months and 29 days in custody – whether that sentence constitutes an adequate penalty for the offending

GAF v QPS[2008] QCA 190, considered
R v CBI[2013] QCA 186, considered
R v Halvorsen[1994] QCA 565, considered
R v Horvath[2014] QCA 273, related
R v KT; ex parte Attorney-General (Qld)[2007] QCA 340, considered
R v Porter; ex parte Attorney-General (Qld)[2009] QCA 353, considered

COUNSEL:

No appearance for the appellant, the appellant’s submissions were heard on the papers
No appearance for the respondent, the respondent’s submissions were heard on the papers

SOLICITORS:

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

HOLMES JA: The appellant was convicted, after a trial, of five counts of indecent treatment; three of those counts were set aside on appeal.[1] He now falls to be re-sentenced on the two remaining counts, Counts 1 and 4.
[1]R v Horvath [2014] QCA 273.

The offences

The complainant was the daughter of friends of the appellant, and on occasions he looked after her because of conflict in her own family. During school holidays, when she was 11, he looked after her at his home while her parents worked. She was playing computer games when he sat next to her, touched her chest and put his finger into her underpants. He touched her vaginal area; she described him as “playing” with it. He desisted when she told him to stop. That conduct was the subject of count 1. On the complainant’s twelfth birthday, the appellant took her shopping. While driving there, he touched her chest area, through her clothes, for about five seconds and said that her “boobs” had grown. That offence gave rise to count 4.

The appellant was aged between…

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 Horvath

Details

AGLC: R v Horvath [2014] QCA 344
Case: [2014] QCA 344
Decision Date: 19 December 2014

CaseChat Overview and Summary

In the matter of R v Horvath, the High Court of Australia was tasked with considering an appeal against a conviction for five counts of indecent treatment of a child under 16, in three of which the child was under 12 years. Three of the counts were set aside by the court on appeal, leaving two counts to be re-sentenced. The appellant had already served nine months and 29 days in custody and the court was required to determine if this sentence constituted an adequate penalty for the remaining offences.

The central legal issue before the court was whether the verdict was unreasonable or insupportable in light of the evidence presented. Additionally, the court had to consider the appropriate sentence for the two remaining counts, taking into account the time the appellant had already served in custody. The court considered whether the sentence imposed was sufficient to reflect the gravity of the offences committed against a vulnerable child.

The court found that the verdict for three of the counts was indeed unreasonable, given the evidence. It was determined that the appellant should be re-sentenced on the two remaining counts. In assessing the adequacy of the sentence already served, the court recognised that it was important to impose a penalty that reflected the seriousness of the offences, whilst also considering the time the appellant had already spent in custody. The court concluded that the sentence of nine months and 29 days was adequate and proportionate to the remaining offences.

The final orders of the court were that the appellant be sentenced to nine months and 29 days imprisonment on count 1.1 and six months imprisonment on count 2, with the time already served to be taken into account.

Orders

Orders of the court

The appellant is sentenced to nine months and 29 days imprisonment on count 1.1.

prisonment on count 4.The appellant is sentenced to six months im2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Horvath [2014] QCA 344
PARTIES:	R v HORVATH, Sandor Jozsef (appellant)
FILE NO/S:	CA No 35 of 2014 DC No 1794 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction – Further Orders
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	19 December 2014
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Holmes and Morrison JJA and Philip McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The appellant is sentenced to nine months and 29 days imprisonment on count 1.1. prisonment on count 4.The appellant is sentenced to six months im2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL ALLOWED – where the appellant was convicted, after a trial, of five counts of indecent treatment of a child under 16, in three instances with the aggravating circumstance that she was under 12 years – where three of those counts were set aside on appeal – where the appellant falls to be re-sentenced on the two remaining counts – where the appellant has already served nine months and 29 days in custody – whether that sentence constitutes an adequate penalty for the offending GAF v QPS[2008] QCA 190, considered R v CBI[2013] QCA 186, considered R v Halvorsen[1994] QCA 565, considered R v Horvath[2014] QCA 273, related R v KT; ex parte Attorney-General (Qld)[2007] QCA 340, considered R v Porter; ex parte Attorney-General (Qld)[2009] QCA 353, considered
COUNSEL:	No appearance for the appellant, the appellant’s submissions were heard on the papers No appearance for the respondent, the respondent’s submissions were heard on the papers
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent