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R v Craigie

R v Craigie

Case [2014] QCA 1 7 February 2014

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Craigie [2014] QCA 1

PARTIES:

R
v
CRAIGIE, Michael Jack
(applicant)

FILE NO/S:

CA No 204 of 2013
DC No 313 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

Order delivered ex tempore on 31 October 2013
Reasons delivered 7 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

31 October 2013

JUDGES:

Fraser JA and McMeekin and Peter Lyons JJ
Separate reasons for judgment of each member of the Court, Fraser JA and McMeekin J concurring as to the order made, Peter Lyons J dissenting

ORDER:

Delivered ex tempore on 31 October 2013:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his pleas of guilty to one count of assault occasioning bodily harm, in company (count 2), one count of grievous bodily harm (count 3), one count of assault occasioning bodily harm (count 5) and one count of common assault (count 6) – where the applicant was sentenced to a total period of four years imprisonment with parole eligibility fixed at 6 December 2013, four months after the date of sentence – where both parties submitted that the four year term of imprisonment was within range, albeit at the high end of the range – where the applicant contended that manifest excess resulted from the fixing of a parole eligibility date four months after the date of sentence – where the applicant relied on Bugmy v The Queen to argue that the sentencing judge did not give sufficient weight to the applicant’s mitigating circumstances in fixing a parole eligibility date – where the applicant had a prior criminal history and issues with drug abuse and alcoholism – where, as a result of the applicant’s construction of the relevant provisions of the Corrective Services Act 2006 (Qld), the applicant argued that the sentence imposed did not reflect the sentencing judge’s intention and rendered the sentence manifestly excessive – whether the sentence was manifestly excessive

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR CLASSES OF ACT – PENAL ACTS – GENERALLY – where s 180(2)(c) of the Corrective Services Act 2006 (Qld) (“the Act”) precludes a prisoner from applying for a parole order more than 180 days before the parole eligibility date – where the applicant argued that the general provisions in ss 179(2)(b) and 180(1) of the Act operated so as to prevent the applicant from applying for parole prior to his parole eligibility date – where a consequence of the applicant’s construction is that a prisoner would rarely be released on parole on the prisoner’s parole eligibility date – whether the applicant’s construction reflects the legislative purpose of the provisions – whether the sentence was manifestly excessive

Corrective Services Act 2006 (Qld), s 179(2)(b), 180(1), s 180(2), s 193(3)(b)

Bugmy v The Queen (2013) 87 ALJR 1022; [2013] HCA 37

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 R v Craigie

Details

AGLC: R v Craigie [2014] QCA 1
Case: [2014] QCA 1
Decision Date: 7 February 2014

CaseChat Overview and Summary

The applicant, Craigie, was convicted on his pleas of guilty to various assault charges and was sentenced to a total period of four years imprisonment with parole eligibility fixed at 6 December 2013. Craigie appealed against his sentence, arguing that it was manifestly excessive due to the fixing of the parole eligibility date four months after the date of sentence. Craigie contended that the sentencing judge did not give sufficient weight to his mitigating circumstances in setting this date, and relied on Bugmy v The Queen to support his argument. Craigie also argued that the provisions of the Corrective Services Act 2006 (Qld) meant that the sentence did not reflect the sentencing judge's intention and rendered the sentence manifestly excessive.

The court considered whether the sentence was manifestly excessive, taking into account the arguments presented by Craigie. Craigie argued that the fixing of the parole eligibility date prevented him from applying for parole prior to that date, and that this meant that a prisoner would rarely be released on parole on their parole eligibility date. The court examined the provisions of the Corrective Services Act 2006 (Qld) and considered whether Craigie's construction of those provisions reflected the legislative purpose. The court found that the sentence was not manifestly excessive and dismissed Craigie's application.

The court dismissed the application on 31 October 2013.

Orders

Orders of the court

Delivered ex tempore on 31 October 2013:

Application dismissed.

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.

