R v Wark

Case [2008] QCA 172 27 June 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Wark [2008] QCA 172

PARTIES:

R
v
WARK, Francis John
(applicant/appellant)

FILE NO/S:

CA No 340 of 2007
DC No 651 of 2007
DC No 547 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

27 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2008

JUDGES:

McMurdo P, Mackenzie AJA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Application for leave to appeal against sentence granted

2.   Appeal allowed

3.   The sentence imposed at first instance is varied only to the extent of substituting a sentence of 12 years imprisonment for each sentence of 13 years imprisonment

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – where applicant pleaded guilty to an ex-officio indictment to five counts of rape, five counts of sexual assault, one count of assault with intent to rape, one count of assault occasioning bodily harm while armed, one count of deprivation of liberty and two summary charges – where sentenced to imprisonment for 13 years in respect of each of the five counts of rape to be served concurrently– where learned sentencing judge made a declaration pursuant to s 161 of the Penalties and Sentences Act 1992 (Qld) – whether total imprisonment imposed is manifestly excessive – whether learned sentencing judge gave sufficient consideration to the plea of guilty – whether learned sentencing judge erred in concluding that the range for the type of offending involved would be some 14 to 16 years imprisonment

Penalties and Sentences Act 1992 (Qld), s 161

R v Barclay[1999] QCA 457, considered
R v Coghlan [1998] 2 Qd R 498; [1997] QCA 270, considered
R v Edwards[2004] QCA 20, considered
R v Mason[1997] QCA 67, considered
R v Riley (2006) 161 A Crim R 414; [2006] NTCCA 10, cited
R v Robinson[2007] QCA 349, considered
R v Spoehr[2003] QCA 412, considered
R v TM[2005] QCA 130, considered
R v Webb[2004] QCA 448, cited

COUNSEL:

J A Greggery for the applicant
M J Copley for the respondent

SOLICITORS:

Ryan and Bosscher (Cairns) for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The application for leave to appeal should be granted, the appeal allowed and the sentence imposed at first instance varied only to the extent of substituting a sentence of 12 years imprisonment for each sentence of 13 years imprisonment. I agree with the reasons of both Mackenzie AJA and Cullinane J and wish to add only some further brief observations.

Whilst cases of penile vaginal or penile anal penetration will often be more serious and attract heavier penalties than cases involving only digital penetration, the appropriate sentence in each case will…

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 Wark

Details

AGLC: R v Wark [2008] QCA 172
Case: [2008] QCA 172
Decision Date: 27 June 2008

CaseChat Overview and Summary

The applicant in this case, who had pleaded guilty to various serious sexual offences, sought to appeal against the sentence imposed by the trial judge. The applicant had entered pleas of guilty to five counts of rape, five counts of sexual assault, one count of assault with intent to rape, one count of assault occasioning bodily harm while armed, one count of deprivation of liberty, and two summary charges. He was sentenced to imprisonment for 13 years in respect of each of the five counts of rape, with the sentences to be served concurrently. The applicant's appeal centred on the contention that the total imprisonment imposed was manifestly excessive and that the learned sentencing judge had not given sufficient consideration to the plea of guilty. The applicant also argued that the judge had erred in concluding that the appropriate range for the type of offending involved would be some 14 to 16 years imprisonment.

The court was required to determine whether the total imprisonment imposed was manifestly excessive and whether the learned sentencing judge had given sufficient consideration to the plea of guilty. Additionally, the court needed to examine whether the judge had erred in concluding that the appropriate range for the type of offending involved would be some 14 to 16 years imprisonment. In considering these issues, the court needed to weigh the principles of sentencing, the nature and circumstances of the offending, and the effect of the plea of guilty on the sentencing process. The court also needed to assess whether the sentence imposed was within the appropriate range for the type of offending involved and whether the judge had appropriately exercised judicial discretion.

The court held that the application for leave to appeal against sentence should be granted and that the appeal should be allowed. The court found that the total imprisonment imposed was manifestly excessive, and that the learned sentencing judge had not given sufficient consideration to the plea of guilty. The court also found that the judge had erred in concluding that the appropriate range for the type of offending involved would be some 14 to 16 years imprisonment. The court considered that the appropriate range for the type of offending involved was likely to be some 12 to 14 years imprisonment, and that the sentence imposed at first instance was manifestly excessive in light of the plea of guilty. The court varied the sentence imposed at first instance to 12 years imprisonment for each sentence of 13 years imprisonment.

The court's orders were to grant the application for leave to appeal against sentence, allow the appeal, and vary the sentence imposed at first instance to 12 years imprisonment for each sentence of 13 years imprisonment. This decision highlights the importance of considering the principles of sentencing, the nature and circumstances of the offending, and the effect of the plea of guilty on the sentencing process. It also underscores the need for judges to exercise judicial discretion appropriately when imposing sentences for serious sexual offences.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed

3. The sentence imposed at first instance is varied only to the extent of substituting a sentence of 12 years imprisonment for each sentence of 13 years 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

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Citations

R v Wark [2008] QCA 172

Most Recent Citation

The Queen v Christian [2020] NFSC 1

Cases Citing This Decision

Wark v The State of Western Australia [2023] WASCA 66
Citation 1 (Para 6)

…ve sentence to 12 years' imprisonment. See R v Wark .[82] We have read and considered the reasons of the Court of Appeal of Queensland. [82] R v Wark [2008] QCA 172.…
R v Wallace [2023] QCA 22
Citation 2 (Para 13)

…, objectively, the sexual violation and degradation in the present case was worse. In this respect, I would endorse the observations made in R v Wark [2008] QCA 172 by each of McMurdo P (at [2]), Mackenzie AJA (at [13]-[14]) and Cullinane J (at [36]) as to the need to consider the particular circumstances of each…
R v RBG [2022] QCA 143
Citation 3 (Para 4)

…vel of criminality and together with other facts the sentence to be imposed’”.[2] [1][2020] QCA 23, [34]-[37]. [2]Citing R v Wark [2008] QCA 172, [36]-[38].…
Musgrave v The State of Western Australia [2021] WASCA 67
Citation 4 (Para 6)

…sociated circumstances call for punishment which may be as great as or exceed cases involving penile penetration [37]. (emphasis added) [13] R v Wark [2008] QCA 172.…
The Queen v Christian [2020] NFSC 1
Citation 5 (Para 12)

…r circumstances which will determine the level of criminality and together with the other facts the sentence to be imposed”: R v Wark [2008] QCA 172 at [36]-[38]; Smith at [37].…
R v Smith [2020] QCA 23
Citation 6 (Para 3)

…sentence than digital rape or oral rape, there may be cases calling for punishment as great or exceeding those involving penile penetration. [15][2008] QCA 172 at [36]-[38].…
R v Buchanan [2016] QCA 33
Citation 7 (Para 3)

…nd was on parole for robbery with personal violence whilst armed.[53] [49]With some slight alterations I gratefully adopt the words of Henry J. [50][2008] QCA 172. [51] Benjamin at [60]. [52][1997] QCA 93. [53] Benjamin at [46].…
R v GAR [2014] QCA 30
Citation 8 (Para 1)

…all used violence greatly in excess of that employed by the applicant. A knife was used in Bolton and Flew . [6][2000] QCA 188. [7][2005] QCA 335. [8][2008] QCA 172. [9][2008] QCA 290.…
R v Turnbull [2013] QCA 374
Citation 9 (Para 1)

…Reliance is placed upon the observations of members of this Court in R v Wark .[5] In that case McMurdo P stated: [5][2008] QCA 172.…
R v Dargin [2013] QCA 20
Citation 10 (Para 1)

…the application, found it unnecessary to draw a distinction between the charges of digital rape and the other rape charges. [6][2011] 2 Qd R 421. [7][2008] QCA 172. [8][2007] QCA 349. [9][2006] QCA 411.…
R v Benjamin [2012] QCA 188
Citation 11 (Para 1)

…In R v Wark [2008] QCA 172 the applicant pleaded guilty to an ex officio indictment charging five counts of rape, five counts of sexual assault, one count of assault with intent to commit rape, one count of assault occasioning bodily harm while armed and one count of deprivation of liberty. A first instance sente…
R v Hill [2012] QCA 59
Citation 12 (Para 1)

…In R v Wark [2008] QCA 172, the Court of Appeal (by a majority) substituted a term of 12 years imprisonment for an original term of 13 years imprisonment in a case which involved five counts of rape, as well as five counts of sexual assault, one count of assault with intent to rape, one count of assault occasioni…
R v BBY [2011] QCA 69
Citation 13 (Para 1)

…ause it is 10 years imprisonment or longer, the only means of recognising the effect of the plea of guilty is by reducing the head sentence: R v Wark [2008] QCA 172 at [20]. In R v Wark , the sentence of imprisonment was reduced from 15 to 16 years to 13 years because of the plea of guilty. In R v Ruhland , the s…
R v Baxter [2010] QCA 235
Citation 14

…injury etc) a rape accomplished digitally may generally be seen as somewhat less grave than a rape accomplished by penile penetration. See R v Wark [2008] QCA 172. That is because it may be less invasive, would not carry a risk of pregnancy, and would ordinarily carry substantially reduced risk of infection.”…
R v Colless [2010] QCA 26
Citation 15 (Para 1)

…injury etc), a rape accomplished digitally may generally be seen as somewhat less grave than a rape accomplished by penile penetration. See R v Wark [2008] QCA 172. That is because it may be less invasive, would not carry a risk of pregnancy, and would ordinarily carry substantially reduced risk of infection. Al…
R v AAH and AAG [2009] QCA 321
Citation 16 (Para 1)

…Murdo P had anticipated might occur. I would add to White J’s analysis of those and other authorities only some further discussion about R v Wark [2008] QCA 172. In that recent case a 51 year old offender with a relatively insignificant criminal history entered an early plea of guilty. He inflicted gratuitous vio…
R v Colless [2009] QDC 283
Citation 17

…d R v Harman [1989] 1 Qd R 414, cited R v Hornby [1996] QCA 446, cited R v Jackson [1988] CCA 011, cited R v Wark [2008] QCA 172, cited R v Watcho (1998) 104 A Crim R 300, cited COUNSEL: A.W. Moynihan SC for the Crown A.J. Kimmins for the defendant SOLICITORS: Director of Public Prosecutions (Queensland) for the…
R v Ware [2009] QCA 106
Citation 18 (Para 1)

…At the sentencing hearing the prosecutor relied on R v Wark [2008] QCA 172 ( Wark ) and a number of other Court of Appeal authorities to submit that the appropriate sentence for the rape was between 12 years and 14 years. The prosecutor submitted that the sentence imposed for stalking should be cumulative. Defenc…
R v CAJ [2009] QCA 37
Citation 19 (Para 1)

…We were referred also to R v Wark [2008] QCA 172, but it was a significantly more serious matter, as is reflected in the sentence of 12 years imprisonment imposed by this Court when re-sentencing.…

See all citing cases →

Cases Cited

R v Robinson [2007] QCA 349
Citation 1 (Para 1)

…Act") and the introduction of the Act, Pt 9A – Convictions of Serious Violent Offences. [2][1998] 2 Qd R 498; [1997] QCA 270. [3][1997] QCA 67. [4][2007] QCA 349.…
R v Riley [2006] NTCCA 10
Citation 2 (Para 1)

…the offender has previous relevant history. By way of an example of a serious case of non-penile rape, see R v Riley .[1] [1](2006) 161 A Crim R 414; [2006] NTCCA 10.…
R v TM [2005] QCA 130
Citation 3 (Para 1)

…Robinson, [18] R v Webb [19] (in particular the remarks of McPherson JA at paragraph 25) and R v TM [20]. [18][2007] QCA 349. [19][2004] QCA 448. [20][2005] QCA 130.…
R v Webb [2004] QCA 448
Citation 4 (Para 1)

…factor to be taken into account, the facts of the particular case and the overall criminality must always govern the seriousness of the offence. [11][2004] QCA 448…
R v Edwards [2004] QCA 20
Citation 5 (Para 1)

…hen he committed sordid sexual offences on his pregnant victim who had been asleep in bed in her own home. [7][2007] QCA 349. [8][1999] QCA 457. [9][2004] QCA 20.…
R v Spoehr [2003] QCA 412
Citation 6 (Para 1)

…reports regarded him as “an eccentric loner who has, using the DSM-IV,[6] a diagnosis of a schizotypal or and paranoid personality disorder”. [5][2003] QCA 412. [6]The DSM-IV is the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders and is a coding system for all mental disorders.…
R v Barclay [1999] QCA 457
Citation 7 (Para 1)

…alicious wounding when he committed sordid sexual offences on his pregnant victim who had been asleep in bed in her own home. [7][2007] QCA 349. [8][1999] QCA 457. [9][2004] QCA 20.…
R v Coghlan [1997] QCA 270
Citation 8 (Para 1)

…es and Sentences Act 1992 (Qld) ("the Act") and the introduction of the Act, Pt 9A – Convictions of Serious Violent Offences. [2][1998] 2 Qd R 498; [1997] QCA 270. [3][1997] QCA 67. [4][2007] QCA 349.…
R v Mason [1997] QCA 67
Citation 9 (Para 1)

…t 1992 (Qld) ("the Act") and the introduction of the Act, Pt 9A – Convictions of Serious Violent Offences. [2][1998] 2 Qd R 498; [1997] QCA 270. [3][1997] QCA 67. [4][2007] QCA 349.…

Legislation Cited

Penalties and Sentences Act 1992 (Qld) 161
2 mentions (from Para 1)
Corrective Services Act 2006 (Qld) 182(2)(a)
1 mention (from Para 1)

CITATION:	R v Wark [2008] QCA 172
PARTIES:	R v WARK, Francis John (applicant/appellant)
FILE NO/S:	CA No 340 of 2007 DC No 651 of 2007 DC No 547 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	27 June 2008
DELIVERED AT:	Brisbane
HEARING DATE:	26 May 2008
JUDGES:	McMurdo P, Mackenzie AJA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal allowed 3. The sentence imposed at first instance is varied only to the extent of substituting a sentence of 12 years imprisonment for each sentence of 13 years imprisonment
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – where applicant pleaded guilty to an ex-officio indictment to five counts of rape, five counts of sexual assault, one count of assault with intent to rape, one count of assault occasioning bodily harm while armed, one count of deprivation of liberty and two summary charges – where sentenced to imprisonment for 13 years in respect of each of the five counts of rape to be served concurrently– where learned sentencing judge made a declaration pursuant to s 161 of the Penalties and Sentences Act 1992 (Qld) – whether total imprisonment imposed is manifestly excessive – whether learned sentencing judge gave sufficient consideration to the plea of guilty – whether learned sentencing judge erred in concluding that the range for the type of offending involved would be some 14 to 16 years imprisonment Penalties and Sentences Act 1992 (Qld), s 161 R v Barclay[1999] QCA 457, considered R v Coghlan [1998] 2 Qd R 498; [1997] QCA 270, considered R v Edwards[2004] QCA 20, considered R v Mason[1997] QCA 67, considered R v Riley (2006) 161 A Crim R 414; [2006] NTCCA 10, cited R v Robinson[2007] QCA 349, considered R v Spoehr[2003] QCA 412, considered R v TM[2005] QCA 130, considered R v Webb[2004] QCA 448, cited
COUNSEL:	J A Greggery for the applicant M J Copley for the respondent
SOLICITORS:	Ryan and Bosscher (Cairns) for the applicant Director of Public Prosecutions (Queensland) for the respondent