R v MacDonald - [2015] QCA 253

SUPREME COURT OF QUEENSLAND

CITATION:

R v MacDonald [2015] QCA 253

PARTIES:

R
v
MacDONALD, Jason John Marquis
(applicant)

FILE NO/S:

CA No 54 of 2015
DC No 198 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Mackay – Unreported, 30 March 2015

DELIVERED ON:

Orders delivered ex tempore 26 June 2015
Reasons delivered 4 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

26 June 2015

JUDGES:

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

ORDERS:

Orders delivered ex tempore on 26 June 2015:

1.   The application for leave to appeal against sentence is granted.

2.   The appeal is allowed.

3.   The sentence imposed on count 1 and count 2 is varied by suspending it forthwith.

4.   The sentences imposed at first instance are otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was charged, on a plea of guilty, with stealing property of a value exceeding $5,000; and fraud, by the dishonest application of the property of another – where the applicant was sentenced to 15 months imprisonment on the stealing charge, suspended after three months; concurrently, nine months imprisonment on the fraud charge, suspended after three months; and a restitution order, requiring the repayment of $10,742.88 in 18 months – where a third party stole copper wire from a prawn farm close to where the applicant was working – where the third party hid the copper wire outside of the farm and left – where the applicant and his partner took the wire and placed it in the applicant’s ute – where the applicant proceeded to sell the wire to a scrap metal yard on three separate occasions – where the police became involved and the applicant was subsequently arrested – whether the sentence was manifestly excessive because of the imposition of any period of actual custody

Criminal Code and other Acts Amendment Act 2008
Penalties and Sentences Act 1992 (Qld), s 4, s 9, s 9(12), s 9(13), s 144, s 234
Youth Justice and Other Legislation Amendment Act 2014 (Qld)
Youth Justice and Other Legislation Amendment Bill 2014 (Qld)

R v Bingham[2004] QCA 166, considered
R v Clemments[2010] QCA 38, considered
R v Gabesh, Unreported, District Court of Queensland, 19 February 2015, cited
R v Lovi[2012] QCA 24, considered
R v Verburgt[2009] QCA 33, considered
Skorka v Hartley; Skorka v Kurtz[2011] QCA 116, considered

COUNSEL:

S J Hamlyn-Harris for the applicant
S Farnden for the respondent

SOLICITORS:

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

MARGARET McMURDO P: I agree with Morrison JA’s reasons for joining in the orders of this Court on 26 June 2015 as varied on 30 June 2015 granting the application for leave to appeal against sentence,…

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 MacDonald

Details

AGLC: R v MacDonald [2015] QCA 253
Case: [2015] QCA 253
Decision Date: 26 June 2015

CaseChat Overview and Summary

The case of R v MacDonald involved the applicant appealing against his sentence following a guilty plea to charges of stealing property of a value exceeding $5,000 and fraud by the dishonest application of another’s property. The applicant was sentenced to 15 months imprisonment on the stealing charge, suspended after three months, and nine months imprisonment on the fraud charge, also suspended after three months, with an additional restitution order requiring the repayment of $10,742.88 over 18 months. The case centred on whether the sentence imposed, particularly the requirement of any period of actual custody, was manifestly excessive.

The legal issues before the court included whether the sentencing judge erred in his approach to the effect of amendments to section 9 of the Penalties and Sentences Act 1992 (Qld). Specifically, the court considered the repeal of section 9(2) of the Act, which stated that imprisonment should be imposed only as a last resort, and the introduction of section 9(12) of the Act, which directed that a sentencing judge must not regard any principle that a "sentence of imprisonment" should be imposed only as a last resort. The court examined whether these amendments affected the imposition of a suspended sentence and whether the sentence in this case was appropriate under the new legislative framework.

The court found that the sentencing judge had erred in his interpretation of the amendments to the Penalties and Sentences Act 1992 (Qld). It concluded that the term "sentence of imprisonment" in section 9(12) of the Act should be understood to include a term of imprisonment that is suspended. The court held that the amendments did not preclude the imposition of a suspended sentence where it was deemed appropriate. Given this reasoning, the court allowed the appeal and varied the sentences imposed on counts 1 and 2 by suspending them forthwith, while confirming the sentences imposed at first instance in all other respects.

The final orders of the court were delivered on 26 June 2015 and included granting leave to appeal against the sentence, allowing the appeal, varying the sentences on count 1 and count 2 by suspending them forthwith, and confirming the sentences imposed at first instance in all other respects.

Orders

Orders of the court

Orders delivered ex tempore on 26 June 2015:

1. The application for leave to appeal against sentence is granted.

2. The appeal is allowed.

3. The sentence imposed on count 1 and count 2 is varied by suspending it forthwith.

4. The sentences imposed at first instance are otherwise confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Skorka is another example where a stealing charge has resulted in a wholly suspended sentence, but that is the extent of the assistance it gives, as the facts are well removed from Mr MacDonald’s case, and the conclusion of the Court was only that the sentence was not manifestly excessive.Conclusion For the reasons set out above the sentence on each count should have been wholly suspended. On that basis I joined in the orders made on 26 June 2015. PHILIPPIDES JA: The reasons given by Morrison JA and the additional reasons stated by McMurdo P form the basis of my joining in the orders made on 26 June 2015. In particular, the sentencing judge erred in his approach to the effect of the amendments to s 9 of the Penalties and Sentences Act 1992 (Qld), that is, the repeal of s 9(2) of the Act (which stated that a sentence of imprisonment should be imposed as a last resort) and the introduction of s 9(12) of the Act (stating that a sentencing judge must not have regard to any principle that a “sentence of imprisonment” should be imposed only as a last resort). The scheme of the PSA makes it clear that the expression “sentence of imprisonment” for the purposes of s 9(12) is to be understood consistently with s 144 of the PSA, that is, as including a term of imprisonment that is suspended. So much is made apparent by the fact that the expression “actual imprisonment”, which is defined in s 9(13), only appears in s 9(4). It is not adopted in s 9(12). It follows that where a term of imprisonment is considered appropriate, the amendments to the Act do not have the result that a suspended sentence may not be imposed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v MacDonald [2015] QCA 253
PARTIES:	R v MacDONALD, Jason John Marquis (applicant)
FILE NO/S:	CA No 54 of 2015 DC No 198 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Mackay – Unreported, 30 March 2015
DELIVERED ON:	Orders delivered ex tempore 26 June 2015 Reasons delivered 4 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	26 June 2015
JUDGES:	McMurdo P and Morrison and Philippides JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Orders delivered ex tempore on 26 June 2015: 1. The application for leave to appeal against sentence is granted. 2. The appeal is allowed. 3. The sentence imposed on count 1 and count 2 is varied by suspending it forthwith. 4. The sentences imposed at first instance are otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was charged, on a plea of guilty, with stealing property of a value exceeding $5,000; and fraud, by the dishonest application of the property of another – where the applicant was sentenced to 15 months imprisonment on the stealing charge, suspended after three months; concurrently, nine months imprisonment on the fraud charge, suspended after three months; and a restitution order, requiring the repayment of $10,742.88 in 18 months – where a third party stole copper wire from a prawn farm close to where the applicant was working – where the third party hid the copper wire outside of the farm and left – where the applicant and his partner took the wire and placed it in the applicant’s ute – where the applicant proceeded to sell the wire to a scrap metal yard on three separate occasions – where the police became involved and the applicant was subsequently arrested – whether the sentence was manifestly excessive because of the imposition of any period of actual custody Criminal Code and other Acts Amendment Act 2008 Penalties and Sentences Act 1992 (Qld), s 4, s 9, s 9(12), s 9(13), s 144, s 234 Youth Justice and Other Legislation Amendment Act 2014 (Qld) Youth Justice and Other Legislation Amendment Bill 2014 (Qld) R v Bingham[2004] QCA 166, considered R v Clemments[2010] QCA 38, considered R v Gabesh, Unreported, District Court of Queensland, 19 February 2015, cited R v Lovi[2012] QCA 24, considered R v Verburgt[2009] QCA 33, considered Skorka v Hartley; Skorka v Kurtz[2011] QCA 116, considered
COUNSEL:	S J Hamlyn-Harris for the applicant S Farnden for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent