R v MDG - [2020] QCA 113

SUPREME COURT OF QUEENSLAND

CITATION:

R v MDG [2020] QCA 113

PARTIES:

R
v
MDG
(appellant/applicant)

FILE NO/S:

CA No 244 of 2019
DC No 379 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Beenleigh – Date of Conviction & Sentence: 29 August 2019 (Chowdhury DCJ)

DELIVERED ON:

29 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2020

JUDGES:

Sofronoff P and Fraser JA and Bowskill J

ORDERS:

1.   Dismiss the appeal against conviction.

2.   Leave to appeal against sentence refused.

3.   Direct that the verdict and judgment recorded be amended to correct the sentence imposed on count 2, so that it reads 10 months imprisonment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of two counts of indecent treatment of a child under 16 who was under his care – where the appellant was sentenced to 18 months imprisonment on the first count and a concurrent 10 months imprisonment on the second count, suspended for an operational period of two years from 28 May 2020 – where the appellant essentially contends the conviction was unreasonable by reiterating his case at trial - that the incidents did not happen, and that the child lied to the police, at the urging of the aunt, who did not like the appellant and wanted her sister to leave him – where this Court’s task is to perform an independent examination of the whole of the evidence, to determine whether it was reasonably open to the jury to conclude beyond reasonable doubt that the appellant was guilty of committing the offences – whether the conviction was unreasonable or cannot be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant submitted that he did not contend the head sentences were excessive, but was seeking to be released earlier than ordered by the sentencing judge, to enable him to get back into the community, to his partner, and return to work – whether there is any reason to conclude that the sentence imposed, including as to the period to serve before suspension, was anything other than just and reasonable – whether the sentence was manifestly excessive

R v Brown[2020] QCA 69, cited

COUNSEL:

The appellant/applicant appeared on his own behalf
E L Kelso for the respondent

SOLICITORS:

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

SOFRONOFF P: I agree with Bowskill J.
FRASER JA: I agree with the reasons for judgment of Bowskill J and the orders proposed by her Honour.
BOWSKILL J: The appellant was convicted following a trial in the District Court at Beenleigh of two counts of indecent treatment of a child under 16 who was under his care. He was sentenced to 18…

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 MDG

Details

AGLC: R v MDG [2020] QCA 113
Case: [2020] QCA 113
Decision Date: 29 May 2020

CaseChat Overview and Summary

In the case of R v MDG, the appellant, MDG, was convicted on two counts of indecent treatment of a child under 16 years of age who was under his care. MDG was sentenced to 18 months imprisonment on the first count and a concurrent 10 months imprisonment on the second count, with the latter suspended for a period of two years from 28 May 2020. MDG appeals against both his conviction and his sentence. The appeal against conviction contends that the verdict was unreasonable or insupportable in light of the evidence presented, while the appeal against sentence argues that the sentence was manifestly excessive or inadequate.

The court was required to determine whether the conviction was unreasonable or insupportable in light of the evidence, and whether the sentence was manifestly excessive or inadequate. In considering the appeal against conviction, the court noted that its task was to perform an independent examination of the evidence to determine whether it was reasonably open to the jury to conclude beyond reasonable doubt that the appellant was guilty of the offences. The court found that the jury's verdict was open to them based on the evidence presented, and dismissed the appeal against conviction. In considering the appeal against sentence, the court noted that the appellant did not contend that the head sentences were excessive, but rather sought to be released earlier than ordered by the sentencing judge. The court found that there was no reason to conclude that the sentence imposed, including the period to serve before suspension, was anything other than just and reasonable, and refused leave to appeal against sentence.

The court dismissed the appeal against conviction and refused leave to appeal against sentence. However, the court directed that the verdict and judgment recorded be amended to correct the sentence imposed on count 2, so that it reads 10 months imprisonment.

Orders

Orders of the court

1. Dismiss the appeal against conviction.

2. Leave to appeal against sentence refused.

3. Direct that the verdict and judgment recorded be amended to correct the sentence imposed on count 2, so that it reads 10 months imprisonment.

Background

Background to the litigation

Full text does not contain this section.

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 MDG [2020] QCA 113
PARTIES:	R v MDG (appellant/applicant)
FILE NO/S:	CA No 244 of 2019 DC No 379 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Beenleigh – Date of Conviction & Sentence: 29 August 2019 (Chowdhury DCJ)
DELIVERED ON:	29 May 2020
DELIVERED AT:	Brisbane
HEARING DATE:	3 March 2020
JUDGES:	Sofronoff P and Fraser JA and Bowskill J
ORDERS:	1. Dismiss the appeal against conviction. 2. Leave to appeal against sentence refused. 3. Direct that the verdict and judgment recorded be amended to correct the sentence imposed on count 2, so that it reads 10 months imprisonment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of two counts of indecent treatment of a child under 16 who was under his care – where the appellant was sentenced to 18 months imprisonment on the first count and a concurrent 10 months imprisonment on the second count, suspended for an operational period of two years from 28 May 2020 – where the appellant essentially contends the conviction was unreasonable by reiterating his case at trial - that the incidents did not happen, and that the child lied to the police, at the urging of the aunt, who did not like the appellant and wanted her sister to leave him – where this Court’s task is to perform an independent examination of the whole of the evidence, to determine whether it was reasonably open to the jury to conclude beyond reasonable doubt that the appellant was guilty of committing the offences – whether the conviction was unreasonable or cannot be supported having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant submitted that he did not contend the head sentences were excessive, but was seeking to be released earlier than ordered by the sentencing judge, to enable him to get back into the community, to his partner, and return to work – whether there is any reason to conclude that the sentence imposed, including as to the period to serve before suspension, was anything other than just and reasonable – whether the sentence was manifestly excessive R v Brown[2020] QCA 69, cited
COUNSEL:	The appellant/applicant appeared on his own behalf E L Kelso for the respondent
SOLICITORS:	The appellant/applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent