R v Widdon - [1998] QCA 166

COURT OF APPEAL

[1998] QCA 166

DAVIES JA
DERRINGTON J

WHITE J

CA No 46 of 1998

THE QUEEN
v.

DAVID ROY WIDDON (Applicant)

Appellant

BRISBANE
..DATE 15/05/98
150598 T2/JB M/T COA105/98
DAVIES JA: The appellant was convicted after a trial in
the District Court at Brisbane on 28 March this year on
three counts of indecent dealing with a child under the
age of 16. He was sentenced to three years
imprisonment. He appeals against those convictions and
seeks leave to appeal against that sentence which was
imposed in respect of each of the offences.

At the time when each of the offences was alleged to have been committed, the appellant was 37 years of age and the complainant, who was the same in respect of each offence, was between 14 and 15 years of age. The first of these offences is said to have occurred some time after 8 June 1995, the second of them some time also in 1995 and the third on 20 February 1996. The complainant was a troubled young boy who had been placed in the care of the Department of Family Services and was through most of this time a resident of Boystown. He had previously been sexually corrupted by another man and, it seems, had been passed on to the appellant. He first met the appellant in 1993 and thereafter visited his residence at Sandgate from time to time.

The date of the first offence can be fixed to the extent to which I have indicated by reason of the fact that, immediately prior to its commission, the applicant and the complainant had watched a movie "Pulp Fiction" which they had hired. It was released for hire in video shops in 8 June 1995. The date was further particularised as a Saturday. The complainant said that he visited the 150598 T2/JB M/T COA105/98

applicant that day. They smoked marijuana. Later they went out, bought a pizza and hired the movie. They then returned to the applicant's residence where they ate the pizza, smoked some more marijuana and watched the movie.

They then watched a pornographic movie and went to bed in the same bed, neither wearing any clothing. They engaged in mutual masturbation.

The next offence was identified by the complainant as an occasion on which he again visited the applicant and they hired the video "True Lies." Again they engaged in mutual masturbation and the complainant thought they also engaged in oral sex on this occasion although he was not certain of this.

The last offence according to the complainant occurred
some time around his fifteenth birthday on a Tuesday
night on which they watched a television program "Blue
Heelers". The complainant thought it may have been 20
February 1996 and that was indeed a night on which "Blue
Heelers" was shown. Again they engaged in mutual

masturbation and also in oral sex.

The sole ground of the appeal against conviction is that
the verdict was unsafe and unsatisfactory. In fact…

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 Widdon

Details

AGLC: R v Widdon [1998] QCA 166
Case: [1998] QCA 166
Decision Date: 15/05/1998

CaseChat Overview and Summary

In the case of R v Widdon, the appellant, David Roy Widdon, was convicted in the District Court at Brisbane on three counts of indecent dealing with a child under the age of 16, and was sentenced to three years imprisonment. The appellant appealed against his convictions and sought leave to appeal against the sentence imposed. Widdon's appeal was based on the assertion that the verdict was unsafe and unsatisfactory, but the Court of Appeal found the inconsistencies in the complainant's evidence to be minor and the complainant's explanation for these inconsistencies credible. The Court of Appeal concluded that the jury's acceptance of the complainant's evidence was reasonable and dismissed the appeal against conviction. The Court of Appeal also granted leave to appeal against sentence and substituted the original sentence of three years imprisonment with a sentence of two years imprisonment on each count.

The legal issues that the Court of Appeal was required to decide were whether the verdict was unsafe and unsatisfactory, and whether the sentence imposed was excessive. The Court of Appeal found that the verdict was not unsafe or unsatisfactory, as the inconsistencies in the complainant's evidence were minor and the complainant's explanation for these inconsistencies was credible. The Court of Appeal also found that the sentence imposed was excessive, as it was towards the top of the range for an offence of this kind and not justified by the circumstances of the case. The Court of Appeal granted leave to appeal against sentence, allowed the appeal and substituted the original sentence with a sentence of two years imprisonment on each count.

The Court of Appeal's reasoning was that the inconsistencies in the complainant's evidence were minor and the complainant's explanation for these inconsistencies was credible. The Court of Appeal also found that the sentence imposed was excessive, as it was towards the top of the range for an offence of this kind and not justified by the circumstances of the case. The Court of Appeal found that the sentence imposed was manifestly excessive in the light of the overall trend of sentences for such offences. The Court of Appeal substituted the original sentence of three years imprisonment with a sentence of two years imprisonment on each count, which it found to be a more appropriate sentence in light of the circumstances of the case. The Court of Appeal's final orders were to dismiss the appeal against conviction, grant leave to appeal against sentence, allow the appeal and substitute the original sentence with a sentence of two years imprisonment on each count.

Orders