R v RBN

Case [2024] QCA 185

SUPREME COURT OF QUEENSLAND

CITATION:

R v RBN [2024] QCA 185

PARTIES:

R
v
RBN

(applicant)

FILE NO/S:

CA No 71 of 2024

DC No 2052 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 22 March 2024 (Moynihan KC DCJ)

DELIVERED ON:

4 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2024

JUDGES:

Mullins P and Bond JA and Freeburn J

ORDER:

1.   Grant leave to adduce the further affidavit of the applicant, but only in relation to the fresh exercise of the sentencing discretion by this Court.

2.   Grant leave to appeal against the sentence imposed on 22 March 2024.

3.   Allow the appeal.

4.   Set aside that part of the sentence which recorded a conviction, but otherwise confirm the sentence. 

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where the applicant photographer had unlawfully assaulted the complainant model by running his fingers up from her groin across her stomach area to her breasts but without touching her breasts – where the Crown disclaimed there was any sexual element to the touching and the indictment alleged only common assault – where after the applicant pleaded guilty to that offence the sentencing judge imposed a fine of $1,500 with three months to pay but recorded a conviction – where the sentencing judge erred by failing to provide adequate reasons as to his decision to record a conviction – where on appeal a fresh exercise of the sentencing discretion determined that a conviction should not be recorded

Criminal Code (Qld), s 335
Penalties and Sentences Act 1992 (Qld), s 12

R v CCF [2018] QCA 285, cited
R v Hatahet (2024) 98 ALJR 863; [2024] HCA 23, applied
R v Spina [2012] QCA 179, applied
R v ZB (2021) 287 A Crim R 519; [2021] QCA 9, considered

COUNSEL:

K M Hillard and S J Hill for the applicant

S J Gallagher for the respondent

SOLICITORS:

Brisbane Criminal Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. MULLINS P:  I agree with Bond JA.

  2. BOND JA: On 17 October 2023 an indictment was presented against the present applicant which relevantly alleged that, contrary to s 352(1)(a) of the Criminal Code, on 8 June 2021 at Mount Coot-tha in the State of Queensland, he had unlawfully and indecently assaulted the complainant. 

  3. Proof of that offence would have required proof of these three elements:

    (a)he had assaulted the complainant by touching her directly or indirectly without her consent;

    (b)the assault was unlawful in the sense that it was not authorised, justified or excused; and

    (c)the assault was indecent, in the sense that judged in the light of time, place and circumstances, it would offend against what the community regards as indecent.

  4. The prosecution determined not to proceed in relation to the indictment as so formulated. The prosecution determined to…

Continue reading R v RBN

Sign in free to access the full text

Details
AGLC
R v RBN [2024] QCA 185
Case
[2024] QCA 185
Decision Date

CaseChat Overview and Summary

In the case of R v RBN, the applicant, a professional photographer, was convicted for unlawfully assaulting a model by running his fingers up from her groin across her stomach area to her breasts, though without touching her breasts. The Crown did not argue that there was a sexual element to the touching and the indictment alleged only common assault. After the applicant pleaded guilty to the offence, the sentencing judge imposed a fine of $1,500 with a three-month payment period but recorded a conviction. The applicant appealed against the conviction, arguing that the sentencing judge had failed to provide adequate reasons for recording the conviction. The appeal focused on the correctness of this decision and the appropriate exercise of sentencing discretion.

The central legal issue before the court was whether the sentencing judge's failure to provide adequate reasons for recording the conviction warranted intervention. The applicant contended that the absence of such reasons constituted a significant error in the exercise of the sentencing discretion, warranting a fresh exercise of that discretion by the appellate court. The Crown, on the other hand, argued that the sentence was within the bounds of the sentencing judge's discretion and that there was no need for the appellate court to intervene. The court needed to determine whether the lack of adequate reasons constituted a material error that required the conviction to be set aside.

Upon reviewing the matter, the court found that the sentencing judge had indeed erred by failing to provide adequate reasons for recording the conviction. The absence of such reasons was deemed a significant error in the exercise of the sentencing discretion. Consequently, the court granted leave to adduce a further affidavit from the applicant and allowed the appeal. The court set aside the part of the sentence that recorded the conviction but otherwise confirmed the sentence, ensuring that the fine and payment period remained in place. This decision underscores the importance of providing clear and adequate reasons for recording a conviction, particularly in cases where the defendant has pleaded guilty and the offence is of a lesser severity.

Orders

Orders of the court

1. Grant leave to adduce the further affidavit of the applicant, but only in relation to the fresh exercise of the sentencing discretion by this Court.

2. Grant leave to appeal against the sentence imposed on 22 March 2024.

3. Allow the appeal.

4. Set aside that part of the sentence which recorded a conviction, but otherwise confirm the sentence.

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.