R v Nugent - [2011] QCA 127

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nugent [2011] QCA 127

PARTIES:

R
v
NUGENT, Danny James
(appellant)

FILE NO/S:

CA No 281 of 2010
DC No 214 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

17 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 2011

JUDGES:

Chief Justice, Chesterman JA, Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. That the conviction on count 3 be quashed and a verdict of acquittal be entered on that count; and

2. That the appeal against conviction otherwise be dismissed.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES –OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – OTHER OFFENCES – where appellant was convicted of one count of indecent treatment of a child under 12, two counts of indecent dealing, and two counts of procuring a child to commit an indecent act – where appellant was sentenced to two years nine months imprisonment for each count to be served concurrently – where appellant challenges convictions on three counts on the basis of lack of adequate particularity – where there was evidence from complainant that the encounters followed the same pattern – whether the charges were sufficiently particularized – whether the sentences imposed on the appellant should be reduced

R v F[1994] QCA 537, cited
R v R[2001] QCA 488, considered
R v S [2000] 1 Qd R 445; [1998] QCA 271, cited

COUNSEL:

G McGuire for the appellant
R G Martin SC for the respondent

SOLICITORS:

Guest Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the appellant

[1] CHIEF JUSTICE: The appellant was convicted in the District Court on one count of indecent treatment of a child under 12 years of age (count 1), and four indecency counts in relation to a child under 16, two of them of indecent dealing (counts 2 and 4) and the other two of procuring a child to commit an indecent act (counts 3 and 5). On each count the appellant was sentenced to two years nine months imprisonment, the terms to be served concurrently.

[2] The appellant challenges the convictions on counts 2, 3 and 4 on the ground that the counts were “bad for latent duplicity”, because for want of adequate particularity, the jury was left unable “to differentiate between what was specifically alleged in respect of those counts, and what was alleged in respect of other similar uncharged incidents”.

[3] The complainant was the son of an employee of the appellant, and was aged between 11 and 12 years at the relevant times. Following various exchanges between Counsel, the particulars on which the prosecution ultimately relied in relation to the subject counts were:

Count 2 – an act of oral sex committed upon the complainant during a period of school holidays, when the appellant gave the complainant $100 in return;

Count 3 – an…

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 Nugent

Details

AGLC: R v Nugent [2011] QCA 127
Case: [2011] QCA 127
Decision Date: 17 June 2011

CaseChat Overview and Summary

The appellant, in this case, was convicted of various sexual offences against a child under the age of 12, including indecent treatment, indecent dealing, and procuring a child to commit an indecent act. The appellant was sentenced to a concurrent term of two years and nine months imprisonment for each count. The appellant contested the convictions, arguing that the charges were not adequately particularised and that the sentences imposed were excessive. The appeal was heard in the court of appeal, which was tasked with determining the adequacy of the particularisation of the charges and the appropriateness of the sentences.

The court was required to decide whether the charges against the appellant were sufficiently particularised to meet the legal requirements and whether the sentences imposed were appropriate in the circumstances. The court examined the evidence provided by the complainant and the pattern of the alleged encounters to determine if the charges were adequately described. Furthermore, the court assessed the sentences imposed to determine if they were appropriate and whether they should be reduced.

In its reasoning, the court found that the charges against the appellant were adequately particularised, except for count 3, which did not meet the necessary legal standards. The court noted that the complainant's evidence demonstrated a pattern of the alleged encounters, which was sufficient to support the other charges. However, the court quashed the conviction on count 3 and entered a verdict of acquittal on that count. The court also dismissed the appeal against the other convictions. The court further found that the sentences imposed were appropriate and did not warrant any reduction.

The court's final orders were that the conviction on count 3 be quashed and a verdict of acquittal be entered on that count. The appeal against the other convictions was dismissed. No reduction in sentence was ordered.

Orders

Orders of the court

1. That the conviction on count 3 be quashed and a verdict of acquittal be entered on that count; and

2. That the appeal against conviction otherwise be dismissed.

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 Nugent [2011] QCA 127
PARTIES:	R v NUGENT, Danny James (appellant)
FILE NO/S:	CA No 281 of 2010 DC No 214 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	17 June 2011
DELIVERED AT:	Brisbane
HEARING DATE:	9 June 2011
JUDGES:	Chief Justice, Chesterman JA, Margaret Wilson AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. That the conviction on count 3 be quashed and a verdict of acquittal be entered on that count; and 2. That the appeal against conviction otherwise be dismissed.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES –OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – OTHER OFFENCES – where appellant was convicted of one count of indecent treatment of a child under 12, two counts of indecent dealing, and two counts of procuring a child to commit an indecent act – where appellant was sentenced to two years nine months imprisonment for each count to be served concurrently – where appellant challenges convictions on three counts on the basis of lack of adequate particularity – where there was evidence from complainant that the encounters followed the same pattern – whether the charges were sufficiently particularized – whether the sentences imposed on the appellant should be reduced R v F[1994] QCA 537, cited R v R[2001] QCA 488, considered R v S [2000] 1 Qd R 445; [1998] QCA 271, cited
COUNSEL:	G McGuire for the appellant R G Martin SC for the respondent
SOLICITORS:	Guest Lawyers for the appellant Director of Public Prosecutions (Queensland) for the appellant