R v Wilson - [2023] QCA 132

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wilson [2023] QCA 132

PARTIES:

R
v
WILSON, Rhys Wayne
(applicant)

FILE NO/S:

CA No 5 of 2023
SC No 125 of 2022
SC No 147 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns – Date of Sentence: 6 December 2022 (Henry J)

DELIVERED ON:

20 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2023

JUDGES:

Bowskill CJ, Mullins P and North J

ORDERS:

1.   Application for leave to appeal granted.

2.   Appeal allowed.

3.    The order that the respective sentences imposed on the weapon related offending (comprising counts 3 and 6 and summary charge 6 (authority required to possess explosives)) be served concurrently with each other but cumulatively on the term of imprisonment already being served and the other terms of imprisonment ordered on the day of sentence be varied to the extent only of deleting that part of the order that required the terms of imprisonment to be served cumulatively on the other terms of imprisonment ordered on the day of sentence.

4.   The sentence imposed on count 5 is varied by substituting “4 years” for “3 years and 6 months”.

5.    All other sentences imposed and orders made by the sentencing judge on 6 December 2022 are confirmed.

6.    The date for eligibility for parole is fixed at 24 November 2025.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to eight counts including dangerous operation of a vehicle while adversely affected by an intoxicating substance, possession of weapons, possessing dangerous drugs and possessing property obtained from trafficking and eight summary charges – where the applicant was sentenced to an effective total sentence of seven years and three months’ imprisonment – where the applicant committed the offences while the applicant was on parole in respect of the period of imprisonment that he was then serving for previous convictions for which there was a current parole eligibility date – where the applicant’s current parole eligibility date was automatically cancelled under s 160E(2)(b)(ii) of the Penalties and Sentences Act 1992 (Qld) when the sentencing judge imposed a term of imprisonment on the applicant – where the sentencing judge did not fix a date for eligibility for parole as required by s 160C(2) – where the Court on appeal proceeded to re-sentence

Criminal Code (Qld), s 205A
Penalties and Sentences Act 1992 (Qld), s 160, s 160C, s 160D, s 160E

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177; [2014] QCA 206, cited
R v Braeckmans (2022) 10 QR 144; [2022] QCA 25, cited
R v Cook (2021) 9 QR 101; [2021] QCA 209, cited
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited
R v WBK (2020) 4 QR 110

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 Wilson

Details

AGLC: R v Wilson [2023] QCA 132
Case: [2023] QCA 132
Decision Date: 20 June 2023

CaseChat Overview and Summary

In the case of R v Wilson, the appellant faced the court after pleading guilty to multiple serious offences. These included dangerous operation of a vehicle while adversely affected by an intoxicating substance, possession of weapons, possessing dangerous drugs, and possessing property obtained from trafficking. Additionally, he faced eight summary charges. The court imposed an effective total sentence of seven years and three months' imprisonment. The appellant was on parole at the time of the offences, and his parole eligibility date was automatically cancelled when the sentencing judge imposed the term of imprisonment. However, the judge did not set a date for eligibility for parole as required by the legislation.

The primary legal issues for the court to address were whether the failure to set a date for eligibility for parole constituted a sufficient ground for the court to interfere with the sentence and whether the sentence was manifestly excessive or inadequate. The court also needed to consider whether the sentences for the weapon-related offences should be served concurrently or cumulatively with the other terms of imprisonment. Furthermore, the court had to determine if the sentence imposed on count 5 was appropriate.

The court granted the application for leave to appeal and allowed the appeal. It was found that the failure to set a date for eligibility for parole was a sufficient ground for the court to interfere with the sentence. The court also varied the sentences to ensure that the weapon-related offences were served concurrently with each other but cumulatively on the term of imprisonment already being served. The sentence on count 5 was increased from three years and six months to four years. All other sentences and orders were confirmed. The date for eligibility for parole was fixed at 24 November 2025.

Orders

Orders of the court

1. Application for leave to appeal granted.

2. Appeal allowed.

3. The order that the respective sentences imposed on the weapon related offending (comprising counts 3 and 6 and summary charge 6 (authority required to possess explosives)) be served concurrently with each other but cumulatively on the term of imprisonment already being served and the other terms of imprisonment ordered on the day of sentence be varied to the extent only of deleting that part of the order that required the terms of imprisonment to be served cumulatively on the other terms of imprisonment ordered on the day of sentence.

4. The sentence imposed on count 5 is varied by substituting “4 years” for “3 years and 6 months”.

5. All other sentences imposed and orders made by the sentencing judge on 6 December 2022 are confirmed.

6. The date for eligibility for parole is fixed at 24 November 2025.

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 Wilson [2023] QCA 132
PARTIES:	R v WILSON, Rhys Wayne (applicant)
FILE NO/S:	CA No 5 of 2023 SC No 125 of 2022 SC No 147 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Cairns – Date of Sentence: 6 December 2022 (Henry J)
DELIVERED ON:	20 June 2023
DELIVERED AT:	Brisbane
HEARING DATE:	17 May 2023
JUDGES:	Bowskill CJ, Mullins P and North J
ORDERS:	1. Application for leave to appeal granted. 2. Appeal allowed. 3. The order that the respective sentences imposed on the weapon related offending (comprising counts 3 and 6 and summary charge 6 (authority required to possess explosives)) be served concurrently with each other but cumulatively on the term of imprisonment already being served and the other terms of imprisonment ordered on the day of sentence be varied to the extent only of deleting that part of the order that required the terms of imprisonment to be served cumulatively on the other terms of imprisonment ordered on the day of sentence. 4. The sentence imposed on count 5 is varied by substituting “4 years” for “3 years and 6 months”. 5. All other sentences imposed and orders made by the sentencing judge on 6 December 2022 are confirmed. 6. The date for eligibility for parole is fixed at 24 November 2025.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to eight counts including dangerous operation of a vehicle while adversely affected by an intoxicating substance, possession of weapons, possessing dangerous drugs and possessing property obtained from trafficking and eight summary charges – where the applicant was sentenced to an effective total sentence of seven years and three months’ imprisonment – where the applicant committed the offences while the applicant was on parole in respect of the period of imprisonment that he was then serving for previous convictions for which there was a current parole eligibility date – where the applicant’s current parole eligibility date was automatically cancelled under s 160E(2)(b)(ii) of the Penalties and Sentences Act 1992 (Qld) when the sentencing judge imposed a term of imprisonment on the applicant – where the sentencing judge did not fix a date for eligibility for parole as required by s 160C(2) – where the Court on appeal proceeded to re-sentence Criminal Code (Qld), s 205A Penalties and Sentences Act 1992 (Qld), s 160, s 160C, s 160D, s 160E Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177; [2014] QCA 206, cited R v Braeckmans (2022) 10 QR 144; [2022] QCA 25, cited R v Cook (2021) 9 QR 101; [2021] QCA 209, cited R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited R v WBK (2020) 4 QR 110