R v Conway; ex parte - [2002] QCA 507

SUPREME COURT OF QUEENSLAND

CITATION:

R v Conway; ex parte A-G (Qld) [2002] QCA 507

PARTIES:

R
v
CONWAY, Michael Francis
(respondent)

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 215 of 2002
DC No 1075 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

12 November 2002

JUDGES:

de Jersey CJ, Williams JA and Mullins J
Separate reasons for judgment of each member of the court; each concurring as to the orders made

ORDER:

The sentences imposed at first instance should be set aside and in lieu thereof the following sentences be imposed to date from 20 June 2002:

1.   Order that the respondent serve the whole of the 12 month term of imprisonment imposed and suspended on 16 February 1996;

2.   On each of the counts of dealing on the indictment of 18 April 2002 record convictions and order that the respondent be imprisoned for a period of two years and on the count of maintaining a sexual relationship with a child order that a conviction be recorded and the respondent be sentenced to serve a term of five years’ imprisonment;

3.   Order that the sentences for the offences on the indictment of 18 April 2002 be served concurrently, but cumulative upon the serving of the 12 month period of the earlier suspended sentence;

4.   Declare that the respondent was held in pre-sentence custody between 15 July 2001 and 20 June 2002, a total period of 340 days, and that is declared to be imprisonment already served under the sentence for the offences on the indictment of 18 April 2002;

5.   Order that the respondent be eligible to apply for post-prison community based release after serving two years of the sentence imposed with respect to the offences on the indictment of 18 April 2002.

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – MISCELLANEOUS MATTERS – OFFENCE COMMITTED WHILE ON BAIL OR PROBATION AND EFFECT OF BREACH OF PROBATION – where respondent previously sentenced to 12 months’ imprisonment wholly suspended for a period of two years for indecent dealing with a circumstance of aggravation – where respondent pleaded guilty to further offences committed during the operational period of the suspended sentence and sentenced to five years’ imprisonment – whether learned sentencing judge erred in ordering that the sentence of 12 months for the earlier offences be served concurrently with the sentences imposed for the later offences

Penalties & Sentences Act 1992 (Qld), s 146

R v Melano, ex parte Attorney-General [1995] 2 Qd R 186, considered

COUNSEL:

C W Heaton for the appellant
A J Moynihan for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Williams JA. I agree with those reasons, and with the orders His Honour proposes.

WILLIAMS JA:

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.

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Details

Case: [2002] QCA 507
Decision Date: 22 November 2002

CaseChat Overview and Summary

The case of R v Conway; ex parte involved the respondent who had previously been sentenced to 12 months' imprisonment wholly suspended for a period of two years for indecent dealing with a circumstance of aggravation. The respondent later pleaded guilty to further offences committed during the operational period of the suspended sentence. The sentencing judge imposed a five-year imprisonment term for these later offences, ordering that the sentence for the earlier offences be served concurrently with the sentences imposed for the later offences. The respondent sought to appeal the sentencing decision, arguing that the learned sentencing judge erred in ordering that the sentence of 12 months for the earlier offences be served concurrently with the sentences imposed for the later offences.

The central legal issue before the court was whether the sentencing judge erred in ordering that the sentence of 12 months for the earlier offences be served concurrently with the sentences imposed for the later offences. The court examined the principles of sentencing, including the need to consider the cumulative effect of sentences for multiple offences and the principles of justice and deterrence. The court also considered the respondent's breach of probation and the need to ensure that the sentences imposed reflect the seriousness of the offences and the need to protect the community.

In determining the appeal, the court held that the sentencing judge erred in ordering that the sentence of 12 months for the earlier offences be served concurrently with the sentences imposed for the later offences. The court found that the sentences should be served cumulatively, with the earlier suspended sentence to be served before the sentences for the later offences. The court emphasised the importance of ensuring that the sentences imposed reflect the cumulative effect of the respondent's offending behaviour and the need to protect the community. The court also noted that the respondent had breached the conditions of his earlier suspended sentence, which justified a more severe penalty.

The sentences imposed at first instance were set aside, and new sentences were imposed. The respondent was ordered to serve the whole of the 12-month term of imprisonment imposed and suspended on 16 February 1996. The sentences for the offences on the indictment of 18 April 2002 were to be served concurrently, but cumulative upon the serving of the 12-month period of the earlier suspended sentence. The respondent was held in pre-sentence custody between 15 July 2001 and 20 June 2002, a total period of 340 days, which was declared to be imprisonment already served under the sentence for the offences on the indictment of 18 April 2002. The respondent was also eligible to apply for post-prison community-based release after serving two years of the sentence imposed with respect to the offences on the indictment of 18 April 2002.

Orders

Orders of the court

The sentences imposed at first instance should be set aside and in lieu thereof the following sentences be imposed to date from 20 June 2002:

1. Order that the respondent serve the whole of the 12 month term of imprisonment imposed and suspended on 16 February 1996;

2. On each of the counts of dealing on the indictment of 18 April 2002 record convictions and order that the respondent be imprisoned for a period of two years and on the count of maintaining a sexual relationship with a child order that a conviction be recorded and the respondent be sentenced to serve a term of five years’ imprisonment;

3. Order that the sentences for the offences on the indictment of 18 April 2002 be served concurrently, but cumulative upon the serving of the 12 month period of the earlier suspended sentence;

4. Declare that the respondent was held in pre-sentence custody between 15 July 2001 and 20 June 2002, a total period of 340 days, and that is declared to be imprisonment already served under the sentence for the offences on the indictment of 18 April 2002;

5. Order that the respondent be eligible to apply for post-prison community based release after serving two years of the sentence imposed with respect to the offences on the indictment of 18 April 2002.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Conway; ex parte A-G (Qld) [2002] QCA 507
PARTIES:	R v CONWAY, Michael Francis (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 215 of 2002 DC No 1075 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 November 2002
DELIVERED AT:	Brisbane
HEARING DATE:	12 November 2002
JUDGES:	de Jersey CJ, Williams JA and Mullins J Separate reasons for judgment of each member of the court; each concurring as to the orders made
ORDER:	The sentences imposed at first instance should be set aside and in lieu thereof the following sentences be imposed to date from 20 June 2002: 1. Order that the respondent serve the whole of the 12 month term of imprisonment imposed and suspended on 16 February 1996; 2. On each of the counts of dealing on the indictment of 18 April 2002 record convictions and order that the respondent be imprisoned for a period of two years and on the count of maintaining a sexual relationship with a child order that a conviction be recorded and the respondent be sentenced to serve a term of five years’ imprisonment; 3. Order that the sentences for the offences on the indictment of 18 April 2002 be served concurrently, but cumulative upon the serving of the 12 month period of the earlier suspended sentence; 4. Declare that the respondent was held in pre-sentence custody between 15 July 2001 and 20 June 2002, a total period of 340 days, and that is declared to be imprisonment already served under the sentence for the offences on the indictment of 18 April 2002; 5. Order that the respondent be eligible to apply for post-prison community based release after serving two years of the sentence imposed with respect to the offences on the indictment of 18 April 2002.
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – MISCELLANEOUS MATTERS – OFFENCE COMMITTED WHILE ON BAIL OR PROBATION AND EFFECT OF BREACH OF PROBATION – where respondent previously sentenced to 12 months’ imprisonment wholly suspended for a period of two years for indecent dealing with a circumstance of aggravation – where respondent pleaded guilty to further offences committed during the operational period of the suspended sentence and sentenced to five years’ imprisonment – whether learned sentencing judge erred in ordering that the sentence of 12 months for the earlier offences be served concurrently with the sentences imposed for the later offences Penalties & Sentences Act 1992 (Qld), s 146 R v Melano, ex parte Attorney-General [1995] 2 Qd R 186, considered
COUNSEL:	C W Heaton for the appellant A J Moynihan for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent