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R v Winchester

R v Winchester

Case [2013] QCA 166 24 June 2013

Manifestly Excessive Sentence

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Winchester [2013] QCA 166

PARTIES:

R
v
WINCHESTER, Barry David
(applicant)

FILE NO/S:

CA No 323 of 2012
CA No 347 of 2012
DC No 2641 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Applications for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2013

JUDGES:

Fraser JA and Margaret Wilson and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In CA No 323 of 2012:

1.   Refuse the application filed on 29 November 2012 for an extension of time within which to appeal against conviction.

2.   Grant the application filed on 29 November 2012 for an extension of time within which to apply for leave to appeal against sentence in respect of count 29 in the indictment.

3.   Refuse the application for leave to appeal against sentence.

4.   Refuse the application for an extension of time within which to appeal filed on 27 February 2013.

5.   Refuse the application for leave to adduce evidence.

In CA No 347 of 2012:

1.   Refuse the application for an extension of time within which to appeal against conviction and to apply for leave to appeal against sentence filed on 20 December 2012.

2.   Dismiss the notice of appeal and refuse the application for leave to appeal against sentence filed on 27 February 2013.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – GENERALLY – where the applicant was convicted after a trial of 21 offences, including four counts of indecent treatment of a child under the age of 16, six counts of rape, two counts of carnal knowledge of a child under 16, one count of attempted rape, and one count of maintaining a sexual relationship with a child – where the applicant’s first appeal against his convictions was determined on the merits and was allowed to the extent of setting aside the convictions in respect of the six counts of rape and one count of attempted rape on 16 December 2011 – where a retrial of those counts was ordered – where the appeal against the other convictions was dismissed – where the sentence imposed on the maintaining offence (count 29) was set aside and remitted to the District Court to await the retrial of the seven counts set aside – where the prosecution subsequently entered a nolle prosequi in respect of the seven convictions which were set aside – where the applicant filed an application for an extension of time within which to appeal against the remaining convictions – where the applicant sought leave to adduce further evidence – whether the court has jurisdiction to entertain a second appeal where the previous appeal has been dismissed on the merits – whether an extension of time within which to appeal against the remaining convictions should be granted

CRIMINAL LAW – APPEAL…

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 Winchester

Details

AGLC: R v Winchester [2013] QCA 166
Case: [2013] QCA 166
Decision Date: 24 June 2013

CaseChat Overview and Summary

In the matter of R v Winchester, the appellant sought an extension of time to appeal against his convictions and sentences, following a previous appeal that had been dismissed on the merits. The appellant was convicted of multiple offences including indecent treatment, rape, and maintaining a sexual relationship with a child. The primary appeal resulted in the setting aside of certain convictions and a reduction in the sentence for one offence. The prosecution subsequently entered a nolle prosequi in respect of the seven convictions which were set aside. The appellant filed an application for an extension of time to appeal against the remaining convictions and sentences. The court was required to determine whether it had jurisdiction to entertain a second appeal after a previous appeal had been dismissed on the merits and whether an extension of time should be granted.

The court considered the nature of the previous appeal and whether it had been dismissed on the merits. It noted that the appellant's first application for leave to appeal against the sentences was refused, but it was not clear that the application was dismissed on the merits. The court also examined the application for extension of time, which related only to the convictions and not the sentences, and whether the appellant argued that the sentences were manifestly excessive. The court had to decide whether to grant an extension of time for the appellant to apply for leave to appeal against the sentences, particularly in relation to the sentence imposed for count 29, which was re-sentenced during the re-sentencing proceedings.

The court held that it did not have jurisdiction to entertain a second appeal after a previous appeal had been dismissed on the merits. It refused the application for an extension of time to appeal against the convictions and to apply for leave to appeal against sentence. However, it granted the application for an extension of time to apply for leave to appeal against the sentence in respect of count 29 in the indictment. The court considered the appellant's contention that the sentencing judge took into account evidence relating to counts set aside on appeal and found that the sentence imposed on count 29 was not manifestly excessive. The court refused the application for leave to appeal against the sentence and the application for leave to adduce evidence.

The court's orders included refusing the application for an extension of time to appeal against conviction, granting the application for an extension of time to apply for leave to appeal against sentence in respect of count 29, refusing the application for leave to appeal against sentence, and dismissing the notice of appeal. The court also refused the application for an extension of time to appeal against conviction and to apply for leave to appeal against sentence, and dismissed the notice of appeal and the application for leave to appeal against sentence.

Orders

Orders of the court

In CA No 323 of 2012:

1. Refuse the application filed on 29 November 2012 for an extension of time within which to appeal against conviction.

2. Grant the application filed on 29 November 2012 for an extension of time within which to apply for leave to appeal against sentence in respect of count 29 in the indictment.

3. Refuse the application for leave to appeal against sentence.

4. Refuse the application for an extension of time within which to appeal filed on 27 February 2013.

5. Refuse the application for leave to adduce evidence.

In CA No 347 of 2012:

1. Refuse the application for an extension of time within which to appeal against conviction and to apply for leave to appeal against sentence filed on 20 December 2012.

2. Dismiss the notice of appeal and refuse the application for leave to appeal against sentence filed on 27 February 2013.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

R v Winchester [2013] QCA 166

Most Recent Citation

Regina v Issaac [2005] NSWCCA 86

Cases Citing This Decision

Windle v R [2011] NSWCCA 277
Citation 1 (Para 1)

…Honour's statement that "A plea of guilty itself does not necessarily indicate either remorse or contrition" is a correct statement of principle. In R v Winchester (1992) 38 A Crim R 345 at 360 Hunt CJ at CL observed that the extent to which a plea of guilty evidences remorse and contrition so as to attract leniency, d…
R v Otto [2005] NSWCCA 333
Citation 2

…lbrich (1999) 199 CLR 179, 278 Regina v Gey-Houn Ra [2002] NSWCCA 251 Regina v Mascaro-Varillas [2002] NSWCCA 524 Regina v Cameron (2002) 209 CLR 339 Regina v Winchester (1992) 58 A Crim R Regina v Bishop (Court of Appeal), unreported, 23 September 1996 PARTIES: Regina Phillip Otto FILE NUMBER(S): CCA 2005/924 COUNSEL: L. K.…
Regina v Issaac [2005] NSWCCA 86
Citation 3

…Bankruptcy Act 1966 Crimes Act 1914 Criminal Code 1995 CASES CITED: R v Gallagher (1991) 23 NSWLR 220 Regina v Purdon (unreported) CCA 27 March 1997 Regina v Winchester (1992) 58 ACR 345 PARTIES: Zaia Issaac (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2004/3099 COUNSEL: I McClintock SC (Applicant) G Walsh (Crown) SO…

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Cases Cited

R v Winchester [2011] QCA 374
Citation 1 (Para 1)

…he convictions in respect of the six counts of rape (counts 5, 7, 8, 15, 20 and 24) and of the one count of attempted rape (count 17): R v Winchester [2011] QCA 374. The Court rejected the ground of appeal that the verdicts of acquittal and conviction were inconsistent. The Court also rejected additional argument…
R v WAH [2009] QCA 263
Citation 2 (Para 1)

…The applicant also cited R v WAH [2009] QCA 263, in which an application for leave to appeal against a sentence of six years imprisonment, with eligibility for parole after three years, was refused. That offender was sentenced to the lesser, concurrent terms of imprisonment on four counts of rape and three counts…
R v Lumley [2009] QCA 172
Citation 3 (Para 1)

…e: see, for example, R v MAM [2005] QCA 323 at pp 3‑4; R v Nudd [2007] QCA 40; R v Ali [2008] QCA 39; R v Lumley [2008] QCA 155; and R v Lumley [2009] QCA 172.…
R v MBC [2008] QCA 263
Citation 4 (Para 1)

…The applicant referred to R v MBC [2008] QCA 263, in which an application for extension of time to appeal against the sentence of five years imprisonment, and lesser, concurrent terms for three counts of indecent treatment of a child under 16 who was a lineal descendant, one count of rape, and one count of indece…
R v CAE [2008] QCA 177
Citation 5 (Para 1)

…The applicant relied upon the sentence of five years imprisonment imposed on appeal in R v CAE [2008] QCA 177. The more serious circumstances of that offending included that the offender was the complainant’s stepfather and in a position of trust, the complainant was aged only between seven and nine, the period o…
R v Lumley [2008] QCA 155
Citation 6 (Para 1)

…following and applying that case: see, for example, R v MAM [2005] QCA 323 at pp 3‑4; R v Nudd [2007] QCA 40; R v Ali [2008] QCA 39; R v Lumley [2008] QCA 155; and R v Lumley [2009] QCA 172.…
R v WAA [2008] QCA 87
Citation 7 (Para 1)

…The applicant relied upon the sentence imposed on appeal in R v WAA [2008] QCA 87 of three years imprisonment. The complainant in that case was about 10 or 11 years old, the charged period was nine months, and the offender was the complainant’s stepsisters’ grandfather. Those circumstances were very serious, but…
R v Ali [2008] QCA 39
Citation 8 (Para 1)

…LR 431 and many decisions following and applying that case: see, for example, R v MAM [2005] QCA 323 at pp 3‑4; R v Nudd [2007] QCA 40; R v Ali [2008] QCA 39; R v Lumley [2008] QCA 155; and R v Lumley [2009] QCA 172.…
R v GY [2007] QCA 103
Citation 9 (Para 1)

…The applicant relied upon the sentence of four years imprisonment which was not disturbed in R v GY [2007] QCA 103. The sentence was imposed after a trial and the offender was not remorseful. More serious features of that offence were that the complainant was aged between six and 14 years and the relationship was…
R v Nudd [2007] QCA 40
Citation 10 (Para 1)

…v The King (1938) 60 CLR 431 and many decisions following and applying that case: see, for example, R v MAM [2005] QCA 323 at pp 3‑4; R v Nudd [2007] QCA 40; R v Ali [2008] QCA 39; R v Lumley [2008] QCA 155; and R v Lumley [2009] QCA 172.…
R v PAD [2006] QCA 398
Citation 11 (Para 1)

…The applicant relied upon the sentence of five years imprisonment imposed on appeal in R v PAD [2006] QCA 398. The case is not useful in the present context because the effective sentence imposed on appeal was 12 years imprisonment imposed for two offences of rape which occurred, not during the course of the unla…
R v Ball [2006] QCA 186
Citation 12 (Para 1)

…The applicant relied upon R v Ball [2006] QCA 186, in which an application for an extension of time within which to apply for leave to appeal against sentence was refused on the ground that the appeal would have no reasonable prospect of succeeding. That offender was sentenced to seven years imprisonment with the…
R v HAA [2006] QCA 55
Citation 13 (Para 1)

…The sentencing judge referred to R v HAA [2006] QCA 55, in which the offender was convicted after a trial of a maintaining offence and one count of rape and 15 counts of unlawful carnal knowledge during the course of that relationship. His application for leave to appeal against the sentence of 12 years imprison…
R v Mam [2005] QCA 323
Citation 14 (Para 1)

…the High Court’s decision in Grierson v The King (1938) 60 CLR 431 and many decisions following and applying that case: see, for example, R v MAM [2005] QCA 323 at pp 3‑4; R v Nudd [2007] QCA 40; R v Ali [2008] QCA 39; R v Lumley [2008] QCA 155; and R v Lumley [2009] QCA 172.…
R v KN [2005] QCA 74
Citation 15 (Para 1)

…The sentencing judge referred to many decisions relating to sentence for maintaining offences but gained most assistance from R v KN [2005] QCA 74, in which an application for extension of time within which to apply for leave to appeal against sentence was refused on the ground that the sentence was not manifest…
R v BAO [2004] QCA 445
Citation 16 (Para 1)

…In another decision to which the sentencing judge referred, R v BAO [2004] QCA 445, the Court refused an application for an extension of time within which to apply for leave to appeal against a sentence of nine years imprisonment for one count of maintaining a sexual relationship with a child with a circumstance…
R v Pettigrew [1996] QCA 235
Citation 17

…ted R v PAD [2006] QCA 398, considered R v Pettigrew [1997] 1 Qd R 601; [1996] QCA 235, cited R v WAA [2008] QCA 87, considered R v WAH [2009] QCA 263, considered R v Winchester [2011] QCA 374, related COUNSEL: The applicant appeared on his own behalf D L Meredith for the respondent SOLICITORS: The applicant appe…
Grierson v The King [1938] HCA 45
Citation 18

…count 29 is manifestly excessive Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, cited R v Ali [2008] QCA 39, cited R v Ball [2006] QCA 186, considered R v BAO [2004] QCA 445, considered R v CAE [2008] QCA 177, considered R v GY [2007] QCA 103, considered R v HAA [2006] QCA 55, considered R v KN [2005] QCA…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v Winchester [2013] QCA 166
PARTIES:	R v WINCHESTER, Barry David (applicant)
FILE NO/S:	CA No 323 of 2012 CA No 347 of 2012 DC No 2641 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Applications for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	24 June 2013
DELIVERED AT:	Brisbane
HEARING DATE:	27 March 2013
JUDGES:	Fraser JA and Margaret Wilson and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	In CA No 323 of 2012: 1. Refuse the application filed on 29 November 2012 for an extension of time within which to appeal against conviction. 2. Grant the application filed on 29 November 2012 for an extension of time within which to apply for leave to appeal against sentence in respect of count 29 in the indictment. 3. Refuse the application for leave to appeal against sentence. 4. Refuse the application for an extension of time within which to appeal filed on 27 February 2013. 5. Refuse the application for leave to adduce evidence. In CA No 347 of 2012: 1. Refuse the application for an extension of time within which to appeal against conviction and to apply for leave to appeal against sentence filed on 20 December 2012. 2. Dismiss the notice of appeal and refuse the application for leave to appeal against sentence filed on 27 February 2013.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – GENERALLY – where the applicant was convicted after a trial of 21 offences, including four counts of indecent treatment of a child under the age of 16, six counts of rape, two counts of carnal knowledge of a child under 16, one count of attempted rape, and one count of maintaining a sexual relationship with a child – where the applicant’s first appeal against his convictions was determined on the merits and was allowed to the extent of setting aside the convictions in respect of the six counts of rape and one count of attempted rape on 16 December 2011 – where a retrial of those counts was ordered – where the appeal against the other convictions was dismissed – where the sentence imposed on the maintaining offence (count 29) was set aside and remitted to the District Court to await the retrial of the seven counts set aside – where the prosecution subsequently entered a nolle prosequi in respect of the seven convictions which were set aside – where the applicant filed an application for an extension of time within which to appeal against the remaining convictions – where the applicant sought leave to adduce further evidence – whether the court has jurisdiction to entertain a second appeal where the previous appeal has been dismissed on the merits – whether an extension of time within which to appeal against the remaining convictions should be granted CRIMINAL LAW – APPEAL…