R v Nac - [2022] QCA 120

SUPREME COURT OF QUEENSLAND

CITATION:

R v NAC [2022] QCA 120

PARTIES:

R
v
NAC
(appellant/applicant)

FILE NO/S:

CA No 237 of 2020
DC No 1771 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 8 August 2018; Date of Sentence: 16 August 2018 (Rafter SC DCJ)

DELIVERED ON:

8 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2021

JUDGES:

Fraser, Morrison and Mullins JJA

ORDERS:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty after trial of maintaining an unlawful sexual relationship with a child under 16 (count 1) and other sexual offences against the same child – where the Crown case on each offence ultimately depended upon the jury accepting the complainant’s evidence of the offence as being both honest and reliable beyond reasonable doubt upon the elements of those offences – where the Court must pay full regard to the considerations that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and the jury had the benefit of having seen and heard the witnesses give evidence at the trial – where notwithstanding various discrepancies and inconsistencies in the evidence in the Crown case, it was reasonably open to the jury to find that the complainant’s evidence of the elements of each offence charged against the appellant was honest and reliable – whether the appeal should be allowed

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was found guilty after trial of maintaining an unlawful sexual relationship with a child under 16 and other sexual offences against the same child – where the appellant sentenced to 10 years imprisonment on count 1, with the mandatory declaration that the conviction on that count was a conviction of a serious violent offence – where lesser concurrent terms were imposed upon the other counts – where the ground of the application for leave to appeal against sentence is that the sentence is manifestly excessive – where the appellant does not make any challenge to the trial judge’s findings – where, as was submitted for the respondent, the offending involved a gross breach of trust by a paternal figure (the evidence was that the complainant referred to the appellant as “Dad”), that offending commenced when the complainant was very young, and it involved penetrative acts – whether the sentence is manifestly excessive – whether the appellant has established that the trial judge made any error which would justify appellate interference in the sentence

Criminal Code (Qld), s 229B

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
R v BAY (2005) 157 A Crim R 309; [2005] QCA…

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 Nac

Details

AGLC: R v Nac [2022] QCA 120
Case: [2022] QCA 120
Decision Date: 8 July 2022

CaseChat Overview and Summary

The appellant, Nac, was found guilty of maintaining an unlawful sexual relationship with a child under 16 (count 1) and other related sexual offences against the same child. He appealed against his conviction and sentence, arguing that the verdict was unreasonable or insupportable having regard to the evidence, and that his sentence was manifestly excessive. The appeal was heard by the court which had to decide whether the appeal against the conviction should be allowed and whether the sentence was manifestly excessive or inadequate.

The court considered whether the appeal against the conviction should be allowed, focusing on the reliability and honesty of the complainant’s evidence. Despite various discrepancies and inconsistencies in the Crown case, the court found it was reasonably open to the jury to conclude that the complainant’s evidence was honest and reliable. The court emphasised the importance of the jury's role in determining guilt or innocence and the advantage they had in observing the witnesses during the trial. The court held that the appeal against the conviction should be dismissed as the verdict was not unreasonable or insupportable.

Regarding the sentence, the appellant argued that it was manifestly excessive. The court examined the trial judge's findings and the nature of the offending, which involved a gross breach of trust by a paternal figure and began when the complainant was very young. The court found that the sentence, which included a 10-year imprisonment term for count 1 with a mandatory declaration of a serious violent offence, and concurrent lesser terms for other counts, was not manifestly excessive. The appellant did not challenge the trial judge’s findings, and the court concluded that the sentence was appropriate given the gravity of the offences.

ORDERS:
1. The appeal against conviction is dismissed.
2. The application for leave to appeal against sentence is refused.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

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 NAC [2022] QCA 120
PARTIES:	R v NAC (appellant/applicant)
FILE NO/S:	CA No 237 of 2020 DC No 1771 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 8 August 2018; Date of Sentence: 16 August 2018 (Rafter SC DCJ)
DELIVERED ON:	8 July 2022
DELIVERED AT:	Brisbane
HEARING DATE:	23 August 2021
JUDGES:	Fraser, Morrison and Mullins JJA
ORDERS:	1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty after trial of maintaining an unlawful sexual relationship with a child under 16 (count 1) and other sexual offences against the same child – where the Crown case on each offence ultimately depended upon the jury accepting the complainant’s evidence of the offence as being both honest and reliable beyond reasonable doubt upon the elements of those offences – where the Court must pay full regard to the considerations that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and the jury had the benefit of having seen and heard the witnesses give evidence at the trial – where notwithstanding various discrepancies and inconsistencies in the evidence in the Crown case, it was reasonably open to the jury to find that the complainant’s evidence of the elements of each offence charged against the appellant was honest and reliable – whether the appeal should be allowed CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was found guilty after trial of maintaining an unlawful sexual relationship with a child under 16 and other sexual offences against the same child – where the appellant sentenced to 10 years imprisonment on count 1, with the mandatory declaration that the conviction on that count was a conviction of a serious violent offence – where lesser concurrent terms were imposed upon the other counts – where the ground of the application for leave to appeal against sentence is that the sentence is manifestly excessive – where the appellant does not make any challenge to the trial judge’s findings – where, as was submitted for the respondent, the offending involved a gross breach of trust by a paternal figure (the evidence was that the complainant referred to the appellant as “Dad”), that offending commenced when the complainant was very young, and it involved penetrative acts – whether the sentence is manifestly excessive – whether the appellant has established that the trial judge made any error which would justify appellate interference in the sentence Criminal Code (Qld), s 229B M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited R v BAY (2005) 157 A Crim R 309; [2005] QCA…