R v Walker - [1998] QCA 378

[1998] QCA 378

COURT OF APPEAL
McMURDO P
McPHERSON JA

SHEPHERDSON J

CA No 271 of 1998
THE QUEEN
v.

WAYNE WILLIAM WALKER	Applicant Appellant
BRISBANE ..DATE 08/10/98
JUDGMENT
081098 D.1 T31/MV/21 M/T COA257/98

McPHERSON JA: The applicant seeks leave to appeal against sentences imposed on 17 August 1998 in the District Court at Maryborough. The applicant pleaded guilty there to three counts each of indecent dealing with a child under the age of 12. He was sentenced to imprisonment for three years on the first count, two years on the second count, and 12 months on the third count.

The complainant in count 1 was a five-year-old girl, who stated that the applicant pulled down her pants and touched her vagina. This was witnessed by the complainant in count 2, who was an 11-year-old girl. Count 2 involved the applicant's touching that complainant on the outside of her clothing, but in the area of the vagina. The third count arose when the applicant kissed a six-year-old boy, who was in the bed with the others, on his neck. This complainant was asleep at the time, but the offence was witnessed by the complainant in count 1.

The applicant initially denied the offences, claiming he did not remember committing them. However, he eventually accepted responsibility and pleaded guilty at a "full hand-up" committal. He submits that the sentences imposed are manifestly excessive and that the effective three year sentence did not significantly recognise his pleas of guilty and remorse, and that an 18 month sentence fully suspended would be more appropriate.

He is now 50 years of age with a good employment history and a

JUDGMENT

081098 D.1 T31/MV/21 M/T COA257/98

lack of previous convictions for offences of this kind. He has a limited criminal history, with only two convictions one of which was defrauding the Commonwealth and the other producing a dangerous drug. In respect of the fraud on the Commonwealth, the sentence imposed was imprisonment for 12 months.

The applicant claims to be deeply embarrassed and ashamed by his conduct. He has attempted to commit suicide twice since the offences were committed. On the second occasion he was evidently saved only by the unexpected return home of his two sons. He submits that the offences with which we are concerned represented an isolated incident and were committed while he was intoxicated. He also draws attention to the fact that they involved no violence, threats or intimidation of any kind. He has since relocated from the place where the offences were committed to Sydney in order to avoid further confrontations with the parents of the complainants.

It is said on his behalf that the learned sentencing judge failed to take into account these and other features which are said to have rendered the offences much less serious than some others of their kind.

The learned sentencing judge referred to a "serious betrayal of trust" on the part of the applicant when he had been allowed, in his own interest,…

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 Walker

Details

AGLC: R v Walker [1998] QCA 378
Case: [1998] QCA 378
Decision Date: 8/10/1998

CaseChat Overview and Summary

The Court of Appeal in Brisbane considered an appeal against sentences imposed by the District Court at Maryborough on Wayne William Walker, who pleaded guilty to three counts of indecent dealing with children under the age of 12. Walker was sentenced to three years for the first count, two years for the second, and 12 months for the third. The applicant argued that the sentences were manifestly excessive and that a suspended sentence would be more appropriate, given his pleas of guilty and remorse, as well as his background. The court acknowledged the seriousness of the offences but also noted the relatively mild nature of the acts and Walker's expressions of remorse.

The legal issues before the court were whether the sentences were manifestly excessive and whether the court should impose a different sentence, considering the applicant's pleas of guilty and remorse, his background, and the nature of the offences. The court found that while the offences were serious, the applicant's remorse, his decision to plead guilty, and his background warranted a reduced sentence. The court also noted the relatively mild forms of the offences and the lack of violence or intimidation involved.

The court concluded that the original sentences were indeed manifestly excessive. The appeal was allowed, and the sentences were varied. For the first count, a sentence of imprisonment for 15 months was imposed, to be suspended after six months with an operational period of two years. For the second count, a sentence of 12 months was imposed, suspended after six months on the same terms. For the third count, a sentence of one month was imposed. The sentences were to be served concurrently. The court's decision was based on the mitigating factors presented by the applicant and the need for an appropriate sentence that reflected the seriousness of the offences while considering the applicant's background and expressions of remorse.

Orders