R v Was - [2013] QCA 93

SUPREME COURT OF QUEENSLAND

CITATION:

R v WAS [2013] QCA 93

PARTIES:

R
v
WAS
(applicant)

FILE NO/S:

CA No 186 of 2012
DC No 126 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

26 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2013

JUDGE:

Holmes and Gotterson JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.      The applicant has leave to appeal against sentence.

2.      The appeal against sentence is allowed.

3.      The sentences imposed on 29 June 2012 are set aside, and in lieu thereof it is ordered that on each of the three counts the appellant is sentenced to six years’ imprisonment, and that the date on which the appellant is eligible for parole is fixed at 28 February 2014.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where the applicant was convicted on his own plea of guilty of two counts of rape and one count of administering a stupefying drug with intent to cause a criminal offence – where the learned primary judge sentenced the applicant on each count to seven years’ imprisonment with a parole eligibility date fixed after serving two years and three months – where there was delay between the commission of the offences and the time of sentencing – whether the sentencing judge had applied the correct principles in sentencing the accused – whether the sentence was manifestly excessive

R v Gippo[2012] QCA 232, cited
R v Gogouk[2006] QCA 320, cited
R v HAK[2008] QCA 30, cited
R v L; ex parte Attorney-General (Qld) [1996] 2 Qd R 63; [1995] QCA 444, cited
R v Pickup[2008] QCA 350, cited
R v Pryor[2007] QCA 232, cited
R v S; ex parte Attorney-General (Qld)[2003] QCA 361, cited

COUNSEL:

T A Ryan for the applicant
B J Merrin for the respondent

SOLICITORS:

Fisher Dore Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: I agree with the reasons of Daubney J and the orders he proposes.

GOTTERSON JA: I agree with the orders proposed by Daubney J and with the reasons given by his Honour.

DAUBNEY J: On 8 May 2012, the applicant was convicted, on his own pleas of guilty, of two counts of rape and one count of administering a stupefying drug with intent to cause a criminal offence. The offences were committed on 18 June 2006. On 29 June 2012, he was sentenced on each count to seven years’ imprisonment, with a parole eligibility date fixed after serving two years and three months.

The applicant has applied for leave to appeal against sentence. He contends that the sentence was manifestly excessive and, in particular, says that the learned sentencing judge failed to have proper regard to the lengthy delay between…

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 Was

Details

AGLC: R v WAS [2013] QCA 93
Case: [2013] QCA 93
Decision Date: 26 April 2013

CaseChat Overview and Summary

The applicant, Was, appealed against his sentence following his conviction on his own plea of guilty to two counts of rape and one count of administering a stupefying drug with intent to cause a criminal offence. The primary judge sentenced the applicant to seven years’ imprisonment on each count, with parole eligibility set after two years and three months of the sentence. The applicant argued that the sentence was manifestly excessive and that the sentencing judge had not applied the correct principles in sentencing him. The appeal was brought to the court for review of the sentencing principles applied and the appropriateness of the sentence.

The court considered the arguments put forward by the applicant and examined the principles of sentencing as they apply to the crimes of which he was convicted. The court identified that the delay between the commission of the offences and the time of sentencing was a factor to be considered, as was the nature and circumstances of the offences. The court also took into account the need for the sentence to reflect the gravity of the offences and to provide appropriate denunciation and deterrence. In reviewing the sentence, the court determined that the primary judge had not adequately considered the totality of the circumstances and the need for proportionality in the sentencing.

The appeal against sentence was allowed by the court. The court found that the primary judge had not applied the correct principles in sentencing the applicant, particularly in relation to the delay between the commission of the offences and the time of sentencing. The court also found that the sentence was manifestly excessive given the totality of the circumstances. The sentences imposed on 29 June 2012 were set aside, and in lieu thereof it was ordered that the applicant is sentenced to six years’ imprisonment on each of the three counts, with parole eligibility fixed at 28 February 2014.

Orders

Orders of the court

1. The applicant has leave to appeal against sentence.

2. The appeal against sentence is allowed.

3. The sentences imposed on 29 June 2012 are set aside, and in lieu thereof it is ordered that on each of the three counts the appellant is sentenced to six years’ imprisonment, and that the date on which the appellant is eligible for parole is fixed at 28 February 2014.

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 WAS [2013] QCA 93
PARTIES:	R v WAS (applicant)
FILE NO/S:	CA No 186 of 2012 DC No 126 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	26 April 2013
DELIVERED AT:	Brisbane
HEARING DATE:	11 April 2013
JUDGE:	Holmes and Gotterson JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The applicant has leave to appeal against sentence. 2. The appeal against sentence is allowed. 3. The sentences imposed on 29 June 2012 are set aside, and in lieu thereof it is ordered that on each of the three counts the appellant is sentenced to six years’ imprisonment, and that the date on which the appellant is eligible for parole is fixed at 28 February 2014.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where the applicant was convicted on his own plea of guilty of two counts of rape and one count of administering a stupefying drug with intent to cause a criminal offence – where the learned primary judge sentenced the applicant on each count to seven years’ imprisonment with a parole eligibility date fixed after serving two years and three months – where there was delay between the commission of the offences and the time of sentencing – whether the sentencing judge had applied the correct principles in sentencing the accused – whether the sentence was manifestly excessive R v Gippo[2012] QCA 232, cited R v Gogouk[2006] QCA 320, cited R v HAK[2008] QCA 30, cited R v L; ex parte Attorney-General (Qld) [1996] 2 Qd R 63; [1995] QCA 444, cited R v Pickup[2008] QCA 350, cited R v Pryor[2007] QCA 232, cited R v S; ex parte Attorney-General (Qld)[2003] QCA 361, cited
COUNSEL:	T A Ryan for the applicant B J Merrin for the respondent
SOLICITORS:	Fisher Dore Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent