R v BCW - [2014] QCA 340

SUPREME COURT OF QUEENSLAND

CITATION:

R v BCW [2014] QCA 340

PARTIES:

R
v
BCW
(applicant)

FILE NOS:

CA No 164 of 2014
DC No 509 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

5 December 2014

JUDGES:

Margaret McMurdo P and Holmes JA and Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Refuse the application for leave to appeal against sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 14 counts of sexual offences against three different children, two of whom were his step-sons and one of whom was his biological son – where the applicant was sentenced to nine years imprisonment for the most serious count of maintaining a sexual relationship with one of his step-sons while the child was between the ages of ten and 14 – where on two counts of permitting the step-son to sodomise him, as a child under his care, the applicant was sentenced to seven years imprisonment – where the applicant was also sentenced for 11 counts of indecent dealing – where parole eligibility was set after three years imprisonment – where the applicant contends the sentences imposed on the maintaining and permitting sodomy counts were manifestly excessive – whether the sentences were manifestly excessive

House v The King (1936) 55 CLR 499; [1936] HCA 40, applied
R v BAO[2004] QCA 445, distinguished
R v BBP[2009] QCA 114, distinguished
R v EH[2008] QCA 67, distinguished
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited

COUNSEL:

M Johnson for the applicant
B J Power for the respondent

SOLICITORS:

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

MARGARET McMURDO P: I agree with Holmes JA's reasons for refusing this application for leave to appeal against sentence.

HOLMES JA: The applicant pleaded guilty to 14 counts of sexual offences against three different children, two of them the sons of his de facto wife and another biological father, and the third his own son with his de facto wife. The most serious count was of maintaining a sexual relationship with one of his step-sons, H, when the boy was between the ages of ten and 14 years. On that count he was sentenced to nine years imprisonment. On two counts of permitting H to sodomise him, as a child under his care, the applicant was sentenced to seven years imprisonment. A parole eligibility date was set after three years imprisonment. He seeks leave to appeal against the sentences on those three counts as manifestly excessive.

The offending and its consequences

The applicant commenced living with H’s mother and her children in early 2004. His sexual relationship with H…

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 BCW

Details

AGLC: R v BCW [2014] QCA 340
Case: [2014] QCA 340
Decision Date: 19 December 2014

CaseChat Overview and Summary

The case of R v BCW involved an applicant who had pleaded guilty to a total of 14 counts of sexual offences against three children. Two of the victims were his step-sons, and one was his biological son. The most severe count pertained to the applicant maintaining a sexual relationship with one of his step-sons over a period when the child was between the ages of ten and fourteen. For this offence, the applicant was sentenced to nine years in prison. On two counts related to permitting his step-son to sodomise him, as a child under his care, the applicant received a seven-year sentence for each count. Additionally, he was sentenced for 11 counts of indecent dealing. The court set parole eligibility after three years of imprisonment. The applicant contested the severity of the sentences imposed for maintaining and permitting sodomy, arguing that they were manifestly excessive.

The primary legal issue before the court was whether the sentences imposed on the applicant for the maintaining and permitting sodomy counts were manifestly excessive. The court had to consider whether the sentences imposed were so disproportionate that they warranted interference. The applicant argued that the sentences were excessively harsh, considering the nature of the offences and the circumstances surrounding them. The court's task was to evaluate the sentences in light of the principles of sentencing and proportionality, as well as the need to ensure that the punishment fits the crime and serves the purposes of deterrence, rehabilitation, and public protection.

In determining the appropriate course of action, the court examined the severity and nature of the offences, the culpability of the applicant, and the need for appropriate punishment. The court considered the gravity of the crimes, which involved the abuse of a child under the applicant's care and the long-term impact on the victims. The court also weighed the need to protect the community and to provide deterrence against similar offences. After thorough consideration, the court concluded that the sentences imposed were not manifestly excessive. The court found that the sentences appropriately reflected the severity of the crimes and were proportionate to the harm caused, as well as serving the broader objectives of the criminal justice system.

The court ultimately refused the application for leave to appeal against the sentence, affirming that the sentences were just and appropriate given the circumstances of the case. The court's decision underscored the importance of maintaining a balance between the need for punishment and the principles of fairness and proportionality in sentencing.

Orders

Orders of the court

Refuse the application for leave to appeal against sentence.

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 BCW [2014] QCA 340
PARTIES:	R v BCW (applicant)
FILE NOS:	CA No 164 of 2014 DC No 509 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	19 December 2014
DELIVERED AT:	Brisbane
HEARING DATE:	5 December 2014
JUDGES:	Margaret McMurdo P and Holmes JA and Dalton J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Refuse the application for leave to appeal against sentence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 14 counts of sexual offences against three different children, two of whom were his step-sons and one of whom was his biological son – where the applicant was sentenced to nine years imprisonment for the most serious count of maintaining a sexual relationship with one of his step-sons while the child was between the ages of ten and 14 – where on two counts of permitting the step-son to sodomise him, as a child under his care, the applicant was sentenced to seven years imprisonment – where the applicant was also sentenced for 11 counts of indecent dealing – where parole eligibility was set after three years imprisonment – where the applicant contends the sentences imposed on the maintaining and permitting sodomy counts were manifestly excessive – whether the sentences were manifestly excessive House v The King (1936) 55 CLR 499; [1936] HCA 40, applied R v BAO[2004] QCA 445, distinguished R v BBP[2009] QCA 114, distinguished R v EH[2008] QCA 67, distinguished R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited
COUNSEL:	M Johnson for the applicant B J Power for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent