R v WBL - [2020] QCA 88

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBL [2020] QCA 88

PARTIES:

R
v
WBL
(applicant)

FILE NO/S:

CA No 168 of 2019
DC No 118 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh – Date of Sentence: 24 May 2019 (Chowdhury DCJ)

DELIVERED ON:

1 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2020

JUDGES:

Fraser and Morrison and McMurdo JJA

ORDER:

Application for leave to appeal 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, to 18 sexual offences – where the applicant was sentenced on one of those offences, which was that he maintained a sexual relationship with a child, to a term of nine and a half years’ imprisonment – where the applicant was sentenced to concurrent and lesser terms for the other offences – whether the sentence was manifestly excessive

R v CCK[2019] QCA 237, cited
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited

COUNSEL:

The applicant appeared on his own behalf
J A Wooldridge for the respondent

SOLICITORS:

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

FRASER JA: I agree with the reasons for judgment of McMurdo JA and the order proposed by his Honour.
MORRISON JA: I have read the reasons of McMurdo JA and agree with those reasons and the order his Honour proposes.
McMURDO JA: This is an application for leave to appeal against sentences imposed for 18 sexual offences. The applicant was sentenced on one of those offences, which was that he maintained a sexual relationship with a child, to a term of nine and a half years’ imprisonment. He was sentenced to concurrent and lesser terms for the other offences, the highest being one of four years’ imprisonment for an offence of the rape of another girl. His sentence on the maintaining charge was intended to reflect the overall criminality of all of his offending, in the way which was approved by this Court in R v Nagy.[1] The applicant’s challenge, therefore, is to the sentence of nine and a half years’ imprisonment.
[1][2004] 1 Qd R 63; [2003] QCA 175.
The offences
The most serious of the applicant’s offences were committed against two sisters, whom I will call R and J, when the applicant was in a de facto relationship with their mother, whom I will call D, from 2011 to 2015.
The offence of maintaining a sexual relationship was committed against R, over a period of approximately three years, who was approximately seven or eight years of age when it commenced. The offence ended only when R came to understand that what the applicant was doing was wrong. The offending against R included:
·anal penetration with his penis;
·licking the complainant’s genital area;
·ejaculating on the complainant;

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 WBL

Details

AGLC: R v WBL [2020] QCA 88
Case: [2020] QCA 88
Decision Date: 1 May 2020

CaseChat Overview and Summary

The applicant in the case of R v WBL appealed against his sentence, which followed convictions on his own pleas of guilty to 18 sexual offences. The primary issue before the court was whether the sentence of nine and a half years for maintaining a sexual relationship with a child, with concurrent and lesser terms for the other offences, was manifestly excessive. The applicant argued that the sentence was too harsh, considering his low risk of reoffending, his remorse, and his willingness to participate in courses to address his behaviour. He sought a reduced sentence of seven years with parole eligibility after 28 months.

The court examined the evidence and reasoning behind the sentencing judge's decision. The judge imposed concurrent sentences but increased the term for one offence, believing it commensurate with the applicant's overall criminality. The nine and a half year term for the maintaining offence was deemed appropriate in the context of the overall sentence. The court noted that while a sentence for the rape of a child, which was one of the offences, might have been four years, this was not inadequate and was not considered heavy in the context of the child being under the applicant's care. The court also considered comparable cases and concluded that the sentence for the maintaining offence alone, if some mitigating factors were allowed, would not have been excessive.

The court concluded that the overall sentence of nine and a half years was not manifestly excessive, given the seriousness of the offences against multiple children. The applicant's arguments did not sufficiently demonstrate that the sentence was inappropriate. Therefore, the court refused the application for leave to appeal against the sentence.

ORDER:
Application for leave to appeal refused.

Orders

Orders of the court

Application for leave to appeal refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant also relied upon the assessment by Dr Andrews that he was a low risk of re-offending. He argued that he had shown remorse and that allowance should be made for his willingness to participate in courses, both inside and outside prison, in order to address his behaviour. He submitted that the sentence should be reduced to one of seven years, with parole eligibility after 28 months.Consideration The s 93A evidence was not before the sentencing judge. But there is no inconsistency between the evidence to which the applicant refers and the factual basis upon which he was sentenced. The sentencing judge said that he was unable to assess the frequency of the offending within this charge, so it is to be assumed that he was sentenced upon the basis that there was relatively infrequent conduct over the three year period. This case was complicated by the existence of several offences against different complainants in circumstances where, as the judge said, it would have been appropriate to impose cumulative terms of imprisonment. The judge decided instead to impose concurrent sentences, but to increase the sentence for one offence to result in a period of imprisonment which was commensurate with the applicant’s overall criminality. The nine and a half year term for the maintaining offence must be understood in that context. Under the alternative approach which was open to the judge, one of the accumulated terms would have been for the offence of the rape of the complainant J. The judge said that had he followed that approach, a sentence for that offence would have been a cumulative term of four years. I do not suggest that this would have been an inadequate sentence, but, in the circumstance of the child being under his care, a four year term would not have been a heavy sentence.[7][7]cf R v BBP [2009] QCA 114, where a term of eight years from the rape of the applicant’s niece, aged 9 or 10, was not disturbed, although that was imposed after a trial. On the maintaining charge itself, a number of comparable cases are discussed in the recent judgment of Mullins JA in R v CCK,[8] and it is unnecessary for me to repeat that discussion here. A sentence for that offence alone, of eight years’ imprisonment, would not have been excessive, if there was some allowance for the mitigating factors by an earlier parole eligibility date.[8][2019] QCA 237 at [22] to [29]. There were also the offences committed against other children and D and her sister. These were serious offences, especially those involving the children, warranting some further punishment of the applicant. In these circumstances, it cannot be accepted that the “global” sentence of nine and a half years was manifestly excessive.Order I would refuse the application for leave to appeal.

CITATION:	R v WBL [2020] QCA 88
PARTIES:	R v WBL (applicant)
FILE NO/S:	CA No 168 of 2019 DC No 118 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh – Date of Sentence: 24 May 2019 (Chowdhury DCJ)
DELIVERED ON:	1 May 2020
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2020
JUDGES:	Fraser and Morrison and McMurdo JJA
ORDER:	Application for leave to appeal 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, to 18 sexual offences – where the applicant was sentenced on one of those offences, which was that he maintained a sexual relationship with a child, to a term of nine and a half years’ imprisonment – where the applicant was sentenced to concurrent and lesser terms for the other offences – whether the sentence was manifestly excessive R v CCK[2019] QCA 237, cited R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited
COUNSEL:	The applicant appeared on his own behalf J A Wooldridge for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent