R v Wallace - [2023] QCA 22

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wallace [2023] QCA 22

PARTIES:

R
v
WALLACE, Tyrese Leonard George
(applicant)

FILE NO/S:

CA No 139 of 2022
DC No 139 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 10 June 2022 (Morzone KC DCJ)

DELIVERED ON:

24 February 2023

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2023

JUDGES:

Bowskill CJ and Bond and Dalton JJA

ORDERS:

1.   The application for leave to appeal is granted.

2.   The appeal is allowed.

3.   The sentences imposed at first instance on all counts are set aside.

4.   The applicant is sentenced to 10 years’ imprisonment on each of counts 3 and 5, and five years’ imprisonment on each of counts 2 and 4. Those terms of imprisonment are concurrent with one another. The applicant is sentenced to 12 months’ imprisonment on count 1, to be served cumulatively on the term imposed on count 3.

5. Pursuant to s 161B(1) of the Penalties and Sentences Act 1992 (Qld), the convictions on all counts are declared to be convictions of a serious violent offence.

6.   The declaration of pre-sentence custody made at first instance is affirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pled guilty to one count of assault occasioning bodily harm against complainant 1 and one count of grievous bodily harm, two counts of rape and one count of attempted rape against complainant 2 – where the applicant suffered a significantly disrupted childhood – where the applicant was 19 years-old at the time of the offending, with no prior criminal history – where the primary judge sentenced the applicant to 18 months imprisonment in respect of the offending against complainant 1, cumulatively with a period of 12 years imprisonment for the offending against complainant 2 – whether the sentence imposed is manifestly excessive

Corrective Services Act 2006 (Qld), s 182(2)(a)
Penalties and Sentences Act 1992 (Qld), s 161B(1)

R v Adcock; Ex parte Attorney-General (Qld)[1994] QCA 525, cited
R v Benjamin (2012) 224 A Crim R 40; [2012] QCA 188, considered
R v Flew[2008] QCA 290, cited
R v Newman (2007) 172 A Crim R 171; [2007] QCA 198, considered
R v O’Brien[1998] QCA 80, cited
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v RBG[2022] QCA 143, cited
R v Smith[2020] QCA 23, cited
R v Soper[1994] QCA 254, cited
R v Wark[2008] QCA 172, considered

COUNSEL:

C R Smith for the applicant
E L Kelso for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

BOWSKILL CJ: In the early hours of the morning on 30 September 2020, the applicant, intoxicated and angry, committed two separate violent offences against women. The first victim…

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 Wallace

Details

AGLC: R v Wallace [2023] QCA 22
Case: [2023] QCA 22
Decision Date: 24 February 2023

CaseChat Overview and Summary

The applicant, Wallace, appealed against his sentence following his conviction for various serious sexual offences against complainants 1 and 2. The case was heard in the Court of Appeal, where the primary concern was whether the sentence imposed by the trial judge was manifestly excessive. Wallace pled guilty to one count of assault occasioning bodily harm against complainant 1, one count of grievous bodily harm, two counts of rape, and one count of attempted rape against complainant 2. The trial judge imposed a sentence of 18 months imprisonment for the offence against complainant 1, and a cumulative sentence of 12 years imprisonment for the offences against complainant 2.

The Court of Appeal had to determine if the sentence was manifestly excessive or inadequate, considering Wallace's significantly disrupted childhood, his age at the time of the offending (19 years), and his lack of prior criminal history. The Court considered the totality of Wallace's offending and the need for the sentence to reflect the seriousness of the crimes committed. The Court also had to weigh the circumstances of Wallace's background and age against the gravity of the offences.

The Court of Appeal found that the sentence imposed by the primary judge was manifestly excessive. It was noted that while the crimes committed were serious, the sentence did not adequately reflect the relative seriousness of the offences against the two complainants. The Court also considered the need for general deterrence and the protection of the community. As a result, the Court allowed the appeal, set aside the sentences imposed at first instance, and re-sentenced Wallace to 10 years’ imprisonment on each of counts 3 and 5, and five years’ imprisonment on each of counts 2 and 4, with those terms of imprisonment to run concurrently. Additionally, Wallace was sentenced to 12 months’ imprisonment on count 1, to be served cumulatively on the term imposed on count 3. The Court also declared the convictions to be serious violent offences and affirmed the declaration of pre-sentence custody.

Orders

Orders of the court

1. The application for leave to appeal is granted.

2. The appeal is allowed.

3. The sentences imposed at first instance on all counts are set aside.

4. The applicant is sentenced to 10 years’ imprisonment on each of counts 3 and 5, and five years’ imprisonment on each of counts 2 and 4. Those terms of imprisonment are concurrent with one another. The applicant is sentenced to 12 months’ imprisonment on count 1, to be served cumulatively on the term imposed on count 3.

5. Pursuant to s 161B(1) of the Penalties and Sentences Act 1992 (Qld), the convictions on all counts are declared to be convictions of a serious violent offence.

6. The declaration of pre-sentence custody made at first instance is affirmed.

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 Wallace [2023] QCA 22
PARTIES:	R v WALLACE, Tyrese Leonard George (applicant)
FILE NO/S:	CA No 139 of 2022 DC No 139 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville – Date of Conviction: 10 June 2022 (Morzone KC DCJ)
DELIVERED ON:	24 February 2023
DELIVERED AT:	Brisbane
HEARING DATE:	15 February 2023
JUDGES:	Bowskill CJ and Bond and Dalton JJA
ORDERS:	1. The application for leave to appeal is granted. 2. The appeal is allowed. 3. The sentences imposed at first instance on all counts are set aside. 4. The applicant is sentenced to 10 years’ imprisonment on each of counts 3 and 5, and five years’ imprisonment on each of counts 2 and 4. Those terms of imprisonment are concurrent with one another. The applicant is sentenced to 12 months’ imprisonment on count 1, to be served cumulatively on the term imposed on count 3. *5. Pursuant to s 161B(1) of the Penalties and Sentences Act 1992* (Qld), the convictions on all counts are declared to be convictions of a serious violent offence. 6. The declaration of pre-sentence custody made at first instance is affirmed.**
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pled guilty to one count of assault occasioning bodily harm against complainant 1 and one count of grievous bodily harm, two counts of rape and one count of attempted rape against complainant 2 – where the applicant suffered a significantly disrupted childhood – where the applicant was 19 years-old at the time of the offending, with no prior criminal history – where the primary judge sentenced the applicant to 18 months imprisonment in respect of the offending against complainant 1, cumulatively with a period of 12 years imprisonment for the offending against complainant 2 – whether the sentence imposed is manifestly excessive Corrective Services Act 2006 (Qld), s 182(2)(a) Penalties and Sentences Act 1992 (Qld), s 161B(1) R v Adcock; Ex parte Attorney-General (Qld)[1994] QCA 525, cited R v Benjamin (2012) 224 A Crim R 40; [2012] QCA 188, considered R v Flew[2008] QCA 290, cited R v Newman (2007) 172 A Crim R 171; [2007] QCA 198, considered R v O’Brien[1998] QCA 80, cited R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited R v RBG[2022] QCA 143, cited R v Smith[2020] QCA 23, cited R v Soper[1994] QCA 254, cited R v Wark[2008] QCA 172, considered
COUNSEL:	C R Smith for the applicant E L Kelso for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent