R v PGW - [2002] QCA 462

SUPREME COURT OF QUEENSLAND

CITATION:

R v PGW [2002] QCA 462

PARTIES:

R
v
PGW
(applicant)

FILE NO/S:

CA No 184 of 2002
DC No 1136 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EXTEMPORE ON:

31 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

31 October 2002

JUDGES:

de Jersey CJ, McPherson JA, Mullins J
Separate reasons for judgment for each member of the Court, each concurring as to the orders made

ORDERS:

1. Allow the application and appeal
2. Pursuant to s 19(1)(b) of the Penalties and Sentences Act 1992 (Qld), set aside the orders made in the District Court and order in lieu that the applicant be released upon entering into a recognisance, without surety, in the amount of $1,000 on conditions that he be of good behaviour and appear for conviction and sentence if called on at any time during the period of three years

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where applicant pleaded guilty to five counts of aggravated dealing with a child under 16 years of age – where applicant 15 years old at the time of the offence and complainant step-brother 7 to 8 years old – where complainant had suffered considerable emotional distress because of applicant's conduct

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – RELEVANT PRINCIPLES – where s 107B(2)(b) of the Juvenile Justice Act requires sentencing Judge to have regard to the sentence which could have been imposed had the applicant been sentenced as a child – where applicant if sentenced as a child the emphasis would have been on rehabilitation not custody but could have been detained for up to 2 years – where case factually similar to R v CCC [2001] QCA 39 but distinguished because CCC was not completely rehabilitated in that he had substantially re-offended – where applicant had not subsequently re-offended and may be regarded as fully rehabilitated – where applicant at that time would have been unlikely to have seen effect on victim – where case unique because both the victim and offender were at the time of the offences, in law, children – where case not to be regarded as relevant to the sentencing after years of delay of adults who, as adults have preyed sexually on children

Juvenile Justice Act 1992 (Qld), s 107B, s 107B(2)(b)
Penalties and Sentences Act 1992 (Qld), s 19(1)

R v CCC [2001] QCA 39; CA No 264 of 2000, 15 February 2001

COUNSEL:

P J Davis for the applicant
P D Kelly for the respondent

SOLICITORS:

Russo Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE: When aged 36 the applicant pleaded guilty to five…

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 PGW

Details

AGLC: R v PGW [2002] QCA 462
Case: [2002] QCA 462
Decision Date: 31 October 2002

CaseChat Overview and Summary

The case of R v PGW involved an appeal against sentence by a person who had pleaded guilty to five counts of aggravated dealing with a child under 16 years of age. The applicant was 15 years old at the time of the offence, and the complainant, his step-brother, was between 7 and 8 years old. The complainant had suffered considerable emotional distress due to the applicant's conduct. The case was heard in the Queensland Court of Appeal. The central legal issue was whether the original sentence imposed by the District Court was appropriate, considering the unique circumstances of the case and the principles of sentencing outlined in the Juvenile Justice Act.

The Court of Appeal considered whether the original sentencing judge had appropriately taken into account the principles of sentencing for a juvenile offender, particularly under section 107B(2)(b) of the Juvenile Justice Act. This section required the sentencing judge to consider the sentence that could have been imposed had the applicant been sentenced as a child, with an emphasis on rehabilitation rather than custody, and the potential detention period of up to 2 years. The Court also noted that while the case was factually similar to R v CCC, it distinguished it because CCC had not been fully rehabilitated, having re-offended substantially. In contrast, the applicant in this case had not re-offended and could be regarded as fully rehabilitated. The unique aspect of this case was that both the victim and the offender were, at the time of the offences, children in the eyes of the law.

The Court concluded that the original sentence was inappropriate given the circumstances and decided to allow the appeal. It set aside the orders made in the District Court and ordered that the applicant be released upon entering into a recognisance, without surety, in the amount of $1,000, on conditions that he be of good behaviour and appear for conviction and sentence if called on at any time during the period of three years.

Orders

Orders of the court

1. Allow the application and appeal

2. Pursuant to s 19(1)(b) of the Penalties and Sentences Act 1992 (Qld), set aside the orders made in the District Court and order in lieu that the applicant be released upon entering into a recognisance, without surety, in the amount of $1,000 on conditions that he be of good behaviour and appear for conviction and sentence if called on at any time during the period of three years

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 PGW [2002] QCA 462
PARTIES:	R v PGW (applicant)
FILE NO/S:	CA No 184 of 2002 DC No 1136 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EXTEMPORE ON:	31 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	31 October 2002
JUDGES:	de Jersey CJ, McPherson JA, Mullins J Separate reasons for judgment for each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the application and appeal 2. Pursuant to s 19(1)(b) of the Penalties and Sentences Act 1992 (Qld), set aside the orders made in the District Court and order in lieu that the applicant be released upon entering into a recognisance, without surety, in the amount of $1,000 on conditions that he be of good behaviour and appear for conviction and sentence if called on at any time during the period of three years
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where applicant pleaded guilty to five counts of aggravated dealing with a child under 16 years of age – where applicant 15 years old at the time of the offence and complainant step-brother 7 to 8 years old – where complainant had suffered considerable emotional distress because of applicant's conduct CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – RELEVANT PRINCIPLES – where s 107B(2)(b) of the Juvenile Justice Act requires sentencing Judge to have regard to the sentence which could have been imposed had the applicant been sentenced as a child – where applicant if sentenced as a child the emphasis would have been on rehabilitation not custody but could have been detained for up to 2 years – where case factually similar to R v CCC [2001] QCA 39 but distinguished because CCC was not completely rehabilitated in that he had substantially re-offended – where applicant had not subsequently re-offended and may be regarded as fully rehabilitated – where applicant at that time would have been unlikely to have seen effect on victim – where case unique because both the victim and offender were at the time of the offences, in law, children – where case not to be regarded as relevant to the sentencing after years of delay of adults who, as adults have preyed sexually on children Juvenile Justice Act 1992 (Qld), s 107B, s 107B(2)(b) Penalties and Sentences Act 1992 (Qld), s 19(1) R v CCC [2001] QCA 39; CA No 264 of 2000, 15 February 2001
COUNSEL:	P J Davis for the applicant P D Kelly for the respondent
SOLICITORS:	Russo Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent