R v Walters - [2011] QCA 144

SUPREME COURT OF QUEENSLAND

CITATION:

R v Walters [2011] QCA 144

PARTIES:

R
v
WALTERS, Peter George Leslie
(applicant)

FILE NO/S:

CA No 117 of 2011
DC No 215 of 2011
DC No 767 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore on 21 June 2011
Reasons delivered 24 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

21 June 2011

JUDGES:

Fraser and White JJA, Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Orders delivered ex tempore on 21 June 2011:

1.        Grant the application for leave to appeal.

2.        Allow the appeal.

3.       Vary each of the sentences imposed in the District Court by:

(a)       Substituting a sentence of 9 months imprisonment in lieu of 15 months imprisonment;

(b)      Ordering that the sentence be suspended forthwith in lieu of the suspension after a period of 5 months imprisonment; and

(c)       Substituting 18 months for the period of 3 years as the period within which the applicant must not commit another offence punishable by imprisonment to avoid being dealt with for the suspended term of imprisonment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 19 counts of indecent treatment of a child under 16 on one indictment and three counts of indecent treatment of a child on a second indictment – where the applicant exposed himself to the complainants – where the applicant undertook rehabilitation prior to detection – where the applicant was sentenced in the District Court to 15 months imprisonment suspended after 5 months with an operational period of 3 years in respect of each of the counts, all to be served concurrently – whether the sentence imposed was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – whether the primary judge gave excessive weight to the number of offences – whether the primary judge gave insufficient weight to the nature of the offending and other matters of mitigation

Penalties and Sentences Act 1992 (Qld), s 9(5), s 9(6)

R v Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, cited
R v Tran [1999] NSWCCA 109, cited

COUNSEL:

S T Courtney for the applicant
M Copley SC for the respondent

SOLICITORS:

Butler McDermott Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

[1] FRASER JA: I agree with White JA’s reasons for the orders made on 21 June 2011.

[2] WHITE JA: On 21 June 2011 I joined in the following orders:

“1.        Grant the application for leave to appeal.
2.         Allow the appeal.
3.         Vary each of the sentences imposed in the District Court by:
(a)Substituting a sentence of 9 months imprisonment in lieu of 15 months imprisonment;

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 Walters

Details

AGLC: R v Walters [2011] QCA 144
Case: [2011] QCA 144
Decision Date: 24 June 2011

CaseChat Overview and Summary

The appeal before the Court of Appeal of the Supreme Court of South Australia involved the applicant, Walters, who had pleaded guilty to multiple counts of indecent treatment of children. Walters exposed himself to the complainants and had undertaken rehabilitation prior to detection. The District Court sentenced him to 15 months imprisonment, suspended after 5 months, with an operational period of 3 years in respect of each count, all to be served concurrently. Walters appealed against the sentence, arguing that it was manifestly excessive.

The primary legal issue was whether the sentence imposed by the District Court was manifestly excessive. The Court of Appeal needed to determine whether the primary judge had given excessive weight to the number of offences and whether he had given insufficient weight to the nature of the offending and other mitigating factors. The appeal also raised the question of whether the sentence imposed was inadequate in light of the circumstances and the need for general and specific deterrence.

The Court of Appeal found that the primary judge had given excessive weight to the number of offences and had not adequately considered the nature of the offending and other mitigating factors. The Court concluded that the sentence imposed was manifestly excessive and varied the sentences as follows: (a) reducing the term of imprisonment from 15 months to 9 months, (b) ordering that the sentence be suspended forthwith rather than after a period of 5 months, and (c) reducing the operational period from 3 years to 18 months. The Court granted leave to appeal, allowed the appeal, and varied the sentences accordingly.

Orders

Orders of the court

Orders delivered ex tempore on 21 June 2011:

1. Grant the application for leave to appeal.

2. Allow the appeal.

3. Vary each of the sentences imposed in the District Court by:

(a) Substituting a sentence of 9 months imprisonment in lieu of 15 months imprisonment;

(b) Ordering that the sentence be suspended forthwith in lieu of the suspension after a period of 5 months imprisonment; and

(c) Substituting 18 months for the period of 3 years as the period within which the applicant must not commit another offence punishable by imprisonment to avoid being dealt with for the suspended term of imprisonment.

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.

CITATION:	R v Walters [2011] QCA 144
PARTIES:	R v WALTERS, Peter George Leslie (applicant)
FILE NO/S:	CA No 117 of 2011 DC No 215 of 2011 DC No 767 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Orders delivered ex tempore on 21 June 2011 Reasons delivered 24 June 2011
DELIVERED AT:	Brisbane
HEARING DATE:	21 June 2011
JUDGES:	Fraser and White JJA, Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Orders delivered ex tempore on 21 June 2011: 1. Grant the application for leave to appeal. 2. Allow the appeal. 3. Vary each of the sentences imposed in the District Court by: (a) Substituting a sentence of 9 months imprisonment in lieu of 15 months imprisonment; (b) Ordering that the sentence be suspended forthwith in lieu of the suspension after a period of 5 months imprisonment; and (c) Substituting 18 months for the period of 3 years as the period within which the applicant must not commit another offence punishable by imprisonment to avoid being dealt with for the suspended term of imprisonment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 19 counts of indecent treatment of a child under 16 on one indictment and three counts of indecent treatment of a child on a second indictment – where the applicant exposed himself to the complainants – where the applicant undertook rehabilitation prior to detection – where the applicant was sentenced in the District Court to 15 months imprisonment suspended after 5 months with an operational period of 3 years in respect of each of the counts, all to be served concurrently – whether the sentence imposed was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – whether the primary judge gave excessive weight to the number of offences – whether the primary judge gave insufficient weight to the nature of the offending and other matters of mitigation Penalties and Sentences Act 1992 (Qld), s 9(5), s 9(6) R v Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, cited R v Tran [1999] NSWCCA 109, cited
COUNSEL:	S T Courtney for the applicant M Copley SC for the respondent
SOLICITORS:	Butler McDermott Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent