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R v Wilson

R v Wilson

Case [2022] QCA 18 18 February 2022

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Wilson [2022] QCA 18

PARTIES:

R
v
WILSON, Andii Jared
(applicant)

FILE NO/S:

CA No 7 of 2021
SC No 85 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns – Date of Sentence: 8 December 2020 (Henry J)

DELIVERED ON:

18 February 2022

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2021

JUDGES:

Fraser and Morrison JJA and North J

ORDER:

Dismiss the application for leave to appeal.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was sentenced upon pleas of guilty he entered to 12 drug offences and one Weapons Act 1990 (Qld) offence, all committed on 9 June 2019 – where the sentencing judge declared as time served under the sentence a period of 51 days – where the applicant contends that the sentencing judge failed to adequately deal with the applicant’s pre-sentence custody for two reasons, namely, that the sentence did not proceed in accordance with s 159A of the Penalties and Sentences Act 1992 (Qld) and the sentencing judge failed appropriately to apply the principle of totality in relation to overlapping sentences – where the sentencing judge imposed the sentence upon the legally incorrect premise that s 159A did not apply in relation to the 288 days during which the applicant was held in custody in relation to the proceedings for the subject offences and also under the previous sentence – where that was an error of principle which caused the sentencing discretion to miscarry – where the Court must instead re-sentence afresh unless it concludes in the independent exercise of its discretion that the same or a more severe sentence is the appropriate sentence – where the Court ordinarily should not impose a more severe sentence upon a convicted person’s application for leave to appeal and it should not do so without first allowing the application for leave to appeal and giving the applicant an opportunity to discontinue the appeal – whether the same or a more severe sentence is the appropriate sentence

Criminal Code Act 1899 (Qld), s 668E(3)
Penalties and Sentences Act 1992 (Qld), s 9(1), s 159A

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177; [2014] QCA 206, cited
R v CCT[2021] QCA 278, cited
R v Cook[2021] QCA 209, cited
R v Dinh[2019] QCA 231, cited
R v Gordon (1994) 71 A Crim R 459, cited
R vKendrick (2015) 249 A Crim R 176; [2015] QCA 27, cited
R v Nagy

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 [2022] QCA 18
Case: [2022] QCA 18
Decision Date: 18 February 2022

CaseChat Overview and Summary

In the matter of R v Wilson, the appellant, Mr Wilson, appealed against his sentence on the grounds that the sentencing judge acted on the wrong principle when considering his pre-sentence custody. Mr Wilson had pleaded guilty to 12 drug offences and one Weapons Act 1990 (Qld) offence, all committed on 9 June 2019. The sentencing judge declared a period of 51 days as time served under the sentence. Mr Wilson argued that the sentencing judge failed to adequately address his pre-sentence custody, as the sentence did not proceed in accordance with s 159A of the Penalties and Sentences Act 1992 (Qld), and the principle of totality in relation to overlapping sentences was not appropriately applied.

The court was required to determine whether the sentencing judge's error in principle warranted a re-sentencing or if the same or a more severe sentence could be imposed without first allowing the appeal. The court held that the sentencing judge imposed the sentence on the legally incorrect premise that s 159A did not apply to the 288 days during which Mr Wilson was held in custody in relation to the subject offences and the previous sentence. This error of principle caused the sentencing discretion to miscarry. The court must re-sentence afresh unless it concludes, through an independent exercise of its discretion, that the same or a more severe sentence is appropriate. The court ordinarily should not impose a more severe sentence upon a convicted person's application for leave to appeal, and it should not do so without first allowing the application for leave to appeal and giving the applicant an opportunity to discontinue the appeal.

The court dismissed the application for leave to appeal, finding that the same or a more severe sentence was not the appropriate sentence in this case.

Orders

Orders of the court

Dismiss the application for leave to appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Wilson [2022] QCA 18

Most Recent Citation

R v Braeckmans [2022] QCA 25

Cases citing this decision · 16 of 16 shown

R v Ward
[2024] QCA 243

…CA 345, cited R v Mackay [2019] QCA 97, cited R v Watson [2021] QCA 225, cited R v Wilson (2022) 10 QR 88; [2022] QCA 18, cited COUNSEL: K M Hillard, with B J Taylor, for the applicant S L Dennis for the respondent SOLICITORS: Brisbane Criminal Lawyers for the applicant Director of Public Prosecutions (Queensland)…
R v CDF
[2024] QCA 207 Para 9

…might wish to pursue an appeal in those circumstances, the appropriate order is to dismiss the application for leave to appeal.[11] [11] R v Wilson [2022] QCA 18 at [33] per Fraser JA, with whom Morrison JA and North J agreed. Manifest Excess…
R v Oad
[2024] QCA 189

…ed R v Whitely (2021) 8 QR 283; [2021] QSC 154, cited R v Wilson (2022) 10 QR 88; [2022] QCA 18, cited Warwick v The Queen (2020) 201 A Crim R 580; [2010] VSCA 166, considered COUNSEL: The applicant appeared on his own behalf C W Wallis for the respondent SOLICITORS: The applicant appeared on his own behalf Dire…
R v Benecke
[2024] QCA 86

…2014] QCA 13, considered R v WBK (2020) 4 QR 110; [2020] QCA 60, considered R v Wilson (2022) 10 QR 88; [2022] QCA 18, cited COUNSEL: M F Bonasia for the applicant B M White for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent…
JMC v Commissioner of Police
[2023] QDC 228 Para 18

…he Penalties and Sentences Act 1992 (Qld) (PSA) s 9(2)(j), (k) & (l) deal with the totality principle, which was addressed by Fraser JA in R v Wilson [2022] QCA 18, [26] as follows: (a)In Postiglione v R (1997) 189 CLR 295, 307-308, McHugh J stated that the totality principle “requires a judge who is sentencing…
R v Atasoy
[2023] QCA 121 Para 21

…mity with applicable statutory provisions and common law sentencing principles that are consistent with those provisions.” [22](2022) 10 QR 88; [2022] QCA 18. [23] R v Wilson (2022) 10 QR 88; [2022] QCA 18, [32].…
R v Palmer
[2023] QCA 118

…Sentences Act 1992 (Qld), s 159A R v Whitely (2021) 8 QR 283; [2021] QSC 154, cited R v Wilson (2022) 10 QR 88; [2022] QCA 18, cited R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, cited COUNSEL: The appellant appeared on his own behalf D Kovac for the respondent SOLICITORS: The appellant appeared on his ow…
R v Fowler
[2022] QCA 265 Para 8

…declaring any time to be taken as time already served under the sentence and the sentencing judge did apply the reasons in Whitely and R v Wilson [2022] QCA 18 in reducing the head sentence from eight years to six years to reflect the principle of totality. The sentencing judge did not, however, comply with s 15…
R v Pain
[2022] QCA 233 Para 24

…me or a more severe sentence as the base sentence is the appropriate sentence, the Court must resentence on account of the error of law: R v Wilson [2022] QCA 18 at [21].…
R v Campbell
[2022] QCA 135 Para 17

…t penalty in conformity with applicable statutory provisions and common law sentencing principles that are consistent with those provisions.” [78][2022] QCA 18 at [32].…
R v McNamara
[2022] QCA 73 Para 23

…rt otherwise ordered. Where s 159A(1) is engaged, the court must make an order under subsection (3) or an order under subsection (3B). [8] R v Wilson [2022] QCA 18 at [18]; R v Braeckmans [2022] QCA 25 [25].…
Baker v Commissioner of Police
[2022] QDC 141 Para 1

…to make a declaration in the prisoner’s favour in relation to time for which the prisoner was on remand whilst serving a previous sentence.[11] [9] [2022] QCA 18. [10] [2022] QCA 25. [11] R v Whitely [2021] QSC 154.…
The Queen v O'Connor
[2022] QCA 65

…[1][2022] QCA 18.…
GHN v Commissioner of Police
[2022] QDC 86 Para 6

…other reason . The effect of the amendment is to give sentencing courts increased flexibility in relation to presentence custody.[31] [31] R v Wilson [2022] QCA 18 at [18]; R v Whitely [2021] QSC 154; R v Stewart [2021] QSC 187; R Winkelmann [2022] QDC 49 at [33]-[34].…
R v Winkelmann
[2022] QDC 49 Para 13

…the declaration of the pre-sentence custody to which s 159A(1) is now applicable, having regard to the remaining provisions in that section. [17] [2022] QCA 18 at 31 – 32.…
R v Braeckmans
[2022] QCA 25 Para 25

…n to proceedings for the offence regardless of whether the offender was in custody on remand on another charge or was serving a previous sentence. [3][2022] QCA 18 at [18]. [4]Fraser JA, Morrison JA and North J agreeing. [5][2021] QSC 154. [6] R v Wilson [2022] QCA 18 at [18].…

View all 16 citing cases →

Cases cited in this decision · 19 of 19 shown

R v CCT
[2021] QCA 278 Para 6

…how the principle is to be applied in such circumstances.) [9][2014] QCA 206. [10][2015] QCA 27. [11](2020) 4 QR 110 at [9] – [15]. [12][2021] QCA 278 at [215] – [233]. [13](1997) 189 CLR 295 at 307 – 308. [14](1988) 166 CLR 59 at 64 – 66 (Wilson, Deane, Dawson, Toohey and Gaudron JJ). [15](1988) 166 CLR 59 at 66…
R v Cook
[2021] QCA 209 Para 6

…and Gaudron JJ). [15](1988) 166 CLR 59 at 66 – 67. [16](1994) 71 A Crim R 459 at 466. [17](2020) 4 QR 110 at [13] – [15]. [18][2021] QCA 209 at [30]. [19][2021] QCA 278 at [233], [235].…
R v Stewart
[2021] QSC 187 Para 9

…d more serious offences when he was afforded an opportunity under the previous sentence to rehabilitate himself in the community on parole. [24][2021] QSC 187 at [39] - [41].…
R v Whitely
[2021] QSC 154 Para 18

…lst serving a previous sentence of imprisonment. In my respectful opinion that decision is correct for the reasons given by Bowskill J.[2] [1][2021] QSC 154 at [17]. [2][2021] QSC 154 at [13] – [18].…
R v Peirano
[2020] QCA 100 Para 5

…ial sentence of imprisonment. My conclusion is that count 9 alone should attract two and a half years’ imprisonment. [6][2017] QCA 41. [7][2020] QCA 100. [8][2019] QCA 231.…
R v WBK
[2020] QCA 60

…rano [2020] QCA 100, cited R v Phillips [2017] QCA 41, cited R v Stewart [2021] QSC 187, cited R v WBK (2020) 4 QR 110; [2020] QCA 60, cited R v Whitely [2021] QSC 154, approved COUNSEL: M C Longhurst for the applicant D Nardone for the respondent SOLICITORS: Osborne Butler Lawyers for the applicant Director of…
R v Berns
[2020] QCA 36 Para 8

…at a just sentence.” [21][2014] QCA 206 at [20]. [22][2021] QCA 278 at [216]. [23][2021] QSC 154 at [7] and the cases there cited ( R v Berns [2020] QCA 36 at p 6, and R v McAnally [2016] QCA 329 at [42] - [43]).…
R v Dinh
[2019] QCA 231 Para 5

…risonment. My conclusion is that count 9 alone should attract two and a half years’ imprisonment. [6][2017] QCA 41. [7][2020] QCA 100. [8][2019] QCA 231.…
R v Phillips
[2017] QCA 41 Para 5

…lls for a substantial sentence of imprisonment. My conclusion is that count 9 alone should attract two and a half years’ imprisonment. [6][2017] QCA 41. [7][2020] QCA 100. [8][2019] QCA 231.…
R v McAnally
[2016] QCA 329 Para 8

…at [20]. [22][2021] QCA 278 at [216]. [23][2021] QSC 154 at [7] and the cases there cited ( R v Berns [2020] QCA 36 at p 6, and R v McAnally [2016] QCA 329 at [42] - [43]).…
R v Kendrick
[2015] QCA 27 Para 6

…v CCT .[19] It is not necessary in this case to discuss how the principle is to be applied in such circumstances.) [9][2014] QCA 206. [10][2015] QCA 27. [11](2020) 4 QR 110 at [9] – [15]. [12][2021] QCA 278 at [215] – [233]. [13](1997) 189 CLR 295 at 307 – 308. [14](1988) 166 CLR 59 at 64 – 66 (Wilson, Deane, Da…
Kentwell v The Queen
[2014] HCA 37

…t 1899 (Qld), s 668E(3) Penalties and Sentences Act 1992 (Qld), s 9(1), s 159A Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA…
R v Beattie; Ex parte Attorney-General (Qld)
[2014] QCA 206 Para 6

…v Cook ,[18] and R v CCT .[19] It is not necessary in this case to discuss how the principle is to be applied in such circumstances.) [9][2014] QCA 206. [10][2015] QCA 27. [11](2020) 4 QR 110 at [9] – [15]. [12][2021] QCA 278 at [215] – [233]. [13](1997) 189 CLR 295 at 307 – 308. [14](1988) 166 CLR 59 at 64 – 66…
R v Nagy
[2003] QCA 175 Para 7

…isonment with parole eligibility after two years and four months (inclusive of the 51 days of declared pre-sentence custody). [20][2004] 1 Qd R 63; [2003] QCA 175.…
Postiglione v the Queen
[1997] HCA 26

…88] HCA 70, cited Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177; [2014] QCA 206, cited R v CCT [2021] QCA 278, cited R v Cook [2021] QCA 209, cited R v Dinh [2019] QCA…
Mill v The Queen
[1988] HCA 70

…ld), s 9(1), s 159A Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Beattie; Ex parte Attorney-General (Qld) (201…
Neal v The Queen
[1982] HCA 55

…1; [2014] HCA 37, applied Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177; [2014] QCA 206, cited R v CCT [2021]…
House v R
[1936] HCA 40 Para 1

…s in the independent exercise of its discretion that the same or a more severe sentence is the appropriate sentence. [3] House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ). [4](2014) 252 CLR 601 at 618 [42] - [43] (French CJ, Hayne, Bell and Keane JJ).…
House v The King
63 WN 176 Para 1

…nless it concludes in the independent exercise of its discretion that the same or a more severe sentence is the appropriate sentence. [3] House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ). [4](2014) 252 CLR 601 at 618 [42] - [43] (French CJ, Hayne, Bell and Keane JJ).…

Legislation cited in this decision · 4

Penalties and Sentences Act 1992 (Qld)
9(1), 9(1)(a) 3 mentions (from Para 3)
Criminal Code Act 1899 (Qld)
668E(3) 2 mentions (from Para 1)
Justice and Other Legislation Amendment Act 2020 (Qld)
1 mention (from Para 18)
Weapons Act 1990 (Qld)
1 mention (from Para 1)

CITATION:	R v Wilson [2022] QCA 18
PARTIES:	R v WILSON, Andii Jared (applicant)
FILE NO/S:	CA No 7 of 2021 SC No 85 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Cairns – Date of Sentence: 8 December 2020 (Henry J)
DELIVERED ON:	18 February 2022
DELIVERED AT:	Brisbane
HEARING DATE:	18 August 2021
JUDGES:	Fraser and Morrison JJA and North J
ORDER:	Dismiss the application for leave to appeal.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was sentenced upon pleas of guilty he entered to 12 drug offences and one Weapons Act 1990 (Qld) offence, all committed on 9 June 2019 – where the sentencing judge declared as time served under the sentence a period of 51 days – where the applicant contends that the sentencing judge failed to adequately deal with the applicant’s pre-sentence custody for two reasons, namely, that the sentence did not proceed in accordance with s 159A of the Penalties and Sentences Act 1992 (Qld) and the sentencing judge failed appropriately to apply the principle of totality in relation to overlapping sentences – where the sentencing judge imposed the sentence upon the legally incorrect premise that s 159A did not apply in relation to the 288 days during which the applicant was held in custody in relation to the proceedings for the subject offences and also under the previous sentence – where that was an error of principle which caused the sentencing discretion to miscarry – where the Court must instead re-sentence afresh unless it concludes in the independent exercise of its discretion that the same or a more severe sentence is the appropriate sentence – where the Court ordinarily should not impose a more severe sentence upon a convicted person’s application for leave to appeal and it should not do so without first allowing the application for leave to appeal and giving the applicant an opportunity to discontinue the appeal – whether the same or a more severe sentence is the appropriate sentence Criminal Code Act 1899 (Qld), s 668E(3) Penalties and Sentences Act 1992 (Qld), s 9(1), s 159A Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177; [2014] QCA 206, cited R v CCT[2021] QCA 278, cited R v Cook[2021] QCA 209, cited R v Dinh[2019] QCA 231, cited R v Gordon (1994) 71 A Crim R 459, cited R vKendrick (2015) 249 A Crim R 176; [2015] QCA 27, cited R v Nagy