R v WBX - [2023] QCA 151

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBX [2023] QCA 151

PARTIES:

R
v
WBX
(applicant)

FILE NO/S:

CA No 98 of 2023
DC No 202 of 2023
DC No 203 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore – Date of Sentence: 2 June 2023 (Loury KC DCJ)

DELIVERED ON:

28 July 2023

DELIVERED AT:

Brisbane

HEARING DATE:

21 July 2023

JUDGES:

Dalton and Flanagan and Boddice JJA

ORDER:

Leave to appeal be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of assault occasioning bodily harm (domestic violence offence) and seven charges of contravention of a domestic violence order – where the applicant was sentenced to six months imprisonment, with immediate parole release, on the indictable offence and convicted and not further punished in respect of the summary charges – where convictions were recorded for all offences – where the applicant was ordered to pay compensation to the complainant in the sum of $10,000 – where six of the seven contraventions of the domestic violence order were committed in the days following the assault occasioning bodily harm, notwithstanding the applicant having been charged – where the applicant had a number of mitigating factors in his favour, including early pleas of guilty, a lack of criminal history, psychological conditions, prospects of rehabilitation and the payment of compensation – where defence counsel below submitted probation was an appropriate sentence – whether, having regard to the applicant’s mitigating circumstances, the sentencing judge inappropriately bound herself to a sentence of imprisonment – whether the sentences imposed were manifestly excessive in all the circumstances

R v CBU[2017] QCA 227, cited
R v Hollis[2020] QCA 7, distinguished
R v Kelley[2018] QCA 18, cited
R v RAP (2014) 244 A Crim R 477; [2014] QCA 228, cited

COUNSEL:

A J Kimmins for the applicant
B M White for the respondent

SOLICITORS:

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

DALTON JA: I agree with the order proposed by Boddice JA and with his reasons.
FLANAGAN JA: I agree with Boddice JA.
BODDICE JA: On 2 June 2023, the applicant pleaded guilty to one count of assault occasioning bodily harm, being a domestic violence offence, and seven charges of contravention of a domestic violence order.
On the same date, the applicant was convicted and sentenced to six months imprisonment, on the count of assault occasioning bodily harm, and convicted and not further punished in respect of each of the summary charges. A parole release date was fixed at 2 June 2023.
It was ordered that convictions be recorded for the count of assault occasioning bodily harm and each of the summary charges.
The sentencing judge further ordered that the applicant pay compensation, in the sum of $10,000, to the complainant for the count of…

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 WBX

Details

AGLC: R v WBX [2023] QCA 151
Case: [2023] QCA 151
Decision Date: 28 July 2023

CaseChat Overview and Summary

The applicant in the case of R v WBX was sentenced to six months imprisonment, with immediate parole release, for one count of assault occasioning bodily harm (domestic violence offence) and convicted but not further punished for seven charges of contravention of a domestic violence order. The applicant sought leave to appeal the sentence on the grounds that the sentencing judge made specific errors and that the sentence was manifestly excessive in all the circumstances. The applicant had early pleas of guilty, a lack of criminal history, psychological conditions, prospects of rehabilitation, and the payment of compensation to the complainant as mitigating factors.

The legal issues before the court were whether the sentencing judge made specific errors and whether the sentence was manifestly excessive in all the circumstances. The applicant argued that the sentencing judge failed to give proper weight to the applicant’s previously undiagnosed medical and psychological condition and its effect upon the offending. The applicant also argued that the sentencing judge failed to properly consider imposing a sentence that would allow for the future rehabilitation of the applicant and that she sentenced on the basis that the only appropriate sentence was one involving a sentence of imprisonment. The applicant further argued that the sentencing judge failed to record convictions for the summary offences. The court found that there were no such errors. The sentencing judge acknowledged the applicant's psychological conditions but correctly recorded that those undiagnosed conditions were not causative of the applicant’s offending. The sentencing judge also considered the imposition of a sentence which allowed for future rehabilitation and ordered the applicant’s immediate release on parole, thereby ensuring that he did not have to serve actual imprisonment and would be supported by supervision for the period of that parole order.

