R v Wilson - [1998] QCA 74

IN THE COURT OF APPEAL	[1998] QCA 074
SUPREME COURT OF QUEENSLAND

C.A. No. 41 of 1998

Brisbane

[R. v. Wilson]

T H E Q U E E N

ALISTAIR JOHN WILSON

(Applicant) Appellant
Pincus J.A.
McPherson J.A.
Muir J.

Judgment delivered 28 April 1998
Judgment of the Court

1. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.
2. APPEAL AGAINST SENTENCE ALLOWED BY VARYING THE SENTENCES TO THE FOLLOWING EXTENT:

(A) HEAD SENTENCE OF FIVE YEARS ON COUNT 1 REDUCED TO FOUR
YEARS.
(B) SENTENCES IMPOSED ON THE OTHER COUNTS CONFIRMED. BALANCE OF TERMS OF IMPRISONMENT UNDER ALL 5 SENTENCES TO BE SUSPENDED.
(C) FOR THE PURPOSE OF S.144(5) OF THE PENALTIES AND SENTENCES ACT 1992, THE OPERATIVE PERIOD OF THE SUSPENSION TO BE FIXED AT THREE YEARS FROM THIS DATE.

CATCHWORDS: CRIMINAL - Maintaining sexual relationship with child under 16 years with a circumstance of aggravation - Indecent dealing - Sentencing - Whether sentence manifestly excessive - Relevance - Injuries sustained by applicant during previous prison sentence - Prisoner’s election not to take advantage of parole recommendation to continue Sexual Offenders programme.

Noble & Verheyden (1994) 73 A.Crim.R. 379.

Counsel:	Mr J. Hunter for the applicant Mr M.C. Chowdhury for the respondent
Solicitors:	Legal Aid Queensland for the applicant Director of Prosecutions (Queensland) for the respondent
Hearing Date:	16 April 1998

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 28 April 1998

In December 1997 the applicant pleaded guilty in the District Court to an indictment charging him with maintaining a sexual relationship with a child under 16 years with a circumstance of aggravation (count 1). He also pleaded to four counts of indecent dealing with a child under the age of 16 years. The sentences imposed were imprisonment for five years for the offence in count 1, and two and a half years for each of the offences in counts 2-5. The sentences are to be served concurrently and they carried a judicial recommendation for release on parole after serving nine months.

The offence in count 1, which spanned a period of about two years, occurred after the applicant met the complainant boy in 1992 when the complainant’s older brother was mowing lawns for the applicant. The complainant was 11 years old at the time and would often run away from his difficult home life. The applicant, who was 47 years old when they first met, gave the complainant food, cigarettes and money. The complainant would, on occasion, spend the night at the applicant’s house. Sexual activity between the applicant and the boy commenced three months after they met and continued for about two years. It consisted mainly of kissing, mutual masturbation and oral sex, and it took place with considerable frequency. When the applicant moved to the Sunshine Coast, the applicant and the complainant developed a code to arrange discreet meetings for these purposes.

The four counts of indecent treatment of a child under 16 are specific incidents. The indecent treatment included the applicant’s…

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 [1998] QCA 74
Case: [1998] QCA 74
Decision Date: 28/04/1998

CaseChat Overview and Summary

The Court of Appeal of Queensland heard an appeal against a sentence in the case of The Queen v Alistair John Wilson. The applicant, Wilson, appealed against the sentence imposed by the District Court on counts of maintaining a sexual relationship with a child under 16 years and indecent dealing with a child. The primary legal issue was whether the sentence was manifestly excessive. The court had to consider factors such as Wilson's plea of guilty, his remorse, his history of similar offences, and the injuries he sustained during a previous prison sentence. The Court of Appeal found that the sentence could be considered heavy, particularly given Wilson's decision to continue with the Sexual Offenders programme in prison and the severe injuries he suffered while incarcerated.

The Court of Appeal held that while the sentence was not without fault, the combined sentences for Wilson's previous conduct were heavy, and his personal situation presented special features warranting a variation of the sentence. The head sentence of five years for count 1 was reduced to four years, while the sentences on the other counts were confirmed. The balance of the terms of imprisonment under all five sentences were suspended, with the operative period of the suspension fixed at three years from the date of the judgment. The Court of Appeal allowed the appeal and varied the sentences accordingly.

Orders