R v W - [1998] QCA 68

IN THE COURT OF APPEAL	[1998] QCA 068
SUPREME COURT OF QUEENSLAND

C.A. No. 473 of 1997.

Brisbane

[R v. W]

T H E Q U E E N

v.
W

(Applicant) Appellant

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Pincus J.A.
Thomas J.
Dowsett J.

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Judgment delivered 24 April 1998

Joint reasons for judgment of Pincus J.A. and Dowsett J.; separate reasons of Thomas J.
concurring as to the orders made.
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APPEAL AGAINST CONVICTION DISMISSED.

2.          APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED AND APPEAL ALLOWED.
3.          SENTENCES IMPOSED BELOW REDUCED FROM 6 YEARS TO 3 YEARS 6 MONTHS.
4.          DECLARE THE PERIOD OF 91 DAYS DURING WHICH THE APPELLANT WAS HELD IN PRE-SENTENCE CUSTODY TO BE IMPRISONMENT ALREADY SERVED UNDER THE SENTENCES.
5.          DIRECT THAT THE QUEENSLAND CORRECTIVE SERVICES COMMISSION BE ADVISED OF THESE ORDERS AND DECLARATION.

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CATCHWORDS: CRIMINAL LAW - appeal against conviction - indecent dealing and

administering stupefying drugs - whether verdicts unsafe and unsatisfactory - whether evidence of uncharged sexual contact between appellant and complainant should not have been admitted - whether a direction as to corroboration should have been given.
CRIMINAL LAW - appeal against sentence - whether sentence of
6 years imprisonment manifestly excessive - whether sentencing
judge made an order under s. 161(1) Penalties and Sentences Act.
Criminal Code s. 632
Penalties and Sentences Act 1992 s. 161(1)

Counsel:	Mr S Hamlyn-Harris for the applicant/appellant. Mrs L Clare for the respondent.
Solicitors:	Legal Aid Queensland for the applicant/appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing date:	24 March 1998.

JOINT REASONS FOR JUDGMENT OF PINCUS J.A. AND DOWSETT J.

Judgment delivered 24 April 1998

The appellant was convicted in the District Court on charges of having committed sexual offences against his step-daughter. There was a previous trial the subject of an appeal to this Court, in which judgment was delivered on 21 November 1997, (C.A. No. 349 of 1997). On that occasion the four convictions which had been entered were quashed and a new trial ordered, the ground of success on appeal relating to the directions given by the learned trial judge. After this second trial, which concluded on 9 December 1997, the appellant was convicted on one count of having, with intent to commit an indictable offence, namely indecent dealing with a child under the age of 12 years, administered to the complainant stupefying drugs, and on two counts of indecent dealing. The notice of appeal asserts that the verdict of the jury "is unsafe and unsatisfactory", but the outline of argument includes contentions to the effect that evidence of uncharged sexual contacts between the complainant and the appellant should not have been admitted, that the directions relating to that evidence were inadequate and that a direction as to corroboration should have been given. These points were elaborated by Mr Hamlyn-Harris in oral argument

It is unnecessary to explain at this point the nature of the alleged offences of indecent dealing or that of administering stupefying drugs; further reference…

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 W

Details

AGLC: R v W [1998] QCA 68
Case: [1998] QCA 68
Decision Date: 24/04/1998

CaseChat Overview and Summary

The case of R v W involved an appeal against the conviction and sentence imposed on the appellant for multiple charges of indecent dealing with a child and administering stupefying drugs to his step-daughter. The appellant challenged both the conviction and the sentence. The appeal against conviction argued that the verdicts were unsafe and unsatisfactory, that evidence of uncharged sexual contact should not have been admitted, and that a direction regarding corroboration should have been given. The appeal against sentence contended that the six-year imprisonment term was manifestly excessive.

The court dismissed the appeal against conviction, finding that the evidence was sufficient to support the jury's verdicts, despite discrepancies in the complainant's testimony. The court also found that the trial judge did not err in admitting evidence of uncharged sexual offences or in his directions to the jury. Regarding the sentencing appeal, the court concluded that the six-year sentence was excessive, considering the circumstances and previous sentencing practices. The court reduced the sentence to three years and six months and declared the 91 days of pre-sentence custody as time already served under the new sentence.

The final orders of the court were to dismiss the appeal against conviction, grant leave to appeal against the sentence and allow the appeal, reduce the sentence from six years to three years and six months, declare the 91 days of pre-sentence custody as time already served, and direct the Queensland Corrective Services Commission to be informed of these orders and declaration.

Orders