Murray v The Queen - [2015] QDC 219

[2015] QDC 219
DISTRICT COURT OF QUEENSLAND
APPELLATE JURISDICTION
JUDGE HARRISON
Appeal No 91 of 2015
LUKE WAYNE MURRAY Appellant
v.
THE QUEEN Respondent
CAIRNS
2.08 PM, FRIDAY, 28 AUGUST 2015
JUDGMENT

HIS HONOUR: This is an appeal against sentence pursuant to the provisions of section 222 of the Justices Act 1886. On the 21^st of May 2015 the applicant pleaded guilty in the Magistrates Court at Cairns to the following offences:

assault occasioning bodily harm on the 21st of November 2014;
public nuisance on the 25th of February 2015; and
a failure to appear in accordance with an undertaking on the 13th of March 2015.

His position was made complicated by the fact that on the 11^th of March 2013 he pleaded guilty to an offence of contravention of a domestic violence order, which contravention occurred on the 10^th of March 2015. On that occasion he was sentenced to six months imprisonment, with his parole release date fixed as at the 11^th of March 2015 after two days had been declared for pre-sentence custody.

It appears from the pre-sentence custody certificate, which was exhibit 3 in these proceedings, that, because of his failure to comply with the undertaking as to bail on the 13^th of March 2015, he had his parole suspended on the 18^th of March 2015. He was returned to police custody on the 22^nd of March 2015 and his parole was finally cancelled on the 7^th of April 2015. The full-time expiry date for the initial sentence was noted as the 13^th of September 2015.

I was assured during argument during the course of this matter that the solicitor who appeared on his behalf on the sentence on the subsequent matters did not appear on his behalf on the earlier matters. Obviously it would have been preferable that all these matters had been heard together and we may not have found ourselves in the situation we are now in.

On the 21^st of May 2015 he pleaded guilty to the three outstanding matters. He was convicted and not further punished in relation to the public nuisance charge and in relation to the failure to appear, but he was sentenced to 18 months imprisonment on the charge of assault occasioning bodily harm and this was made cumulative upon the six month sentence imposed on the 11^th of March 2015. His parole eligibility date was fixed at the 1^st of May 2016.

He has appealed his sentence on the basis that it was manifestly excessive, mainly because of the fact that the parole eligibility date is fixed as far back as the 1^st of May 2016. It was argued that, in fixing the parole release date then, the magistrate did not place sufficient weight on his pleas of guilty and his cooperation with the authorities.

It is well accepted that this Court should only interfere in matters such as this if it can be shown…

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 Murray v The Queen

Details

AGLC: Murray v The Queen [2015] QDC 219
Case: [2015] QDC 219
Decision Date: 28 AUGUST 2015

CaseChat Overview and Summary

Luke Wayne Murray appealed his sentence, which was imposed following a guilty plea to three offences. The appeal was in respect of the parole eligibility date that was fixed as part of the sentence for the charge of assault occasioning bodily harm. The appeal was heard by the District Court of Queensland in its appellate jurisdiction. The central legal issue was whether the sentence was manifestly excessive due to the timing of the parole eligibility date.

The Court found that the sentencing magistrate had erred in law by not properly applying the definition of "term of imprisonment" as provided by the Penalties and Sentences Act 1992 (PSA). The magistrate had mistakenly based the parole eligibility date on the completion date of the first sentence, rather than considering the overall period of imprisonment. This error led to a manifestly excessive sentence as the applicant was required to serve over half of his sentence without sufficient justification. The Court concluded that the sentence was manifestly excessive because it did not adequately consider the applicant's guilty pleas and cooperation.

As a result, the Court allowed the appeal and resentenced the applicant. The Court fixed a parole eligibility date of 20 November 2015 instead of 1 May 2016, while maintaining the original head sentence and its cumulative nature. The final orders were that the appeal be allowed, the parole eligibility date be substituted, and the original sentence otherwise stand.

Orders