R v WBB

Case [2015] QCA 152

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBB [2015] QCA 152

PARTIES:

R
v
WBB
(applicant/appellant)

FILE NO/S:

CA No 274 of 2014
DC No 280 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:


District Court at Townsville

DELIVERED ON:

21 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2015

JUDGES:

Gotterson and Philippides JJA and Martin 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 – PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where a jury convicted the appellant of four counts of indecent treatment of a boy under fourteen – where the boy was the appellant’s son – where each count was particularised – where the complainant gave evidence in relation to each count – where the conduct was alleged to have occurred in late 1977/early 1978 – where there were a number of matters which the complainant could not recall – where the appellant gave evidence denying the offences – where much of the appellant’s evidence was not challenged in cross-examination – whether the jury’s verdict was unreasonable in light of the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to 18 months imprisonment – where the sentencing judge did not fix a parole eligibility date – where the sentencing judge took into account matters raised in mitigation by reducing the head sentence – whether the sentence was manifestly excessive

Criminal Code (Qld), s 668E
Penalties and Sentences Act 1992 (Qld), s 160D(3)

Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Goulding[1994] QCA 276, considered
R v Jones[2003] QCA 450, considered
R v PAH[2008] QCA 265, followed
R v Wruck[2014] QCA 39, considered
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, followed

COUNSEL:

P J Davis QC, with H A Walters, for the appellant/applicant
B J Merrin for the respondent

SOLICITORS:

Ruddy Tomlins & Baxter for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. GOTTERSON JA:  I agree with the orders proposed by Martin J and with his Honour’s reasons for them.

  2. PHILIPPIDES JA:  I agree with the reasons of Martin J and the orders proposed.

  3. MARTIN J:  The appellant was convicted at trial of four counts of indecent treatment of a boy under the age of 14 years.  The boy was his son.  He was sentenced to 18 months imprisonment.

  4. This is an appeal against that…

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Details
AGLC
R v WBB [2015] QCA 152
Case
[2015] QCA 152
Decision Date

CaseChat Overview and Summary

In the case of R v WBB, the appellant was convicted by a jury of four counts of indecent treatment of a boy under fourteen, the boy being the appellant's son. The alleged incidents occurred between late 1977 and early 1978. The complainant provided evidence relating to each count, though there were gaps in his memory regarding some peripheral details. The appellant denied the offences and his evidence was not extensively challenged during cross-examination. The appellant appealed against his conviction, arguing that the jury's verdict was unreasonable given the evidence, and also sought leave to appeal against his sentence.

The primary issues for the court were whether the jury's verdict was unreasonable considering the evidence and whether the sentence imposed was manifestly excessive. Regarding the appeal against conviction, the court considered the age of the complainant at the time of the incidents, his capacity to recall the events, and the absence of inconsistencies in his account. The court found that while the complainant's evidence lacked some detail about the surrounding circumstances, it was credible in describing the actual events. The court also noted that a child of ten, dealing with the stress of parental separation, might not recall peripheral details. Concerning the sentence, the court found that while the sentence was severe, it was not manifestly excessive given the nature of the offences.

