R v Daly

Case [2004] QCA 385


SUPREME COURT OF QUEENSLAND

CITATION:

R v Daly [2004] QCA 385

PARTIES:

R
v
DALY, Matthew Troy
(applicant/appellant)

FILE NO/S:

CA No 218 of 2004
SC No 151 of 2004
SC No 320 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Orders made 3 September 2004
Reasons delivered 15 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

3 September 2004

JUDGES:

McMurdo P, McPherson and Jerrard JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal granted

2.   Appeal allowed to the extent of substituting on count 2 a sentence of three years imprisonment suspended forthwith on the date of the hearing of the appeal for an operational period of three years

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where applicant pleaded guilty to one count of possession of methylamphetamine with a circumstance of aggravation, one count of supplying methylamphetamine and various other drug related offences – where applicant sentenced to three years imprisonment suspended after 12 months for the supply of methylamphetamine, three years imprisonment with a recommendation for PPCBR after serving 12 months for the possession of methylamphetamine and lesser concurrent sentences for the other offences – where 347 days spent in pre-sentence custody declared time already served under the sentences imposed – where sentencing judge intended that the applicant be released on parole after serving 12 months of the partially suspended sentence – where for administrative reasons recommendation for parole not capable of being given effect in the way intended - whether sentencing discretion miscarried

Penalties and Sentences Act 1992 (Qld), s 92(1)(b), s 188(1)(c)

R vArana [2000] QCA 184, CA No 441 of 1999, 16 May 2000, considered
R v Corrigan [1994] 2 Qd R 415, considered
R v Hughes [2000] QCA 16, CA No 306 of 1999, 11 February 2000, considered
R v Hughes [1999] 1 Qd R 389, considered
R v M, ex parte Attorney-General [1999] QCA 442; [2000] 2 Qd R 543, considered
R v MacKenzie [2000] QCA 324; [2002] 1 Qd R 410, considered
R v Maxfield [2000] QCA 320; [2002] 1 Qd R 417, considered
R v Vincent, ex parte Attorney-General [2000] QCA 250; [2001] 2 Qd R 327, considered
Sysel v Dinon [2002] QCA 149; [2003] 1 Qd R 212, applied

COUNSEL:

A J Moynihan for the applicant/appellant
M R Byrne for the respondent

SOLICITORS:

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

  1. McMURDO P:  Mr Daly's application for leave to appeal was heard on 3 September 2004.  At the conclusion of the hearing, this Court granted the application for leave to appeal and allowed the appeal to the extent of substituting a sentence of three years imprisonment suspended forthwith with an operational period…

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Details
AGLC
R v Daly [2004] QCA 385
Case
[2004] QCA 385
Decision Date

CaseChat Overview and Summary

The applicant, who pleaded guilty to multiple drug-related offences, appealed against his sentence. The charges included possession of methylamphetamine with an aggravating circumstance, supplying methylamphetamine, and other related offences. The applicant was sentenced to a three-year imprisonment term, suspended after 12 months, for the supply of methylamphetamine, a three-year imprisonment term with a recommendation for post-prison supervision and reporting for the possession of methylamphetamine, and concurrent lesser sentences for the other offences. The sentencing judge intended for the applicant to be released on parole after serving 12 months of the partially suspended sentence. However, for administrative reasons, the recommendation for parole could not be given effect in the way intended.

The legal issues in the case centred on whether the sentencing discretion miscarried. The applicant argued that the sentence imposed was manifestly inadequate and that the sentencing judge's intention could not be carried out due to administrative constraints. The applicant's legal representatives contended that the court should have imposed a sentence of three years imprisonment suspended forthwith on the date of the hearing of the appeal for an operational period of three years, rather than a partially suspended sentence.

The court found that the sentencing discretion had miscarried due to the administrative constraints preventing the intended release on parole. The court recognised that the applicant's offending was serious, but considered that a partially suspended sentence would not adequately address the seriousness of the offending. The court substituted the sentence on count 2 to a three-year imprisonment term suspended forthwith on the date of the hearing of the appeal for an operational period of three years.

The court granted the application for leave to appeal and allowed the appeal to the extent of substituting the sentence on count 2. The court's decision recognised the need for the sentence to adequately address the seriousness of the offending and to give effect to the sentencing judge's intention. The substituted sentence provides a more appropriate balance between punishment and rehabilitation for the applicant.

Orders

Orders of the court

1. Application for leave to appeal granted

2. Appeal allowed to the extent of substituting on count 2 a sentence of three years imprisonment suspended forthwith on the date of the hearing of the appeal for an operational period of three years

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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