R v Taylor - [2010] QCA 205

SUPREME COURT OF QUEENSLAND

CITATION:

R v Taylor [2010] QCA 205

PARTIES:

R
v
TAYLOR, Gary Wayne George
(appellant)

FILE NO/S:

CA No 288 of 2009
CA No 27 of 2010
DC No 3089 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

6 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2010

JUDGES:

McMurdo P, Fraser JA and White JA
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 – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – ALTERNATIVE VERDICTS – appellant charged with burglary, two counts of assault occasioning bodily harm, attempted rape, or, in alternative, sexual assault whilst armed, two counts of wilful damage and stealing – appellant pleaded not guilty to all counts except wilful damage – appellant discharged on rape count – jury unable to reach verdict for sexual assault whilst armed – jury unanimously agreed on verdict of sexual assault without circumstance of aggravation – judge took verdict on lesser charge of sexual assault without circumstance of aggravation – counsel did not object to manner of taking verdict – whether trial judge erred in taking verdict in this manner – whether miscarriage of justice occurred

CRIMINAL LAW _ APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – appellant sentenced to a totality of three and a half years imprisonment with parole eligibility set at 27 February 2011 – appellant behaved in irrational, violent way – demonstrated absence of remorse or insight into his conduct – previously had benefit of community based orders – character references to appellant's advantage – whether sentence was manifestly excessive

CRIMINAL LAW – SENTENCE – SENTENCE PROCEDURE – FACTUAL BASIS FOR SENTENCING – GENERALLY – appellant submits that trial judge wrongly found that victim's facial injuries caused by appellant throwing keys – whether judge wrongly considered this fact as part of the sexual assault – whether judge wrongly took into account extraneous matters when sentencing

Criminal Code 1899 (Qld) (1899), s 2, s 16, s 17, s 325, s 564, s 575, s 585, s 598, s 602, s 604
Evidence Act 1997 (Qld), s 132C
Jury Act 1995 (Qld), s 60

Black v The Queen (1993) 179 CLR 44; [1993] HCA 71, cited
Herpich v Martin [1995] 1 Qd R 359; [1994] QCA 18, followed
R v D [1996] 1 Qd R 363; [1995] QCA 329, considered
R v McCready [1967] VR 325, cited
R v Puchala[2003] QCA 560, considered
R v Sambai[2003] QCA 142, considered
R v Stallan[2010] QCA 68, considered
Ross v The Queen (1979) 141 CLR 432; [1979] HCA 29, cited
Stanton v The Queen (2003) 198 ALR 41; [2003] HCA 29

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 Taylor

Details

AGLC: R v Taylor [2010] QCA 205
Case: [2010] QCA 205
Decision Date: 6 August 2010

CaseChat Overview and Summary

The appellant was charged with a range of offences, including burglary, assault occasioning bodily harm, attempted rape, sexual assault whilst armed, wilful damage, and stealing. The appellant pleaded not guilty to all counts except wilful damage. The jury was unable to reach a verdict on the charge of attempted rape, but found the appellant guilty of sexual assault without the aggravating circumstance of being armed. The trial judge accepted the jury's verdict on the lesser charge of sexual assault, without the aggravating circumstance of being armed, despite the appellant's counsel not objecting to the manner in which the verdict was taken. The appellant appealed against the conviction and sentence.

The key legal issues in this case were whether the trial judge erred in taking the verdict on the lesser charge of sexual assault, without the aggravating circumstance of being armed, and whether this amounted to a miscarriage of justice. Additionally, the appellant argued that the sentence was manifestly excessive. The court found that the trial judge did not err in taking the verdict in the manner that they did, as the jury's verdict was unanimous and the appellant's counsel did not object. The court also found that the sentence was not manifestly excessive, taking into account the appellant's behaviour, lack of remorse, and previous benefit of community-based orders.

The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused. The court found that the trial judge did not err in taking the verdict on the lesser charge of sexual assault, as the jury's verdict was unanimous and the appellant's counsel did not object. The court also found that the sentence was not manifestly excessive, taking into account the appellant's behaviour, lack of remorse, and previous benefit of community-based orders. The appellant's submissions that the trial judge wrongly considered certain facts when sentencing were also rejected by the court.

The final orders of the court were that the appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused. The appellant's arguments that the trial judge wrongly took certain facts into account when sentencing were also rejected by the court. The court found that the sentence was not manifestly excessive, taking into account the appellant's behaviour, lack of remorse, and previous benefit of community-based orders.

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 Taylor [2010] QCA 205
PARTIES:	R v TAYLOR, Gary Wayne George (appellant)
FILE NO/S:	CA No 288 of 2009 CA No 27 of 2010 DC No 3089 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	6 August 2010
DELIVERED AT:	Brisbane
HEARING DATE:	20 July 2010
JUDGES:	McMurdo P, Fraser JA and White JA 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 – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – ALTERNATIVE VERDICTS – appellant charged with burglary, two counts of assault occasioning bodily harm, attempted rape, or, in alternative, sexual assault whilst armed, two counts of wilful damage and stealing – appellant pleaded not guilty to all counts except wilful damage – appellant discharged on rape count – jury unable to reach verdict for sexual assault whilst armed – jury unanimously agreed on verdict of sexual assault without circumstance of aggravation – judge took verdict on lesser charge of sexual assault without circumstance of aggravation – counsel did not object to manner of taking verdict – whether trial judge erred in taking verdict in this manner – whether miscarriage of justice occurred CRIMINAL LAW _ APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – appellant sentenced to a totality of three and a half years imprisonment with parole eligibility set at 27 February 2011 – appellant behaved in irrational, violent way – demonstrated absence of remorse or insight into his conduct – previously had benefit of community based orders – character references to appellant's advantage – whether sentence was manifestly excessive CRIMINAL LAW – SENTENCE – SENTENCE PROCEDURE – FACTUAL BASIS FOR SENTENCING – GENERALLY – appellant submits that trial judge wrongly found that victim's facial injuries caused by appellant throwing keys – whether judge wrongly considered this fact as part of the sexual assault – whether judge wrongly took into account extraneous matters when sentencing Criminal Code 1899 (Qld) (1899), s 2, s 16, s 17, s 325, s 564, s 575, s 585, s 598, s 602, s 604 Evidence Act 1997 (Qld), s 132C Jury Act 1995 (Qld), s 60 Black v The Queen (1993) 179 CLR 44; [1993] HCA 71, cited Herpich v Martin [1995] 1 Qd R 359; [1994] QCA 18, followed R v D [1996] 1 Qd R 363; [1995] QCA 329, considered R v McCready [1967] VR 325, cited R v Puchala[2003] QCA 560, considered R v Sambai[2003] QCA 142, considered R v Stallan[2010] QCA 68, considered Ross v The Queen (1979) 141 CLR 432; [1979] HCA 29, cited Stanton v The Queen (2003) 198 ALR 41; [2003] HCA 29