R v Wu - [2007] QCA 308

SUPREME COURT OF QUEENSLAND

CITATION: R v WU [2007] QCA 308
PARTIES: R
v
WU
(applicant/appellant)

FILE NO/S:

CA No 144 of 2007 DC No 297 of 2007
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING
COURT: District Court at Cairns
DELIVERED ON: 24 September 2007
DELIVERED AT: Brisbane
HEARING DATE: 24 September 2007
JUDGES: Jerrard and Muir JJA and Lyons J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDERS: 1. Application for leave to appeal allowed
2. Appeal allowed
3. Set aside the sentence imposed in respect of the offence
of maintaining an unlawful relationship of a sexual nature
and substitute therefore a sentence of three years
imprisonment, suspended after 428 days, with an
operational period of three years accompanied by a
declaration that the 428 days spent in pre-sentence
custody be deemed time already served under the
sentence.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND
INQUIR AFTER CONVICTION – APPEAL AND NEW
TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY
CONVICTED PERSONS – APPLICATIONS TO REDUCE
SENTENCE – WHEN GRANTED – GENERALLY – where
applicant pleaded guilty to maintaining an unlawful sexual
relationship, two counts of assault occasioning bodily harm
and one count of assault occasioning bodily harm whilst
armed – where applicant sentenced to four years and six
months imprisonment suspended after 428 days with an
operational period of 5 years – whether sentence manifestly
excessive
Mill v The Queen (1988) 166 CLR 59, cited
R v Bradforth [2003] QCA 183, CA No 423 of 2002, 9 May
2003, cited
R v MAN [2005] QCA 413, CA No 109 of 2005, 11 May
2006, distinguished
R v Nagy [2003] QCA 175; [2004] 1 Qd R 63, cited
R v WV [1997] QCA 431; CA No 348 of 1997, 30 October
1997, distinguished
COUNSEL: No appearance on behalf of the applicant/appellant
S G Bain for the respondent
SOLICITORS: No appearance on behalf of the applicant/appellant
Director of Public Prosecutions (Qld) for the respondent

JERRARD JA: In this matter involving the application by
Mr WU, despite his non-appearance to prosecute it, he had
made submissions in writing and those had been considered by
the Court and, of course, there are the submissions by the
respondent.

In the circumstances it seems appropriate to deliver a judgment in this matter rather than just adjourn it and I would ask Justice Muir to deliver the first judgment.

MUIR JA: The applicant was sentenced on 20 June 2007 to four years and six months imprisonment on account of maintaining an unlawful relationship of a sexual nature with a child under 16 years and to concurrent 12 month terms of imprisonment on each of two counts of unlawful assault and one count of unlawful assault whilst armed with an offensive instrument. It was ordered that the four years and six months term of imprisonment be suspended after serving a period of 428 days and that the operational…

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 Wu

Details

AGLC: R v WU [2007] QCA 308
Case: [2007] QCA 308
Decision Date: 24 September 2007

CaseChat Overview and Summary

The case of R v Wu involved the appellant, who was convicted of maintaining an unlawful relationship of a sexual nature. The appellant appealed against the sentence imposed by the trial court. The appeal was heard by the court of appeal, which was required to determine whether the original sentence was appropriate and if any adjustments were necessary. The central issue for the court was to assess whether the sentence imposed was excessively severe or whether it could be reduced while still being just and proportionate.

The court of appeal examined the principles of sentencing and the circumstances of the offence. It considered the appellant's background, the nature of the offence, and the impact of the pre-sentence custody. The court concluded that the original sentence was indeed excessive, taking into account the appellant's time already spent in custody. It held that a more lenient sentence was warranted, and that the sentence could be appropriately adjusted to reflect the time served. The court found that a suspended sentence with specific conditions would be a more suitable punishment, balancing the need for deterrence and rehabilitation.

Following this reasoning, the court allowed the appeal, set aside the original sentence, and imposed a new sentence of three years imprisonment, suspended after 428 days. The operational period of the sentence was set at three years, with the 428 days already spent in pre-sentence custody deemed time already served. This decision reflected the court's consideration of the principles of justice and proportionality in sentencing.

Orders

Orders of the court

1. Application for leave to appeal allowed

2. Appeal allowed

3. Set aside the sentence imposed in respect of the offence

of maintaining an unlawful relationship of a sexual nature

and substitute therefore a sentence of three years

imprisonment, suspended after 428 days, with an

operational period of three years accompanied by a

declaration that the 428 days spent in pre-sentence

custody be deemed time already served under the

sentence.

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.

CITATION:	R v WU [2007] QCA 308
PARTIES:	R v WU (applicant/appellant)
FILE NO/S:	CA No 144 of 2007 DC No 297 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	24 September 2007
DELIVERED AT:	Brisbane
HEARING DATE:	24 September 2007
JUDGES:	Jerrard and Muir JJA and Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal allowed 2. Appeal allowed 3. Set aside the sentence imposed in respect of the offence of maintaining an unlawful relationship of a sexual nature and substitute therefore a sentence of three years imprisonment, suspended after 428 days, with an operational period of three years accompanied by a declaration that the 428 days spent in pre-sentence custody be deemed time already served under the sentence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIR AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant pleaded guilty to maintaining an unlawful sexual relationship, two counts of assault occasioning bodily harm and one count of assault occasioning bodily harm whilst armed – where applicant sentenced to four years and six months imprisonment suspended after 428 days with an operational period of 5 years – whether sentence manifestly excessive Mill v The Queen (1988) 166 CLR 59, cited R v Bradforth [2003] QCA 183, CA No 423 of 2002, 9 May 2003, cited R v MAN [2005] QCA 413, CA No 109 of 2005, 11 May 2006, distinguished R v Nagy [2003] QCA 175; [2004] 1 Qd R 63, cited R v WV [1997] QCA 431; CA No 348 of 1997, 30 October 1997, distinguished
COUNSEL:	No appearance on behalf of the applicant/appellant S G Bain for the respondent
SOLICITORS:	No appearance on behalf of the applicant/appellant Director of Public Prosecutions (Qld) for the respondent