The court dismissed the appeal against conviction, holding that the jury's verdict was not unreasonable. The court also refused leave to appeal against the sentence, finding that while the sentence was harsh, it was not so disproportionate as to warrant interference. Therefore, the appellant's conviction and sentence were upheld.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The ground of appeal against conviction in this case is drawn from s 668E of the Criminal Code 1899. It provides a ground which is equivalent to the former terminology of “unsafe or unsatisfactory” which was considered in M v The Queen and MFA v The Queen.The evidence The complainant is one of the appellant’s sons. He gave evidence of four separate incidents which occurred during the three month period from December 1977 to February 1978. In early December 1977 the appellant and his wife (the complainant’s mother) separated. Before the separation, the family had been living at “W”, a cattle station some 15 kilometres from Bowen. Upon the separation, the mother, the complainant and his brother and sister moved to Bowen. The complainant gave evidence that he would visit his father at “W” on weekends and would stay overnight. Three of the events took place, he said, on those visits. The fourth, he said, occurred at another station, “A”, which was a cattle station owned by the appellant’s brother and situated just north of Bowen. Each count was particularised. Those particulars, and the evidence called in support of them from the complainant, were as follows. Count 1: “The accused placed the complainant's hand on the accused's penis. This occurred at W Station.”The complainant gave the following evidence:Okay. And can you recall some things that Mr WBB did to you at W?---Yes.And what’s the first thing that you can recall?---We were in a – it was night time in the bedroom and he grabbed my hand – we were lying in bed and he grabbed my hand and put it on his – on his penis and he started rubbing his hand with my hand up and down his penis.You said the bedroom. Can you recall what bedroom it was?---The main bedroom. The main family bedroom. The main – where – where himself and my mother used to sleep when we were children.Okay. And there was a double bed in that room?---Yes.And you were both on that bed?---Yes.Can you recall what he was wearing?---I think – I think he was wearing – yeah. I can’t recall what it was, but I think he was wearing clothes.Can you recall whether his penis was exposed or otherwise?---His penis was exposed.Okay. So it was skin on skin; is that correct?---Yes.Can you recall what you were wearing?---I was wearing pyjamas, from memory.And how long did that action go for?---I’m not sure of exact timeframes as far as – a minute or two, maybe.And how did you – well, can you recall what his penis looked like?---Well, his penis was erect.Thank you?---And he was circumcised.Did it – how did that particular action come to stop?---Well, I took – once he – once I stopped rubbing his penis up and down, he masturbated and – yeah, his body was jerking on the bed and he was – he was ejaculating on the bed or – he was ejaculating and his body was jerking.Can you recall what you were doing when that was happening?---Just laying in the bed watching.All right. On that particular occasion, can you recall when it occurred?---It was at night time.Okay. Do you remember the date?---I can remember it was in the first couple of months – either late in – like, in December of ’77 or first couple of months in ’78.Okay. And is there a reason that you remember those dates in particular?---I just remember it happened not long after my mum and ourselves left the property and I went back out there to stay by myself. I just know it was in that timeframe. I remember - - -And on the night of this particular incident, can you recall whether there was anybody else in the house?---No. Not to my recollection, no.Okay. Can you recall there was no one present or can you just simply not recall whether there was anybody?---There was no one else in the house.”[5][5]T 1-7 l 9 – l-8 l 19.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It was not asserted that the complainant’s account of the offences was inconsistent with his disclosures relating to the offences at W. If it is the absence of disclosure in relation to the offence at A that is said to count against the complainant, then the comments concerning his youth and the other circumstances existing at the time account for that. It is understandable that he did not give a full and detailed account to his mother. Although the complaints concerning A were made many years later, they were made before reporting the matter to police and are not inconsistent with the complainant’s evidence. Common experience teaches that the full details of offending of this nature are often only revealed gradually.Consideration The various matters relied upon by the appellant can be reduced to two broad issues. The first is the reliability of the appellant’s evidence. This arises out of three of the areas raised by the appellant: the age of the complaint, the lack of particularity and, together with those matters, the late complaint about Count 4. The second is the absence of challenge to the appellant’s evidence. While this relates to the whole of the evidence available for consideration, it raises a different issue and therefore I will deal with it separately. In cross-examination, the complainant was challenged about his memory and his incapacity to recall the surrounding or “peripheral” events. This absence of detail, both in the particulars and in the evidence, was said to tell against acceptance of the complainant’s evidence. But against that must be weighed matters such as these:(a)the complainant’s youth at the time (he was 10);(b)his ability to recall the details of the actual offending;(c)his ability to describe his reaction to what occurred, such as: “I pulled away because I felt confused. I didn’t know what was going on.”[14](d)he could recall that, at A, only he and his father were in the bedroom on the night in question.[14]T 1-9 l 12. There was also the evidence of the complainant’s mother as to what he told her in 1978. This included his statements to her that his father had pulled the complainant’s pyjama pants down, that his father had felt the complainant’s penis and had pushed his head down onto his father’s erect penis. It is reasonable to describe both the particulars of the charges and the complainant’s evidence as lacking in some detail. But that detail is of the surrounding circumstances. The complainant was able to provide a telling account of each of the events the subject of the charges. So far as Count 4 is concerned, while he could not recall much of the party which had occurred, he did say that there were many people in the house and he was not shaken in his description of who was in the bedroom. No relevant inconsistency was revealed between what the complainant had said to others in the years following the events and in his own evidence. In that sense there were no discrepancies in his evidence. The appellant’s argument is really that the prosecution case was inadequate. But that relies to a very large extent on what the appellant says is a lack of detail. That is, for the most part, answered by the acknowledgment that a 10 year old boy, whose life had been thrown into turmoil by the separation of his parents, might not be expected to remember anything but those events which had the greatest impact on him.