R v WBM - [2020] QCA 107

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBM [2020] QCA 107

PARTIES:

R
v
WBM
(applicant)

FILE NO/S:

CA No 48 of 2019
DC No 7 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maryborough – Date of Sentence: 7 February 2019 (Reid DCJ)

DELIVERED ON:

22 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

16 April 2020

JUDGES:

Fraser and Mullins JJA and Applegarth 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 – OTHER MATTERS – where the applicant was convicted of two counts of rape, one count of attempted rape and two counts of aggravated indecent treatment of a child – where the sentencing judge concluded that the offending occurred on more than one occasion – where the applicant submits that the sentencing judge should have found that the offending occurred on only one occasion – whether the sentencing judge erred in finding that the offending occurred on more than one occasion

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant submits that the absence of maintaining, overt violence, previous sexual offending and multiple victims in the circumstances were not taken into account – whether the sentencing judge failed to take account of the matters alleged

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was given a head sentence of nine years’ imprisonment with parole eligibility after five years to reflect his overall offending – whether the head sentence was manifestly excessive in all the circumstances

R v BBP[2009] QCA 114, considered
R v Bouttell (2018) 272 A Crim R 41; [2018] QCA 52, cited
R v KAJ; Ex parte Attorney-General (Qld)[2013] QCA 118, cited
R v P[2001] QCA 25, cited
R v WBK[2020] QCA 60, considered

COUNSEL:

The applicant appeared on his own behalf
D Balic 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 Applegarth J and the order proposed by his Honour.
MULLINS JA: I agree with Applegarth J.
APPLEGARTH J: On 6 February 2019 the applicant was convicted after a three day trial on two counts of rape, one count of attempted rape and two counts of aggravated indecent treatment of a child. The victim was his daughter, who was aged seven at the time of the offences.
On 7 February 2019 the applicant was sentenced to concurrent terms of imprisonment of nine years for the rape counts, six years for the attempted rape count and four years for the indecent treatment of a child counts. Each offence was a domestic violence offence. Parole eligibility was fixed after five years’…

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 WBM

Details

AGLC: R v WBM [2020] QCA 107
Case: [2020] QCA 107
Decision Date: 22 May 2020

CaseChat Overview and Summary

The applicant, WBM, was convicted of two counts of rape, one count of attempted rape, and two counts of aggravated indecent treatment of a child. WBM appealed against the sentence imposed, contending that the sentencing judge erred in concluding that the offending occurred on more than one occasion. WBM also argued that the sentencing judge failed to take into account the absence of maintaining, overt violence, previous sexual offending, and multiple victims. The applicant further contended that the head sentence of nine years' imprisonment with parole eligibility after five years was manifestly excessive.

The central issue in the appeal was whether the sentencing judge erred in finding that the offending occurred on more than one occasion. The applicant also argued that the sentencing judge failed to consider specific mitigating factors and that the sentence imposed was manifestly excessive. The court examined the sentencing remarks and the evidence to determine if the sentencing judge had erred in his findings and whether the sentence was appropriate.

In reviewing the case, the court found that the sentencing judge had properly considered the evidence and the factors relevant to the sentencing decision. The court held that the sentencing judge was entitled to conclude that the offending occurred on more than one occasion based on the evidence presented. The court also determined that the sentencing judge had adequately considered the mitigating factors and that the sentence was not manifestly excessive. Consequently, the appeal against the sentence was dismissed.

The court refused the application for leave to appeal against the sentence, affirming the sentence imposed by the sentencing judge.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

Full text does not contain 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 WBM [2020] QCA 107
PARTIES:	R v WBM (applicant)
FILE NO/S:	CA No 48 of 2019 DC No 7 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maryborough – Date of Sentence: 7 February 2019 (Reid DCJ)
DELIVERED ON:	22 May 2020
DELIVERED AT:	Brisbane
HEARING DATE:	16 April 2020
JUDGES:	Fraser and Mullins JJA and Applegarth 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 – OTHER MATTERS – where the applicant was convicted of two counts of rape, one count of attempted rape and two counts of aggravated indecent treatment of a child – where the sentencing judge concluded that the offending occurred on more than one occasion – where the applicant submits that the sentencing judge should have found that the offending occurred on only one occasion – whether the sentencing judge erred in finding that the offending occurred on more than one occasion CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant submits that the absence of maintaining, overt violence, previous sexual offending and multiple victims in the circumstances were not taken into account – whether the sentencing judge failed to take account of the matters alleged CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was given a head sentence of nine years’ imprisonment with parole eligibility after five years to reflect his overall offending – whether the head sentence was manifestly excessive in all the circumstances R v BBP[2009] QCA 114, considered R v Bouttell (2018) 272 A Crim R 41; [2018] QCA 52, cited R v KAJ; Ex parte Attorney-General (Qld)[2013] QCA 118, cited R v P[2001] QCA 25, cited R v WBK[2020] QCA 60, considered
COUNSEL:	The applicant appeared on his own behalf D Balic for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent