R v Wells - [2018] QCA 236

[2018] QCA 236

COURT OF APPEAL

SOFRONOFF P
FRASER JA
PHILIPPIDES JA

CA No 176 of 2018
DC No 102 of 2017
DC No 105 of 2016
DC No 52 of 2018
DC No 54 of 2018

THE QUEEN

WELLS, Trevor Roy Applicant

BRISBANE

WEDNESDAY, 26 SEPTEMBER 2018

JUDGMENT

FRASER JA: The applicant has applied for leave to appeal against sentence on the ground that it is manifestly excessive. The applicant was convicted upon his pleas of guilty and sentenced on 5 June 2018 to concurrent terms of imprisonment as follows: 15 months for assault occasioning bodily harm while armed, a domestic violence offence, committed on 6 June 2016; two years and six months for an indecent assault committed on 15 January 2017; two years for an indecent assault committed on 25 January 2017; and 12 months for two summary offences of committing an indecent act in a public place on 11 October 2017 and 1 May 2018.

One hundred and sixty-eight days of pre-sentence custody were declared to be time served under the sentence in relation to the indictable offences, and 35 days were declared to be time served in relation to the summary offences. A parole eligibility date was fixed on 5 October 2018 when the applicant will have served 10 months or one-third of the effective sentence of two years and six months imprisonment.

The applicant is a 62 year old man. The complainant in the first indictable offence is the daughter of the applicant’s partner. When the complainant attended at the applicant’s house to pick up some medication, the applicant was threatening and abusive. He locked himself in the house and continued yelling. After about 15 minutes, the applicant left the house. He swung a baseball bat with two hands at the complainant’s head, hitting her and causing her head to split open. She was taken to hospital where she was given six stitches and released. When the applicant was arrested, he told police that he had tripped and hit the complainant in the head with the bat.

Some seven months later, the applicant approached a 66 year old lady on the street and, after making inappropriate comments, hugged her and pressed his erect penis against her hip. The applicant followed that complainant when she freed herself from the applicant’s hold and walked to her car. The applicant grabbed her and hugged her whilst pushing his erect penis towards her pelvis in a grinding motion. After the complainant pushed the applicant away and told him to leave her alone, the applicant attempted to kiss her on the lips. She turned away and he kissed her on her cheek. Eventually, the complainant was able to close her car door and drive away.

Ten days later, the applicant approached a 19 year old lady in a shop where she worked. The applicant had previously gone into the shop and stared at that complainant, attempted to obtain her telephone number, asked other staff members about her, and spoken…

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 Wells

Details

AGLC: R v Wells [2018] QCA 236
Case: [2018] QCA 236
Decision Date: 26 SEPTEMBER 2018

CaseChat Overview and Summary

In the matter of the applicant, Trevor Roy Wells, the Court of Appeal was tasked with determining whether the sentence imposed upon him was manifestly excessive. The applicant had been sentenced to concurrent terms of imprisonment following his guilty pleas to various offences, including assault occasioning bodily harm while armed, indecent assaults, and summary offences for committing indecent acts in public places. The primary contention was that the sentence was excessively harsh, particularly the two-and-a-half-year term for the assault occasioning bodily harm while armed, which was part of a longer overall sentence.

The central legal issue before the court was whether the sentence imposed was manifestly excessive, taking into account the applicant's criminal history, the nature of the offences, and the circumstances under which they were committed. The applicant argued that his history of childhood sexual abuse and his recent engagement with psychological treatment constituted grounds for a reduced sentence. However, the court needed to weigh these mitigating factors against the seriousness of the offences and the need for community protection.

The court considered the brazen nature of the applicant's sexual offences, his repeated reoffending while on bail, and his extensive criminal history. Despite the mitigating factors presented, the court found no reasonable basis to conclude that the sentence was manifestly excessive. The court also dismissed the applicant's concern about potential difficulties in obtaining parole due to the unavailability of certain prison programs, finding that he had not provided sufficient evidence to support this claim. Therefore, the Court of Appeal upheld the original sentence, and the application for leave to appeal against the sentence was refused.

Orders