R v WBD - [2001] QCA 250

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBD [2001] QCA 250

PARTIES:

R
v
WBD
(applicant/appellant)

FILE NOS:

CA No 63 of 2001
DC No 2382 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

29 June 2001

DELIVERED AT:

Brisbane

HEARING DATE:

6 June 2001

JUDGES:

Thomas JA, Muir and Atkinson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Leave to appeal against sentence granted.
Appeal allowed.
The sentence below is varied by replacing five and a half years imprisonment with three and a half years imprisonment.

CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE, AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – whether inadequate weight placed on background of applicant and limited intellectual capacity

CRIMINAL LAW – JURISDICTION, PRACTICE, AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – JUVENILE OFFENDERS – SENTENCING AS CHILD OR ADULT AND IMPRISONMENT – where offender sentenced as adult for crime committed when 15

CRIMINAL LAW – JURISDICTION, PRACTICE, AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS IRRELEVANT FACTORS – where trial judge made observations during sentencing on matters irrelevant to exercise of discretion

CRIMINAL LAW – PARTICULAR OFFENCES – OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT

Juvenile Justice Act 1992, s 105, s 107B, s 109, s 121(3)(a)

AB v The Queen (1999) 198 CLR 111, considered
R v Birdand Schipper [2000] QCA 94; CA 325 and 318 of 1999, 24 March 2000, referred to
R v B, CA 472 of 1993, 30 March 1994, considered
R v C, CA 436 of 1995, 13 February 1996, considered
R v D [1996] 1 Qd R 363, cited
R v Lovell [1999] 2 Qd R 79, referred to
R v R, CA 13 of 1996, 21 March 1996, considered
R v SCA [2001] QCA 199; CA 366 of 2000, 1 June 2001, cited
Siganto v The Queen (1998) 194 CLR 656, considered

COUNSEL:

A W Moynihan for the appellant
D Meredith for the respondent

SOLICITORS:

Russo & Coburn for the appellant
Director of Public Prosecutions (Queensland) for the respondent

THOMAS JA: The applicant was sentenced as an adult in the District Court for rape committed by him when he was 15. That procedure was necessary because of section 105 of the Juvenile Justice Act 1992. However section 107B of that Act requires the Court to have regard to the fact that the applicant was a child when the offence was committed, and it limits any imprisonment to the period that could have been imposed in respect of detention had he been sentenced as a child. The maximum detention for rape was 10 years.

The learned sentencing judge sentenced the applicant to five and a half years imprisonment.

The sentence was imposed…

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 WBD

Details

AGLC: R v WBD [2001] QCA 250
Case: [2001] QCA 250
Decision Date: 29 June 2001

CaseChat Overview and Summary

In the matter of R v WBD, the respondent, who was 15 years old at the time of the offence, appealed against the sentence imposed by the trial judge. The respondent was convicted of sexual offences against a minor and was sentenced to five and a half years imprisonment. The respondent argued that the trial judge did not adequately consider his intellectual capacity and background, and that the sentence was excessive. The appeal was heard in the court of appeal. The court had to decide whether the trial judge failed to take into account relevant factors when imposing the sentence, whether the sentence was excessive, and whether the trial judge made observations on irrelevant matters during sentencing.

The court found that the trial judge did not adequately consider the respondent's intellectual capacity and background when imposing the sentence. The court also found that the sentence was excessive and that the trial judge made observations on irrelevant matters during sentencing. The court held that the sentence should be reduced to three and a half years imprisonment, taking into account the respondent's age, intellectual capacity, and background. The court found that the trial judge's observations on irrelevant matters did not affect the outcome of the appeal.

The appeal was allowed, and the sentence was varied by replacing five and a half years imprisonment with three and a half years imprisonment. The court granted leave to appeal against the sentence, and the appeal was successful. The court found that the trial judge did not adequately consider the relevant factors when imposing the sentence, and that the sentence was excessive. The court also found that the trial judge made observations on irrelevant matters during sentencing, but this did not affect the outcome of the appeal. The sentence was reduced to three and a half years imprisonment, taking into account the respondent's age, intellectual capacity, and background.

Orders

Orders of the court

Leave to appeal against sentence granted.

Appeal allowed.

The sentence below is varied by replacing five and a half years imprisonment with three and a half 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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v WBD [2001] QCA 250
PARTIES:	R v WBD (applicant/appellant)
FILE NOS:	CA No 63 of 2001 DC No 2382 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	29 June 2001
DELIVERED AT:	Brisbane
HEARING DATE:	6 June 2001
JUDGES:	Thomas JA, Muir and Atkinson JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Leave to appeal against sentence granted. Appeal allowed. The sentence below is varied by replacing five and a half years imprisonment with three and a half years imprisonment.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE, AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – whether inadequate weight placed on background of applicant and limited intellectual capacity CRIMINAL LAW – JURISDICTION, PRACTICE, AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – JUVENILE OFFENDERS – SENTENCING AS CHILD OR ADULT AND IMPRISONMENT – where offender sentenced as adult for crime committed when 15 CRIMINAL LAW – JURISDICTION, PRACTICE, AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS IRRELEVANT FACTORS – where trial judge made observations during sentencing on matters irrelevant to exercise of discretion CRIMINAL LAW – PARTICULAR OFFENCES – OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT Juvenile Justice Act 1992, s 105, s 107B, s 109, s 121(3)(a) AB v The Queen (1999) 198 CLR 111, considered R v Birdand Schipper [2000] QCA 94; CA 325 and 318 of 1999, 24 March 2000, referred to R v B, CA 472 of 1993, 30 March 1994, considered R v C, CA 436 of 1995, 13 February 1996, considered R v D [1996] 1 Qd R 363, cited R v Lovell [1999] 2 Qd R 79, referred to R v R, CA 13 of 1996, 21 March 1996, considered R v SCA [2001] QCA 199; CA 366 of 2000, 1 June 2001, cited Siganto v The Queen (1998) 194 CLR 656, considered
COUNSEL:	A W Moynihan for the appellant D Meredith for the respondent
SOLICITORS:	Russo & Coburn for the appellant Director of Public Prosecutions (Queensland) for the respondent