R v REYNOLDS, Geoffrey Thomas (appellant/applicant)
FILE NO/S:
CA No 185 of 2014 DC No 279 of 2012
DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Beenleigh – Unreported, 18 June 2014
DELIVERED ON:
23 June 2015
DELIVERED AT:
Brisbane
HEARING DATE:
6 February 2015
JUDGES:
Chief Justice and Fraser and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
The orders of the Court are that:
1. The appeal against conviction is dismissed.
2. The application for leave to appeal against sentence is refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant filed an appeal against conviction – where the appellant claimed that the verdict reached by the jury was unreasonable or insupportable due to inconsistencies and ambiguity in the evidence of the complainant – where evidence of the appellant’s offending was almost exclusively dependent on the evidence given by the complainant – whether the jury verdict was unreasonable or insupportable on the evidence – whether the evidence was sufficient to support the guilty verdicts
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant filed an appeal against conviction – where the appellant argued that the trial judge erred in failing to deliver a Robinson direction to the jury – whether the trial judge was required to give the jury a Robinson direction – whether the trial judge gave the jury a Robinson direction – whether failure to deliver a Robinson direction amounted to a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – PROSECUTORIAL DUTIES – FAILURE TO TENDER RELEVANT EVIDENCE – where the appellant filed an appeal against conviction – where the appellant contends that the failure of the Crown to tender a record of interview amounted to a miscarriage of justice – whether failure to adduce the record of interview breached prosecutorial duties resulting in a miscarriage of justice – whether the failure to adduce the record of interview amounted to a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant filed an appeal against sentence – where the appellant was convicted of one count of attempted indecent treatment of a child under 16, with the circumstances of aggravation that the child was under 12 years and under the appellant’s care and two counts of indecent treatment of a child under 16, with the circumstances of aggravation that the child was under 12 years and under the appellant’s care – where a sentence of two years’ imprisonment was imposed on each count to be served concurrently, with parole eligibility after serving 12 months – whether the sentence was manifestly excessive
Criminal Code (Qld),…
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.
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Details
AGLC
R v Reynolds [2015] QCA 111
Case
[2015] QCA 111
Decision Date
CaseChat Overview and Summary
In the matter of R v Reynolds, the appellant brought an appeal against his conviction and sentence. The appellant was convicted of one count of attempted indecent treatment of a child under 16, with the circumstances of aggravation that the child was under 12 years and under the appellant's care, and two counts of indecent treatment of a child under 16, with the circumstances of aggravation that the child was under 12 years and under the appellant's care. The appellant was sentenced to two years' imprisonment on each count, to be served concurrently, with parole eligibility after serving 12 months. The appellant appealed against his conviction on several grounds, including that the jury verdict was unreasonable or insupportable on the evidence, that the trial judge failed to give a Robinson direction to the jury, and that the failure of the Crown to tender a record of interview amounted to a miscarriage of justice. The appellant also appealed against his sentence, claiming that it was manifestly excessive.
The court considered the evidence presented at trial and the arguments made by the appellant. The court found that the evidence was sufficient to support the guilty verdicts and that the jury was not misled by any inconsistencies or ambiguities in the evidence. The court also found that the trial judge was not required to give a Robinson direction to the jury and that the failure to do so did not amount to a miscarriage of justice. The court further found that the failure of the Crown to tender a record of interview did not breach prosecutorial duties and did not result in a miscarriage of justice. The court also considered the appellant's argument that the sentence was manifestly excessive. The court found that the sentence was within the bounds of judicial discretion and was just in all the circumstances.
The court dismissed the appeal against conviction and refused the application for leave to appeal against sentence. The court held that the evidence was sufficient to support the guilty verdicts and that the jury was not misled by any inconsistencies or ambiguities in the evidence. The court also found that the trial judge was not required to give a Robinson direction to the jury and that the failure to do so did not amount to a miscarriage of justice. The court further found that the failure of the Crown to tender a record of interview did not breach prosecutorial duties and did not result in a miscarriage of justice. The court also considered the appellant's argument that the sentence was manifestly excessive. The court found that the sentence was within the bounds of judicial discretion and was just in all the circumstances.
The orders of the Court are that:
1. The appeal against conviction is dismissed.
2. The application for leave to appeal against sentence is refused.
Orders
Orders of the court
The orders of the Court are that:
1. The appeal against conviction is dismissed.
2. The application for leave to appeal against sentence is 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
On these facts, the evidence was in existence and known to the defence prior to the commencement of the trial. Nonetheless, the defence failed to adduce the evidence themselves, or request the prosecution to adduce the record of interview on the appellant’s behalf. Such failure may have occurred for tactical reasons or mere inadvertence. Assuming that this occurred by reason of inadvertence, the evidence is still not “fresh”. The adduction of the evidence does not establish that the conviction of the appellant was not reasonably open to the jury on the basis of the evidence presented at trial and the record of interview. It was open to the jury to reject the self-serving statements of the appellant, and prefer the testimony of the complainant. Accordingly, this does not give rise to a substantial miscarriage of justice.Conclusion: The third ground of appeal should be dismissed. The final ground of appeal of the appellant is that the sentence was manifestly excessive. The appellant points to no specific error, but merely asserts that the sentence was “plainly unjust” when contrasted with other comparable decisions. This kind of assertion is within the second category of House v The King.[42][42]House v The King (1936) 55 CLR 499, 504-505; [1936] HCA 40; Lacey v Attorney-General (Qld) (2011) 242 CLR 573, [62]; [2011] HCA 10. As rightly conceded by the appellant, it is not sufficient to establish that the relevant sentence is “markedly different to sentences imposed in similar cases”, rather than the sentence is “unreasonable or plainly unjust”.[43] It is manifestly inappropriate to compare aggravating and mitigating factors in comparable cases in an attempt to inexorably divine the single correct sentence.[44] Although reasonable judicial minds may differ regarding the preferable nature and quantum of sentence, provided the sentence imposed is within the bounds of judicial discretion and is just in all the circumstances, it should be upheld.[43]R v CBI [2013] QCA 186, [22]; Hili v The Queen (2010) 242 CLR 520, [58]-[59]; [2010] HCA 45; Wong v The Queen (2001) 207 CLR 584, [58]; [2001] HCA 64.[44]R v Dwyer [2008] QCA 117, [37]. The appellant complains that the sentencing judge only referred to the decisions of R v Craig; ex parte Attorney-General[45] and R v Moffat[46] during sentencing submissions. This is because both decisions were handed down when the maximum penalty was fourteen years rather than the twenty years that applied when the appellant was sentenced. Apparently, according to the appellant, this limits their utility. The absurdity of this submission is reflected in the fact that an increase in the maximum applicable penalty correlates with an elevation in the perceived seriousness or gravity of an offence by the community. As community values and expectations are incorporated into the sentencing process, if anything, the submission of the appellant in this respect would seem to justify the imposition of a greater sentence.[45][2002] QCA 414.[46][2003] QCA 95.