R v WBQ - [2022] QCA 48

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBQ [2022] QCA 48

PARTIES:

R
v
WBQ
(applicant)

FILE NO/S:

CA No 18 of 2022
DC No 1356 of 2021
DC No 2648 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 17 December 2021 (McDonnell DCJ)

DELIVERED ON:

Date of Orders: 15 March 2022
Date of Publication of Reasons: 8 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

15 March 2022

JUDGES:

Mullins JA and Boddice and Flanagan JJ

ORDERS:

Orders delivered: 15 March 2022

1.   Application for leave to appeal granted.

2.   Appeal allowed.

3.   Vary the sentences imposed by the sentencing judge on 17 December 2021 by:

(a)   deleting the order “Term be served cumulatively with reactivated suspended sentences below”;

(b) deleting the parole eligibility date of 13 June 2022; and

(c)   ordering that the date on which the applicant be released on parole is fixed at 15 March 2022.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FAILURE TO PROVIDE REASONS – where the applicant was sentenced to nine months’ imprisonment for assault occasioning bodily harm whilst armed – where the complainant was the applicant’s partner – where the offence is a domestic violence offence – where the applicant had a previous suspended sentence imposed on 16 April 2019 for the offence of possessing a dangerous drug – where the applicant was sentenced to three years’ imprisonment for an offence of trafficking in dangerous drugs imposed on 15 January 2021 – where the activated suspended sentence was to be served concurrently with the sentence of three years’ imprisonment – where the nine months’ imprisonment was served cumulatively on the existing sentence – where parole eligibility was fixed at 13 June 2022 – where the sentencing Judge failed to give reasons for the imposition of a cumulative period of imprisonment – whether a failure to give reasons warrants appellant intervention and that the applicant be resentenced

COUNSEL:

M L Longhurst for the applicant
C W Wallis for the respondent

SOLICITORS:

Sibley Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS JA: I agree with Boddice J.
BODDICE J: On 15 March 2022, the applicant was granted leave to appeal a sentence imposed for an offence of assault occasioning bodily harm whilst armed. The offence was a domestic violence offence.
The applicant relied on three grounds of appeal.
First, that the sentence was excessive. Second, that the sentencing process was infected by legal error. Third, that the sentencing Judge failed to give adequate reasons for her decision.
On 15 March 2022, the Court ordered that the appeal be allowed; and that the sentences be varied by:
(a)deleting the order “Term be served cumulatively with reactivated suspended sentences below”;
(b)deleting the parole eligibility date of 13 June 2022; and
(c)ordering that the date on which the applicant be released on parole is fixed at 15 March 2022.
These are…

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 WBQ

Details

AGLC: R v WBQ [2022] QCA 48
Case: [2022] QCA 48
Decision Date: 8 April 2022

CaseChat Overview and Summary

The matter before the Court was an appeal by the applicant, WBQ, against his sentence for the offence of assault occasioning bodily harm whilst armed. The applicant had been sentenced to nine months’ imprisonment for the offence, to be served cumulatively with his sentence for trafficking in dangerous drugs. The applicant’s appeal was against the sentence imposed by the sentencing judge, contending that the sentence was legally erroneous because the sentencing judge failed to provide reasons for imposing a cumulative period of imprisonment.

The primary legal issue the Court was required to decide was whether the sentencing judge’s failure to provide reasons for imposing a cumulative period of imprisonment constituted an error of law warranting appellate intervention. The Court noted that there was an obligation on the sentencing judge to record reasons for imposing a cumulative period of imprisonment, rather than a concurrent period of imprisonment, especially given the activation of the suspended sentence in full. The sentencing remarks provided no such reasons. The Court concluded that the failure to do so constituted an error of law warranting appellate intervention.

In light of the above, the Court allowed the appeal and varied the sentences imposed by the sentencing judge. The Court deleted the order for the term to be served cumulatively with reactivated suspended sentences and deleted the parole eligibility date of 13 June 2022. The Court ordered that the date on which the applicant be released on parole is fixed at 15 March 2022, the date of the orders.

Orders

Orders of the court

Orders delivered: 15 March 2022

1. Application for leave to appeal granted.

2. Appeal allowed.

3. Vary the sentences imposed by the sentencing judge on 17 December 2021 by:

(a) deleting the order “Term be served cumulatively with reactivated suspended sentences below”;

(b) deleting the parole eligibility date of 13 June 2022; and

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

The respondent further submits there was no legal error. The sentencing Judge expressly had regard to totality. The sentencing Judge also noted a concession made by the applicant that the injuries sustained by the complainant would have had an effect upon her, whilst acknowledging that the victim impact statement did not reflect that impact. In such circumstances, the reasons were adequate.Consideration The offence of assault occasioning bodily harm whilst armed was committed when the applicant pointed a knife during a heated altercation with his partner, with the consequence that the partner sustained an injury to her hand. It had the aggravating features that it was a domestic violence offence, committed whilst the applicant was subject to a suspended sentence for drug offending and whilst on bail for further drug offending. Such circumstances warrant a sentence reflective of denunciation and deterrence. However, in sentencing for that offence, the sentencing Judge had to have regard to not only the applicant’s plea of guilty and personal circumstances, but also the consequence of the imposition of a period of imprisonment to be served cumulatively. The prosecutor had made submissions to the sentencing judge giving alternative sentence structures of a cumulative sentence with a parole eligibility date or a concurrent sentence with a parole release date. There was an obligation on the sentencing Judge to record reasons for the imposition of a cumulative period of imprisonment, rather than a concurrent period of imprisonment. The sentencing remarks provide no such reasons. The failure to do so constituted an error of law warranting appellate intervention. The requirement to give reasons for the imposition of a period of imprisonment, to be served cumulatively, was particularly important in circumstances where the sentencing Judge had determined to activate, in full, the suspended sentence, without giving reasons for why it was not unjust to do so. The conclusion that the sentence was subject to legal error necessitated resentencing by this Court. As such, it was unnecessary to consider the remaining ground of alleged specific error, namely reliance upon the victim impact statement. Had it been necessary to do so, I would not have found legal error was established in the circumstances. The sentencing Judge expressly noted a concession on the applicant’s part that the offence had an impact upon the complainant and specifically observed that this impact existed “irrespective of whether this is how it affected her” when referring to the victim impact statement. Those observations obviated any need to make findings as to its use.Resentence The applicant was born in 1988. He had a criminal history which included previous offending for drugs. There was no prior history for violence. The applicant entered a timely plea to the offence. The applicant expressed remorse and had apologised to the complainant. There was also evidence that the applicant was well regarded by his employer, had a new supportive relationship and that he had positively engaged in counselling to assist in his rehabilitation.

CITATION:	R v WBQ [2022] QCA 48
PARTIES:	R v WBQ (applicant)
FILE NO/S:	CA No 18 of 2022 DC No 1356 of 2021 DC No 2648 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 17 December 2021 (McDonnell DCJ)
DELIVERED ON:	Date of Orders: 15 March 2022 Date of Publication of Reasons: 8 April 2022
DELIVERED AT:	Brisbane
HEARING DATE:	15 March 2022
JUDGES:	Mullins JA and Boddice and Flanagan JJ
ORDERS:	Orders delivered: 15 March 2022 1. Application for leave to appeal granted. 2. Appeal allowed. 3. Vary the sentences imposed by the sentencing judge on 17 December 2021 by: (a) deleting the order “Term be served cumulatively with reactivated suspended sentences below”; (b) deleting the parole eligibility date of 13 June 2022; and (c) ordering that the date on which the applicant be released on parole is fixed at 15 March 2022.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FAILURE TO PROVIDE REASONS – where the applicant was sentenced to nine months’ imprisonment for assault occasioning bodily harm whilst armed – where the complainant was the applicant’s partner – where the offence is a domestic violence offence – where the applicant had a previous suspended sentence imposed on 16 April 2019 for the offence of possessing a dangerous drug – where the applicant was sentenced to three years’ imprisonment for an offence of trafficking in dangerous drugs imposed on 15 January 2021 – where the activated suspended sentence was to be served concurrently with the sentence of three years’ imprisonment – where the nine months’ imprisonment was served cumulatively on the existing sentence – where parole eligibility was fixed at 13 June 2022 – where the sentencing Judge failed to give reasons for the imposition of a cumulative period of imprisonment – whether a failure to give reasons warrants appellant intervention and that the applicant be resentenced
COUNSEL:	M L Longhurst for the applicant C W Wallis for the respondent
SOLICITORS:	Sibley Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent