R v Nona

Case [2022] QCA 26 4 March 2022

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Nona [2022] QCA 26

PARTIES:

R
v
NONA, Bernard
(appellant/applicant)

FILE NO/S:

CA No 153 of 2021
DC No 361 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns – Date of Conviction and Sentence: 16 June 2021 (Rafter SC DCJ)

DELIVERED ON:

4 March 2022

DELIVERED AT:

Brisbane

HEARING DATE:

12 November 2021

JUDGES:

Bond JA and Boddice and Henry JJ

ORDERS:

1. Appeal against conviction dismissed.

2. Application for leave to appeal 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 by a jury after a trial of one count of attempted indecent treatment of a child under 16 under care and found not guilty for one count of rape – where the appellant appeals against his conviction upon the ground that the conviction was inconsistent with the acquittal for rape – whether the verdicts could be logically and reasonably reconciled

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant submits that the learned sentencing judge erred in sentencing the applicant to imprisonment rather than imposing a community-based order – where the applicant contends that the learned sentencing judge erred in not having regard to the effect of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) – whether the applicant should have been sentenced to a term of imprisonment – whether the sentence was manifestly excessive

Child Protection (Offender Reporting and Offender Prohibition Order) Act2004 (Qld), s 3(1A), s 9, s 36(1)(a), sch 1 item 9(i)
Criminal Code (Qld), s 210(4), s 535
Penalties and Sentences Act 1992 (Qld), s 9(4), s 9(12), s 143, s 144(1)

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
R v Briese; Ex Parte Attorney-General (Qld) [1998] 1 Qd R 487; [1997] QCA 10, cited
R v Bunton[2019] QCA 214, distinguished
R v D [1996] 1 Qd R 363; [1995] QCA 329, cited
R v Flew[2008] QCA 290, cited
R v GAW[2015] QCA 166, considered
R v LAL [2019] 2 Qd R 115; [2018] QCA 179, cited
R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited
R v Patrick (a pseudonym); R v Patrick (a pseudonym); Ex parte Attorney-General (Qld) (2020) 3 QR 578; [2020] QCA 51, cited
R v Rodgers[2021] QCA 97, distinguished
R v SBP[2009] QCA 408, cited
R v SBR[2010] QCA 94, cited
R v Schenk; Ex parte Attorney-General (Qld)[2016] QCA 131, cited
R v Theohares [2017] 1 Qd R 211; [2016] QCA 51, considered

COUNSEL:

S Robb for the appellant/applicant
S L Dennis for the respondent

SOLICITORS:

Legal Aid Queensland for…

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 Nona

Details

AGLC: R v Nona [2022] QCA 26
Case: [2022] QCA 26
Decision Date: 4 March 2022

CaseChat Overview and Summary

The appellant, Nona, appealed against his conviction for attempted indecent treatment of a child under 16 under his care and the sentence imposed on him. The appellant was acquitted on a separate charge of rape. The appeal was heard by the Queensland Court of Appeal.

The central legal issue before the court was whether the verdicts of the jury could be logically and reasonably reconciled, given the appellant's acquittal on the charge of rape. The appellant argued that the conviction for attempted indecent treatment was inconsistent with the acquittal on the more serious charge of rape. The court was required to determine whether the jury's verdicts were reasonable in light of the evidence presented.

The court found that the jury's verdicts could be logically and reasonably reconciled. The court held that the evidence supported the conclusion that the appellant was guilty of the lesser charge of attempted indecent treatment, while the evidence was insufficient to prove the more serious charge of rape beyond reasonable doubt. The court dismissed the appeal against the conviction, holding that the jury's verdicts were not unreasonable or inconsistent. The court also refused the appellant's application for leave to appeal the sentence, finding that the sentence imposed was not manifestly excessive.

The orders of the court were that the appeal against conviction was dismissed and the application for leave to appeal sentence was refused.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Nona [2022] QCA 26

Most Recent Citation

R v Cane [2023] QCA 199

Cases citing this decision · 2 of 2 shown

The King v McKell
[2024] NTSC 11

…v Mailes [2003] NSWSC 707; R v Medcraft (1992) 60 A Crim R 181; R. v. Merriman [1973] A.C. 584; R v MH [2001] NSWCCA 117; R v Nona [2022] QCA 26; R v O’Connell [1993] 2 NZLR 442; R v Olbrich [1999] HCA 54; R v Parsell (1980) 28 SASR 369; R v PJS [2009] NSWSC 153; R v Storey [1998] 1 VR 359; R v Teremoana (1990)…
R v Cane
[2023] QCA 199 Para 19

…imprisonment he was liable to serve, as required by s 156A. The sentencing judge also had regard to the effect of the decision in R v Braeckmans [2022] QCA 26 that the cumulative nature of the penalty must be reflected by not declaring the time served in pre-sentence custody before the expiration of the applica…

View all 2 citing cases →

Cases cited in this decision · 17 of 17 shown

R v Rodgers
[2021] QCA 97 Para 4

…the first place, cf R v McDougall & Collas [2007] 2 Qd R 87 at [18], per Jerrard, Keane and Holmes JJA. The observations by McMurdo JA in R v Rodgers [2021] QCA 97 at [10]-[12] should not be regarded as authority to the contrary. I would prefer to defer further consideration of the matters raised by Henry J in h…
R v Patrick (a pseudonym); R v Patrick (a pseudonym); Ex parte
[2020] QCA 51

…2 Qd R 87; [2006] QCA 365, cited R v Patrick (a pseudonym); R v Patrick (a pseudonym); Ex parte Attorney-General (Qld) (2020) 3 QR 578; [2020] QCA 51, cited R v Rodgers [2021] QCA 97, distinguished R v SBP [2009] QCA 408, cited R v SBR [2010] QCA 94, cited R v Schenk; Ex parte Attorney-General (Qld) [2016] QCA 13…
R v Bunton
[2019] QCA 214 Para 4

…nst sentence: (a)The impact of the Reporting Act was relevant to the consideration of what sentence was just in all the circumstances: see R v Bunton [2019] QCA 214 per Morrison JA at [27], with whom Sofronoff P and Fraser JA agreed. It had to be taken into account as part of an integrated process involving the c…
R v LAL
[2018] QCA 179

…363; [1995] QCA 329, cited R v Flew [2008] QCA 290, cited R v GAW [2015] QCA 166, considered R v LAL [2019] 2 Qd R 115; [2018] QCA 179, cited R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited R v Patrick (a pseudonym); R v Patrick (a pseudonym); Ex parte Attorney-General (Qld) (2020) 3 QR 578; [202…
R v Abdi
[2016] QCA 298 Para 15

…sonment in consequence of being declared convicted of a serious violent offence.[26] [25] R v UE [2016] QCA 58; R v Schelvis [2016] QCA 294; R v Abdi [2016] QCA 298. [26] Penalties and Sentences Act Part 9A; R v Bojovic [2000] 2 Qd R 183; R v Eveleigh [2003] 1 Qd R 398; R v McDougall and Collas [2007] 2 Qd R 87.…
R v Schelvis
[2016] QCA 294 Para 15

…r cent of a term of imprisonment in consequence of being declared convicted of a serious violent offence.[26] [25] R v UE [2016] QCA 58; R v Schelvis [2016] QCA 294; R v Abdi [2016] QCA 298. [26] Penalties and Sentences Act Part 9A; R v Bojovic [2000] 2 Qd R 183; R v Eveleigh [2003] 1 Qd R 398; R v McDougall and…
R v Schenk; Ex parte Attorney-General (Qld)
[2016] QCA 131 Para 25

…mposed was therefore premised on the presence of exceptional circumstances. [7] R v Schenk; Ex parte Attorney-General (Qld) [2016] QCA 131.…
R v UE
[2016] QCA 58 Para 15

…ired to serve at least 80 per cent of a term of imprisonment in consequence of being declared convicted of a serious violent offence.[26] [25] R v UE [2016] QCA 58; R v Schelvis [2016] QCA 294; R v Abdi [2016] QCA 298. [26] Penalties and Sentences Act Part 9A; R v Bojovic [2000] 2 Qd R 183; R v Eveleigh [2003] 1…
R v Theohares
[2016] QCA 51 Para 33

…two months. This Court accepted special circumstances were present and substituted a wholly suspended sentence of imprisonment of six months. [10][2016] QCA 51.…
R v GAW
[2015] QCA 166 Para 28

…nclude exceptional circumstances from the low level of the offence, that it was a single episode and the absence of like previous offending. [9][2015] QCA 166.…
R v SBR
[2010] QCA 94 Para 3

…pact of recording a conviction is a relevant consideration in exercising the discretion whether to record a conviction. [13][2009] QCA 408. [14][2010] QCA 94. [15](2013) 231 A Crim R 290. [16][2019] 2 Qd R 115. [17][2019] QCA 214.…
R v SBP
[2009] QCA 408 Para 3

…ision because the impact of recording a conviction is a relevant consideration in exercising the discretion whether to record a conviction. [13][2009] QCA 408. [14][2010] QCA 94. [15](2013) 231 A Crim R 290. [16][2019] 2 Qd R 115. [17][2019] QCA 214.…
R v Flew
[2008] QCA 290 Para 18

…lity for the conduct of his case at first instance”. The above reasons demonstrate this application falls well short of such circumstances. [27][2008] QCA 290 [27]. Did the absence of regard to the Reporting Act’s reporting regime constitute error?…
R v McDougall and Collas
[2006] QCA 365

…[2015] QCA 166, considered R v LAL [2019] 2 Qd R 115; [2018] QCA 179, cited R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited R v Patrick (a pseudonym); R v Patrick (a pseudonym); Ex parte Attorney-General (Qld) (2020) 3 QR 578; [2020] QCA 51, cited R v Rodgers [2021] QCA 97, distinguished R v SBP…
R v Briese; ex parte Attorney-General
[1997] QCA 10

…zie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v Briese; Ex Parte Attorney-General (Qld) [1998] 1 Qd R 487; [1997] QCA 10, cited R v Bunton [2019] QCA 214, distinguished R v D [1996] 1 Qd R 363; [1995] QCA 329, cited R v Flew [2008] QCA 290, cited R v GAW [2015] QCA 166, considered R v LAL [2019] 2 Q…
Mackenzie v The Queen
[1996] HCA 35

…535 Penalties and Sentences Act 1992 (Qld), s 9(4), s 9(12), s 143, s 144(1) MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v Briese; Ex Parte Attorney-General (Qld) [1998] 1 Qd R 487; [1997] QCA 10, cited R v Bunton [2019] QCA 214, distinguished R v D [1996] 1 Qd R 363; [1995] QCA 329, cited…
R v D
[1995] QCA 329

…General (Qld) [1998] 1 Qd R 487; [1997] QCA 10, cited R v Bunton [2019] QCA 214, distinguished R v D [1996] 1 Qd R 363; [1995] QCA 329, cited R v Flew [2008] QCA 290, cited R v GAW [2015] QCA 166, considered R v LAL [2019] 2 Qd R 115; [2018] QCA 179, cited R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365…

Legislation cited in this decision · 2

Penalties and Sentences Act 1992 (Qld)
143, 144(1), 9(4) 4 mentions (from Para 11)
Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld)
3(1A), 9 3 mentions (from Para 10)

CITATION:	R v Nona [2022] QCA 26
PARTIES:	R v NONA, Bernard (appellant/applicant)
FILE NO/S:	CA No 153 of 2021 DC No 361 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Cairns – Date of Conviction and Sentence: 16 June 2021 (Rafter SC DCJ)
DELIVERED ON:	4 March 2022
DELIVERED AT:	Brisbane
HEARING DATE:	12 November 2021
JUDGES:	Bond JA and Boddice and Henry JJ
ORDERS:	1. Appeal against conviction dismissed. 2. Application for leave to appeal 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 by a jury after a trial of one count of attempted indecent treatment of a child under 16 under care and found not guilty for one count of rape – where the appellant appeals against his conviction upon the ground that the conviction was inconsistent with the acquittal for rape – whether the verdicts could be logically and reasonably reconciled CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant submits that the learned sentencing judge erred in sentencing the applicant to imprisonment rather than imposing a community-based order – where the applicant contends that the learned sentencing judge erred in not having regard to the effect of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) – whether the applicant should have been sentenced to a term of imprisonment – whether the sentence was manifestly excessive Child Protection (Offender Reporting and Offender Prohibition Order) Act2004 (Qld), s 3(1A), s 9, s 36(1)(a), sch 1 item 9(i) Criminal Code (Qld), s 210(4), s 535 Penalties and Sentences Act 1992 (Qld), s 9(4), s 9(12), s 143, s 144(1) MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v Briese; Ex Parte Attorney-General (Qld) [1998] 1 Qd R 487; [1997] QCA 10, cited R v Bunton[2019] QCA 214, distinguished R v D [1996] 1 Qd R 363; [1995] QCA 329, cited R v Flew[2008] QCA 290, cited R v GAW[2015] QCA 166, considered R v LAL [2019] 2 Qd R 115; [2018] QCA 179, cited R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited R v Patrick (a pseudonym); R v Patrick (a pseudonym); Ex parte Attorney-General (Qld) (2020) 3 QR 578; [2020] QCA 51, cited R v Rodgers[2021] QCA 97, distinguished R v SBP[2009] QCA 408, cited R v SBR[2010] QCA 94, cited R v Schenk; Ex parte Attorney-General (Qld)[2016] QCA 131, cited R v Theohares [2017] 1 Qd R 211; [2016] QCA 51, considered
COUNSEL:	S Robb for the appellant/applicant S L Dennis for the respondent
SOLICITORS:	Legal Aid Queensland for…