R v WAW

Case [2013] QCA 22 22 February 2013

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SUPREME COURT OF QUEENSLAND

CITATION:

R v WAW [2013] QCA 22

PARTIES:

R
v
WAW
(applicant)

FILE NO/S:

CA No 255 of 2012
SC No 456 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2013

JUDGES:

Chief Justice, Muir JA and Dalton J
Separate reasons for judgment of each member of the Court, Chief Justice and Muir JA concurring as to the orders made, Dalton J dissenting

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant was convicted of manslaughter and interfering with a corpse – the applicant lured the deceased to his killers knowing that the deceased feared for his life – the applicant knew in advance that the killers intended to inflict serious physical harm, with death a probable consequence – the applicant severed the deceased’s penis from his corpse while under the influence of morphine – the applicant described her actions to others with defiance rather than remorse – the applicant later cooperated with police and entered a guilty plea – the applicant also gave an undertaking pursuant to s 13A of the Penalties and Sentences Act 1992 – the applicant was sentenced to nine years imprisonment for manslaughter and one year for interfering with a corpse, to be served concurrently – but for the s 13A undertaking, the applicant would have been sentenced to twelve years imprisonment – the applicant submitted that her sentence failed to make proper allowance for past cooperation and the plea of guilty – whether the term of nine years imprisonment imposed for manslaughter was manifestly excessive

Criminal Code 1899 (Qld), s 7, s 8
Penalties and Sentences Act 1992 (Qld), s 10, s 13A

GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22, considered
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v Bates; R v Baker[2002] QCA 174, cited
R v Black[2009] QCA 198, cited
R v Burke [2002] NSWCCA 353, cited
R v Corry[2006] QCA 203, cited
R v Dwyer[2008] QCA 117, considered
R v Hicks & Taylor[2011] QCA 207, cited
R v Jervis [1993] 1 Qd R 643, cited
R v KAC[2010] QCA 39, cited
R v SBI[2009] QCA 73, cited
R v Schuurs[2000] QCA 278, distinguished
R v Smith [2005] 2 Qd R 69; [2005] QCA 1, distinguished
R v Swayn; ex parte A-G (Qld)[2009] QCA 81, cited
R v Webber (2000) 114 A Crim R 381; [2000] QCA 316, cited
R v Welham & Martin[2012] QCA 103, considered
R v West[2011] QCA 76, considered

COUNSEL:

R East for the applicant
M R Byrne SC for the respondent

SOLICITORS:

Legal Aid Queensland for…

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 WAW

Details

AGLC: R v Wright [2013] QCA 22
Case: [2013] QCA 22
Decision Date: 22 February 2013

CaseChat Overview and Summary

The applicant appealed against his sentence for manslaughter and interfering with a corpse, arguing that the sentence was manifestly excessive or inadequate. The applicant had lured the deceased, who feared for his life, to his killers, knowing that they intended to inflict serious physical harm, with death a probable consequence. The applicant severed the deceased's penis from his corpse while under the influence of morphine and displayed defiance rather than remorse. However, the applicant later cooperated with police, entered a guilty plea, and provided an undertaking under section 13A of the Penalties and Sentences Act 1992. The applicant was sentenced to nine years imprisonment for manslaughter and one year for interfering with a corpse, to be served concurrently. Without the section 13A undertaking, the applicant would have been sentenced to twelve years imprisonment.

The legal issue before the court was whether the term of nine years imprisonment imposed for manslaughter was manifestly excessive. The court examined the principles governing sentencing appeals, including whether the sentence was within the range of sentences that a properly directed sentencing judge could have imposed, and whether the sentence was manifestly excessive or inadequate. The court also considered the applicant's cooperation with police, his plea of guilty, and the circumstances of the offence, including the applicant's knowledge of the killers' intentions and his actions after the offence.

The court found that the sentence imposed was not manifestly excessive. The court noted that the sentence was within the range of sentences that a properly directed sentencing judge could have imposed, and that the applicant's cooperation with police and plea of guilty had been taken into account. The court also found that the applicant's actions after the offence, including severing the deceased's penis from his corpse while under the influence of morphine, demonstrated a lack of remorse and a level of culpability that warranted a significant sentence. The court held that the sentence imposed was not manifestly excessive or inadequate, and the application for appeal against sentence was refused.

The court's final order was that the application was refused. The applicant's sentence of nine years imprisonment for manslaughter and one year for interfering with a corpse, to be served concurrently, was upheld. The court found that the sentence was within the range of sentences that a properly directed sentencing judge could have imposed, and that the applicant's cooperation with police and plea of guilty had been taken into account. The court also found that the applicant's actions after the offence demonstrated a lack of remorse and a level of culpability that warranted a significant sentence.

Orders

Orders of the court

Application refused.

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

Full text does not contain this section.

Citations

AGLC Citation

R v Wright [2013] QCA 22

Most Recent Citation

R v NQ [2013] QCA 402

Cases citing this decision · 6 of 6 shown

R v Crawford
[2020] QCA 68 Para 18

…e imposed upon the applicant is consistent with such guidance as may be derived from the decision in WAW to refuse leave to appeal. [13][2013] QCA 22.…
R v Armitage, Armitage and Dean
[2020] QSC 41

…16, cited R v T [1995] 2 Qd R 192, distinguished R v Taylor and Hicks [2011] QCA 207, distinguished R v WAW [2013] QCA 22, distinguished R v Wellham and Martin [2012] QCA 103, distinguished R v Wong [1995] 16 WAR 219, cited Thompson v R [2000] WASCA 186, cited…
R v MCY
[2018] QCA 275 Para 8

…r cooperation. It must be discernible and worthwhile, but ‘nevertheless reflect the seriousness of the offence which is being punished’.” [10][2013] QCA 22 at [49]. Footnotes omitted.…
R v Crawford, Patea and Patea
[2018] QSC 122 Para 13

…ard, in the sentence I arrived at for Mr Crawford, to the decisions of the Court of Appeal in R v Welham and Martin [2012] QCA 103 as well as R v WAW [2013] QCA 22, and also to the sentences that were imposed by Justice Boddice in the case of Bliss and Stockman. In your case, Mr Patea, I have had regard to the d…
R v Kaq; R v Kaq; Ex parte Attorney-General (Qld)
[2015] QCA 98 Para 24

…punishment or to encourage false allegations”.[34] [32] R v Webber [2000] QCA 316, [16]. [33] Webber , above, [5] cited in R v WAW [2013] QCA 22, [24], [49] and [73], and in R v SBI [2009] QCA 73, [26]. [34] R v D , Queensland Court of Appeal judgment delivered 4 August 1995; cited in R v Ianculescu [1999] QCA…
R v NQ
[2013] QCA 402 Para 1

…nts of 29 May 2009. Finally, on 6 September 2012 she provided a formal statement implicating both the male co-accused and the applicant. [17] R v WAW [2013] QCA 22, at [6].…

View all 6 citing cases →

Cases cited in this decision · 20 of 20 shown

R v Welham & Martin
[2012] QCA 103 Para 2

…The prosecution relied substantially on R v Welham & Martin [2012] QCA 103, submitting that the applicant’s conduct was comparable with Welham’s, who was sentenced to 11 years imprisonment. The Prosecutor submitted for a “global” range of 10 to 12 years (after allowance for the plea of guilty and cooperation othe…
R v JQ
[2011] QCA 212 Para 1

…ned by persons who plead guilty.” It is right to bear in mind the distinction between past and future co-operation made by s 13A.[21] [21] R v JQ [2011] QCA 212, [28]-[30], and R v M [2001] QCA 131, [13].…
R v Hicks & Taylor
[2011] QCA 207 Para 1

…s the sentence was 10 years and in Hicks , nine years. The factual circumstances of both are set out in R v Welham & Martin . [15][2000] QCA 278. [16][2011] QCA 207.…
R v West
[2011] QCA 76 Para 1

…l and relentless, was essentially unpremeditated and unplanned. There is in fact no great gulf between a manslaughter of this nature and murder. [4][2011] QCA 76.…
R v KAC
[2010] QCA 39 Para 1

…h takes into account all relevant circumstances; to borrow from Markarian v The Queen [11] “there is no single correct” solution. [9] R v KAC [2010] QCA 39 at [17]; R v Burke [2002] NSWCCA 353. [10] R v Webber [2000] QCA 316 at [5]; see also R v SBI [2009] QCA 73 at [26]–[27]. [11](2005) 228 CLR 357 at 371.…
R v Black
[2009] QCA 198 Para 1

…is case, no further reduction by setting a parole eligibility date before the halfway point was warranted. [19]In this regard I note that R v Black [2009] QCA 198 and R v West [2011] QCA 76 involved sentences of 12 years after a trial and 13 years after a trial respectively for manslaughters where the applicant w…
R v Swayn; ex parte A-G (Qld)
[2009] QCA 81 Para 1

…e deceased such that] an unlawful killing was a probable consequence of the execution of [the] plan”. [3] R v Swayn; ex parte A-G (Qld) [2009] QCA 81 at [22].…
R v SBI
[2009] QCA 73 Para 1

…le correct” solution. [9] R v KAC [2010] QCA 39 at [17]; R v Burke [2002] NSWCCA 353. [10] R v Webber [2000] QCA 316 at [5]; see also R v SBI [2009] QCA 73 at [26]–[27]. [11](2005) 228 CLR 357 at 371.…
R v Dwyer
[2008] QCA 117 Para 1

…were less than the sentence imposed on Welham. The President, separately, expressed the view that 11 years was at the high end of the range. [14][2008] QCA 117, [37].…
R v Corry
[2006] QCA 203 Para 1

…equated to about 14 years and eight months. There are other manslaughter sentences of that order or higher.[6] [5][1993] 1 Qd R 643. [6]Eg R v Corry [2006] QCA 203 and R v Bates [2002] QCA 174.…
Markarian v The Queen
[2005] HCA 25

…, s 10, s 13A GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22, considered Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Bates; R v Baker [2002] QCA 174, cited R v Black [2009] QCA 198, cited R v Burke [2002] NSWCCA 353, cited R v Corry [2006] QCA 203, cited R v Dwyer [2008] QCA 117, consid…
R v Smith
[2005] QCA 1 Para 1

…year term coupled with eligibility for parole at three years. He relied particularly on R v Welham & Martin, R v Schuurs [2000] QCA 278 and R v Smith [2005] QCA 1.…
GAS v The Queen
[2004] HCA 22

…nal Code 1899 (Qld), s 7, s 8 Penalties and Sentences Act 1992 (Qld), s 10, s 13A GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22, considered Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Bates; R v Baker [2002] QCA 174, cited R v Black [2009] QCA 198, cited R v Burke [2002] NSWCCA 353, ci…
Johnson v The Queen
[2004] HCA 15

…consonant with consistency of approach and as accords with the statutory regime that applies ( Johnson v The Queen (2004) 78 ALRJ 616 at 618 [5]); 205 ALR 346 at 348 per Gleeson CJ; at 624, 356 [26] per Gummow, Callinan and Heydon JJ.)”…
R v Burke
[2002] NSWCCA 353 Para 1

…circumstances; to borrow from Markarian v The Queen [11] “there is no single correct” solution. [9] R v KAC [2010] QCA 39 at [17]; R v Burke [2002] NSWCCA 353. [10] R v Webber [2000] QCA 316 at [5]; see also R v SBI [2009] QCA 73 at [26]–[27]. [11](2005) 228 CLR 357 at 371.…
R v Bates; R v Baker
[2002] QCA 174 Para 1

…d eight months. There are other manslaughter sentences of that order or higher.[6] [5][1993] 1 Qd R 643. [6]Eg R v Corry [2006] QCA 203 and R v Bates [2002] QCA 174.…
R v McGrath
[2001] QCA 131 Para 1

…is right to bear in mind the distinction between past and future co-operation made by s 13A.[21] [21] R v JQ [2011] QCA 212, [28]-[30], and R v M [2001] QCA 131, [13].…
R v Webber
[2000] QCA 316 Para 2

…ore effectively made a substantial, I would say generous, reduction because of the undertaking, and that was the appropriate course (cf. R v Webber [2000] QCA 316, 384).…
R v Schuurs
[2000] QCA 278 Para 1

…A feature. He sought a seven year term coupled with eligibility for parole at three years. He relied particularly on R v Welham & Martin, R v Schuurs [2000] QCA 278 and R v Smith [2005] QCA 1.…
Pearce v The Queen
[1998] HCA 57

…iderations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence ( Pearce v The Queen (1998) 194 CLR 610 at 624 [46]). And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as acco…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
10 2 mentions (from Para 2)

CITATION:	R v WAW [2013] QCA 22
PARTIES:	R v WAW (applicant)
FILE NO/S:	CA No 255 of 2012 SC No 456 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 February 2013
DELIVERED AT:	Brisbane
HEARING DATE:	5 February 2013
JUDGES:	Chief Justice, Muir JA and Dalton J Separate reasons for judgment of each member of the Court, Chief Justice and Muir JA concurring as to the orders made, Dalton J dissenting
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant was convicted of manslaughter and interfering with a corpse – the applicant lured the deceased to his killers knowing that the deceased feared for his life – the applicant knew in advance that the killers intended to inflict serious physical harm, with death a probable consequence – the applicant severed the deceased’s penis from his corpse while under the influence of morphine – the applicant described her actions to others with defiance rather than remorse – the applicant later cooperated with police and entered a guilty plea – the applicant also gave an undertaking pursuant to s 13A of the Penalties and Sentences Act 1992 – the applicant was sentenced to nine years imprisonment for manslaughter and one year for interfering with a corpse, to be served concurrently – but for the s 13A undertaking, the applicant would have been sentenced to twelve years imprisonment – the applicant submitted that her sentence failed to make proper allowance for past cooperation and the plea of guilty – whether the term of nine years imprisonment imposed for manslaughter was manifestly excessive Criminal Code 1899 (Qld), s 7, s 8 Penalties and Sentences Act 1992 (Qld), s 10, s 13A GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22, considered Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Bates; R v Baker[2002] QCA 174, cited R v Black[2009] QCA 198, cited R v Burke [2002] NSWCCA 353, cited R v Corry[2006] QCA 203, cited R v Dwyer[2008] QCA 117, considered R v Hicks & Taylor[2011] QCA 207, cited R v Jervis [1993] 1 Qd R 643, cited R v KAC[2010] QCA 39, cited R v SBI[2009] QCA 73, cited R v Schuurs[2000] QCA 278, distinguished R v Smith [2005] 2 Qd R 69; [2005] QCA 1, distinguished R v Swayn; ex parte A-G (Qld)[2009] QCA 81, cited R v Webber (2000) 114 A Crim R 381; [2000] QCA 316, cited R v Welham & Martin[2012] QCA 103, considered R v West[2011] QCA 76, considered
COUNSEL:	R East for the applicant M R Byrne SC for the respondent
SOLICITORS:	Legal Aid Queensland for…