R v WBT - [2022] QCA 215

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBT [2022] QCA 215

PARTIES:

R
v
WBT
(applicant)

FILE NO/S:

CA No 155 of 2022
SC No 430 of 2022
SC No 845 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 13 July 2022 (Crowley J)

DELIVERED ON:

4 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

20 October 2022

JUDGES:

McMurdo and Flanagan JJA and Freeburn J

ORDERS:

1.   Application for leave to appeal against sentence granted.

2.   Appeal allowed.

3.   Set aside the sentence imposed below in relation to counts 1 and 2.

4.   The applicant is sentenced as follows:

a.   Count 1 - the sentence be altered to 2 years’ imprisonment;

b.   Count 2 - the sentence be altered to 18 months’ imprisonment; and

c. The applicant’s parole release date be altered so that it is fixed at today, and it be declared pursuant to s 159A of the Penalties and Sentences Act 1992 that the 114 days spent in custody between 13 July 2022 and 4 November 2022, be deemed time already served under the sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty on all counts and charges at first instance – where the applicant satisfied the sentencing judge that she was drug dependent at the time of committing the offences – whether the sentencing judge erred in law by proceeding on the incorrect maximum penalty

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the sentencing judge indicated that the nominal sentence without the applicant’s cooperation was four years’ imprisonment – where the applicant cooperated with police – where the applicant’s sentence was reduced to account for her cooperation – whether the sentence was manifestly excessive in all the circumstances

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the sentencing judge stated that he had regard to the Penalties and Sentences Act 1992 (Qld) s 9 guidelines – where the sentencing judge did not specifically refer to the principle that a sentence that allows the offender to stay in the community is preferable – whether the sentencing judge erred in law by not having regard to that principle

Drug Misuse Act 1986 (Qld), s 9
Penalties and Sentences Act 1992 (Qld), s 13B

R v Sabine[2019] QCA 36, cited

COUNSEL:

L A Ygoa-McKeown for the applicant (pro bono)
N E Friedewald for the respondent

SOLICITORS:

Fisher Dore Lawyers for the applicant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: On 13 July 2022, the applicant pleaded guilty to two counts of possession of a dangerous drug, methylamphetamine, in excess of 2.0 grams. The first of the offences was committed on 13…

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 WBT

Details

AGLC: R v WBT [2022] QCA 215
Case: [2022] QCA 215
Decision Date: 4 November 2022

CaseChat Overview and Summary

The applicant appealed against the sentence imposed by the trial judge, challenging the appropriateness of the penalty on several grounds. The applicant had pleaded guilty to multiple drug-related offences and was sentenced to a total of three years and six months imprisonment. The primary issues before the court were whether the sentencing judge erred by proceeding on the incorrect maximum penalty, whether the sentence was manifestly excessive in all the circumstances, and whether the sentencing judge failed to have regard to the principle that a sentence allowing the offender to stay in the community is preferable.

The court found that the sentencing judge had indeed erred by proceeding on the incorrect maximum penalty, as the statutory provision referred to in the sentencing remarks was not applicable to the specific charges. Furthermore, the court determined that the sentence was manifestly excessive given the applicant's cooperation with the police, which had already resulted in a reduced sentence. The court also held that the sentencing judge did not sufficiently consider the principle that a sentence which allows the offender to remain in the community is preferable. These errors warranted interference with the sentence.

Accordingly, the court granted the application for leave to appeal against sentence, allowed the appeal, and set aside the sentence imposed on counts 1 and 2. The applicant was re-sentenced to two years' imprisonment for count 1 and 18 months' imprisonment for count 2. The court also adjusted the parole release date to the date of the appeal determination, and ordered that the 114 days spent in custody be deemed time already served under the sentence.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal allowed.

3. Set aside the sentence imposed below in relation to counts 1 and 2.

4. The applicant is sentenced as follows:

a. Count 1 - the sentence be altered to 2 years’ imprisonment;

b. Count 2 - the sentence be altered to 18 months’ imprisonment; and

c. The applicant’s parole release date be altered so that it is fixed at today, and it be declared pursuant to s 159A of the Penalties and Sentences Act 1992 that the 114 days spent in custody between 13 July 2022 and 4 November 2022, be deemed time already served under the sentence.

Background

Background to the litigation

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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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CITATION:	R v WBT [2022] QCA 215
PARTIES:	R v WBT (applicant)
FILE NO/S:	CA No 155 of 2022 SC No 430 of 2022 SC No 845 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 13 July 2022 (Crowley J)
DELIVERED ON:	4 November 2022
DELIVERED AT:	Brisbane
HEARING DATE:	20 October 2022
JUDGES:	McMurdo and Flanagan JJA and Freeburn J
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Appeal allowed. 3. Set aside the sentence imposed below in relation to counts 1 and 2. 4. The applicant is sentenced as follows: a. Count 1 - the sentence be altered to 2 years’ imprisonment; b. Count 2 - the sentence be altered to 18 months’ imprisonment; and c. The applicant’s parole release date be altered so that it is fixed at today, and it be declared pursuant to s 159A of the Penalties and Sentences Act 1992 that the 114 days spent in custody between 13 July 2022 and 4 November 2022, be deemed time already served under the sentence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty on all counts and charges at first instance – where the applicant satisfied the sentencing judge that she was drug dependent at the time of committing the offences – whether the sentencing judge erred in law by proceeding on the incorrect maximum penalty CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the sentencing judge indicated that the nominal sentence without the applicant’s cooperation was four years’ imprisonment – where the applicant cooperated with police – where the applicant’s sentence was reduced to account for her cooperation – whether the sentence was manifestly excessive in all the circumstances CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the sentencing judge stated that he had regard to the Penalties and Sentences Act 1992 (Qld) s 9 guidelines – where the sentencing judge did not specifically refer to the principle that a sentence that allows the offender to stay in the community is preferable – whether the sentencing judge erred in law by not having regard to that principle Drug Misuse Act 1986 (Qld), s 9 Penalties and Sentences Act 1992 (Qld), s 13B R v Sabine[2019] QCA 36, cited
COUNSEL:	L A Ygoa-McKeown for the applicant (pro bono) N E Friedewald for the respondent
SOLICITORS:	Fisher Dore Lawyers for the applicant (pro bono) Director of Public Prosecutions (Queensland) for the respondent