R v Roberts - [2009] QCA 22

SUPREME COURT OF QUEENSLAND

CITATION:

R v Roberts [2009] QCA 22

PARTIES:

R
v
ROBERTS, Benn Douglas
(applicant/appellant)

FILE NO/S:

CA No 17 of 2009
DC No 2047 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2009

JUDGES:

de Jersey CJ, Chesterman JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the applicant was intoxicated – where the applicant was 25 years of age – where the complainants were girls, 8 and 9 years of age – where the applicant entered the complainants’ room while the complainants were asleep – where the applicant intended to sexually interfere with the complainants – where the applicant attempted to remove the complainants’ clothing – where the complainants’ gave varying accounts of the incident – where the complainants’ father and stepmother assaulted the applicant – whether the verdicts were unreasonable or not supportable by the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where applicant sentenced to 9 months’ imprisonment with parole eligibility after 4 months of that term – where applicant had prior criminal convictions – where on probation at the time of the offences – where a breach of trust with children – whether the sentence was manifestly excessive

Evidence Act 1977 (Qld), s 93A

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, followed
R v PAH[2008] QCA 265, followed
R v Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, considered
R v Mirza; ex parte A-G (Qld)[2008] QCA 23, distinguished

COUNSEL:

M J Woodford for the applicant
P F Rutledge for the respondent

SOLICITORS:

Family Law Doyle Keyworth and Harris for the applicant
Director of Public Prosecutions (Queensland) for the respondent

de JERSEY CJ: The appellant was convicted by a jury of two offences of indecent treatment of a child under 12 years of age. He was sentenced to nine months imprisonment with eligibility for parole recommended after four months. He appeals against the convictions and applies for leave to appeal against sentence.

The ground of appeal against conviction is that the verdicts are unreasonable and cannot be supported by the evidence.

The offences were committed at about 4.30 am on 21 December 2007. The appellant and a friend, Mr C, had been drinking heavily and using cannabis. They repaired to Mr C’s house at about 2 or 3 am. Mr C’s partner, RB, who…

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 Roberts

Details

AGLC: R v Roberts [2009] QCA 22
Case: [2009] QCA 22
Decision Date: 20 February 2009

CaseChat Overview and Summary

The applicant, Roberts, appealed against his conviction and sentence for indecent assault on two young girls, aged 8 and 9. The case was heard in the court of appeal, where the applicant argued that the verdict was unreasonable and that his sentence was manifestly excessive. The central issue before the court was whether the verdict was unreasonable or not supportable having regard to the evidence. The court also considered whether the sentence imposed was manifestly excessive.

The court held that the evidence was sufficient to support the verdict, despite the varying accounts given by the complainants. The court found that the applicant's intoxication and breach of trust with children were significant factors in the case. The court also noted that the applicant had prior criminal convictions and was on probation at the time of the offences. However, the court held that the sentence imposed was not manifestly excessive, taking into account all the circumstances of the case.

In conclusion, the appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused. The court found that the verdict was reasonable and that the sentence imposed was not manifestly excessive. The final orders of the court were that the appeal against conviction was dismissed and the application for leave to appeal against sentence was 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Roberts [2009] QCA 22
PARTIES:	R v ROBERTS, Benn Douglas (applicant/appellant)
FILE NO/S:	CA No 17 of 2009 DC No 2047 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	20 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	12 February 2009
JUDGES:	de Jersey CJ, Chesterman JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the applicant was intoxicated – where the applicant was 25 years of age – where the complainants were girls, 8 and 9 years of age – where the applicant entered the complainants’ room while the complainants were asleep – where the applicant intended to sexually interfere with the complainants – where the applicant attempted to remove the complainants’ clothing – where the complainants’ gave varying accounts of the incident – where the complainants’ father and stepmother assaulted the applicant – whether the verdicts were unreasonable or not supportable by the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where applicant sentenced to 9 months’ imprisonment with parole eligibility after 4 months of that term – where applicant had prior criminal convictions – where on probation at the time of the offences – where a breach of trust with children – whether the sentence was manifestly excessive Evidence Act 1977 (Qld), s 93A M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, followed R v PAH[2008] QCA 265, followed R v Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, considered R v Mirza; ex parte A-G (Qld)[2008] QCA 23, distinguished
COUNSEL:	M J Woodford for the applicant P F Rutledge for the respondent
SOLICITORS:	Family Law Doyle Keyworth and Harris for the applicant Director of Public Prosecutions (Queensland) for the respondent