R v WBK

Case [2020] QCA 60

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBK [2020] QCA 60

PARTIES:

R
v
WBK
(applicant)

FILE NO/S:

CA No 40 of 2019
DC No 133 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Bundaberg – Date of Sentence: 4 February 2019 (Clare SC DCJ)

DELIVERED ON:

3 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2019

JUDGES:

Fraser JA and Lyons SJA and Boddice J

ORDERS:

1.   The application for leave to appeal against sentence be granted.

2.   The sentences imposed below be set aside to the extent only that the applicant’s parole eligibility dated be fixed at 16 September 2021.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of rape and five counts of indecent treatment of a child under 16, under 12 who is a lineal descendant – where the subject offences occurred between 2005 and 2011 – where the applicant was sentenced to concurrent sentences of nine years’ imprisonment for one count of rape, five years’ imprisonment for the other count of rape, and periods of three or four years’ imprisonment for the five indecent treatment counts – where the sentences imposed were also to be served concurrently with a sentence of four years for armed robbery imposed on 8 June 2016 – whether the sentence was manifestly excessive – whether the sentencing judge failed to have regard to the totality principle to ensure that the sentence imposed was not crushing

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was on parole at the time of his plea and sentence for the subject offences – where the subject offences did not breach the applicant’s parole because they were committed before the previous sentence was imposed – where the applicant’s parole eligibility date for the sentences imposed in relation to the subject offences was fixed after serving four and a half years at 16 March 2023 – whether the sentencing judge erred in failing to have regard to the aggregate period of imprisonment imposed on the applicant in fixing the parole eligibility date – whether the sentencing judge failed to comply with the requirement in s 160F of the Penalties and Sentences Act 1992 (Qld) that the parole eligibility date fixed by the court must relate to the offender’s period of imprisonment as opposed to a particular term of imprisonment

Penalties and Sentences Act 1992 (Qld), s 9(2)(l), s 160E, s 160F

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, considered
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
R v BBP[2009] QCA 114, considered
R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177; [2014] QCA 206, considered
R v Dendle[2019]…

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Details
AGLC
R v WBK [2020] QCA 60
Case
[2020] QCA 60
Decision Date

CaseChat Overview and Summary

The case of R v WBK concerns an appeal against the sentences imposed on the applicant, who had pleaded guilty to two counts of rape and five counts of indecent treatment of a child under 16 who is a lineal descendant. The subject offences occurred between 2005 and 2011. The applicant was sentenced to concurrent sentences of nine years' imprisonment for one count of rape, five years' imprisonment for the other count of rape, and periods of three or four years' imprisonment for the five indecent treatment counts. These sentences were to be served concurrently with a sentence of four years for armed robbery imposed on 8 June 2016. The applicant argued that the sentence was manifestly excessive, that the sentencing judge failed to have regard to the totality principle, and that the sentencing judge erred in fixing the parole eligibility date. The applicant claimed the parole eligibility date should have been based on the aggregate period of imprisonment rather than a particular term of imprisonment, and that the sentencing judge failed to comply with s 160F of the Penalties and Sentences Act 1992 (Qld).

The legal issues in this case involved whether the sentence was manifestly excessive, whether the sentencing judge failed to have regard to the totality principle, and whether the sentencing judge erred in fixing the parole eligibility date. The applicant contended that the sentence was manifestly excessive and that the sentencing judge did not consider the totality principle when imposing the sentence. Additionally, the applicant argued that the sentencing judge failed to comply with s 160F of the Penalties and Sentences Act 1992 (Qld) by fixing the parole eligibility date based on a particular term of imprisonment rather than the aggregate period of imprisonment. The court was required to determine whether these arguments had merit and whether the sentences should be set aside or reduced.

The court found that the applicant's arguments regarding the manifestly excessive nature of the sentence were not persuasive. However, the court agreed with the applicant's contention that the sentencing judge had failed to have regard to the totality principle and erred in fixing the parole eligibility date. The court held that the parole eligibility date should have been based on the aggregate period of imprisonment rather than a particular term of imprisonment, as required by s 160F of the Penalties and Sentences Act 1992 (Qld). Consequently, the court granted the applicant leave to appeal against the sentence and set aside the sentences imposed to the extent that the applicant's parole eligibility date be fixed at 16 September 2021.

In conclusion, the court granted the applicant leave to appeal against the sentences imposed on Counts 1 to 7, set aside the sentences to the extent that the applicant's parole eligibility date be fixed at 16 September 2021, and ordered the sentences to be served concurrently with the armed robbery sentence. The court found that the sentencing judge had failed to have regard to the totality principle and erred in fixing the parole eligibility date, but did not find the sentences to be manifestly excessive.

Orders

Orders of the court

1. The application for leave to appeal against sentence be granted.

2. The sentences imposed below be set aside to the extent only that the applicant’s parole eligibility dated be fixed at 16 September 2021.

Background

Background to the litigation

Pursuant to an amended Notice of Appeal, the applicant seeks leave to appeal against the sentences imposed on Counts 1 to 7 on the following bases:(i)the sentence is manifestly excessive; (ii)the sentencing judge erred in failing to have regard to the aggregate period of imprisonment imposed on the applicant in fixing the parole eligibility date in relation to a term of imprisonment rather than a period of imprisonment and accordingly failed to comply with the requirement in s 160F of the Penalties and Sentences Act 1992 (Qld); and (iii)the sentencing judge failed to have regard to the totality principle.Agreed Facts The Agreed Schedule of Facts[21] indicated that the applicant had offended against his daughter on four separate occasions. One occasion was in 2005 and the rest were between 2010 and 2011. The first offence occurred when the complainant was four years old and was living with the applicant. The factual background is as follows:Count 1: Indecent Treatment on a date unknown between 1 January 2005 and 31 December 2005. The applicant isolated the complainant from the family, took her clothes off, held her down and attempted digital penetration. He threatened to kill her if she told anyone.[21]Appeal Record Book (ARB) 60. The other offences occurred on three separate occasions, as set out below, some five years later between 17 January 2010 and 1 January 2011. The complainant was nine years old and living with carers.Count 2: Indecent Treatment. The applicant rubbed the complainant’s vagina whilst he was sitting between her and her brother and attempted digital penetration.Count 3 and 4: Indecent Treatment. The applicant licked and rubbed the complainant’s vagina.Count 5: Rape. The applicant put his penis in the complainant’s mouth and moved it up and down.Count 6: Indecent Treatment. The applicant licked the complainant’s vagina.Count 7: Rape. The applicant penetrated the complainant’s vagina with his penis for a short distance. The Agreed Schedule of Facts stated that the complainant had initially informed authorities of the abuse in 2011, and whilst the applicant had been located by police and advised of the allegations in 2012, charges were not formally brought until 2017 when the complainant repeated the previous allegations and made further disclosures to her case worker at The Department of Child Safety (DOCS). Police were informed and the disclosures made in 2011 were reconsidered. In September 2017 there was a recorded telephone call between the complainant and the applicant in which he admitted he had sexually assaulted her and referred to factors in his own childhood as the cause. He also stated that he felt guilt and shame for what he had done. He was arrested in December 2017 and pleaded guilty on 17 September 2018 when a new indictment was presented.The sentencing hearing The applicant had a wide range of previous criminal offences. Many of the early offences were minor and there were no previous convictions of sexual offending. He had, however, committed violence against women in the course of property offending including the 2016 offence.

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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