R v WBG - [2018] QCA 284

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBG [2018] QCA 284

PARTIES:

R
v
WBG
(applicant)

FILE NO/S:

CA No 30 of 2018
DC No 2160 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 24 January 2018 (Reid DCJ)

DELIVERED ON:

23 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

16 August 2018

JUDGES:

Morrison and Philippides JJA and Flanagan J

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted, on his own pleas of guilty, of multiple sexual offences against his three biological daughters – where each of the applicant’s daughters was under the age of 12 at the time of the offending – where the offending occurred while the applicant’s daughters were under his care, pursuant to a custody agreement the applicant had reached with his former wife – where the applicant had sought to persuade his two eldest daughters that his offending formed part of a normal father-daughter relationship, and to convince his middle daughter to keep the offending secret – where the learned sentencing judge imposed various concurrent terms of imprisonment in respect of the offences, with a head sentence of 10 years’ imprisonment – whether the head sentence is manifestly excessive

Criminal Code (Qld), s 210, s 221, s 229B, s 349

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited
R v BBM[2008] QCA 162, considered
R v EK[2013] QCA 278, considered
R v MCT[2018] QCA 189, applied

COUNSEL:

M J Copley QC for the applicant
C N Marco for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I agree with the reasons of Flanagan J and the order his Honour proposes.
PHILIPPIDES JA: I agree with the order proposed by Flanagan J for the reasons given by his Honour.
FLANAGAN J: On 21 September 2017, the applicant was convicted, on his own pleas of guilty, of 20 sexual offences. The offences were committed against his three biological daughters. At the time of the offending, Child 1 was nine years old, Child 2 was six to seven years old and Child 3 was six years old.
The offences in respect of Child 1 were maintaining a sexual relationship with a child (count 2); indecent treatment of a child under 16, under 12, who was a lineal descendant under care (counts 9 to 17 and 19); and incest (count 18).
The offences in respect of Child 2 were maintaining a sexual relationship with a child (count 1); indecent treatment of a child under 16, under 12, who was a lineal descendant under care (counts 3, 6, 7 and 8); and rape (counts 4 and 5).
The offence in respect of Child 3 was…

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 WBG

Details

AGLC: R v WBG [2018] QCA 284
Case: [2018] QCA 284
Decision Date: 23 October 2018

CaseChat Overview and Summary

In the matter of R v WBG, the applicant appealed against his sentence after pleading guilty to multiple sexual offences against his three biological daughters, all under the age of 12 at the time. The trial judge imposed various concurrent terms of imprisonment, with a head sentence of 10 years. The applicant argued that the sentence was manifestly excessive, and the Court of Appeal was asked to consider the appropriate grounds for interference.

The key issue before the Court of Appeal was whether the 10-year head sentence was manifestly excessive. The Court of Appeal considered the severity and duration of the offending, the age of the victims, and the fact that the offending occurred while the applicant had custody of the children. The Court of Appeal also took into account the applicant's attempts to manipulate his daughters into keeping the abuse secret and the absence of penile-vaginal intercourse. The Court of Appeal noted that the applicant's reliance on R v EK and R v BBM was not persuasive, as the facts and circumstances of those cases were different from the present case. The Court of Appeal concluded that the sentence imposed by the trial judge was not manifestly excessive.

The Court of Appeal dismissed the applicant's appeal against sentence. The Court of Appeal found that the trial judge had appropriately considered the relevant aggravating and mitigating factors and that the sentence imposed was within the appropriate range for the offending. The Court of Appeal also noted that the applicant had not demonstrated any exceptional circumstances that would warrant a reduction in sentence. The Court of Appeal therefore refused the applicant's application for leave to appeal against sentence.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

