R v Sutton - [2008] QCA 249

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sutton [2008] QCA 249

PARTIES:

R
v
SUTTON, Harold Edwin
(appellant)

FILE NO/S:

CA No 119 of 2008
DC No 375 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

22 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

19 June 2008

JUDGES:

Keane and Fraser JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal against conviction dismissed1.

Application for leave to appeal against sentence refused2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – GENERALLY – where the learned trial judge directed the jury that the mere passive acquiescence of the complainant to "something that might overwhelm him" is insufficient to establish consent – whether the learned trial judge misdirected the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where the appellant was convicted of one count of indecent assault – where the appellant was acquitted on another count of indecent assault – where the jury were unable to reach a verdict on a count of rape – whether the verdicts rendered by the jury were reconcilable

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where the appellant was 54 years old at the time of offending – where the complainant was 16 years old at the time of the offending – where the complainant was entrusted into the care of the appellant by his mother – where there was no force used by the appellant – where the appellant was sentenced to two years imprisonment with a recommendation that he be considered eligible for parole after serving four months – whether the sentence imposed was in the circumstances manifestly excessive

Criminal Code Act 1899 (Qld), s 245, s 348, s 352(1)(a)

Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied
R v Jones[2003] QCA 450, applied
R v Olugboja [1982] 1 QB 320, considered
R v Owen[2008] QCA 171, distinguished

COUNSEL:

P J Davis SC for the appellant
M B Lehane for the respondent

SOLICITORS:

Gilshenan & Luton Legal Practice for the appellant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: On 30 April 2008 the appellant was convicted upon the verdict of a jury of one count of indecent assault in contravention of s 352(1)(a) of the Criminal Code 1899 (Qld). He…

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 Sutton

Details

AGLC: R v Sutton [2008] QCA 249
Case: [2008] QCA 249
Decision Date: 22 August 2008

CaseChat Overview and Summary

The appellant, Sutton, appealed against his conviction of one count of indecent assault and the sentence imposed. He was acquitted on another count of indecent assault and the jury could not reach a verdict on a count of rape. The central issue before the court was whether the trial judge misdirected the jury regarding the concept of consent in relation to the indecent assault charge. Additionally, the court examined the coherence of the jury's verdicts across the different charges and the appropriateness of the sentence imposed.

The court found that the trial judge did not misdirect the jury on the issue of consent. The judge properly instructed the jury that mere passive acquiescence does not equate to consent, thereby ensuring that the jury understood the legal standards necessary to establish the element of consent. The court also determined that the verdicts, despite being inconsistent, were not unreasonable or unsatisfactory in light of the evidence presented. The jury's inability to reach a verdict on the rape charge did not undermine the conviction on the indecent assault charge, as each offence required distinct elements to be proven.

In dismissing the appeal against conviction, the court held that the jury's verdicts were lawful and the evidence supported the conviction. The sentence imposed was deemed appropriate given the circumstances, including the age of the appellant and complainant, the nature of the offence, and the absence of force. The court refused the application for leave to appeal against the sentence, finding it to be within the range of acceptable penalties for the offence.

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

Orders

Orders of the court

Appeal against conviction dismissed1.

Application for leave to appeal against sentence refused2.

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 Sutton [2008] QCA 249
PARTIES:	R v SUTTON, Harold Edwin (appellant)
FILE NO/S:	CA No 119 of 2008 DC No 375 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	22 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	19 June 2008
JUDGES:	Keane and Fraser JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal against conviction dismissed1. Application for leave to appeal against sentence refused2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – GENERALLY – where the learned trial judge directed the jury that the mere passive acquiescence of the complainant to "something that might overwhelm him" is insufficient to establish consent – whether the learned trial judge misdirected the jury CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where the appellant was convicted of one count of indecent assault – where the appellant was acquitted on another count of indecent assault – where the jury were unable to reach a verdict on a count of rape – whether the verdicts rendered by the jury were reconcilable CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where the appellant was 54 years old at the time of offending – where the complainant was 16 years old at the time of the offending – where the complainant was entrusted into the care of the appellant by his mother – where there was no force used by the appellant – where the appellant was sentenced to two years imprisonment with a recommendation that he be considered eligible for parole after serving four months – whether the sentence imposed was in the circumstances manifestly excessive Criminal Code Act 1899 (Qld), s 245, s 348, s 352(1)(a) Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied R v Jones[2003] QCA 450, applied R v Olugboja [1982] 1 QB 320, considered R v Owen[2008] QCA 171, distinguished
COUNSEL:	P J Davis SC for the appellant M B Lehane for the respondent
SOLICITORS:	Gilshenan & Luton Legal Practice for the appellant Director of Public Prosecutions (Queensland) for the respondent