R v PW

Case [2005] QCA 177


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…

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Details
AGLC
R v PW [2005] QCA 177
Case
[2005] QCA 177
Decision Date

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

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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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