R v WBV - [2023] QCA 79

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBV [2023] QCA 79

PARTIES:

R
v
WBV
(applicant)

FILE NO/S:

CA No 221 of 2022
DC No 157 of 2022
DC No 323 of 2022
DC No 324 of 2022
DC No 358 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich – Date of Sentence: 21 September 2022 (Gardiner DCJ)

DELIVERED ON:

26 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2023

JUDGES:

Dalton and Boddice JJA and Crow J

ORDER:

The application for leave to appeal against sentence is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to four indictments containing one count of assault occasioning bodily harm whilst armed, one count of wilful damage, two counts of choking in a domestic setting, one count assault occasioning bodily harm (domestic violence offence), one count wilful damage (domestic violence offence), one count assault occasioning bodily harm and one count of supplying a dangerous drug with a circumstance of aggravation – where a sentence of five years’ imprisonment was imposed – where the parole eligibility date was set after serving two years in custody – where the applicant has a lengthy criminal history including contravention of domestic violence orders – where the applicant submits the sentencing judge started “too high” in calculating the appropriate global sentence in considering the most serious offending of choking – where the applicant submits the sentencing judge erred in applying the “one-third” principle for the parole eligibility date – where the applicant submits the sentencing judge erred in not considering their counsel’s submissions for certainty of release – whether the sentence imposed was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 13, s 13(4)

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, considered
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v CCR[2021] QCA 119, considered
R v DAC[2023] QCA 53, considered
R v HBZ (2020) 4 QR 171; [2020] QCA 73, considered
R v MCW [2019] 2 Qd R 344; [2018] QCA 241, considered
R v MDB[2018] QCA 283, considered
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited
R v Watson[2021] QCA 225, cited

COUNSEL:

J R Cook for the applicant
P McCarthy KC for the respondent

SOLICITORS:

A W Bale & Son Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

DALTON JA: I agree with the order proposed by Crow J and with his reasons.
BODDICE JA: I agree with Crow J that the three matters relied upon by the applicant, individually or cumulatively, do not demonstrate that the sentence was manifestly excessive.
The sentencing judge properly fixed a sentence for the most serious offences (counts 1 and 3 on indictment 323 of 2022), which was…

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 WBV

Details

AGLC: R v WBV [2023] QCA 79
Case: [2023] QCA 79
Decision Date: 26 April 2023

CaseChat Overview and Summary

The case of R v WBV involved the appellant who had pleaded guilty to multiple charges, including assault occasioning bodily harm, wilful damage, choking in a domestic setting, and drug supply. The appellant contested the sentence imposed, arguing that it was manifestly excessive. The sentence was five years in prison, with parole eligibility set after serving two years. The appellant also argued that the sentencing judge had erred in calculating the sentence and setting the parole eligibility date.

The legal issues before the court were whether the sentence was manifestly excessive and if the sentencing judge had erred in calculating the sentence and setting the parole eligibility date. The appellant submitted that the sentencing judge had started "too high" in considering the most serious offence of choking and had misapplied the "one-third" principle for setting parole eligibility. Additionally, the appellant argued that the sentencing judge had failed to consider the submissions for certainty of release.

The court found that the appellant's lengthy criminal history and poor behaviour in a correctional facility did not justify providing a certainty of release date. The court emphasised the importance of motivating prisoners to rehabilitate and control their behaviour. The court concluded that the appellant's arguments did not demonstrate that the sentence was manifestly excessive. The application for leave to appeal against the sentence was dismissed.

The court dismissed the application for leave to appeal against sentence, upholding the original sentence and parole eligibility date.

Orders

Orders of the court

The application for leave to appeal against sentence is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant argues that given his poor criminal record and poor behaviour in a correctional facility that he would struggle in obtaining parole and so a sentence should have been fashioned to give him certainty of release. In my view, criminal or bad behaviour in a correctional facility by a prisoner ought not to be a reason for providing certainty of a release date. To the contrary; It is important to motivate a prisoner to rehabilitate, to turn their back upon drugs and to learn to control their behaviour. These are powerful reasons not to fashion a certainty of release date.Conclusion The three matters relied upon by the applicant, individually or cumulatively do not demonstrate that the sentence if manifestly excessive. I would dismiss the application.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v WBV [2023] QCA 79
PARTIES:	R v WBV (applicant)
FILE NO/S:	CA No 221 of 2022 DC No 157 of 2022 DC No 323 of 2022 DC No 324 of 2022 DC No 358 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich – Date of Sentence: 21 September 2022 (Gardiner DCJ)
DELIVERED ON:	26 April 2023
DELIVERED AT:	Brisbane
HEARING DATE:	13 April 2023
JUDGES:	Dalton and Boddice JJA and Crow J
ORDER:	The application for leave to appeal against sentence is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to four indictments containing one count of assault occasioning bodily harm whilst armed, one count of wilful damage, two counts of choking in a domestic setting, one count assault occasioning bodily harm (domestic violence offence), one count wilful damage (domestic violence offence), one count assault occasioning bodily harm and one count of supplying a dangerous drug with a circumstance of aggravation – where a sentence of five years’ imprisonment was imposed – where the parole eligibility date was set after serving two years in custody – where the applicant has a lengthy criminal history including contravention of domestic violence orders – where the applicant submits the sentencing judge started “too high” in calculating the appropriate global sentence in considering the most serious offending of choking – where the applicant submits the sentencing judge erred in applying the “one-third” principle for the parole eligibility date – where the applicant submits the sentencing judge erred in not considering their counsel’s submissions for certainty of release – whether the sentence imposed was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 13, s 13(4) Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, considered Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v CCR[2021] QCA 119, considered R v DAC[2023] QCA 53, considered R v HBZ (2020) 4 QR 171; [2020] QCA 73, considered R v MCW [2019] 2 Qd R 344; [2018] QCA 241, considered R v MDB[2018] QCA 283, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited R v Watson[2021] QCA 225, cited
COUNSEL:	J R Cook for the applicant P McCarthy KC for the respondent
SOLICITORS:	A W Bale & Son Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent