R v Troop - [2009] QCA 176

SUPREME COURT OF QUEENSLAND

CITATION:

R v Troop [2009] QCA 176

PARTIES:

R
v
TROOP, Ricky Brian
(appellant/applicant)

FILE NO/S:

CA No 350 of 2008
DC No 681 of 2008
DC No 682 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

19 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2009

JUDGES:

Keane JA, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed

2. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where appellant convicted of one count of breaking and entering a dwelling with intent in the night time and indecent assault – where appellant alleged that trial judge misdirected jury insofar as directions diverted jury's attention from the need that they be satisfied that appellant had the intention to sexually assault the complainant at the time he entered the room – whether trial judge misdirected the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant sentenced to three years imprisonment on each count and two months suspended sentence activated and imposed cumulatively – whether the sentence imposed was manifestly excessive

R v Billy [1997] QCA 290, cited
R v Forrester [2008] QCA 12, cited
R v Marsh [1995] QCA 99, cited
R v Rigney [1996] 1 Qd R 551; [1995] QCA 571, cited

COUNSEL:

B G Devereaux SC for the appellant/applicant
M Connolly for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: I have had the advantage of reading a draft of the reasons for judgment prepared by Cullinane J. I agree with his Honour's reasons and with the orders proposed by his Honour.

CULLINANE J: The appellant was convicted on 9 December 2008 in the District Court at Cairns for a count of breaking and entering a dwelling with intent in the night time and indecent assault. He was sentenced to three years' imprisonment on each count and a two months' suspended sentence was activated and imposed cumulatively.

The appellant appeals against his convictions and seeks leave to appeal against the sentences imposed.

The relevant events occurred at the Federal Hotel on Thursday Island.

The complainant was a Dutch woman born in November 1982. She had arrived at Thursday Island on 19 July 2007 and obtained work as a bar maid at the Federal Hotel. She lived in a room at the hotel having initially shared a room with another employee but from 12 August 2007, she occupied the room alone.

The appellant was also an employee at the hotel being employed as a yardsman. The evidence suggests that all of…

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 Troop

Details

AGLC: R v Troop [2009] QCA 176
Case: [2009] QCA 176
Decision Date: 19 June 2009

CaseChat Overview and Summary

The appeal in R v Troop concerned the conviction and sentencing of the appellant for breaking and entering a dwelling with intent in the night time and indecent assault. The appellant argued that the trial judge misdirected the jury in relation to the necessary intention to sexually assault the complainant at the time of entry. Additionally, the appellant contested the severity of the sentence, asserting it was manifestly excessive.

The court considered whether the trial judge had indeed misdirected the jury in a manner that would necessitate a new trial. The central issue was whether the jury's attention was diverted from the critical requirement that they be satisfied of the appellant's intent to sexually assault at the moment of entry. The court also examined whether the sentence imposed was manifestly excessive or inadequate, given the cumulative nature of the sentences.

In examining the summing up as a whole, the court found that the trial judge's directions, while perhaps not perfect, did not result in a misdirection that would warrant a new trial. The court held that the jury was adequately directed on the necessary intent, and thus, the conviction was upheld. Regarding the sentence, the court found that the sentence was not manifestly excessive, considering the cumulative imposition of the sentences was appropriate in the circumstances.

Accordingly, the appeal was dismissed, and the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

1. Appeal dismissed

2. Application for leave to appeal against sentence refused

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 Troop* [2009] QCA 176
PARTIES:	R v TROOP, Ricky Brian (appellant/applicant)
FILE NO/S:	CA No 350 of 2008 DC No 681 of 2008 DC No 682 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	19 June 2009
DELIVERED AT:	Brisbane
HEARING DATE:	2 June 2009
JUDGES:	Keane JA, Cullinane and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal dismissed 2. Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where appellant convicted of one count of breaking and entering a dwelling with intent in the night time and indecent assault – where appellant alleged that trial judge misdirected jury insofar as directions diverted jury's attention from the need that they be satisfied that appellant had the intention to sexually assault the complainant at the time he entered the room – whether trial judge misdirected the jury CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant sentenced to three years imprisonment on each count and two months suspended sentence activated and imposed cumulatively – whether the sentence imposed was manifestly excessive *R v Billy* [1997] QCA 290, cited R v Forrester [2008] QCA 12, cited R v Marsh [1995] QCA 99, cited R v Rigney [1996] 1 Qd R 551; [1995] QCA 571, cited
COUNSEL:	B G Devereaux SC for the appellant/applicant M Connolly for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent