R v Weldon - [1997] QCA 432

COURT OF APPEAL

[1997] QCA 432

DAVIES JA
de JERSEY J

MUIR J

CA No 354 of 1997
THE QUEEN
v.

CRAIG LEE WELDON

Applicant

BRISBANE
..DATE 30/10/97
301097 T8-9/JB M/T COA246/97
DAVIES JA: The applicant was sentenced in the District Court on
16 September last for the offence of taking an unmarried child
under the age of 16 years out of the custody or protection of
his parents and against the will of his parents. The sentence
imposed was one of two years imprisonment, the maximum penalty
for that offence. The applicant is 28 years of age, having been
born on 30 December 1968.

The offence occurred between 11 July 1995 and 20 May 1996 when the applicant was 26 or 27. He pleaded guilty to the offence but this was only after a trial date had been fixed and after the Crown had indicated the likelihood of a more serious charge being preferred. The learned sentencing Judge having taken the plea of guilty into account determined not to reduce the sentence on that account. I do not think that there was any error in His Honour's conclusion in that respect.

The question before this Court then is whether the offence was such as to justify a sentence for the maximum term. In order to justify this, it is not necessary, of course, that the offence be the worst imaginable case. It is sufficient that it is of the worst kind. The question is whether the circumstances of this case make it one of the worst kind.

The applicant's victim was a male child born on 15 February 1981. He was 14 years of age at the time the applicant took him away from his parents and turned 15 during the period he was in the applicant's custody. The applicant was a friend of a young man who had formed a relationship with the complainant's sister.

In that capacity he came to know the complainant and whilst the

301097 T8-9/JB M/T COA246/97
complainant was living at home he visited the applicant
frequently.

There was a period during which the complainant's family went through some stress during which it appears the complainant's father was charged with a criminal offence. It appears that it was during this period that the complainant commenced to spend periods overnight with the applicant. Then one day in November 1994 he did not return home from school and it was found that he and the applicant had disappeared. They were not found again until 19 May 1996.

It emerged that during this period the applicant was aware that the police and, of course, the complainant's parents were looking for him and the complainant and it seems likely he moved from place to place in order to avoid apprehension. After a local newspaper in Dubbo, where the family lived, had printed a story and photograph regarding the child's disappearance in March 1995, the applicant telephoned the child's mother and said, "Don't involve me or any of my…

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 Weldon

Details

AGLC: R v Weldon [1997] QCA 432
Case: [1997] QCA 432
Decision Date: 30/10/1997

CaseChat Overview and Summary

The Court of Appeal in the case of R v Weldon heard an application against the applicant, Craig Lee Weldon, who was convicted and sentenced in the District Court for taking an unmarried child under the age of 16 out of the custody or protection of his parents and against their will. Weldon was sentenced to the maximum penalty of two years imprisonment for this offence. The Court of Appeal was required to determine whether the sentence imposed was appropriate and whether the offence warranted such a severe penalty.

The primary legal issue before the Court was whether the sentence of two years imprisonment, the maximum penalty for the offence, was justified given the circumstances of the case. The Court had to assess whether the offence was of the worst kind, which would warrant the maximum term, or whether it was an ordinary abduction. The Court also had to consider the previous convictions of the applicant and the potential risk of sexual interference to the complainant.

The Court found that the circumstances of the case warranted a sentence towards the high end of the range for this offence. The Court noted the previous convictions of the applicant for similar offences and the evidence of an unnatural passion towards the complainant. The Court also took into account the immense anguish suffered by the complainant's parents during the period their son was missing. The Court rejected the argument that natural justice required the defence to be given an opportunity to call evidence or to put the matter to the defence regarding a psychiatric report that had been rejected by the sentencing Judge. The Court concluded that the sentence imposed was not manifestly excessive and refused the application.

The Court of Appeal, in refusing the application, endorsed the sentiments expressed by the sentencing Judge regarding the desirability of increasing the maximum penalty for this offence in the Criminal Code. The Court also alerted the parole authorities to the need for the applicant to serve substantially more than half of the term due to the gravity of the offence and the need to impress on the applicant and others the unacceptability of this type of conduct.

Orders