R v WBE - [2017] QCA 87

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBE [2017] QCA 87

PARTIES:

R
v
WBE
(applicant)

FILE NO/S:

CA No 265 of 2016
DC No 320 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich – Date of Sentence: 1 September 2016

DELIVERED ON:

12 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2017

JUDGES:

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

ORDERS:

1.   Leave to appeal against sentence is granted.

2.   The appeal is allowed.

3.   The sentence imposed on 1 September 2016 is varied by substituting a fine of $3,300 for the fine of $5,000.

4.   The sentence is otherwise confirmed.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant pleaded guilty to one count of serious animal cruelty – where the sentencing judge recorded a conviction and fined the applicant $5,000 – where the sentencing judge stated the sentence he would have imposed but for the applicant’s co-operation under s 13A of the Penalties and Sentences Act 1992 (Qld) (“PSA”) was $7,500 – where a related offender pleaded guilty to more serious offences but co-operated with authorities to a greater extent and received an indicative sentence of $10,000, reduced to $5,000 under the PSA – where the applicant contends his indicative fine was unreasonably high in comparison – where the applicant further contends the recording of a conviction was manifestly excessive – whether the sentencing judge erred in exercising the sentencing discretion – whether the sentence is manifestly excessive

Criminal Code (Qld), s 242
Penalties and Sentences Act 1992 (Qld), s 12, s 13A

R v Chapman, unreported, Bradley DCJ, DC 471 of 2015, 24 June 2016, considered
R v F, unreported, Bradley DCJ, DC 108 of 2016, 1 April 2016, considered
R v Roberts, unreported, Koppenol DCJ, DC 395 of 2015, 13 November 2015, considered

COUNSEL:

The applicant appeared on his own behalf
V A Loury QC for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: On 1 September 2016 in the District Court at Ipswich, the applicant, WBE, pleaded guilty to an offence against s 242(1) of the Criminal Code (Qld). The single count of which the applicant had been charged was that on 12 October 2014 at Churchable and with an intent to inflict severe pain or suffering, he unlawfully caused prolonged suffering to an animal.

The applicant was convicted of the offence and a conviction recorded. A fine of $5,000 was imposed by way of sentence. In proceedings in-camera, the learned sentencing judge stated that the sentence he would have imposed but for the applicant’s cooperation under s 13A of the Penalties and Sentences Act 1992 (Qld) was $7,500.

On 29 September 2016,…

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 WBE

Details

AGLC: R v WBE [2017] QCA 87
Case: [2017] QCA 87
Decision Date: 12 May 2017

CaseChat Overview and Summary

The applicant, WBE, appealed against the sentence imposed by the sentencing judge following his guilty plea to one count of serious animal cruelty. The sentencing judge fined WBE $5,000 and recorded a conviction. WBE argued that the fine was unreasonably high in comparison to the fine imposed on a related offender who pleaded guilty to more serious offences but cooperated with authorities to a greater extent. The applicant also contended that the recording of a conviction was manifestly excessive. The appeal raised issues concerning the parity between co-offenders and related offenders and whether the sentence was manifestly excessive.

The court considered the principles of sentencing and the need for parity between co-offenders and related offenders. The court noted that the sentencing judge had stated the sentence he would have imposed but for WBE's co-operation under section 13A of the Penalties and Sentences Act 1992 (Qld) ("PSA") was $7,500, which was reduced to $5,000 under the PSA. However, the court found that the related offender received an indicative sentence of $10,000, reduced to $5,000 under the PSA. The court held that the sentencing judge erred in exercising the sentencing discretion by not considering the parity between the applicant and the related offender. The court also found that the sentence was manifestly excessive.

The court allowed the appeal and varied the sentence by substituting a fine of $3,300 for the fine of $5,000. The court confirmed the sentence otherwise. The court held that the fine imposed on WBE was unreasonably high in comparison to the fine imposed on the related offender, and the recording of a conviction was manifestly excessive. The court emphasised the importance of parity between co-offenders and related offenders in sentencing.

Orders

Orders of the court

1. Leave to appeal against sentence is granted.

2. The appeal is allowed.

3. The sentence imposed on 1 September 2016 is varied by substituting a fine of $3,300 for the fine of $5,000.

4. The sentence is otherwise confirmed.

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 WBE [2017] QCA 87
PARTIES:	R v WBE (applicant)
FILE NO/S:	CA No 265 of 2016 DC No 320 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich – Date of Sentence: 1 September 2016
DELIVERED ON:	12 May 2017
DELIVERED AT:	Brisbane
HEARING DATE:	14 March 2017
JUDGES:	Gotterson and McMurdo JJA and Flanagan J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to appeal against sentence is granted. 2. The appeal is allowed. 3. The sentence imposed on 1 September 2016 is varied by substituting a fine of $3,300 for the fine of $5,000. 4. The sentence is otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant pleaded guilty to one count of serious animal cruelty – where the sentencing judge recorded a conviction and fined the applicant $5,000 – where the sentencing judge stated the sentence he would have imposed but for the applicant’s co-operation under s 13A of the Penalties and Sentences Act 1992 (Qld) (“PSA”) was $7,500 – where a related offender pleaded guilty to more serious offences but co-operated with authorities to a greater extent and received an indicative sentence of $10,000, reduced to $5,000 under the PSA – where the applicant contends his indicative fine was unreasonably high in comparison – where the applicant further contends the recording of a conviction was manifestly excessive – whether the sentencing judge erred in exercising the sentencing discretion – whether the sentence is manifestly excessive Criminal Code (Qld), s 242 Penalties and Sentences Act 1992 (Qld), s 12, s 13A R v Chapman, unreported, Bradley DCJ, DC 471 of 2015, 24 June 2016, considered R v F, unreported, Bradley DCJ, DC 108 of 2016, 1 April 2016, considered R v Roberts, unreported, Koppenol DCJ, DC 395 of 2015, 13 November 2015, considered
COUNSEL:	The applicant appeared on his own behalf V A Loury QC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent