R v Ireland; Ex parte

Case [2019] QCA 58

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ireland; Ex parte Attorney-General (Qld) [2019] QCA 58

PARTIES:

R
v
IRELAND, Matthew James
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 32 of 2019
DC No 266 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:

District Court at Mackay – Date of Sentence – 31 January 2019 (Dick SC DCJ)

DELIVERED ON:

9 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

19 March 2019

JUDGES:

Gotterson JA and Boddice and Brown JJ

ORDERS:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – where the respondent pleaded guilty to an offence of assault occasioning bodily harm of a three year old girl – where the offence took place shortly before, but in the same sequence of events as, conduct for which the respondent was convicted of the unlawful killing of an 18 month old boy – where the respondent had been baby-sitting the siblings – where the respondent was sentenced to eight years, six months imprisonment for the unlawful killing – where, more than two years later, the respondent was sentenced to six months imprisonment for the assault occasioning bodily harm – where the sentencing judge ordered that the sentences be served concurrently and the parole release date be extended by two months – whether, by ordering that the sentences be served concurrently, the sentencing judge imposed a sentence that was manifestly inadequate

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
Lacey v Attorney General (Qld) (2011) 242 CLR 573; [2011] HCA 10, cited
R v Chmieluk; Ex parte Attorney-General (Qld)[2018] QCA 271, cited
R v Hill, Bakir, Grey and Broad; ex parte Cth DPP (2011) 212 A Crim R 359; [2011] QCA 306, cited
R v MCX[2018] QCA 249, cited
R v Rann[2005] QCA 366, cited
R v RY; ex parte Attorney-General (Qld)[2006] QCA 437, cited
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited

COUNSEL:

D C Boyle for the appellant
D A Holliday for the respondent

SOLICITORS:

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

  1. GOTTERSON JA:  I agree with the order proposed by Boddice J and with the reasons given by his Honour.

  2. BODDICE J:  On 5 June 2017, the respondent was convicted of one count of manslaughter.  The victim, an 18 month old child, was being babysat by the respondent whilst the parents were away seeking medical treatment.  The respondent was sentenced to eight years, six months imprisonment for that offence.  After allowing for 803 days pre-sentence custody, a parole eligibility date was fixed at 24 March 2019.

  3. On 31 January 2019, the respondent pleaded guilty to an offence of assault occasioning bodily harm, which had been committed two days prior to that unlawful killing.  The complainant was the deceased child’s…

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Details
AGLC
R v Ireland; Ex parte [2019] QCA 58
Case
[2019] QCA 58
Decision Date

CaseChat Overview and Summary

This appeal concerns the sentence imposed on the respondent by the sentencing judge in the District Court of Queensland on 31 January 2019, for the offence of assault occasioning bodily harm of a three-year-old girl. The respondent had been baby-sitting the victim and her deceased sibling at the time of the offence, which occurred just before the unlawful killing of the younger sibling for which the respondent had been previously convicted. The Attorney-General for the State of Queensland appeals against the sentence of imprisonment imposed on the respondent, arguing that it is manifestly inadequate. The appeal hinges on the Court's interpretation of the sentencing judge's exercise of discretion and whether it resulted in a misapplication of sentencing principles.

The primary legal issue before the Court was whether the sentencing judge imposed a sentence that was manifestly inadequate by ordering that the sentences for the two offences be served concurrently. The Court considered whether the sentencing judge had misapplied sentencing principles in ordering a concurrent sentence, despite the respondent's substantial criminal history and the serious nature of the offence. The Crown argued that the sentencing judge should have imposed a cumulative sentence, while the respondent contended that the sentence was appropriate given the totality principle and the concurrent imposition of sentences.

The Court concluded that the sentencing judge's exercise of discretion did not involve a misapplication of principle. While the sentencing judge acknowledged the need to consider what would have been the appropriate sentence if the offences had been dealt with together, the Court found that the judge properly applied the principle by making the sentence for the assault occasioning bodily harm concurrent and delaying the parole eligibility date. The Court emphasised that a challenge to the exercise of discretion in sentencing is not an exercise in reviewing the merits of the sentence, but rather an enquiry into whether there has been an error. The Court found no such error, as the sentencing judge was aware of the relevant principles and applied them correctly.

The Court dismissed the appeal and upheld the sentence imposed by the sentencing judge. The appeal was dismissed on the basis that no misapplication of principle had been established, and therefore, there was no warrant for intervention by the Court. The Court agreed with the order proposed by Boddice J and the reasons given by his Honour.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

The Attorney-General for the State of Queensland appeals against the sentence of imprisonment imposed on the respondent on 31 January 2019, for the offence of assault occasioning bodily harm. The sole ground of appeal is that the sentence imposed is manifestly inadequate.Background The respondent was born on 3 July 1985. He was aged 29 at the time of the commission of the assault occasioning bodily harm, and 33 years at sentence. The respondent has a lengthy past criminal history, both in Queensland and in New South Wales. Relevantly, he has prior convictions for armed robbery in New South Wales and for dishonesty, drug and Bail Act offences in Queensland. The offence of assault occasioning bodily harm was committed on 24 March 2015. At the time of its commission, the respondent was abusing alcohol. He had a past history of abusing the dangerous drug, methylamphetamine.Sentencing remarks The sentencing judge observed that the offence involved a single strike by the hand of the respondent to the head of a three year old child, leaving a four centimetre by four centimetre bruise, an appreciable injury capable of observation by medical practitioners. That offence, having occurred when the respondent was entrusted with the care of that child, involved a significant breach of trust. The two victim impact statements spoke of the lasting physical and mental consequences to both the female complainant and to her parents, as a consequence of the violence inflicted upon the female complainant and her deceased sibling. The sentencing judge noted the respondent’s plea of guilty to the offence was properly to be taken into account. The sentencing judge noted the respondent’s past circumstances, including problems with alcohol and observed that alcohol had played a part in the offence. The respondent had also struggled in the past with the abuse of methylamphetamine, which had resulted in his conviction for armed robbery in 2005. The sentencing judge accepted a submission by the respondent’s counsel that he had been the subject of assault whilst in prison. Since his conviction of the offence of manslaughter, he was serving his time in custody in very high security, for his own protection. Notwithstanding that circumstance, the sentencing judge observed the respondent had made good use of his time in custody. The sentencing judge observed the offence had taken place prior to the commission of the offence of manslaughter, for which the applicant had been sentenced to eight years and six months imprisonment in June 2017. It was necessary for the sentencing judge to determine whether, if both offences had been dealt with together, it would have resulted in a longer sentence being imposed upon the respondent. The sentencing judge concluded that had the offences been dealt with together, it was likely the respondent would have been given some extra time for the assault occasioning bodily harm, but it was difficult to assess how much extra time. The sentencing judge also observed that had the offence of assault occasioning bodily harm come before the court alone, it was unlikely, having regard to the circumstances of that offence, that the respondent would have received a sentence of actual imprisonment.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

A challenge to the exercise of discretion in sentencing is not an exercise in reviewing the merits of the sentence; it is an enquiry into whether there has been error.[11] Whilst another sentencing judge may, in the proper exercise of the sentencing discretion, have ordered the respondent to serve a further and longer period of imprisonment cumulatively, there is no basis upon which to conclude that the exercise of the sentencing discretion in the present case involved a misapplication of principle.[11]R v Chmieluk; Ex parte Attorney-General (Qld) [2018] QCA 271 at [83].Conclusion No misapplication of principle having been established, there is no warrant for intervention by this Court.Order I would order the appeal be dismissed. BROWN J: I agree with the order proposed by Boddice J and with the reasons given by his Honour.

Ratio Decidendi

Legal Principle Established

The respondent submits that the sentencing judge properly recognised the serious aspects of the offending and the mitigating factors, by delaying the respondent’s parole eligibility date by a period of two months.Consideration The respondent to this appeal engaged in reprehensible conduct whilst entrusted with the care of two very young children. Whilst undertaking that task, he committed the offence of assault occasioning bodily harm and two days later, unlawfully killed the younger sibling. For that latter offence, he received a sentence of eight years, six months imprisonment. This appeal is not against the sentence imposed for the offence of manslaughter. This appeal relates to a sentence of six months imprisonment, to be served concurrently, for one offence of assault occasioning bodily harm involving the striking of a three year old child’s head once, with the respondent’s hand. The injury inflicted was a bruise of a considerable size. As the sentencing judge correctly observed, if the offence of assault occasioning bodily harm had been considered by the Court in isolation, without the other circumstance, it would not have attracted a sentence of actual imprisonment. Further, the offence of assault occasioning bodily harm occurred prior to the offence of manslaughter, but was not dealt with until a significant time after that sentence of manslaughter. That factor was relevant in the exercise of the sentencing discretion. At the sentencing hearing, the Crown contended for a sentence of between nine and 18 months imprisonment, but conceded it would be open and proper to sentence at the lower end because of totality.[7] It was also properly acknowledged by the Crown Prosecutor that it was open to the sentencing judge, if the sentence was not to be ordered to be served cumulatively, to alter the parole eligibility date, although it was contended the circumstances warranted the imposition of a cumulative period of imprisonment.[7]AB15/32. Those concessions having been made by the Crown, there is no basis upon which to conclude that the exercise of the sentencing discretion to impose a concurrent sentence of imprisonment, involved a misapplication of principle. The sentencing judge was aware of the relevant principle. The sentencing judge acknowledged the need to consider what would have been the appropriate sentence had the offences been dealt with together. The sentencing judge applied that principle, not by making the head sentence of six months cumulative, but by instead making that sentence concurrent and delaying the parole eligibility date so that the respondent was required to serve two months of that sentence. The actual period in custody served by that order was consistent with the actual period of custody served by an offender who has cooperated with the administration of justice by pleading guilty to an offence for which the offender obtained a sentence of six months imprisonment. That order reflects a proper application of sentencing principles.