R v Walden - [2010] QCA 13

SUPREME COURT OF QUEENSLAND

CITATION:

R v Walden [2010] QCA 13

PARTIES:

R
v
WALDEN, Dennis Gary
(applicant)

FILE NO/S:

CA No 212 of 2009
DC No 3103 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

12 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2010

JUDGES:

Chief Justice, Keane and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where complainant’s parents pleaded guilty to a variety of sexual offences including maintaining an unlawful sexual relationship with a child under 16 years – where the primary judge compared the applicant’s criminal conduct with that of the complainant’s parents and considered the sentences imposed on the parents in relation to maintaining when sentencing the applicant – whether there was an error in principle in the manner in which the primary judge approached the sentencing process

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted by jury on a charge of maintaining an unlawful sexual relationship with a child under 16 years and sentenced to six years imprisonment - where the applicant was 50 years of age and the complainant was 13 years of age at the time of the offence – where the sexual relationship took place over a two month period involving sexual intercourse three to four times per week – where the applicant had a good work history and no relevant prior criminal history – where the applicant had not been violent or made threats and did not occupy a position of trust – whether the sentence was manifestly excessive

R v Beesley [2008] QCA 240, distinguished
R v CAQ[1999] QCA 197, distinguished
R v Cunningham[2008] QCA 289, distinguished
R v MAG[2004] QCA 397, considered
R v WAA[2008] QCA 87, distinguished
R v WAB[2008] QCA 107, distinguished
R v W [1998] QCA 343 followed
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited

COUNSEL:

A Vasta QC for the applicant (pro bono)
M J Copley SC for the respondent

SOLICITORS:

No appearance for the applicant
Director of Public Prosecutions (Queensland) for the respondent

:CHIEF JUSTICE The applicant seeks leave to appeal against a sentence of six years imprisonment imposed following his conviction by a jury on a charge of maintaining an unlawful sexual relationship with a child aged under 16 years. At the time of the offending, the applicant was aged approximately 50 years, and the complainant 13 years. The maintaining took place over at least two months, and involved his having sexual intercourse with the complainant three or four times per week.

The applicant was also…

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 Walden

Details

AGLC: R v Walden [2010] QCA 13
Case: [2010] QCA 13
Decision Date: 12 February 2010

CaseChat Overview and Summary

The appeal before the court was brought by Walden against the sentence imposed by the primary judge. Walden was convicted by a jury of maintaining an unlawful sexual relationship with a child under 16 years of age, with the complainant being 13 years of age at the time of the offence. The relationship occurred over a period of two months and involved sexual intercourse three to four times per week. Walden, who was 50 years of age at the time, had a good work history and no relevant prior criminal history. Walden's appeal was grounded on the basis that the primary judge erred in principle by comparing Walden's conduct with that of the complainant's parents, who had pleaded guilty to a variety of sexual offences, and by considering the sentences imposed on the parents in relation to maintaining when sentencing Walden.

The court considered whether there was an error in principle in the manner in which the primary judge approached the sentencing process, as well as whether the sentence was manifestly excessive or inadequate. The court noted that while the primary judge did compare Walden's conduct with that of the complainant's parents, this did not constitute an error in principle. The court found that the primary judge's approach to sentencing was appropriate, as the comparison was made to ensure that the sentences were proportionate and reflected the gravity of the offences committed. Additionally, the court held that the sentence of six years imprisonment was not manifestly excessive, taking into account the nature and duration of the sexual relationship, the age difference between Walden and the complainant, and the fact that Walden did not occupy a position of trust or use violence or threats.

The court ultimately refused Walden's application for leave to appeal against sentence, affirming the original sentence imposed by the primary judge. The court concluded that the primary judge had appropriately exercised their discretion in sentencing Walden, and that the sentence imposed was proportionate to the offence committed.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 Walden [2010] QCA 13
PARTIES:	R v WALDEN, Dennis Gary (applicant)
FILE NO/S:	CA No 212 of 2009 DC No 3103 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	12 February 2010
DELIVERED AT:	Brisbane
HEARING DATE:	4 February 2010
JUDGES:	Chief Justice, Keane and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where complainant’s parents pleaded guilty to a variety of sexual offences including maintaining an unlawful sexual relationship with a child under 16 years – where the primary judge compared the applicant’s criminal conduct with that of the complainant’s parents and considered the sentences imposed on the parents in relation to maintaining when sentencing the applicant – whether there was an error in principle in the manner in which the primary judge approached the sentencing process CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted by jury on a charge of maintaining an unlawful sexual relationship with a child under 16 years and sentenced to six years imprisonment - where the applicant was 50 years of age and the complainant was 13 years of age at the time of the offence – where the sexual relationship took place over a two month period involving sexual intercourse three to four times per week – where the applicant had a good work history and no relevant prior criminal history – where the applicant had not been violent or made threats and did not occupy a position of trust – whether the sentence was manifestly excessive R v Beesley [2008] QCA 240, distinguished R v CAQ[1999] QCA 197, distinguished R v Cunningham[2008] QCA 289, distinguished R v MAG[2004] QCA 397, considered R v WAA[2008] QCA 87, distinguished R v WAB[2008] QCA 107, distinguished R v W [1998] QCA 343 followed Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited
COUNSEL:	A Vasta QC for the applicant (pro bono) M J Copley SC for the respondent
SOLICITORS:	No appearance for the applicant Director of Public Prosecutions (Queensland) for the respondent