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  • Unreported Judgment

R v WBH

 

[2020] QDC 324

DISTRICT COURT OF QUEENSLAND

CITATION:

R v WBH [2020] QDC 324

PARTIES:

THE QUEEN

v

WBH

(applicant)

FILE NO:

816/16

DIVISION:

Criminal

PROCEEDING:

Application pursuant to s 188 of the Penalties and Sentences Act

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

18 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

15 December 2020

JUDGE:

Smith DCJA

ORDER:

  1. I dismiss the application.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT − SENTENCE – Reopening sentencing proceedings – whether “clear factual error of substance” − whether application to reopen sentence should be granted

LEGISLATION:

Penalties and Sentences Act 1991 (Qld) s 188

CASES:

R v Cassar; ex parte Attorney-General [2002] 1 Qd R 386; [2001] QCA 300, applied

R v De Simoni (1981) 147 CLR 383; [1981] HCA 31, cited

R v MacKenzie [2002] 1 Qd R 410; [2000] QCA 324, distinguished

R v WBH [2019] QCA 249, applied

COUNSEL:

Self-represented defendant

Mr H McIntyre for the crown

SOLICITORS:

Self-represented defendant

Office of the Director of Public Prosecutions for the crown

Introduction

  1. [1]
    The applicant Mr WBH applies to reopen a sentence imposed upon him in the District Court on 25 May 2018. He was convicted of one count of indecent treatment of a child under 16 under 12 who is a lineal descendent and was sentenced to three and half years imprisonment.

Applicant’s points

  1. [2]
    Mr WBH submits that the sentencing judge paid no regard to the severing of the indictment, the consequent delay in the trial and his subsequent conviction. He submits that the totality principle was ignored by the sentencing judge. He also submits that the De Simoni principle was breached[1] in that more serious offending unconnected with the offence charged was led by the Crown.

Background

  1. [3]
    Mr WBH was charged originally on a joint indictment charging offences involving two complainants (indictment 815/2016). The indictment was severed.
  2. [4]
    He went to trial on the 10 count indictment. On 4 November 2016, he was convicted by a jury on Counts 1 to 5 and 7 to 10. He was sentenced to an effective term of imprisonment of two and half years commencing on 28 October 2016.
  3. [5]
    The applicant appealed this conviction to the Court of Appeal but this appeal was dismissed on 23 June 2017.
  4. [6]
    Indictment 816/2016 came on for trial before Judge McGill SC on 22 May 2018. The applicant was convicted and was sentenced on 25 May 2018 to three and half years imprisonment to be served concurrently with the sentence he was then serving with an eligibility date for parole fixed as at 23 April 2019.
  5. [7]
    The applicant appealed this conviction and sentence. The Court of Appeal dismissed the appeal on 15 November 2019.[2]
  6. [8]
    It is clear from the appeal that one of the grounds raised was that there was an error in the application of the principle of totality.[3] The court held at [141] that there could be no doubt that the sentencing Judge considered the question of totality when fixing the sentence. The sentence appeal was dismissed.
  7. [9]
    On 20 November 2019, the applicant applied to the District Court for a reopening of the sentence. This application was heard on 9 December 2019 but was dismissed. Similar issues were raised before Judge McGill SC as those raised before me.

Discussion

  1. [10]
    In reaching my decision I have had regard to the applicant’s material and the crown response.[4]
  2. [11]
    Section 188 of the Penalties and Sentences Act 1991 (Qld) provides:

188 Court may reopen sentencing proceedings

  1. (1)
    If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal—
  1. (a)
    imposed a sentence that is not in accordance with the law; or
  1. (b)
    failed to impose a sentence that the court legally should have imposed; or
  1. (c)
    imposed a sentence decided on a clear factual error of substance; or
  1. (d)
    failed to fix a date for the offender to be released on parole as required under part 9, division 3;

the court, whether or not differently constituted, may reopen the proceeding.

  1. (2)
    Also, if—
  1. (a)
    a court has in, or in connection with, a criminal proceeding reduced a sentence because the offender has undertaken in a written declaration to cooperate with law enforcement agencies in a proceeding about an offence, including a confiscation proceeding; and
  1. (b)
    the offender, without reasonable excuse, does not cooperate under the undertaking;

the court, whether or not differently constituted, may reopen the proceeding.

  1. (3)
    If a court reopens a proceeding, it—
  1. (a)
    must give the parties an opportunity to be heard; and
  1. (b)
    may resentence the offender—
  1. (i)
    for a reopening under subsection (1)(a)—to a sentence in accordance with law; or
  1. (ii)
    for a reopening under subsection (1)(b)—to a sentence the court legally should have imposed; or
  1. (iii)
    for a reopening under subsection (1)(c)—to a sentence that takes into account the factual error; or
  1. (iv)
    for a reopening under subsection (2)—to a sentence under subsection (4); and
  1. (c)
    may amend any relevant conviction or order to the extent necessary to take into account the sentence imposed under paragraph (b).
  1. (4)
    On an application under subsection (2)—
  1. (a)
    if the court is satisfied that the offender has completely failed to cooperate, the court must resentence the offender having regard to the sentence that would otherwise have been imposed if an undertaking under section 13A had not been given; or
  1. (b)
    if the court is satisfied that the offender has partly failed to cooperate, the court may substitute for the reduced sentence the sentence it considers appropriate, not greater than the sentence that would have been imposed if the undertaking had not been given.
  1. (5)
    The court may reopen the proceeding—
  1. (a)
    on its own initiative at any time; or
  1. (b)
    for a reopening under subsection (1)—on the application of a party to the proceeding made within—
  1. (i)
    28 days after the day the sentence was imposed; or
  1. (ii)
    any further time the court may allow on application at any time; or
  1. (c)
    for a reopening under subsection (1)(d)—on the application of the chief executive (corrective services); or
  1. (d)
    for a reopening under subsection (2)—on the application of the prosecution made at any time, whether or not the appeal period under the Criminal Code, section 671(2) has expired.
  1. (6)
    Subject to subsection (7), this section does not affect any right of appeal.
  1. (7)
    For an appeal under any Act against a sentence imposed under subsection (3) or (4), the time within which the appeal must be made starts from the day the sentence is imposed under subsection (3) or (4).
  1. (8)
    This section applies to a sentence imposed, or required to be imposed, whether before or after the commencement of this section.”
  1. [12]
    To reopen a sentence under s 188(1) of the Penalties and Sentences Act, it is necessary for the application to be made within 28 days of the sentence or at any further time which the court may allow. The application before me is out of time. It is not the first application and there has been an unsuccessful appeal against conviction and sentence which has already been heard and decided.
  2. [13]
    Even if the application were allowed, a court can only reopen the proceeding if:
    1. (a)
      A sentence has been imposed which is not in accordance with the law;
    2. (b)
      The court failed to impose a sentence that the court legally should have imposed;
    3. (c)
      The court imposed a sentence decided on a clear factual error of substance; or
    4. (d)
      The court failed to fix a date for the offender to be released on parole.
  3. [14]
    It is my opinion it cannot be contended at this point that the sentence was decided on a clear factual error of substance. The fact is the Court of Appeal has found that adequate consideration was given to the totality principle by the sentencing judge.[5]
  4. [15]
    Additionally, the preliminary complaint evidence of EW (CIS) was considered by the Court of Appeal. I do not consider that Judge McGill SC took into account any uncharged acts in an improper way when sentencing. The trial judge identified that the offending involved continuation and escalation of the previous offending. His Honour’s approach was specifically approved by the Court of Appeal.[6]
  5. [16]
    Section 188 is a narrow power and is not intended to provide a basis to make successive and limitless attempts to overturn a sentence.
  6. [17]
    As was noted in R v Cassar; ex parte Attorney-General,[7] the section must be strictly construed and reviewing sentences in light of subsequent events was disapproved.
  7. [18]
    I agree with the Crown submissions that R v MacKenzie[8] may be distinguished. There was a clear factual error of substance at the time of the sentence as the parole recommended could never be implemented at the time the order was made.
  8. [19]
    It is my opinion, the applicant has not demonstrated sufficient reason why leave should be granted.
  9. [20]
    Even if leave was given, no error of fact has been demonstrated and the application should be dismissed.

Order

  1. [21]
    I dismiss the application.

Footnotes

[1]R v De Simoni (1981) 147 CLR 383; [1981] HCA 31.

[2]R v WBH [2019] QCA 249.

[3]R v WBH [2019] QCA 249 at [4].

[4]I have marked these exhibits 1-4.

[5]R v WBH [2019] QCA 249 at [141], [155]-[157].

[6]R v WBH [2019] QCA 249 at [145].

[7][2002] 1 Qd R 386; [2001] QCA 300 at [13] and [16].

[8][2002] 1 Qd R 410; [2000] QCA 300.

Close

Editorial Notes

  • Published Case Name:

    R v WBH

  • Shortened Case Name:

    R v WBH

  • MNC:

    [2020] QDC 324

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    18 Dec 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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