R v Waerea; ex parte - [2003] QCA 20

SUPREME COURT OF QUEENSLAND

CITATION:

R v Waerea; ex parte A-G (Qld) [2003] QCA 20

PARTIES:

R
v
WAEREA, Nathan William White
(appellant/respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

(respondent/appellant)

FILE NO/S:

CA No 287 of 2002
CA No 307 of 2002

SC No 156 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

Sentence appeal by A-G (Qld)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

30 January 2003

JUDGES:

de Jersey CJ, Williams JA and Cullinane J

Separate reasons for judgment of each member of the Court; each concurring as to the orders made

ORDERS:

1. In Appeal No 287 of 2002: Dismiss the appeal against conviction

2. In Appeal No 307 of 2002: Allow the appeal of the Honourable the Attorney-General, set aside the penalty of imprisonment of three years, and in lieu order that the respondent be imprisoned for five years

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where acquittal on other count – where inconsistencies in complainant’s evidence – where complainant’s account corroborated

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where disparity in age between respondent and complainant – where complainant intellectually impaired and vulnerable through consumption of alcohol – where respondent knew of complainant’s vulnerability

Criminal Code (Qld), s 215(4)

MFA v R [2002] HCA 53, applied
R v Percival [1998] 2 Qd R 191, distinguished
R v S [2002] QCA 141; CA No 352 of 2001, considered

R v T; ex parte A-G [2002] QCA 132; CA No 30 of 2002, considered

COUNSEL:

K M McGinness for the appellant in CA No 287 of 2002 and for the respondent in CA No 307 of 2002

R G Martin for the respondent in CA No 287 of 2002 and for the appellant in Appeal No 307 of 2002

SOLICITORS:

Legal Aid Queensland for the appellant in CA No 287 of 2002 and for the respondent in CA No 307 of 2002

Director of Public Prosecutions (Queensland) for the respondent in CA No 287 of 2002 and for the appellant in CA No 307 of 2002

de JERSEY CJ: The appellant was convicted by a jury of unlawful carnal knowledge with a circumstance of aggravation in that the complainant was under his care, and sentenced to three years imprisonment. He was acquitted on a related charge of supplying cannabis to a minor.

The relevant events occurred between October and November 1999. The complainant was then 13 years of age, and the appellant 51. As the appellant appreciated, the complainant was intellectually impaired consequent upon a car accident which had occurred when she was an infant. Her mother was killed in that accident. Her father was a taxi driver.…

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 Waerea; ex parte

Details

AGLC: R v Waerea; ex parte [2003] QCA 20
Case: [2003] QCA 20
Decision Date: 7 February 2003

CaseChat Overview and Summary

In the case of R v Waerea, the appellant was convicted of sexual offences involving a complainant who was intellectually impaired and under the influence of alcohol. The appellant appealed against both the conviction and the sentence imposed. The appeal against conviction was dismissed, while the appeal against sentence was successful, resulting in an increased sentence from three to five years of imprisonment.

The primary legal issues that the court had to address were whether the verdict was unreasonable or insupportable given the evidence and whether the sentence imposed was appropriate in light of the circumstances. The court examined inconsistencies in the complainant’s evidence and whether these were sufficiently corroborated to uphold the conviction. Additionally, the court considered the nature of the offence, the disparity in age between the appellant and the complainant, and the appellant's awareness of the complainant's vulnerability due to her intellectual impairment and alcohol consumption.

The court found that, despite some inconsistencies in the complainant’s evidence, the overall account was corroborated and supported by other evidence. Consequently, the appeal against conviction was dismissed. However, regarding the appeal against sentence, the court concluded that the original sentence was inadequate. The court considered the significant age difference, the complainant's intellectual impairment, and her vulnerability due to alcohol consumption as aggravating factors warranting a harsher penalty. As a result, the appeal against sentence was allowed, and the original three-year imprisonment term was set aside in favour of a five-year imprisonment term.

The final orders were to dismiss the appeal against conviction and allow the appeal of the Honourable the Attorney-General. The penalty of imprisonment of three years was set aside, and in its place, the court ordered that the respondent be imprisoned for five years.

Orders

Orders of the court

1. In Appeal No 287 of 2002: Dismiss the appeal against conviction

2. In Appeal No 307 of 2002: Allow the appeal of the Honourable the Attorney-General, set aside the penalty of imprisonment of three years, and in lieu order that the respondent be imprisoned for five 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 Waerea; ex parte A-G (Qld) [2003] QCA 20
PARTIES:	R v WAEREA, Nathan William White (appellant/respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (respondent/appellant)
FILE NO/S:	CA No 287 of 2002 CA No 307 of 2002 SC No 156 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Sentence appeal by A-G (Qld)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	7 February 2003
DELIVERED AT:	Brisbane
HEARING DATE:	30 January 2003
JUDGES:	de Jersey CJ, Williams JA and Cullinane J Separate reasons for judgment of each member of the Court; each concurring as to the orders made
ORDERS:	1. In Appeal No 287 of 2002: Dismiss the appeal against conviction 2. In Appeal No 307 of 2002: Allow the appeal of the Honourable the Attorney-General, set aside the penalty of imprisonment of three years, and in lieu order that the respondent be imprisoned for five years
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where acquittal on other count – where inconsistencies in complainant’s evidence – where complainant’s account corroborated CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where disparity in age between respondent and complainant – where complainant intellectually impaired and vulnerable through consumption of alcohol – where respondent knew of complainant’s vulnerability Criminal Code (Qld), s 215(4) MFA v R [2002] HCA 53, applied R v Percival [1998] 2 Qd R 191, distinguished R v S [2002] QCA 141; CA No 352 of 2001, considered R v T; ex parte A-G [2002] QCA 132; CA No 30 of 2002, considered
COUNSEL:	K M McGinness for the appellant in CA No 287 of 2002 and for the respondent in CA No 307 of 2002 R G Martin for the respondent in CA No 287 of 2002 and for the appellant in Appeal No 307 of 2002
SOLICITORS:	Legal Aid Queensland for the appellant in CA No 287 of 2002 and for the respondent in CA No 307 of 2002 Director of Public Prosecutions (Queensland) for the respondent in CA No 287 of 2002 and for the appellant in CA No 307 of 2002