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R v Walsh

R v Walsh

Case [2008] QCA 391 5 December 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Walsh [2008] QCA 391

PARTIES:

R
v
WALSH, Joel Patrick
(applicant)

FILE NO/S:

CA No 159 of 2008
DC No 358 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

5 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2008

JUDGES:

de Jersey CJ, Keane JA and White AJA
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 – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted upon the verdict of a jury of one count of unlawful assault, one count of unlawful deprivation, and one count of rape – where the applicant was convicted on his own plea of one count of doing grievous bodily harm – where the applicant was sentenced to 10 years imprisonment for the rape offence, with lesser concurrent sentences imposed for the other offending – where the applicant's Counsel at trial accepted that 10 years imprisonment was within the range of sentences which might legitimately be imposed – whether in the circumstances the sentence imposed was manifestly excessive

Corrective Services Act 2006 (Qld), s 182, s 185
Penalties and Sentences Act 1992 (Qld), s 160A(5)

R v AAF [2008] QCA 235, cited
R v Carter [2008] QCA 226, cited
R v Cosh [2007] QCA 156, considered
R v Edwards [2004] QCA 20, considered
R v Newman (2007) 172 A Crim R 171; [2007] QCA 198, considered
R v Rankmore; ex parte A-G (Qld)[2002] QCA 492, considered

COUNSEL:

The applicant appeared on his own behalf
M B Lehane for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

de JERSEY CJ: I have had the opportunity of reading the reasons for judgment of Keane JA. I agree with the order proposed by His Honour, and with his reasons.

KEANE JA: On 16 May 2008 the applicant was convicted upon the verdict of a jury of one count of unlawful assault, one count of unlawful deprivation of liberty, and one count of rape. At the commencement of the trial on 14 May 2008, the applicant had pleaded guilty to one count of unlawfully doing grievous bodily harm.

On 20 May 2008 the applicant was sentenced to concurrent terms of imprisonment of two years for the assault, four years for the deprivation of liberty and grievous bodily harm and 10 years for the offence of rape. Five days pre-sentence custody was declared to be time served under the sentence. The applicant's parole eligibility date with respect to the sentence for the assault conviction was fixed at 30 April 2009.

The applicant seeks leave to appeal against his sentence on the ground that it was "manifestly excessive in all the…

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 Walsh

Details

AGLC: R v Walsh [2008] QCA 391
Case: [2008] QCA 391
Decision Date: 5 December 2008

CaseChat Overview and Summary

The applicant, in this case, was convicted by a jury on one count of unlawful assault, one count of unlawful deprivation, and one count of rape. The applicant also pleaded guilty to one count of causing grievous bodily harm. The applicant was sentenced to a total of 10 years imprisonment, with the sentence for the rape offence being the primary term, and concurrent lesser sentences for the other offences. The applicant's counsel acknowledged at trial that a 10-year sentence for the rape offence was within the legitimate range of possible sentences. The applicant sought to appeal against the sentence on the basis that it was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive or inadequate. The court considered whether the sentence was within the appropriate range for the offences committed, and whether there were any factors that might justify a departure from the usual sentencing principles. The court also had to consider the principle of finality in sentencing, and whether there were exceptional circumstances that warranted interference with the sentence.

The court found that the sentence imposed was not manifestly excessive. The court noted that the applicant's counsel had accepted that a 10-year sentence for the rape offence was within the appropriate range, and that the sentence reflected the seriousness of the offences. The court also found that there were no exceptional circumstances that warranted interference with the sentence. The court emphasised the importance of finality in sentencing, and the need to avoid frequent appeals against sentence. The court concluded that the sentence imposed was appropriate, and that there were no grounds for interference.

The court refused the applicant's application for leave to appeal against sentence. The court also ordered that the applicant pay costs in relation to the application.

Orders

Orders of the court

Application for leave to appeal against sentence refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Walsh [2008] QCA 391

Most Recent Citation

R v Frame [2009] QCA 9

Cases citing this decision · 25 of 25 shown

R v DCQ
[2025] QCA 146 Para 28

…The case of R v Walsh [2008] QCA 391, which was also referred to below, concerned an application for leave to appeal against a sentence of 10 years imposed on a young man (19 at the time he offended) who raped a young woman after forcibly making her leave a party they were attending, dragging her to his house, as…
MJPL v The King
[2024] QChC 14 Para 9

…immediately, whilst not determinative of the issue, is of some relevance to this court’s consideration having regard to the decision of R v Walsh [2008] QCA 391. But the court must of course make an assessment for itself as to what might be considered to be the appropriate sentence, and one of the matters to take…
R v SDZ
[2023] QCA 30 Para 20

…ess bears a heavy burden. After announcing our decision, the court sought further submissions about the effect of the decision in R v Volkov [4] . [2][2008] QCA 391. [3][2008] QCA 290. [4][2022] QCA 57.…
The Queen v GBI
[2022] QCA 28 Para 23

…fact that the head sentence was within range of what the applicant contended, there is a strong factor tending against manifest excess. In R v Walsh [2008] QCA 391 at [23], Keane JA said:…
R v Hci
[2022] QCA 2 Para 20

…ent’s submission that, having regard to the circumstances already described, the sentence is not manifestly excessive. [15] R v Walsh [2008] QCA 391 at [17] – [18] and [22] – [23].…
Baker v Queensland Police Service
[2019] QDC 258 Para 1

…ellant to the sentencing judge, that is also an obstacle to an argument that there is manifest excess.[17] [17] R v Frame [2009] QCA 9 [6]; R v Walsh [2008] QCA 391 [23], recently quoted with approval by Morrison JA in R v Sabine [2019] QCA 36 [30].…
R v Bahcehan
[2019] QCA 278 Para 4

…the bounds of discretion, let alone the moderated figure of five years. [39]AB 32 lines 3-9. [40] R v Frame [2009] QCA 9 at [6]. [41] R v Walsh [2008] QCA 391 at [23].…
R v Sabine
[2019] QCA 36 Para 30

…he contention that leave to appeal should be granted because the sentence is manifestly excessive is difficult to sustain.” [14][2009] QCA 9. [15][2008] QCA 391 at [23].…
R v Donaci
[2018] QCA 226

…oncession makes it difficult to sustain a complaint of manifest excess – see for example the observations of Keane JA as he then was in R v Walsh [2008] QCA 391 [23].…
R v Civcija
[2018] QCA 83 Para 22

…the conclusion that the applicant should not be regarded as bound by the conduct of his case in the court below.” (emphasis in original) [12][2008] QCA 391 at [23].…
R v Heckendorf
[2017] QCA 59 Para 1

…prisonment, with a declaration of a serious violent offence (SVO). He referred to R v Walsh ,[2] R v Dowden ,[3] R v Basic [4] and R v Cosh .[5] [2][2008] QCA 391. [3][2010] QCA 125. [4][2000] QCA 155. [5][2007] QCA 156.…
DRJ v Commissioner of Police
[2014] QDC 305 Para 1

…n appropriate one by DRJ’s representative. Certainly, that is true. I have considered the authority that I was referred to by Mr Spencer: R v Walsh [2008] QCA 391. At [23], Keane JA, as he then was, said this:…
R v Neilson
[2014] QCA 221 Para 11

…[12]Per Keane JA at [6], citing R v AAF [2008] QCA 235 at [11] and R v Walsh [2008] QCA 391 at [23].…
R v Ali
[2014] QCA 46 Para 1

…cient to warrant the conclusion that the applicant should not be regarded as bound by the conduct of his case in the court below; see R v Walsh [2008] QCA 391 at [23]. Nothing is shown here to warrant any departure from that approach.…
R v AAT
[2014] QCA 41 Para 1

…The consequence of the decision in R v Walsh [2008] QCA 391 at [23], when the sentence imposed accords with the position taken by the offender before the sentencing judge, is that it becomes difficult to sustain the submission in this court that the sentence imposed was manifestly excessive. As Keane JA said in t…
R v McCallum
[2013] QCA 254 Para 1

…conduct of his case in the court below.[68] Here, no such circumstances were identified in submissions on behalf of the appellant. [68] R v Walsh [2008] QCA 391 at [23], R v Frame [2009] QCA 9 at [6].…
R v Hawdon
[2011] QCA 219 Para 1

…s not misplaced. Furthermore, the egregious disregard for the safety of other persons on and about the highway called for strong denunciation. [5][2008] QCA 391 at [23].…
R v Lucas
[2011] QCA 146 Para 1

…is Honour referred to the need for special circumstances. No such circumstances have been made out in the present case. [11][2008] QCA 235, [11]. [12][2008] QCA 391, [23].…
R v Cain
[2010] QCA 373 Para 1

…serious, but not extreme, violence has been used by the offender upon the victim. [30][2002] QCA 211. [31][2005] QCA 335. [32][2006] QCA 352. [33][2008] QCA 391. [34]At [19] referring to R v Rankmore; ex parte A-G (Qld) [2002] QCA 492; R v Edwards [2004] QCA 20; R v Newman [2007] QCA 198; R v Cosh [2007] QCA 156;…
R v Davy
[2010] QCA 118 Para 1

…representation or could otherwise have been expected to have reached a properly informed conclusion about the relevant sentencing considerations. [12][2008] QCA 391 at [23]. [13][2009] QCA 9 at [6].…
R v Porter; Ex parte Attorney-General (Qld)
[2009] QCA 353 Para 1

…that taking such a course should not be seen as an exceptional course and one not to be lightly embarked upon, or to be encouraged.[3] [1] R v Walsh [2008] QCA 391. [2] R v KU & Ors; ex parte Attorney-General (Qld) [2008] QCA 154. [3] KU ( ibid ) at [93]-[95].…
R v Brown; ex parte
[2009] QCA 342 Para 1

…ave the child drop the charges. Brown's letter to the judge tendered at sentence did not show deep insight into the seriousness of these offences. [6][2008] QCA 391. [7][2008] QCA 154.…
R v Bierton
[2009] QCA 68

…ssive or appropriate R v Amituanai [1995] QCA 80, cited R v Berryman [2005] QCA 471, cited R v Toohey [2001] QCA 149, cited R v Walsh [2008] QCA 391, cited COUNSEL: P E Nolan for the applicant G P Cash for the respondent SOLICITORS: A W Bale & Sons for the applicant Director of Public Prosecutions (Queensland) fo…
R v. Crompton
[2009] QCA 19 Para 1

…tention that this aspect of the sentence was manifestly excessive: see R v Carter [2008] QCA 226 at [19]; R v AAF [2008] QCA 235 at [11]; R v Walsh [2008] QCA 391 at [23]. In these circumstances it is necessary to observe only that, subject to consideration of parole and the orders for cumulative terms to which I…
R v Frame
[2009] QCA 9

…efore sentencing judge — whether sentence manifestly excessive R v AAF [2008] QCA 235, cited R v Carter [2008] QCA 226, cited R v Walsh [2008] QCA 391, cited COUNSEL: C W Heaton for the applicant M J Copley SC for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Q…

View all 25 citing cases →

Cases cited in this decision · 7 of 7 shown

R v AAF
[2008] QCA 235 Para 1

…ed as bound by the conduct of his case in the court below.[7] No such circumstances are apparent here. [7] R v Carter [2008] QCA 226 at [19]; R v AAF [2008] QCA 235 at [11].…
R v Carter
[2008] QCA 226 Para 1

…e applicant should not be regarded as bound by the conduct of his case in the court below.[7] No such circumstances are apparent here. [7] R v Carter [2008] QCA 226 at [19]; R v AAF [2008] QCA 235 at [11].…
R v Newman
[2007] QCA 198 Para 1

…risonment, carries with it the consequence that 80 per cent of that term must be served in actual custody.[6] [1][2002] QCA 492. [2][2004] QCA 20. [3][2007] QCA 198. [4][2007] QCA 156. [5]See also R v Bolton [2005] QCA 335. [6]See s 161A Penalties and Sentences Act 1992 (Qld) and s 182 Corrective Services Act 200…
R v Cosh
[2007] QCA 156 Para 1

…with it the consequence that 80 per cent of that term must be served in actual custody.[6] [1][2002] QCA 492. [2][2004] QCA 20. [3][2007] QCA 198. [4][2007] QCA 156. [5]See also R v Bolton [2005] QCA 335. [6]See s 161A Penalties and Sentences Act 1992 (Qld) and s 182 Corrective Services Act 2006 (Qld).…
R v Bolton
[2005] QCA 335 Para 1

…t of that term must be served in actual custody.[6] [1][2002] QCA 492. [2][2004] QCA 20. [3][2007] QCA 198. [4][2007] QCA 156. [5]See also R v Bolton [2005] QCA 335. [6]See s 161A Penalties and Sentences Act 1992 (Qld) and s 182 Corrective Services Act 2006 (Qld).…
R v Edwards
[2004] QCA 20 Para 1

…ss of 10 years imprisonment, carries with it the consequence that 80 per cent of that term must be served in actual custody.[6] [1][2002] QCA 492. [2][2004] QCA 20. [3][2007] QCA 198. [4][2007] QCA 156. [5]See also R v Bolton [2005] QCA 335. [6]See s 161A Penalties and Sentences Act 1992 (Qld) and s 182 Correcti…
R v Rankmore; ex parte A-G (Qld)
[2002] QCA 492 Para 1

…s range, ie in excess of 10 years imprisonment, carries with it the consequence that 80 per cent of that term must be served in actual custody.[6] [1][2002] QCA 492. [2][2004] QCA 20. [3][2007] QCA 198. [4][2007] QCA 156. [5]See also R v Bolton [2005] QCA 335. [6]See s 161A Penalties and Sentences Act 1992 (Qld)…

Legislation cited in this decision · 2

Corrective Services Act 2006 (Qld)
182 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
160A(5) 2 mentions (from Para 1)

CITATION:	R v Walsh [2008] QCA 391
PARTIES:	R v WALSH, Joel Patrick (applicant)
FILE NO/S:	CA No 159 of 2008 DC No 358 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	5 December 2008
DELIVERED AT:	Brisbane
HEARING DATE:	25 November 2008
JUDGES:	de Jersey CJ, Keane JA and White AJA 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 – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted upon the verdict of a jury of one count of unlawful assault, one count of unlawful deprivation, and one count of rape – where the applicant was convicted on his own plea of one count of doing grievous bodily harm – where the applicant was sentenced to 10 years imprisonment for the rape offence, with lesser concurrent sentences imposed for the other offending – where the applicant's Counsel at trial accepted that 10 years imprisonment was within the range of sentences which might legitimately be imposed – whether in the circumstances the sentence imposed was manifestly excessive Corrective Services Act 2006 (Qld), s 182, s 185 Penalties and Sentences Act 1992 (Qld), s 160A(5) R v AAF [2008] QCA 235, cited R v Carter [2008] QCA 226, cited R v Cosh [2007] QCA 156, considered R v Edwards [2004] QCA 20, considered R v Newman (2007) 172 A Crim R 171; [2007] QCA 198, considered R v Rankmore; ex parte A-G (Qld)[2002] QCA 492, considered
COUNSEL:	The applicant appeared on his own behalf M B Lehane for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent