R v Atwell - [2000] QCA 266

[2000] QCA 266
COURT OF APPEAL

DAVIES JA
McPHERSON JA
THOMAS JA

[R v Atwell]

CA No 88 of 2000

THE QUEEN

GILBERT GLEN ATWELL Applicant

BRISBANE

..DATE 05/07/2000

JUDGMENT

McPHERSON JA: The applicant for leave to appeal against sentence in this case was convicted on pleas of guilty in the District Court at Brisbane of two counts of rape and three of attempted rape, 10 of burglary, and one of burglary with violence, three of assault, one with circumstances of aggravation, and one of disabling in order to commit an indictable offence.

Both rape and burglary are offences that carry a maximum penalty of life imprisonment, and the learned sentencing Judge in this instance imposed sentences of life imprisonment in respect of the two counts of rape and the disabling offence.

He also imposed sentences of imprisonment for seven, or seven and a half years, in respect of the burglary offences, six or seven years for the attempted rapes and various other terms of imprisonment, some of them cumulative, for the other somewhat lesser offences to which the applicant also pleaded guilty.

The effective overall penalty was therefore life imprisonment. Since the offences are serious violent offences, the applicant would, even if he received a fixed penalty of 20 years (as is suggested by his counsel on this appeal) nevertheless be imprisoned for a period of not less than 15 years, as he also will be in respect of the life sentences that have been imposed.

The only difference is that which was pointed out by
Mr Justice Thomas in the course of submissions, namely that, with respect to the fixed sentence, the applicant could hope for parole at a certain point, which he might not be entitled to expect if the life sentences remained.

The offences were all committed during a comparatively short period of the year, or slightly more, between 14 December 1997 and 16 January 1998. The victims were all older or elderly women, ranging in age from 59 to 86 years, living alone in home units or flats in one of the southside suburbs. The offences took place at night, or in the early hours of the morning. From these and other facts in the record, it is evident that a degree of planning and preparation went into the commission of the offences. The applicant must have selected his victims in advance. He gained entry to their homes in various ways, in one or more instances by cutting through screen doors, and so on. In most, if not all of the cases, the victims were asleep and woke to find the applicant already in their bedrooms, or in some cases, already upon them.

Counts 1 & 2 - WM (aged 77)
Counts 1 and 2 in the indictment refer to the first in this series of offences, and in order to impart an impression of the kind of thing that happened, I will read from the applicant's outline summarising the circumstances of that particular…

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 Atwell

Details

AGLC: R v Atwell [2000] QCA 266
Case: [2000] QCA 266
Decision Date: 05/07/2000

CaseChat Overview and Summary

The case of R v Atwell was heard by the Court of Appeal in Brisbane, where the applicant, Gilbert Glen Atwell, sought leave to appeal against the sentence imposed by the District Court. Atwell was convicted of multiple counts of rape, attempted rape, burglary, assault, and disabling in order to commit an indictable offence. The offences were committed over a short period between December 1997 and January 1998, against elderly women living alone in suburban home units. The court needed to determine whether the sentences imposed, which included life imprisonment for the rape and disabling offences, were appropriate in the circumstances.

The court considered the severity of the offences, the number of victims, and the vulnerability of the victims, who were elderly women attacked in the privacy of their homes. The court also examined Atwell's background, which included a history of similar offences and a lack of insight into his behavioural problems, as well as a diagnosis of depressive disorder that did not amount to a mental illness. The court noted that Atwell had pleaded guilty, which, while it spared the victims from testifying, also meant he avoided extensive public scrutiny during a trial.

The Court of Appeal found that the sentences imposed were appropriate and dismissed the application for leave to appeal. The judges agreed that the severity of the offences, the planning involved, and the vulnerability of the victims warranted the sentences of life imprisonment and other terms of imprisonment. The court concluded that there was no basis to interfere with the sentences imposed by the District Court.

Orders