R v Conway

[2012] QCA 142

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 2010

DIVISION:

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 made

ORDERS:

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, cited

COUNSEL:

J A Greggery for the applicant
J Phillips for the respondent

SOLICITORS:

Anderson Telford Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. 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.

1. MUIR JA: I agree that the application should be granted and the appeal allowed…