R v Watcho - [1998] QCA 331

COURT OF APPEAL

[1998] QCA 331

McMURDO P
PINCUS JA
MACKENZIE J

CA No 218 of 1998

THE QUEEN

RUSSELL JAMES WATCHO Applicant

BRISBANE

..DATE 07/08/98

JUDGMENT

PINCUS JA: This is an application for leave to appeal against sentence. There were a number of offences committed in May 1997 in respect of which the applicant was sentenced in the District Court by His Honour Judge Pratt on 12 June 1998. The date of the offences is significant because, as is common ground, the sentences which the judge was entitled to impose are governed by the law as it was prior to 1 July 1997, when important changes were made.

There were two batches of offences, as to which I will mention the details, and in respect of each of them His Honour Judge Pratt imposed, as the largest terms, a term of life imprisonment, for rape. He imposed lesser terms of imprisonment for the other offences and the result was that as from the date of sentencing, which was 12 June 1998, the applicant became liable to serve a term of life imprisonment. He was, however, at the time already subject to terms of imprisonment imposed in 1992 and 1996, totalling 10 years and three months; the argument which Mrs Richards advanced on his behalf was, in essence, that if one takes the term of imprisonment imposed as starting in 1992 and finishing at some indeterminate date no earlier than 2011, the totality principal applies, at least to such an extent as to justify or require a favourable recommendation for parole. It is, in my view, clear that the totality principle is potentially applicable, but the question whether or not it applies in such a way in the present case as to justify interference with the ordinary parole date depends, of course, upon all the facts.

It is, I think, convenient to start, in chronological order, with offences for which the applicant was sentenced in 1992. These were offences of entering a dwelling-house with intent, indecent assault and rape. There were four charges each of indecent assault and rape, and the maximum term of imprisonment imposed related to the rapes and was 10 years. The facts relating to those offences were explained by the prosecutor before His Honour Judge Pratt. They were as follows.

The complainant was a 25-year-old woman who resided with her four-year-old son. At about 8 p.m. on 17 June 1991 the prisoner knocked on the front door and after a short conversation forced his way into the house as the complainant attempted to shut the door. He produced a garden fork and demanded money. He then said he did not want money, he wanted the complainant; he waved the fork in front of her face in a threatening manner and in this way forced her to take her clothes off. He then forced her to perform oral sex and to have intercourse with him in various rooms of her residence. These acts were accompanied by…

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 Watcho

Details

AGLC: R v Watcho [1998] QCA 331
Case: [1998] QCA 331
Decision Date: 7 August 1998

CaseChat Overview and Summary

The case of R v Watcho involved the applicant, Russell James Watcho, appealing against his sentence for various offences committed in May 1997. The District Court had sentenced Watcho to life imprisonment for the most serious offence of rape, along with lesser terms for other offences, leading to a total sentence that commenced on 12 June 1998. Watcho was already serving a 10-year sentence from 1992 for prior offences, and his legal representative argued that the principle of totality warranted a favourable recommendation for parole. The appeal sought to have the parole recommendation deleted from the sentence.

The primary legal issue before the Court of Appeal was whether the principle of totality warranted interference with the ordinary parole date for Watcho. This principle aims to prevent excessively long periods of imprisonment when sentences are served concurrently. The court also had to determine if the parole recommendation made by the primary judge was erroneous and if so, whether it should be set aside.

The Court of Appeal, consisting of Pincus JA, Mackenzie J, and McMurdo P, found that while the principle of totality was potentially applicable, the harshness of the crimes and the applicant's history warranted maintaining the standard parole eligibility date. Pincus JA explained that the statutory definition of "term of imprisonment" did not permit adding prior sentences to a life sentence for parole calculation purposes. The court held that the non-parole period for Watcho's life sentence was 13 years, making him eligible for parole on 12 June 2011. Given the severity of Watcho's crimes and his history of violence, the court concluded that there was no basis to alter the ordinary parole date. Consequently, the Court of Appeal granted the application to the extent of deleting the parole recommendation, confirming the rest of the sentence.

In summary, the Court of Appeal dismissed the appeal except for deleting the parole recommendation from the sentence, affirming that the original sentence remained appropriate considering the totality principle and the nature of Watcho's crimes.

Orders