R v SBQ - [2010] QCA 89

SUPREME COURT OF QUEENSLAND

CITATION:

R v SBQ [2010] QCA 89

PARTIES:

R
v
SBQ
(applicant/appellant)

FILE NO/S:

CA No 291 of 2009
DC No 353 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

23 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2010

JUDGES:

Fraser and Chesterman JJA and Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Grant leave to amend the notice of appeal and the application for leave to appeal against sentence.1.

Dismiss the appeal against conviction.2.

Grant the application for leave to appeal against sentence and allow that appeal.3.

Set aside the sentences imposed below and, subject to the appellant agreeing to the orders in (a) and (b) being made after the explanation to him as required by s 95 of the Penalties and Sentences Act 1992 (Qld), order instead as follows:4.

On count 1, sentence the appellant to probation for nine months, such order to contain the conditions in s 93 of that Act.a)

On count 2, sentence the appellant to probation for 12 months, such order to contain the conditions in s 93 of that Act.b)

The appellant must report to an authorised Corrective Services Officer at a time and place agreed between the parties or in default thereof, such time and place as are specified by a judge.c)

No convictions be recorded.d)

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of two counts of indecent dealing with a child under 12 – where the prosecutor amended the particulars of count 2 following the closing addresses resulting in duplicity in count 2 – whether the trial judge’s decision to allow count 2 to go to the jury as amended involved a wrong decision on a question of law – whether the error gave rise to a miscarriage of justice – whether the appeal should be dismissed pursuant to s 668E(1A) Criminal Code on the ground that the error of law did not result in any substantial miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the appellant was sentenced to 12 months imprisonment served as an intensive correction order with convictions recorded – where the sentencing judge found that the appellant was 16 years old at the time of offending – where defence counsel consented to the amendment of particulars in relation to count 2 on the basis that if the jury returned a guilty verdict the appellant would only be punished on the particularised conduct of touching on the clothing over the vagina – whether the sentencing judge punished the appellant for both instances of touching particularised in count 2 – whether the sentencing discretion miscarried – whether the Court should set aside…

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 SBQ

Details

AGLC: R v SBQ [2010] QCA 89
Case: [2010] QCA 89
Decision Date: 23 April 2010

CaseChat Overview and Summary

In the case of R v SBQ, the appellant was convicted in the Supreme Court of Queensland on two counts of indecent dealing with a child under 12. The appellant brought an appeal against both conviction and sentence. The appeal against conviction focused on whether the trial judge erred in law by allowing the jury to consider an amended count that contained a duplicity, and whether such an error constituted a miscarriage of justice. The appeal against sentence contested whether the sentencing judge misapplied his discretion by imposing a sentence that did not adequately reflect the agreed particulars of the offence.

The court examined the legal issues concerning the amendment of count 2 during the trial. It was argued that the amendment resulted in duplicity, meaning that a single count encompassed multiple offences, and that this constituted a misdirection to the jury. The court also considered whether this error warranted a new trial due to a miscarriage of justice. In addressing the appeal against sentence, the court scrutinized whether the sentencing judge had adequately considered the particulars of the offence and the agreed sentencing parameters when imposing the sentence.

The court found that while the amendment of count 2 did involve a legal error, it did not lead to a miscarriage of justice. The court held that the trial judge's decision to proceed with the amended count was not a wrong decision on a question of law that warranted a new trial. Regarding the appeal against sentence, the court determined that the sentencing judge did not sufficiently consider the agreed particulars of the offence and the impact of those particulars on the sentence. Consequently, the court concluded that the sentencing discretion had miscarried.

The court granted leave to amend the notice of appeal and the application for leave to appeal against sentence. It dismissed the appeal against conviction but allowed the appeal against sentence. The sentences imposed were set aside, and new sentences were ordered. On count 1, the appellant was sentenced to probation for nine months, and on count 2, the appellant was sentenced to probation for 12 months. Additionally, no convictions were to be recorded, and the appellant was to report to an authorised Corrective Services Officer as specified.

Orders

Orders of the court

Grant leave to amend the notice of appeal and the application for leave to appeal against sentence.1.

Dismiss the appeal against conviction.2.

Grant the application for leave to appeal against sentence and allow that appeal.3.

Set aside the sentences imposed below and, subject to the appellant agreeing to the orders in (a) and (b) being made after the explanation to him as required by s 95 of the Penalties and Sentences Act 1992 (Qld), order instead as follows:4.

On count 1, sentence the appellant to probation for nine months, such order to contain the conditions in s 93 of that Act.a)

On count 2, sentence the appellant to probation for 12 months, such order to contain the conditions in s 93 of that Act.b)

The appellant must report to an authorised Corrective Services Officer at a time and place agreed between the parties or in default thereof, such time and place as are specified by a judge.c)

No convictions be recorded.d)

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 SBQ [2010] QCA 89
PARTIES:	R v SBQ (applicant/appellant)
FILE NO/S:	CA No 291 of 2009 DC No 353 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	23 April 2010
DELIVERED AT:	Brisbane
HEARING DATE:	12 April 2010
JUDGES:	Fraser and Chesterman JJA and Ann Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Grant leave to amend the notice of appeal and the application for leave to appeal against sentence.1. Dismiss the appeal against conviction.2. Grant the application for leave to appeal against sentence and allow that appeal.3. Set aside the sentences imposed below and, subject to the appellant agreeing to the orders in (a) and (b) being made after the explanation to him as required by s 95 of the Penalties and Sentences Act 1992 (Qld), order instead as follows:4. On count 1, sentence the appellant to probation for nine months, such order to contain the conditions in s 93 of that Act.a) On count 2, sentence the appellant to probation for 12 months, such order to contain the conditions in s 93 of that Act.b) The appellant must report to an authorised Corrective Services Officer at a time and place agreed between the parties or in default thereof, such time and place as are specified by a judge.c) No convictions be recorded.d)
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of two counts of indecent dealing with a child under 12 – where the prosecutor amended the particulars of count 2 following the closing addresses resulting in duplicity in count 2 – whether the trial judge’s decision to allow count 2 to go to the jury as amended involved a wrong decision on a question of law – whether the error gave rise to a miscarriage of justice – whether the appeal should be dismissed pursuant to s 668E(1A) Criminal Code on the ground that the error of law did not result in any substantial miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the appellant was sentenced to 12 months imprisonment served as an intensive correction order with convictions recorded – where the sentencing judge found that the appellant was 16 years old at the time of offending – where defence counsel consented to the amendment of particulars in relation to count 2 on the basis that if the jury returned a guilty verdict the appellant would only be punished on the particularised conduct of touching on the clothing over the vagina – whether the sentencing judge punished the appellant for both instances of touching particularised in count 2 – whether the sentencing discretion miscarried – whether the Court should set aside…