R v Wruck

Case [2014] QCA 39

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wruck [2014] QCA 39

PARTIES:

R
v
WRUCK, Paul Anthony
(applicant)

FILE NOS:

CA No 317 of 2013
DC No 1883 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2014

JUDGES:

Holmes and Fraser JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Leave granted to appeal against sentence.1.   

Appeal dismissed.2.   

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted, on pleas of guilty, of two counts of indecent dealing – where the applicant was sentenced on each count to 18 months imprisonment, suspended after four months, with an operational period of 18 months – where the offences took place in 1982 and 1983 when the applicant was 25 years old – where the applicant was working as a teacher and a counsellor at the time of the offending – where the complainant was a 13 year old schoolboy who attended counselling with the applicant – whether the sentencing judge erred in sentencing on the premise that exceptional circumstances were a necessary condition for a non-custodial sentence to be imposed – whether a later practice to that effect should be taken to have retrospective application – whether the application for leave to appeal should be granted – whether the court's re-exercise of the sentencing discretion should lead to a different result – where the applicant had compelling mitigating factors in his favour – where the offences involved a serious breach of trust and were not isolated incidents – where the offence had profound and continuing effects on the complainant – whether a sentence involving actual custody was warranted

Acts Interpretation Act 1954 (Qld), s 20C
Crimes (Sentencing Procedure) Act 1999 (NSW), s 19
Criminal Code 1899 (Qld), s 11(2), s 210
Penalties and Sentences Act 1992 (Qld), s 9(5)(b), s 180(1), s 180(2)
Sentencing Act 1991 (Vic), s 5(2)(b)

Green v The Queen (2006) 19 NTLR 1; (2006) 166 A Crim R 475; [2006] NTCCA 22, considered
R v AMP [2010] VSCA 48, considered
R v Bowen [2008] VSCA 33, considered
R v Davies, unreported, Court of Criminal Appeal, Qld, CA No 123 of 1987, 28 July 1987, considered
R v Goulding[1994] QCA 276, considered
R v H (1993) 66 A Crim R 505; [1993] QCA 240, considered
R v Harmer; ex parte Attorney General of Queensland unreported, Court of Criminal Appeal, Qld, CA No 203 of 1984, 11 October 1984, considered
R v Jackson; ex parte Attorney‑General of Queensland[2001] QCA 445, considered
R v Kench (2005) 152 A Crim R 294; [2005] SASC 85, considered
R v Lipinski (1994) 75 A Crim R 54, considered
R v Meloury; ex…

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Details
AGLC
R v Wruck [2014] QCA 39
Case
[2014] QCA 39
Decision Date

CaseChat Overview and Summary

The case of R v Wruck involved the applicant, who had been convicted on pleas of guilty of two counts of indecent dealing. The offences occurred in 1982 and 1983 when the applicant was 25 years old and working as a teacher and counsellor. The complainant was a 13-year-old schoolboy who attended counselling sessions with the applicant. The applicant was sentenced on each count to 18 months imprisonment, suspended after four months, with an operational period of 18 months. The applicant sought leave to appeal against the sentence, arguing that the sentencing judge had erred in imposing the sentence based on the premise that exceptional circumstances were necessary for a non-custodial sentence.

The legal issues before the court included whether the sentencing judge had erred in applying the principle that exceptional circumstances were a necessary condition for a non-custodial sentence. The applicant argued that the later practice should not be applied retrospectively. The court also needed to decide whether the application for leave to appeal should be granted and if the court's re-exercise of the sentencing discretion should lead to a different result. The mitigating factors and the impact of the offences on the complainant were considered, along with the need for a sentence that reflected the seriousness of the breach of trust and the continuing effects on the complainant.

The court found that the sentencing judge had indeed erred in requiring exceptional circumstances for a non-custodial sentence, as the later practice should not be applied retrospectively. However, upon re-exercising the sentencing discretion, the court concluded that the applicant's compelling mitigating factors and the serious nature of the breach of trust warranted the original sentence. The court dismissed the appeal, finding that the sentence involving actual custody was not warranted given the mitigating factors and the overall circumstances.

Leave was granted to appeal against the sentence, but the appeal was ultimately dismissed. The court determined that the applicant had compelling mitigating factors, but the serious breach of trust and the profound and continuing effects on the complainant warranted a sentence that reflected the gravity of the offences. The original sentence, involving a suspended imprisonment with an operational period, was deemed appropriate.

Orders

Orders of the court

Leave granted to appeal against sentence.1.

Appeal dismissed.2.

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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