The court held that the sentences imposed and recording of convictions were not affected by specific error and were not manifestly excessive in all the circumstances. The sentencing judge concluded that punishment, deterrence, both personal and general, and denunciation, in her view, warranted a sentence of imprisonment to reflect the prolonged assault against a background of alcohol abuse and alcohol abuse on the night in question, in circumstances where the applicant offended in breach of a domestic violence order and continued to breach that domestic violence order after having been charged. The sentencing judge specifically invited submissions in respect of the structure of any sentence and rightly observed that a protracted instance of the infliction of actual violence against a much younger female complainant, in breach of a domestic violence order, and repeated contraventions of that domestic violence order thereafter, notwithstanding having been charged, involved criminality warranting a sentence of imprisonment. The imposition of a sentence of imprisonment meant that the recording of a conviction for the offence of assault occasioning bodily harm was mandatory. In circumstances where that offence was committed in contravention of a domestic violence order and the applicant, thereafter, contravened the domestic violence order on six further occasions, there is no basis to conclude that the recording of convictions for the summary charges fell outside of what was a sound exercise of the discretion whether to record convictions.

Leave to appeal be refused.

Orders

Orders of the court

Leave to appeal be refused.

Background

Background to the litigation

The applicant seeks leave to appeal his sentence. Should leave be granted, the applicant relies on two grounds of appeal. First, that the learned sentencing judge made specific errors. Second, that the sentence was manifestly excessive in all the circumstances.Background The applicant was aged 32 at the time of the commission of the offences and 34 at sentence. He had no prior criminal history. The applicant operated his own business as a massage therapist. The female complainant was aged 23 years at the time of the commission of the offence. She and the applicant had been in a domestic relationship for two years. That relationship was described as toxic. The relationship deteriorated to the point that on 10 May 2021, in the Magistrates Court at Caloundra, a temporary protection order was made naming the complainant as the aggrieved and the applicant as the respondent. A second temporary protection order was made at the same time, naming the applicant as aggrieved and the complainant as respondent. Relevantly, the order naming the complainant as the aggrieved, contained a condition that the respondent may only contact the aggrieved if it was agreed in writing.Offences On the evening of 25 June 2021, the applicant and the complainant were together at the applicant’s residence. They had been drinking for several hours. An argument turned into a physical altercation. That incident was the basis for the assault occasioning bodily harm and the first of the seven contraventions of a domestic violence order. The physical altercation commenced when the applicant prevented the complainant from leaving the bedroom. In doing so, he grabbed her from behind, putting his arm around her neck. At that point, the complainant bit his arm. The applicant let go, but then grabbed the complainant around the throat for around 10 to 20 seconds before letting go. When the complainant looked for her telephone, the applicant grabbed her around the throat again, slamming her sideways into the bed before throwing her to the ground and screaming into her face. The applicant then got on top of her and pushed her down for about 10 seconds before letting her go. When the complainant attempted to leave again, the applicant grabbed her and they fell to the floor. The applicant then grabbed the complainant’s head, dragging her backwards and sliding his hands down her throat. When the applicant let the complainant go, she escaped down the stairs. The applicant followed and pushed her out the front door saying, “get the fuck out, stay out of my life”. Those events represented the count of assault occasioning bodily harm. The complainant left the house crying hysterically. She was helped by a neighbour who called police. They observed the complainant had a swollen jaw. When the complainant was subsequently transported to hospital by ambulance, she was found to have sustained a tender head, a superficial laceration to the lip and eyebrow, bruising/tenderness to the cheekbone, linear bruising to the front of the neck and bruising to both knees and her right arm.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

First, the offence to which Hollis pleaded guilty was not a domestic violence offence. Second, the offence was not committed whilst Hollis, a 71-year-old man, was subject to a domestic violence order. Third, the offending was not accompanied by repeated contraventions of a domestic violence order in the days following the commission of the act of violence.Conclusion The sentences imposed and recording of convictions were not affected by specific error and were not manifestly excessive in all the circumstances.Order I would order:1. Leave to appeal be refused.

Ratio Decidendi

Legal Principle Established

After noting that the legislation required the sentencing judge to have primary regard to the impact of the offending on the complainant, and the need to protect the community, the sentencing judge concluded:“The sentence I impose must punish you for what I consider to be a prolonged assault against a background of alcohol abuse and alcohol abuse on this night, in circumstances where you offended in breach of a domestic violence order and continued to breach that domestic violence order after having been charged with this offence. Punishment, deterrence, both personal and general, and denunciation, in my view, warrant a sentence of imprisonment to reflect those features. In your favour, though, is your early indications of a willingness to enter a plea of guilty, your offer of significant compensation, which I accept is demonstrative of your remorse and your personal vulnerabilities, and those features mean that I will not impose a sentence that requires you to serve actual imprisonment today.”[1][1]ARB48/7-16.Consideration The applicant submits that the sentencing judge erred in:“i.failing to give any or any proper weight to the applicant’s previously undiagnosed medical and psychological condition and its effect upon the offending;ii.sentencing on the basis that the only appropriate sentence was one involving a sentence of imprisonment;iii.failing to properly consider imposing a sentence that would allow for the future rehabilitation of the Applicant;iv.recording convictions for the summary offences”.However, a consideration of the sentencing remarks evidences no such errors. First, the sentencing judge specifically acknowledged the provisional diagnoses of the psychologist, but correctly recorded that those undiagnosed conditions were not causative of the applicant’s offending. Second, whilst the sentencing judge observed, in the course of submissions, that imprisonment would have been imposed if the applicant had been sentenced in the Magistrates Court, there is no basis to conclude that the sentencing judge inappropriately bound herself to a sentence of imprisonment. The sentencing judge specifically invited submissions in respect of the structure of any sentence. The sentencing judge also rightly observed that a protracted instance of the infliction of actual violence against a much younger female complainant, in breach of a domestic violence order, and repeated contraventions of that domestic violence order thereafter, notwithstanding having been charged, involved criminality warranting a sentence of imprisonment. Third, the sentencing judge did consider the imposition of a sentence which allowed for future rehabilitation. The sentencing judge ordered the applicant’s immediate release on parole, thereby ensuring he did not have to serve actual imprisonment and would be supported by supervision for the period of that parole order. Fourth, the imposition of a sentence of imprisonment meant that the recording of a conviction for the offence of assault occasioning bodily harm was mandatory. In circumstances where that offence was committed in contravention of a domestic violence order and the applicant, thereafter, contravened the domestic violence order on six further occasions, there is no basis to conclude that the recording of convictions for the summary charges fell outside of what was a sound exercise of the discretion whether to record convictions.

CITATION:	R v WBX [2023] QCA 151
PARTIES:	R v WBX (applicant)
FILE NO/S:	CA No 98 of 2023 DC No 202 of 2023 DC No 203 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore – Date of Sentence: 2 June 2023 (Loury KC DCJ)
DELIVERED ON:	28 July 2023
DELIVERED AT:	Brisbane
HEARING DATE:	21 July 2023
JUDGES:	Dalton and Flanagan and Boddice JJA
ORDER:	Leave to appeal be refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of assault occasioning bodily harm (domestic violence offence) and seven charges of contravention of a domestic violence order – where the applicant was sentenced to six months imprisonment, with immediate parole release, on the indictable offence and convicted and not further punished in respect of the summary charges – where convictions were recorded for all offences – where the applicant was ordered to pay compensation to the complainant in the sum of $10,000 – where six of the seven contraventions of the domestic violence order were committed in the days following the assault occasioning bodily harm, notwithstanding the applicant having been charged – where the applicant had a number of mitigating factors in his favour, including early pleas of guilty, a lack of criminal history, psychological conditions, prospects of rehabilitation and the payment of compensation – where defence counsel below submitted probation was an appropriate sentence – whether, having regard to the applicant’s mitigating circumstances, the sentencing judge inappropriately bound herself to a sentence of imprisonment – whether the sentences imposed were manifestly excessive in all the circumstances R v CBU[2017] QCA 227, cited R v Hollis[2020] QCA 7, distinguished R v Kelley[2018] QCA 18, cited R v RAP (2014) 244 A Crim R 477; [2014] QCA 228, cited
COUNSEL:	A J Kimmins for the applicant B M White for the respondent
SOLICITORS:	Hannay Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent