R v PW

Case [2005] QCA 177 30 May 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

R v PW [2005] QCA 177

PARTIES:

R
v
PW
(applicant)

FILE NO/S:

CA No 102 of 2005
DC No 133 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED EX TEMPORE ON:

30 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2005

JUDGES:

McPherson and Keane JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Application for leave to appeal against sentence       granted
2.    Appeal allowed
3.    A sentence of two and a half years imprisonment be       substituted for that imposed by the sentencing judge

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - where the applicant pleaded guilty to four counts of indecent dealing with a child under 12 years of age and one count of taking an indecent photograph of a child under 12 years - where the female child was the applicant's natural daughter and was three years of age at the time of the offences - where the indecent dealing involved the applicant performing oral sex on the child and having the child perform oral sex on him - where applicant had previously committed like offences - where sentencing judge took into account the applicant's early plea of guilty and co-operation with the authorities - where sentencing judge imposed a sentence of three and a half years imprisonment with respect to each count - whether sentencing judge had adopted an appropriate head sentence - whether sufficient weight had been accorded to the applicant's extraordinary level of co-operation with the authorities as well as his apparent prospects for rehabilitation as evidenced in a psychologist's report - whether sentence imposed was manifestly excessive

AB v The Queen [1999] HCA 46; (1999) 198 CLR 111, applied
R v M; ex parte A-G [1999] QCA 442; [2000] 2 Qd R 543, cited
R v MAI [2005] QCA 36; CA No 257 of 2004, 25 February 2005, cited
R v Schirmer [2002] QCA 221; CA No 62 of 2002, 21 June 2002, distinguished

R v Sybenga [2004] QCA 391; CA No 234 of 2004, 19 October 2004, cited

COUNSEL:

A W Moynihan for applicant
C W Heaton for respondent

SOLICITORS:

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

KEANE JA: On 15 March 2005 the applicant pleaded guilty to four counts of indecent dealing with a child under 12 years of age and one count of taking an indecent photograph of a child under 12 years. The offences occurred between
1 January and 1 April 2002. The complainant was the applicant's natural daughter who had been born on 1 October 1998. She was therefore three years…

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 PW

Details

AGLC: R v PW [2005] QCA 177
Case: [2005] QCA 177
Decision Date: 30 May 2005

CaseChat Overview and Summary

The applicant, PW, appealed against his sentence following a conviction for four counts of indecent dealing with a child under 12 years of age and one count of taking an indecent photograph of a child under 12 years. The child in question was the applicant's three-year-old daughter. The applicant had performed oral sex on the child and had the child perform oral sex on him. This was not the first time the applicant had committed such offences. The sentencing judge imposed a sentence of three and a half years imprisonment for each count, taking into account the applicant's early plea of guilty and co-operation with the authorities. The applicant sought leave to appeal against his sentence, arguing that the sentencing judge had not adopted an appropriate head sentence, had not given sufficient weight to the applicant's extraordinary level of co-operation with the authorities, and had not adequately considered the applicant's prospects for rehabilitation as evidenced in a psychologist's report. The applicant also contended that the sentence imposed was manifestly excessive.

The legal issues before the court were whether the sentencing judge had adopted an appropriate head sentence, whether sufficient weight had been accorded to the applicant's co-operation with the authorities and prospects for rehabilitation, and whether the sentence imposed was manifestly excessive. The court examined the sentencing principles and the authorities cited by the parties. The court held that the sentencing judge had adopted an appropriate head sentence, but had not given sufficient weight to the applicant's co-operation with the authorities and prospects for rehabilitation. The court also held that the sentence imposed was manifestly excessive. The appeal was allowed, and a sentence of two and a half years imprisonment was substituted for that imposed by the sentencing judge.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed

3. A sentence of two and a half years imprisonment be substituted for that imposed by the sentencing judge

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.

Citations

AGLC Citation

R v PW [2005] QCA 177

Most Recent Citation

R v Clifford; ex parte [2006] QCA 492

Cases citing this decision · 10 of 10 shown

PK v Office of the Director of Public Prosecutions (Qld)
[2023] QChC 14 Para 1

…The applicant’s representative relies on the Queen v PW [2005] QCA 177 where Keane JA, as his Honour then was, noted that an unusually high level of cooperation was indicative of real remorse and justified a view that he had shown a determination to control his behaviour. It is true that he made admissions in thi…
Russell v Commissioner of Police
[2018] QDC 183

…ce Service [2017] QCA 255 R v Dance [2009] QCA 371 R v Horne [2005] QCA 218 R v Lovi [2012] QCA 24 R v Mules [2007] QCA 47 R v PW [2005] QCA 177 Robinson Helicopter Company Inc v McDermott [2016] HCA 22 Stevenson v Yasso [2006] QCA 40 COUNSEL: M F Bonasia for the appellant M Evans (sol) for the respondent SOLICIT…
R v McDonald
[2016] QCA 200 Para 12

…take on less importance than the offender’s rehabilitation.[38] [34](1999) 198 CLR 111. [35]Ibid at 155 [113]. [36]Ibid. [37] R v PW [2005] QCA 177 at 8 per Keane J. [38]Ibid 7-8.…
R v Baradel
[2016] QCA 114 Para 1

…this weight in determining the appropriate sentence, thereby erring in principle. [11] R v Wallace [2008] QCA 135 at [5] (MacKenzie J). [12] R v PW [2005] QCA 177 at [7] (Keane JA, as his Honour then was).…
Kim v Commissioner of Police
[2016] QDC 44 Para 1

…has also submitted that the magistrate failed to give due recognition to her cooperation with the authorities and has relied on the matters of R v PW [2005] QCA 177 and R v Holmes [2008] QCA 259 in support of that submission.…
R v Auer; ex parte
[2011] QCA 222

…Levack; ex parte A-G [1999] QCA 448, considered R v McDougall and Collas ; [2007] 2 Qd R 87; [2006] QCA 365, applied R v PW [2005] QCA 177, considered COUNSEL: A W Moynihan SC, with R M Britnell, for the appellant F Richards for the respondent SOLICITORS: Director of Public Prosecutions (Queensland) for the appel…
R v Schmidt
[2011] QCA 133

…4] VSCA 37; (2004) 8 VR 9, cited R v Franklin [2009] HCATrans 221, cited R v Glenister [1980] 2 NSWLR 597, cited R v PW [2005] QCA 177, cited R v Smith ex parte Attorney-General [1998] QCA 220, cited Roffey v Western Australia [2007] WASCA 246, cited Seroka v Western Australia [2006] WASCA 284, cited Vlek v the Q…
R v Holmes
[2008] QCA 259 Para 1

…In R v PW [2005] QCA 177, an offender similarly volunteered that he had engaged in other offences not known to police. The sentencing judge there also expressly took into account the applicant’s cooperation with the administration of justice. Although the facts of that case otherwise bear no resemblance to the fa…
R v. Richardson ; ex parte A-G (Qld)
[2007] QCA 294 Para 1

…the respondent had voluntarily thrown away the computer disc which was the subject of count 1. [12] AB v The Queen (1999) 198 CLR 111 at 155; R v PW [2005] QCA 177 at 7 – 8.…
R v Clifford; ex parte
[2006] QCA 492 Para 1

…to his plea of guilty.[2] [2] AB v R (1999) 198 CLR 111 at 131 – 132 [52] – [55], 147 – 148 [97] – [99], 155 – 156 [113] – [114]; R v PW [2005] QCA 177 at 7 – 8.…

View all 10 citing cases →

Cases cited in this decision · 5 of 5 shown

R v MAI
[2005] QCA 36

…s manifestly excessive AB v The Queen [1999] HCA 46; (1999) 198 CLR 111, applied R v M; ex parte A-G [1999] QCA 442; [2000] 2 Qd R 543, cited R v MAI [2005] QCA 36; CA No 257 of 2004, 25 February 2005, cited R v Schirmer [2002] QCA 221; CA No 62 of 2002, 21 June 2002, distinguished R v Sybenga [2004] QCA 391; CA…
R v Sybenga
[2004] QCA 391

…MAI [2005] QCA 36; CA No 257 of 2004, 25 February 2005, cited R v Schirmer [2002] QCA 221; CA No 62 of 2002, 21 June 2002, distinguished R v Sybenga [2004] QCA 391; CA No 234 of 2004, 19 October 2004, cited COUNSEL: A W Moynihan for applicant C W Heaton for respondent SOLICITORS: Legal Aid Queensland for applica…
R v SAQ
[2002] QCA 221

…, applied R v M; ex parte A-G [1999] QCA 442; [2000] 2 Qd R 543, cited R v MAI [2005] QCA 36; CA No 257 of 2004, 25 February 2005, cited R v Schirmer [2002] QCA 221; CA No 62 of 2002, 21 June 2002, distinguished R v Sybenga [2004] QCA 391; CA No 234 of 2004, 19 October 2004, cited COUNSEL: A W Moynihan for applic…
R v M; ex parte Attorney-General
[1999] QCA 442

…ychologist's report - whether sentence imposed was manifestly excessive AB v The Queen [1999] HCA 46; (1999) 198 CLR 111, applied R v M; ex parte A-G [1999] QCA 442; [2000] 2 Qd R 543, cited R v MAI [2005] QCA 36; CA No 257 of 2004, 25 February 2005, cited R v Schirmer [2002] QCA 221; CA No 62 of 2002, 21 June 20…
AB v The Queen
[1999] HCA 46

…his apparent prospects for rehabilitation as evidenced in a psychologist's report - whether sentence imposed was manifestly excessive AB v The Queen [1999] HCA 46; (1999) 198 CLR 111, applied R v M; ex parte A-G [1999] QCA 442; [2000] 2 Qd R 543, cited R v MAI [2005] QCA 36; CA No 257 of 2004, 25 February 2005,…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v PW [2005] QCA 177
PARTIES:	R v PW (applicant)
FILE NO/S:	CA No 102 of 2005 DC No 133 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED EX TEMPORE ON:	30 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	30 May 2005
JUDGES:	McPherson and Keane JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal allowed 3. A sentence of two and a half years imprisonment be substituted for that imposed by the sentencing judge
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - where the applicant pleaded guilty to four counts of indecent dealing with a child under 12 years of age and one count of taking an indecent photograph of a child under 12 years - where the female child was the applicant's natural daughter and was three years of age at the time of the offences - where the indecent dealing involved the applicant performing oral sex on the child and having the child perform oral sex on him - where applicant had previously committed like offences - where sentencing judge took into account the applicant's early plea of guilty and co-operation with the authorities - where sentencing judge imposed a sentence of three and a half years imprisonment with respect to each count - whether sentencing judge had adopted an appropriate head sentence - whether sufficient weight had been accorded to the applicant's extraordinary level of co-operation with the authorities as well as his apparent prospects for rehabilitation as evidenced in a psychologist's report - whether sentence imposed was manifestly excessive AB v The Queen [1999] HCA 46; (1999) 198 CLR 111, applied R v M; ex parte A-G [1999] QCA 442; [2000] 2 Qd R 543, cited R v MAI [2005] QCA 36; CA No 257 of 2004, 25 February 2005, cited R v Schirmer [2002] QCA 221; CA No 62 of 2002, 21 June 2002, distinguished R v Sybenga [2004] QCA 391; CA No 234 of 2004, 19 October 2004, cited
COUNSEL:	A W Moynihan for applicant C W Heaton for respondent
SOLICITORS:	Legal Aid Queensland for applicant Director of Public Prosecutions (Queensland) for respondent