R v Daly

Case [2004] QCA 385 15 October 2004

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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

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…

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 Daly

Details

AGLC: R v Daly [2004] QCA 385
Case: [2004] QCA 385
Decision Date: 15 October 2004

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

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 Daly [2004] QCA 385

Most Recent Citation

R v Hood [2005] QCA 159

Cases citing this decision · 14 of 14 shown

R v Sabine
[2019] QCA 36 Para 13

…R v Sartori [5] and R v Warren .[6] Of those, her Honour found that R v Daly was of the greatest relevance. [2][2004] QCA 116. [3][2016] QCA 315. [4][2004] QCA 385. [5][2006] QCA 284. [6][2014] QCA 175.…
R v Wells
[2018] QCA 236 Para 8

…se on parole by the parole eligibility date and that this would thwart the intended effect of the sentence. The case is, therefore, unlike R v Daly [2004] QCA 385 at [8] or R v Lloyd [2011] QCA 12 at [20], in which a demonstrated practical inability of a prisoner to obtain release on parole meant that effect coul…
R v Taylor
[2015] QCA 214

…ses he would not be able to complete the courses as the authorities required of him before he could be considered for parole. The second was R v Daly [2004] QCA 385, in which the sentencing judge had articulated an expectation that his parole recommendation would take effect at the time indicated, not appreciatin…
R v Warren
[2014] QCA 175

…xcessive Penalties and Sentences Act 1992 (Qld), s 9(2) R v Armstrong [2005] QCA 116, cited R v Daly (2004) 147 A Crim R 440; [2004] QCA 385, cited R v Woods [2004] QCA 204, cited COUNSEL: M J Byrne QC, with G T Hansen, for the applicant B G Campbell for the respondent SOLICITORS: Lee Turnbull & Co for the applic…
The Queen v Cherry
[2014] QSC 58 Para 1

…be given effect to, but that it could be given effect to. The decisions do not assist the applicant. [19][2002] 1 Qd R 417 [20][2002] 1 Qd R 410 [21][2004] QCA 385…
R v Tahir; Ex parte
[2013] QCA 294 Para 1

…nding parole creates an expectation in the prisoner of obtaining parole: see R v Corrigan [1994] 2 Qd R 415, R v Maxfield [2002] 1 Qd R 417, R v Daly [2004] QCA 385. In Daly Jerrard JA expressed the following view of the effect of the decisions concerning recommendations for release on parole:…
R v Smith
[2013] QDC 69 Para 1

…The applicant argues the sentencing proceeded on a clear factual error, by analogy with cases such as R v MacKenzie [2002] 1 Qd R 410, R v Daly [2004] QCA 385 and R v Ronkovich [2007] QCA 193. But there is no analogy. All are cases where the policies and/or procedures within prison administration were likely to f…
R v Cone
[2010] QCA 274 Para 1

…Counsel for the applicant amongst other cases placed reliance upon R v Michalas [2007] QCA 38 and R v Daly [2004] QCA 385.…
R v Gabbert
[2010] QCA 133 Para 1

…f three years. Three hundred and forty-seven days of pre-sentence custody was declared time already served under these and other lesser sentences. [8][2004] QCA 385.…
R v. Robinson
[2008] QCA 365 Para 1

…We were referred to R v Daly [2004] QCA 385. Mr Daley faced seven counts including one of possessing methylamphetamine in a quantity exceeding two grams (the total calculated of 2.26 grams of methylamphetamine), one of supplying methylamphetamine, and two of supplying marijuana. The head sentences of three years…
R v Ronkovich
[2007] QCA 193 Para 1

…JERRARD JA: I agree with the reasons and orders proposed by Atkinson J. I add only that I would express the reason for re-sentencing as in R v Daly [2004] QCA 385 at [6], [9], and [31]. That is that the incorrect assumption Mr Ronkovich would be considered for parole on the eligibility date fixed by the judge mea…
R v DMP
[2006] QDC 331

…t's not permissible. The first occasion was The Queen v. Kenneth Jack Davidson, CA number 7 and number 8 of 1999, BC 902145. More recently came Daly, [2004] QCA 385. 30 The explanation for the unusual order in Davidson was taken to be that section 157 of the Penalties and Sentences Act required the sentencing Jud…
R v Hood
[2005] QCA 159 Para 1

…of the sentencing judge. In R v MacKenzie this Court held the error in the assumption enlivened the power under s 188(1)(c) of the Act; in R v Daly [2004] QCA 385 at [6] and [9] that the error meant the sentencing discretion had miscarried, and (at [31]) that it meant some other sentence was warranted in law and…
R v. Hooson
[2005] QSC 14

…ntly, however, the width of that interpretation of that line of authorities has been doubted - see, in particular, the judgment of Jerrard JA in Daly [2004] QCA 385. It has also been held in the Court of Appeal that a probation order and a suspended sentence of imprisonment may be imposed concurrently - see Sysel…

View all 14 citing cases →

Cases cited in this decision · 7 of 7 shown

Sysel v Dinon
[2002] QCA 149

…0; [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…
R v MacKenzie
[2000] QCA 324

…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, con…
R v Maxfield
[2000] QCA 320

…rney-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, ap…
R v Vincent; ex parte
[2000] QCA 250

…24; [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…
R v Arana
[2000] QCA 184 Para 1

…er to comply with the requirement of the probation order to report within 24 hours of the order being made to a probation office. [5][2000] QCA 16 [6][2000] QCA 184 [7][1999] 1 Qd R 389. [8][2000] 2 Qd R 543.…
R v Hughes
[2000] QCA 16 Para 1

…e for that offender to comply with the requirement of the probation order to report within 24 hours of the order being made to a probation office. [5][2000] QCA 16 [6][2000] QCA 184 [7][1999] 1 Qd R 389. [8][2000] 2 Qd R 543.…
R v M; ex parte Attorney-General
[1999] QCA 442

…] 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 p…

Legislation cited in this decision · 3

Penalties and Sentences Act 1992 (Qld)
92(1)(b) 2 mentions (from Para 1)
Corrective Services Act 2000 (Qld)
1 mention (from Para 1)
Sentences Act 1992 (Qld)
1 mention (from Para 1)

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