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

The learned sentencing Judge took these matters into account, as well as the fact that the offending extended over a relatively short period of approximately three months and the fact that there was no penile-vaginal intercourse.[10][10]RB 46, lines 41-44.Consideration The applicant’s references to R v EK and R v BBM do not assist in establishing that the head sentence imposed of 10 years with an automatic declaration is manifestly excessive. The applicant relies on the following passage from the judgment of Muir JA in R v EK, where his Honour observed:“Putting aside the state of the applicant’s health, it is my view that the comparable sentences relied on by the respondent, as well as R v K, provide support for the sentences imposed on the applicant, although these sentences are at the higher end of the established range. The offending in BBM commenced when the complainant, who was born with disabilities, was only eight years of age. The applicant in HAA was sentenced after a trial. His offending commenced when the complainant was nine years of age. The offending in GQ included two rapes.”[11][11]R v EK [2013] QCA 278 at [27]. In R v EK, the original sentence of 10 years was reduced to nine years. In that case, the applicant was the stepfather of two complainant females. He maintained a sexual relationship with one of them from when she was 13 to when she was 16. He also maintained a sexual relationship with the other complainant commencing when she was 11 and concluding when she was 19. The applicant was not, however, charged with offending occurring after the second complainant turned 16. A distinguishing feature in R v EK was that the applicant had serious medical conditions, including psychiatric difficulties. Muir JA considered that the nature and extent of the applicant’s physical ailments were such that imprisonment would be a far greater burden on him than it would be on most inmates and that there existed a substantial possibility that imprisonment would have a materially adverse effect on the applicant’s health and well-being. Muir JA considered that the sentencing judge had failed to have due regard to these considerations, which informed the re-sentencing by the Court of Appeal. In those circumstances, the observation of Muir JA upon which the applicant relies does not support a submission that the present sentence is manifestly excessive simply because the length of the maintaining is significantly shorter. This is particularly so where, in the present case, the maintaining ceased when the relevant conduct was reported to police. Further, in the present case, the conduct was in respect of the applicant’s three natural daughters, who were of more tender years than the complainants in R v EK. The present offences were also committed while the applicant’s three daughters were under his care and away from their mother pursuant to custody arrangements. The applicant relies on R v BBM as constituting an example of the Court of Appeal exercising the sentencing discretion afresh. In that case, the application for leave to appeal was granted on the basis that the sentencing judge had failed to impose separate sentences. The Court of Appeal nevertheless imposed the same head sentence of 10 years for one count of maintaining a sexual relationship. The relationship was maintained with the applicant’s adopted daughter over a period of approximately eight years. She was aged between eight and 15 years during the period the subject of the maintaining charge. Prior to the complainant turning 10 years of age the relevant conduct only involved kissing. No act of sexual intercourse occurred until the complainant was aged 14 years of age. Thereafter there were three occasions of sexual intercourse. The applicant used a condom on those three occasions. While the period of maintaining is significantly longer than the present case, only one complainant was involved who was not the natural daughter of the applicant. Further, any penetrative sexual acts occurred when the complainant was considerably older than Child 1.

CITATION:	R v WBG [2018] QCA 284
PARTIES:	R v WBG (applicant)
FILE NO/S:	CA No 30 of 2018 DC No 2160 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 24 January 2018 (Reid DCJ)
DELIVERED ON:	23 October 2018
DELIVERED AT:	Brisbane
HEARING DATE:	16 August 2018
JUDGES:	Morrison and Philippides JJA and Flanagan J
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted, on his own pleas of guilty, of multiple sexual offences against his three biological daughters – where each of the applicant’s daughters was under the age of 12 at the time of the offending – where the offending occurred while the applicant’s daughters were under his care, pursuant to a custody agreement the applicant had reached with his former wife – where the applicant had sought to persuade his two eldest daughters that his offending formed part of a normal father-daughter relationship, and to convince his middle daughter to keep the offending secret – where the learned sentencing judge imposed various concurrent terms of imprisonment in respect of the offences, with a head sentence of 10 years’ imprisonment – whether the head sentence is manifestly excessive Criminal Code (Qld), s 210, s 221, s 229B, s 349 Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited R v BBM[2008] QCA 162, considered R v EK[2013] QCA 278, considered R v MCT[2018] QCA 189, applied
COUNSEL:	M J Copley QC for the applicant C N Marco for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent