R v Korin - [2020] QCA 40

SUPREME COURT OF QUEENSLAND

CITATION:

R v Korin [2020] QCA 40

PARTIES:

R
v
KORIN, Eugene
(appellant)

FILE NO/S:

CA No 109 of 2019
DC No 17 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 3 April 2019 (Rackemann DCJ)

DELIVERED ON:

Date of Order: 9 March 2020
Date of Publication of Reasons: 13 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2020

JUDGES:

Morrison JA and Bond and Callaghan JJ

ORDER:

Date of Order: 9 March 2020

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where the appellant, having been diagnosed with terminal cancer and having undergone treatment which caused side effects including anxiety and depression, pleaded guilty to one count of possessing child exploitation material – whether appellant’s guilty plea was freely entered

COUNSEL:

P D Kelly for the appellant (pro bono)
D Balic for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: At the conclusion of the hearing of this appeal, the Court made an order dismissing the appeal, with reasons to be expressed later. We set out below our reasons for dismissing the appeal.
On 3 April 2019 the appellant was convicted on his own plea of guilty of one count of possessing child exploitation material.
The sentence proceeded on the basis of an agreed schedule of facts. In brief summary, the appellant and the prosecution agreed:
(a)In 2011 the appellant and his then partner resided in a townhouse. There were two filing cabinets in one of the rooms of the townhouse: one for the appellant and one for his partner.
(b)Between December 2012 and May 2013 the appellant’s partner found some CDs in the appellant’s filing cabinet. She found the images on the discs to be disturbing.
(c)When she later confronted the appellant concerning the discs and their content, he initially told her that the discs belonged to a friend of his but he did not know what was on them and queried why she did not take them to the police. However, when she threatened to do so, the appellant told her “I won’t get in trouble as there is adult porn on there [as] well.”
(d)In 2017, the appellant’s partner reported the matter to the police.
(e)An examination of the discs revealed child exploitation material on each disc. The discs contained a range of 135 photographs and 33 videos of children, male and female, aged between approximately 6 and 14 years old. The majority of the images and videos were “date modified” between the years of 2002 and 2009.
(f)The appellant knew there was child exploitation material on the discs but he never looked at the discs and was holding them for somebody else. He did not create or download the material on to the discs.
The appellant was sentenced to nine months imprisonment wholly suspended…

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 Korin

Details

AGLC: R v Korin [2020] QCA 40
Case: [2020] QCA 40
Decision Date: 13 March 2020

CaseChat Overview and Summary

The appellant, Korin, appealed against a conviction recorded on a guilty plea for possessing child exploitation material. The appeal was heard in the Supreme Court of Queensland. The appellant argued that his guilty plea was not entered freely due to the side effects of his cancer treatment, which included anxiety and depression. This argument was based on the assertion that his medical condition and the effects of his treatment impaired his decision-making capacity at the time of the plea.

The central legal issue before the court was whether the appellant's guilty plea was entered freely and voluntarily, considering his medical condition and the side effects of his treatment. The court had to assess if the appellant's mental state at the time of the plea was sufficiently impaired to render it invalid. The court considered medical evidence regarding the appellant's condition and the impact of his treatment on his cognitive functions.

The court determined that the appellant's guilty plea was indeed freely and voluntarily entered. It found that the appellant had demonstrated an understanding of the consequences of his plea and had actively participated in the plea process. The evidence indicated that, despite his medical condition and the side effects of his treatment, the appellant was capable of making an informed decision. The court was satisfied that there was no substantial interference with the appellant's capacity to understand and enter the plea, and thus dismissed the appeal. The conviction was upheld.

The final orders of the court were that the appeal was dismissed, and the conviction was upheld. The date of the order was 9 March 2020.

Orders

Orders of the court

Date of Order: 9 March 2020

Appeal dismissed.

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 Korin [2020] QCA 40
PARTIES:	R v KORIN, Eugene (appellant)
FILE NO/S:	CA No 109 of 2019 DC No 17 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Southport – Date of Conviction: 3 April 2019 (Rackemann DCJ)
DELIVERED ON:	Date of Order: 9 March 2020 Date of Publication of Reasons: 13 March 2020
DELIVERED AT:	Brisbane
HEARING DATE:	9 March 2020
JUDGES:	Morrison JA and Bond and Callaghan JJ
ORDER:	Date of Order: 9 March 2020 Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where the appellant, having been diagnosed with terminal cancer and having undergone treatment which caused side effects including anxiety and depression, pleaded guilty to one count of possessing child exploitation material – whether appellant’s guilty plea was freely entered
COUNSEL:	P D Kelly for the appellant (pro bono) D Balic for the respondent
SOLICITORS:	No appearance for the appellant Director of Public Prosecutions (Queensland) for the respondent