R v Ware - [2009] QCA 106

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ware [2009] QCA 106

PARTIES:

R
v
WARE, Nelson Christopher
(applicant)

FILE NO/S:

CA No 333 of 2008
DC No 467 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

28 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

2 April 2009

JUDGES:

Muir and Fraser JJA and Mullins J
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 AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – appeal by convicted persons – applications to reduce sentence – when refused – particular offences – offences against the person – sexual offences – where applicant pleaded guilty to 16 counts including one count of rape, three counts of attempted rape and one count of stalking – where applicant sentenced to an effective total period of imprisonment of 12 years – where applicant submitted that sentence was too high – whether the sentence was excessive

R v Wark [2008] QCA 172, 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

A: MUIR J I agree with the reasons of Mullins J and with the order she proposes.

FRASER JA: I agree that the application should be refused for the reasons given by Mullins J.

MULLINS J: On 3 September 2008 the applicant pleaded guilty to 16 counts in the District Court at Cairns. The sentence was adjourned to enable a pre-sentence report to be obtained. The sentence proceeded on 21 November 2008. On the most serious count on the indictment, count 13 for the offence of rape, the applicant was sentenced to 11 years’ imprisonment. For each of three counts of attempted rape (counts 10, 11 and 14), he was sentenced to eight years’ imprisonment. He was sentenced to two years’ imprisonment for count 9 (assault with intent to rape), count 12 (assault occasioning bodily harm) and each of two counts of enter dwelling with intent in the night (counts 2 and 8). For each of the remaining counts on the indictment (apart from count 1) he was sentenced to six months’ imprisonment. Count 1 was the offence of stalking and a cumulative sentence of 12 months was imposed for that offence. The effective total period of imprisonment was therefore 12 years. A pre-sentence custody declaration was made in respect of 259 days. The learned sentencing judge recommended that the applicant be given the opportunity whilst incarcerated to attend drug and alcohol courses and a sex offender’s treatment program.

The applicant was legally represented at the sentence. The Aboriginal & Torres Strait Islander Legal Service assisted the applicant with preparing the form for the application for leave to appeal against the sentence. The ground set…

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 Ware

Details

AGLC: R v Ware [2009] QCA 106
Case: [2009] QCA 106
Decision Date: 28 April 2009

CaseChat Overview and Summary

The applicant in this case, who has pleaded guilty to a series of serious offences, including one count of rape, three counts of attempted rape, and one count of stalking, was sentenced to an effective total period of imprisonment of 12 years. The applicant subsequently sought to appeal against the severity of the sentence imposed. The primary legal issue for the court to determine was whether the sentence was excessive and warranted a reduction.

The court considered the nature and gravity of the offences committed by the applicant. It evaluated the relevant legal principles governing the imposition of sentences for such serious crimes and assessed whether the sentence imposed was commensurate with the severity of the offences. The court also examined the submissions made by the applicant regarding the alleged excessiveness of the sentence and the reasons provided for the appeal. Ultimately, the court concluded that the sentence was appropriate and not excessive, given the serious nature of the offences. The court found that the sentence reflected the culpability of the applicant and the need to protect the community.

Consequently, the court dismissed the appeal against the sentence. The applicant's application for leave to appeal against the sentence was refused. The court upheld the original sentence, which remained at an effective total period of imprisonment of 12 years.

Orders

Orders of the court

Application for leave to appeal against sentence refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MUIR J

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Ratio Decidendi

Legal Principle Established

Established by: MUIR J

Full text does not contain this section.

CITATION:	R v Ware [2009] QCA 106
PARTIES:	R v WARE, Nelson Christopher (applicant)
FILE NO/S:	CA No 333 of 2008 DC No 467 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	28 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	2 April 2009
JUDGES:	Muir and Fraser JJA and Mullins J 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 AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – appeal by convicted persons – applications to reduce sentence – when refused – particular offences – offences against the person – sexual offences – where applicant pleaded guilty to 16 counts including one count of rape, three counts of attempted rape and one count of stalking – where applicant sentenced to an effective total period of imprisonment of 12 years – where applicant submitted that sentence was too high – whether the sentence was excessive R v Wark [2008] QCA 172, 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