R v WBH - [2020] QDC 324

DISTRICT COURT OF QUEENSLAND

CITATION:

R v WBH [2020] QDC 324

PARTIES:

THE QUEEN

v

WBH

(applicant)

FILE NO:

816/16

DIVISION:

Criminal

PROCEEDING:

Application pursuant to s 188 of the Penalties and Sentences Act

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

18 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

15 December 2020

JUDGE:

Smith DCJA

ORDER:

1. I dismiss the application.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT − SENTENCE – Reopening sentencing proceedings – whether “clear factual error of substance” − whether application to reopen sentence should be granted

LEGISLATION:

Penalties and Sentences Act 1991 (Qld) s 188

CASES:

R v Cassar; ex parte Attorney-General [2002] 1 Qd R 386; [2001] QCA 300, applied

R v De Simoni (1981) 147 CLR 383; [1981] HCA 31, cited

R v MacKenzie [2002] 1 Qd R 410; [2000] QCA 324, distinguished

R v WBH [2019] QCA 249, applied

COUNSEL:
Self-represented defendant

Mr H McIntyre for the crown

SOLICITORS:
Self-represented defendant

Office of the Director of Public Prosecutions for the crown

Introduction

The applicant Mr WBH applies to reopen a sentence imposed upon him in the District Court on 25 May 2018. He was convicted of one count of indecent treatment of a child under 16 under 12 who is a lineal descendent and was sentenced to three and half years imprisonment.
Applicant’s points
Mr WBH submits that the sentencing judge paid no regard to the severing of the indictment, the consequent delay in the trial and his subsequent conviction. He submits that the totality principle was ignored by the sentencing judge. He also submits that the De Simoni principle was breached[1] in that more serious offending unconnected with the offence charged was led by the Crown.
[1]R v De Simoni (1981) 147 CLR 383; [1981] HCA 31.
Background
Mr WBH was charged originally on a joint indictment charging offences involving two complainants (indictment 815/2016). The indictment was severed.
He went to trial on the 10 count indictment. On 4 November 2016, he was convicted by a jury on Counts 1 to 5 and 7 to 10. He was sentenced to an effective term of imprisonment of two and half years commencing on 28 October 2016.
The applicant appealed this conviction to the Court of Appeal but this appeal was dismissed on 23 June 2017.
Indictment 816/2016 came on for trial before Judge McGill SC on 22 May 2018. The applicant was convicted and was sentenced on 25 May 2018 to three and half years imprisonment to be served concurrently with the sentence he was then serving with an eligibility date for parole fixed as at 23 April 2019.
The applicant appealed this conviction and sentence. The Court of Appeal dismissed the appeal on 15 November 2019.[2]
[2]R v WBH [2019] QCA 249.
It is clear from the appeal that one of the grounds raised was that there was an error in the application of the principle…

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 WBH

Details

AGLC: R v WBH [2020] QDC 324
Case: [2020] QDC 324
Decision Date: 18 December 2020

CaseChat Overview and Summary

The matter of R v WBH involved an application by the defendant, WBH, to reopen sentencing proceedings. WBH argued that the original sentencing judge had failed to consider the severing of the indictment, the resulting delay in the trial, and his subsequent conviction. He also contended that the sentencing judge ignored the totality principle and that the De Simoni principle was breached. The application was heard by the District Court, which dismissed the application to reopen the sentencing proceedings. The Court of Appeal also dismissed the appeal against the conviction and sentence.

The primary legal issues before the court were whether there was a clear factual error of substance in the original sentencing, and if so, whether the application to reopen the sentence should be granted. The court examined the arguments regarding the totality principle and whether the sentencing judge had failed to consider relevant factors in determining the sentence. It also considered whether the De Simoni principle was breached by the introduction of more serious unconnected offending by the Crown.

The court determined that there was no clear factual error of substance in the original sentencing. The court found that the sentencing judge had considered the totality principle and that the sentence was appropriate. The court also rejected the argument that the De Simoni principle was breached. The court held that the application to reopen the sentencing proceedings was not warranted, and thus dismissed the application.

ORDERS:
1. I dismiss the application.

Orders

Orders of the court

1. I dismiss the application.

Background

Background to the litigation

Mr WBH submits that the sentencing judge paid no regard to the severing of the indictment, the consequent delay in the trial and his subsequent conviction. He submits that the totality principle was ignored by the sentencing judge. He also submits that the De Simoni principle was breached[1] in that more serious offending unconnected with the offence charged was led by the Crown.[1]R v De Simoni (1981) 147 CLR 383; [1981] HCA 31.Background Mr WBH was charged originally on a joint indictment charging offences involving two complainants (indictment 815/2016). The indictment was severed. He went to trial on the 10 count indictment. On 4 November 2016, he was convicted by a jury on Counts 1 to 5 and 7 to 10. He was sentenced to an effective term of imprisonment of two and half years commencing on 28 October 2016. The applicant appealed this conviction to the Court of Appeal but this appeal was dismissed on 23 June 2017. Indictment 816/2016 came on for trial before Judge McGill SC on 22 May 2018. The applicant was convicted and was sentenced on 25 May 2018 to three and half years imprisonment to be served concurrently with the sentence he was then serving with an eligibility date for parole fixed as at 23 April 2019. The applicant appealed this conviction and sentence. The Court of Appeal dismissed the appeal on 15 November 2019.[2] [2]R v WBH [2019] QCA 249. It is clear from the appeal that one of the grounds raised was that there was an error in the application of the principle of totality.[3] The court held at [141] that there could be no doubt that the sentencing Judge considered the question of totality when fixing the sentence. The sentence appeal was dismissed. [3]R v WBH [2019] QCA 249 at [4]. On 20 November 2019, the applicant applied to the District Court for a reopening of the sentence. This application was heard on 9 December 2019 but was dismissed. Similar issues were raised before Judge McGill SC as those raised before me. Discussion In reaching my decision I have had regard to the applicant’s material and the crown response.[4] [4]I have marked these exhibits 1-4. Section 188 of the Penalties and Sentences Act 1991 (Qld) provides:“188 Court may reopen sentencing proceedings(1)If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal—(a) imposed a sentence that is not in accordance with the law; or(b) failed to impose a sentence that the court legally should have imposed; or(c) imposed a sentence decided on a clear factual error of substance; or(d) failed to fix a date for the offender to be released on parole as required under part 9, division 3;the court, whether or not differently constituted, may reopen the proceeding.(2)Also, if—(a) a court has in, or in connection with, a criminal proceeding reduced a sentence because the offender has undertaken in a written declaration to cooperate with law enforcement agencies in a proceeding about an offence, including a confiscation proceeding; and(b) the offender, without reasonable excuse, does not cooperate under the undertaking;the court, whether or not differently constituted, may reopen the proceeding.(3)If a court reopens a proceeding, it—(a) must give the parties an opportunity to be heard; and(b) may resentence the offender—(i)for a reopening under subsection (1)(a)—to a sentence in accordance with law; or(ii)for a reopening under subsection (1)(b)—to a sentence the court legally should have imposed; or(iii)for a reopening under subsection (1)(c)—to a sentence that takes into account the factual error; or(iv)for a reopening under subsection (2)—to a sentence under subsection (4); and(c) may amend any relevant conviction or order to the extent necessary to take into account the sentence imposed under paragraph (b).(4)On an application under subsection (2)—(a) if the court is satisfied that the offender has completely failed to cooperate, the court must resentence the offender having regard to the sentence that would otherwise have been imposed if an undertaking under section 13A had not been given; or(b) if the court is satisfied that the offender has partly failed to cooperate, the court may substitute for the reduced sentence the sentence it considers appropriate, not greater than the sentence that would have been imposed if the undertaking had not been given.(5)The court may reopen the proceeding—(a) on its own initiative at any time; or(b) for a reopening under subsection (1)—on the application of a party to the proceeding made within—(i)28 days after the day the sentence was imposed; or(ii)any further time the court may allow on application at any time; or(c) for a reopening under subsection (1)(d)—on the application of the chief executive (corrective services); or(d) for a reopening under subsection (2)—on the application of the prosecution made at any time, whether or not the appeal period under the Criminal Code, section 671(2) has expired.(6)Subject to subsection (7), this section does not affect any right of appeal.(7)For an appeal under any Act against a sentence imposed under subsection (3) or (4), the time within which the appeal must be made starts from the day the sentence is imposed under subsection (3) or (4).(8)This section applies to a sentence imposed, or required to be imposed, whether before or after the commencement of 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.

CITATION:	R v WBH [2020] QDC 324
PARTIES:	THE QUEEN v WBH (applicant)
FILE NO:	816/16
DIVISION:	Criminal
PROCEEDING:	Application pursuant to s 188 of the Penalties and Sentences Act
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	18 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	15 December 2020
JUDGE:	Smith DCJA
ORDER:	1. I dismiss the application.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT − SENTENCE – Reopening sentencing proceedings – whether “clear factual error of substance” − whether application to reopen sentence should be granted
LEGISLATION:	Penalties and Sentences Act 1991 (Qld) s 188
CASES:	R v Cassar; ex parte Attorney-General [2002] 1 Qd R 386; [2001] QCA 300, applied R v De Simoni (1981) 147 CLR 383; [1981] HCA 31, cited R v MacKenzie [2002] 1 Qd R 410; [2000] QCA 324, distinguished R v WBH [2019] QCA 249, applied
COUNSEL:	Self-represented defendant Mr H McIntyre for the crown
SOLICITORS:	Self-represented defendant Office of the Director of Public Prosecutions for the crown