SUPREME COURT OF QUEENSLAND
CITATION:
R v Conway [2012] QCA 142
PARTIES:
R
v
CONWAY, Kelly John
(applicant)FILE NO/S:
CA No 53 of 2012
DC No 103 of 2010DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Rockhampton
DELIVERED ON:
1 June 2012
DELIVERED AT:
Townsville
HEARING DATE:
28 May 2012
JUDGES:
Margaret McMurdo P, Muir JA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. The application for leave to appeal against sentence is granted.
2. The appeal is allowed.
3. The sentences imposed at first instance are set aside and instead on each count the applicant is sentenced to six years imprisonment and is eligible for parole on 5 March 2014.
4. The applicant is declared to have served a pre-sentence custody period of 87 days between 5 March 2012 and 1 June 2012, as imprisonment already served under the sentence.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to two counts of rape on the morning of trial – where offences occurred in the house of the complainant – where the applicant knew the complainant was alone at her residence – where the complainant originally permitted applicant to enter – where the applicant had no prior criminal history and generally good antecedents – whether the sentencing judge erred by characterising the late pleas of guilty as reflecting less than a willingness to cooperate in the administration of justice – whether the sentencing judge erred in considering the offences to be aggravated by their occurrence in the complainant’s residence and by the applicant’s breach of trust – whether the sentencing judge erred in concluding the appropriate range was between seven and nine years – whether sentence imposed was manifestly excessive in all the circumstances
Penalties and Sentences Act 1992 (Qld), s 13(2)
AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited
R v Basacar [2006] QCA 352, cited
R v Cox [2011] QCA 277, cited
R v D [1996] 1 Qd R 363; [1995] QCA 329, cited
R v Elzinga; ex parte Attorney-General (Qld) [1998] QCA 128, cited
R v Q [2003] QCA 421, cited
R v Stephens; ex parte Attorney-General (Qld) (1994) 76 A Crim R 5; [1994] QCA 507, cited
R v Stirling [1996] QCA 342, citedCOUNSEL:
J A Greggery for the applicant
J Phillips for the respondentSOLICITORS:
Anderson Telford Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
MARGARET McMURDO P: The application for leave to appeal should be granted and the appeal allowed. Sentences of six years imprisonment with parole eligibility after two years should be substituted. I agree with the reasons and proposed orders of Henry J.
MUIR JA: I agree that the application should be granted and the appeal allowed…
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- AGLC
- R v Conway [2012] QCA 142
- Case
- [2012] QCA 142
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentencing judge had erred in characterising the applicant's late pleas of guilty, in considering the offences to be aggravated by their occurrence in the complainant’s residence and by the applicant’s breach of trust, and in concluding that the appropriate sentence range was between seven and nine years. The applicant also contended that the sentence imposed was manifestly excessive.
The court found that the trial judge had erred in characterising the applicant's late pleas of guilty, as the applicant had shown a willingness to cooperate in the administration of justice. The court also held that the sentencing judge had erred in considering the offences to be aggravated by their occurrence in the complainant’s residence and by the applicant’s breach of trust. The court found that the trial judge had not adequately considered the applicant's good antecedents and the absence of any prior criminal history. The court concluded that the sentence imposed was manifestly excessive, taking into account all the circumstances of the case.
The court allowed the appeal, set aside the sentences imposed by the trial judge, and sentenced the applicant to six years imprisonment on each count, to run concurrently, with parole eligibility starting on 5 March 2014. The applicant was declared to have served a pre-sentence custody period of 87 days between 5 March 2012 and 1 June 2012, as imprisonment already served under the sentence.
Orders
Orders of the court
1. The application for leave to appeal against sentence is granted.
2. The appeal is allowed.
3. The sentences imposed at first instance are set aside and instead on each count the applicant is sentenced to six years imprisonment and is eligible for parole on 5 March 2014.
4. The applicant is declared to have served a pre-sentence custody period of 87 days between 5 March 2012 and 1 June 2012, as imprisonment already served under the sentence.
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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