R v WAO - [2012] QCA 56

SUPREME COURT OF QUEENSLAND

CITATION:

R v WAO [2012] QCA 56

PARTIES:

R
v
WAO
(applicant)

FILE NO/S:

CA No 360 of 2011
DC No 1298 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2012

JUDGES:

Muir JA and Margaret Wilson AJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to two counts of cruelty to a child under 16 years of age – where applicant sentenced to 18 months imprisonment on each count, with parole release fixed after serving six months – where applicant jointly charged with his wife – where applicant’s wife pleaded guilty to same offences – where applicant contends that the sentence did not sufficiently take his particular mitigating circumstances into account – where applicant contended that he should not have been sentenced to a term of actual imprisonment – whether sentencing discretion miscarried in fixing a parole release date after one third of the sentence had been served

R v R & S; ex parte A-G (Qld) [2000] 2 Qd R 413; [1999] QCA 181, cited
R v WX [2007] QCA 388, distinguished

COUNSEL:

C Reid for the applicant
S P Vasta for the respondent

SOLICITORS:

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

MUIR JA: I agree that leave to appeal should be refused for the reasons given by Applegarth J.

MARGARET WILSON AJA: I agree with the order proposed by Applegarth J and with his Honour’s reasons for judgment.

APPLEGARTH J: On 25 November 2011 the applicant was convicted on his pleas of guilty to two counts of cruelty to a child under 16 years of age. He had been jointly charged with his wife, Ms NBR, in respect of their child, T, who had been in their care (“the child”). The first count was of having caused harm to the child by failing to provide her with adequate food between 31 December 2009 and 24 June 2010. The second count was of having caused harm to her by failing to provide her with medical treatment on diverse dates unknown during the same period.

Ms NBR, who also pleaded guilty the same day, was sentenced on each count to concurrent terms of imprisonment of two and a half years with release on parole after having served one third or 10 months of that period. The applicant was sentenced to 18 months imprisonment on each count, to be served concurrently, with a parole release date after serving six months.

The applicant submits that the sentence was manifestly excessive in that he should not have been required to serve a term…

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 WAO

Details

AGLC: R v WAO [2012] QCA 56
Case: [2012] QCA 56
Decision Date: 20 March 2012

CaseChat Overview and Summary

The case of R v WAO involved an appeal against the sentence imposed on the applicant, who had pleaded guilty to two counts of cruelty to a child under 16 years of age. The applicant was sentenced to 18 months imprisonment on each count, with parole release fixed after serving six months. The applicant was jointly charged with his wife, who also pleaded guilty to the same offences. The applicant contended that the sentence did not sufficiently take his particular mitigating circumstances into account and that he should not have been sentenced to a term of actual imprisonment. The court was required to determine whether the sentencing discretion miscarried in fixing a parole release date after one third of the sentence had been served.

The legal issues before the court included whether the sentence imposed was manifestly excessive or inadequate, and whether the sentencing discretion had miscarried in fixing the parole release date. The applicant argued that the sentence did not take into account his particular mitigating circumstances, and that he should not have been sentenced to a term of actual imprisonment. The court needed to consider whether the sentence imposed was appropriate in all the circumstances, and whether the parole release date was a proper exercise of the sentencing discretion.

The court found that the sentence imposed was not manifestly excessive or inadequate, and that the parole release date was a proper exercise of the sentencing discretion. The court held that the sentence was appropriate in all the circumstances, taking into account the seriousness of the offences and the need for general deterrence. The court also found that the parole release date was a reasonable compromise between the interests of the applicant and the community, and that it was not an error of law to fix the parole release date after one third of the sentence had been served. The court concluded that there was no miscarriage of the sentencing discretion, and that the appeal against sentence should be dismissed.

Accordingly, leave to appeal against sentence was refused. The sentence of 18 months imprisonment on each count, with parole release fixed after serving six months, was upheld.

Orders

Orders of the court

Leave to appeal against sentence is 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 WAO [2012] QCA 56
PARTIES:	R v WAO (applicant)
FILE NO/S:	CA No 360 of 2011 DC No 1298 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	20 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	5 March 2012
JUDGES:	Muir JA and Margaret Wilson AJA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to two counts of cruelty to a child under 16 years of age – where applicant sentenced to 18 months imprisonment on each count, with parole release fixed after serving six months – where applicant jointly charged with his wife – where applicant’s wife pleaded guilty to same offences – where applicant contends that the sentence did not sufficiently take his particular mitigating circumstances into account – where applicant contended that he should not have been sentenced to a term of actual imprisonment – whether sentencing discretion miscarried in fixing a parole release date after one third of the sentence had been served R v R & S; ex parte A-G (Qld) [2000] 2 Qd R 413; [1999] QCA 181, cited R v WX [2007] QCA 388, distinguished
COUNSEL:	C Reid for the applicant S P Vasta for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent