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 period be five years. It was declared that 428 days spent in pre-sentence custody be deemed time already served under the sentence in respect of the first count.

The grounds of appeal, should the application be successful, are that the sentence was manifestly excessive, the sentencing Judge proceeded on an incorrect basis of fact (which fact is undisclosed) and the sentencing Judge erred in the application of the totality principle of sentencing.

The applicant turned 20 in the period in which the sexual relationship was maintained. He had no criminal history which the sentencing Judge regarded as relevant. He finished school after grade 10 and since that time worked consistently on the Commonwealth Development Employment Program.

In 2005 the complainant, who had a petrol-sniffing habit, was sent by her family to Aurukun with a view to assisting her to terminate the habit. The complainant and the applicant formed a friendship which, on about 1 April 2005, became a sexual relationship in which intercourse regularly occurred. The complainant was then 14 years of age. She was 15 by the time the sexual relationship ended.

The applicant was charged with unlawful carnal knowledge of the complainant in August 2005 and released on bail with a condition that he did not have contact with her. In breach of the condition the applicant resumed his relationship with the complainant. It would seem that the relationship was affectionate and that the complainant was not coerced into maintaining it through violent conduct or otherwise. There were occasions, however, on which the applicant locked the complainant in a house in which they resided or in a room in the house.

The assertions made by the applicant's counsel, and not disputed by the learned Crown Prosecutor, in relation to the three assaults are as follows.

In respect of count 1, the striking with an axe handle amounted to "a tapping, using the end of the handle". It is conceded however, that there was bruising. Another count related to a slap on the face. It is not disputed that this caused swelling and bruising.

The remaining assault occurred when there was a dispute between the complainant and the applicant as to whether she should go and see her uncle. The applicant, who was lying on a bed, pulled the complainant towards him. The complainant fell. The applicant "kicked out or lashed out with his foot and unfortunately…it appears that he had a toenail which caused" a laceration on the forehead which required four sutures.

On the hearing of the appeal the learned Crown Prosecutor
sought to uphold the sentence by reference to R v. MAN
[2005] QCA 413, CA No 109 of 2005, 11 May 2006; R v. WV
[1997] QCA 431, CA No 348 of 1997, 30 October 1997 and Mill
v. The Queen [1998] 166 CLR 59.

The applicant in R v. MAN pleaded guilty to two counts of maintaining a sexual relationship with a child under the age of 16 years. The offending took place over a period of years. The complainants were twin girls aged 12 when the offending first commenced. The applicant was then aged 19. The relationship was carried on openly without opposition from those who had the care of the complainants.

As a result of the offending conduct each complainant had two children. Each had her first child just after turning 14. The applicant cooperated with the police and made full admissions.

The Court considered it a matter of significance that the applicant had a history of providing financial support for the children, had become custodial parent of one son and had "shouldered responsibility for his earlier misconduct in a way which called for recognition on the strong claims of rehabilitation". A sentence of nine years imprisonment was set aside and a sentence of five years with a recommendation for post-prison community-based release after 18 months was imposed.

In R v. WV the Court refused to set aside a sentence of two and a half years imprisonment with a recommendation for consideration for parole after nine months imposed on the applicant for an offence of maintaining a sexual relationship with a child under 16 years. The relationship, in which there was regular sexual intercourse, resulting in the complainant's pregnancy continued for about six weeks.

The applicant was aged 23 at the time and the complainant
14. Her pregnancy brought her schooling to a premature end.
The applicant was of borderline intellect. He pleaded
guilty and had no previous convictions.

Counsel for the respondent properly conceded that R v. MAN could be regarded as more serious than the subject case as it involved two complainants extending over a lengthy period and resulted in the birth of two children. Those children, of course, were born to very young mothers.

In R v. WV, although the age disparity was greater than in the present case, the relationship was of relatively short duration, involved no violence, and concerned an applicant who had borderline intellect and limited social skills. The

pregnancy of the complainant, however, was a serious feature
of that case.

The respondent's counsel relied on Mill v. The Queen to support the sentencing Judge as fixing a sentence for the most serious offence which was higher than that which would have been fixed for it had it been the only offence in order to take into account the applicant's overall criminality. That the primary Judge's approach in this regard is orthodox is shown by the authorities including R v. Nagy [2004] 1 Qd R 63 and R v. Bradforth [2003] QCA 183, CA No 423 of 2002, 9 May 2003, referred to by his Honour in his sentencing remarks.

I have concluded, however, that having regard to the comparable sentences cited, and the facts of this case, the sentence imposed was manifestly excessive. In imposing the sentence the primary Judge may have been influenced by his misunderstanding of the complainant's age. He was informed wrongly that she was one year younger than she in fact was.

His Honour was concerned rightly about the "level of violence" in the relationship. That violence, however, whilst reprehensible, seemed to fall short of constituting a pattern of conduct. It was shown by the evidence to consist of three incidents one of which caused injury largely by accident. The continuation of the offending conduct whilst on bail, however, is an aggravating circumstance which needs to be taken into account.

The applicant entered a timely plea of guilty. He was a
young man at the time of the offences. The difference in
age between the applicant and the complainant was not
particularly great. He could not be said to have initiated
or maintained the relationship in a predatory way or for
reasons of sexual gratification.
Unlike the applicants in R v. MAN and R v. WV the
applicant's conduct did not result in pregnancy nor was
there a breach of trust or clandestine conduct. The
applicant's work history is reasonable in the circumstances
and he has exhibited strength of character by resisting the
temptation to resort to alcohol abuse. His prospects of
rehabilitation seem sound.

I would allow the application for leave to appeal; allow the appeal; 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.

JERRARD JA: I agree with those reasons and with the orders proposed by his Honour.

LYONS J: I also agree with the reasons of Justice of Appeal

Muir and the orders he proposes.

JERRARD JA: They will be the orders of the Court.

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