Citations

AGLC Citation

R v Craigie [2014] QCA 1

Most Recent Citation

R v Benson [2014] QCA 188

Cases citing this decision · 7 of 7 shown

Ejb v Commissioner of Police
[2023] QDC 246 Para 12

…ecided: In the circumstances, the operation of the legislation cannot be said to make the sentence manifestly excessive. [1] [2012] QCA 28, [38]. [2] [2014] QCA 1.…
R v Wells
[2018] QCA 236 Para 19

…for parole immediately after he was sentenced; although he would not be granted parole until on or after the parole eligibility date: see R v Craigie [2014] QCA 1 at [19]. According to a recent email from a Corrective Services employee, the applicant has not been recommended for any prison programs. The applica…
R v Herbert
[2016] QCA 265 Para 1

…The appellant relied upon R v Fisher [2008] QCA 307, R v Dillon; ex parte Attorney-General (Qld) [2006] QCA 521, and R v Craigie [2014] QCA 1 for the proposition that an appropriate head sentence, if imposed in isolation from the pre-existing sentence, was in the order of 3.5 years. Upon that footing, the appel…
Trimble v The Southern Queensland Regional Parole Board
[2015] QSC 331 Para 7

…ith four pages of written submissions which were received by the Board on 12 May 2015. [2] R v Arthy [2012] QCA 67 at [43]; R v Craigie [2014] QCA 1 at [14].…
R v Castle; Ex parte Attorney-General (Qld)
[2014] QCA 276 Para 1

…The sentencing judge regarded this case as a more serious example of violent offending than the offending in R v Craigie [2014] QCA 1, in which the Court refused an application for leave to appeal against an effective sentence of imprisonment of four years with a minimum non-parole period of about 17 months.…
R v Benson
[2014] QCA 188 Para 1

…ibility date. The period of six months allowed by s 193(3)(b) for the Parole Board to decide such an application is a maximum period. See R v Craigie [2014] QCA 1, at [19].…
Gallaher v Commissioner of Queensland Police Service
[2014] QDC 26 Para 1

…the applicant in attempting to obtain legal representation and then dealing with the appeal process as an unrepresented litigant. [7]See R v Craggie [2014] QCA 1…

View all 7 citing cases →

Cases cited in this decision · 15 of 15 shown

Bugmy v The Queen
[2013] HCA 37

…ive Services Act 2006 (Qld), s 179(2)(b), 180(1), s 180(2), s 193(3)(b) Bugmy v The Queen (2013) 87 ALJR 1022; [2013] HCA 37, cited Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, cited R v Arthy & Anor [2012] QCA 67, applied R v Fares [2012] QCA 13, considered…
R v Amato
[2013] QCA 158 Para 1

…sual, requiring some justification. [4] R v PAA [2006] QCA 56 at [14]; R v Ungvari [2010] 134 at [30]; R v Torrens [2011] QCA 38 at [31]; R v Amato [2013] QCA 158 at [19].…
R v Arthy
[2012] QCA 67 Para 1

…he parole eligibility date, in anticipation of a decision by the Parole Board on that date. That provision was given that construction in R v Arthy [2012] QCA 67 at [43]. The general provisions in ss 179(2)(b) and 180(1) must be read as being qualified by the more specific provision in s 180(2)(c). That is consi…
R v Omar
[2012] QCA 23 Para 1

…The word “appeal” in s 180(2)(b) has been held to comprehend an application for leave to appeal: R v Omar [2012] QCA 23 at [38]. In R v Fares [2012] QCA 13 at [54] the court referred to that provision, noted that the volume of applications before the Parole Board may be such as to require an early application to…
R v Waszkiewicz
[2012] QCA 22 Para 1

…s, the operation of the legislation cannot be said to make [the appellant’s] sentence manifestly excessive.” In R v Waszkiewicz [2012] QCA 22, White JA referred to the prisoner’s exercise of his right to seek leave to appeal and the consequential inability to apply for parole and stated that the Court “ought not…
R v Fares
[2012] QCA 13 Para 1

…The word “appeal” in s 180(2)(b) has been held to comprehend an application for leave to appeal: R v Omar [2012] QCA 23 at [38]. In R v Fares [2012] QCA 13 at [54] the court referred to that provision, noted that the volume of applications before the Parole Board may be such as to require an early application to…
R v Hopper
[2011] QCA 296 Para 30

…[3][2011] QCA 296 at [30] – Muir JA and Margaret Wilson J agreeing.…
R v Torrens
[2011] QCA 38 Para 1

…one-third must be considered unusual, requiring some justification. [4] R v PAA [2006] QCA 56 at [14]; R v Ungvari [2010] 134 at [30]; R v Torrens [2011] QCA 38 at [31]; R v Amato [2013] QCA 158 at [19].…
R v Lloyd
[2011] QCA 12 Para 1

…In reliance upon a statement by Chesterman JA in R v Lloyd [2011] QCA 12 at [20], the applicant also argued that the prospect that, by application of s 180(2)(b), the applicant will not be released on the parole eligibility date fixed by the sentencing judge would be unjust and contrary to the sentencing judge’s…
R v Chandler
[2010] QCA 21 Para 1

…asised, albeit in the context of Commonwealth offences, by Keane JA, with the concurrence of the Chief Justice and Douglas J, in R v Chandler [1]: [1][2010] QCA 21.…
R v Ruha, Ruha & Harris; ex parte
[2010] QCA 10

…[2][2010] QCA 10 [46]–[47].…
R v PAA
[2006] QCA 56 Para 1

…rcumstances, then a delay of the parole eligibility date beyond the one-third must be considered unusual, requiring some justification. [4] R v PAA [2006] QCA 56 at [14]; R v Ungvari [2010] 134 at [30]; R v Torrens [2011] QCA 38 at [31]; R v Amato [2013] QCA 158 at [19].…
R v Harkness
[2001] VSCA 87

…verall sentencing process may differ according to infinitely variable circumstances, there can be no “mechanistic or formulaic” (See R v Harkness [2001] VSCA 87 per Callaway JA, quoting from his Honour’s judgment in R v Pope (2000) 112 A Crim R 588 at [28]) approach which requires sentencing judges to ensure that…
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation
[1981] HCA 26

…ooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, cited R v Arthy & Anor [2012] QCA 67, applied R v Fares [2012] QCA 13, considered R v Lloyd [2011] QCA 12, considered R v Omar [2012] QCA 23, considered R v Waszkiewicz [2012] QCA 22, considered COUNSEL: D C…
Pty Ltd v Federal Commissioner of Taxation
381 US 479 Para 1

…onsequence is so surprising as to suggest that it could not have reflected the legislative purpose: see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320-1.…

Legislation cited in this decision · 2

Corrective Services Act 2006 (Qld)
179(2)(b), 180(1) 3 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v Craigie [2014] QCA 1
PARTIES:	R v CRAIGIE, Michael Jack (applicant)
FILE NO/S:	CA No 204 of 2013 DC No 313 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	Order delivered ex tempore on 31 October 2013 Reasons delivered 7 February 2014
DELIVERED AT:	Brisbane
HEARING DATE:	31 October 2013
JUDGES:	Fraser JA and McMeekin and Peter Lyons JJ Separate reasons for judgment of each member of the Court, Fraser JA and McMeekin J concurring as to the order made, Peter Lyons J dissenting
ORDER:	Delivered ex tempore on 31 October 2013: Application dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his pleas of guilty to one count of assault occasioning bodily harm, in company (count 2), one count of grievous bodily harm (count 3), one count of assault occasioning bodily harm (count 5) and one count of common assault (count 6) – where the applicant was sentenced to a total period of four years imprisonment with parole eligibility fixed at 6 December 2013, four months after the date of sentence – where both parties submitted that the four year term of imprisonment was within range, albeit at the high end of the range – where the applicant contended that manifest excess resulted from the fixing of a parole eligibility date four months after the date of sentence – where the applicant relied on Bugmy v The Queen to argue that the sentencing judge did not give sufficient weight to the applicant’s mitigating circumstances in fixing a parole eligibility date – where the applicant had a prior criminal history and issues with drug abuse and alcoholism – where, as a result of the applicant’s construction of the relevant provisions of the Corrective Services Act 2006 (Qld), the applicant argued that the sentence imposed did not reflect the sentencing judge’s intention and rendered the sentence manifestly excessive – whether the sentence was manifestly excessive STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR CLASSES OF ACT – PENAL ACTS – GENERALLY – where s 180(2)(c) of the Corrective Services Act 2006 (Qld) (“the Act”) precludes a prisoner from applying for a parole order more than 180 days before the parole eligibility date – where the applicant argued that the general provisions in ss 179(2)(b) and 180(1) of the Act operated so as to prevent the applicant from applying for parole prior to his parole eligibility date – where a consequence of the applicant’s construction is that a prisoner would rarely be released on parole on the prisoner’s parole eligibility date – whether the applicant’s construction reflects the legislative purpose of the provisions – whether the sentence was manifestly excessive Corrective Services Act 2006 (Qld), s 179(2)(b), 180(1), s 180(2), s 193(3)(b) Bugmy v The Queen (2013) 87 ALJR 1022; [2013] HCA 37