R v Macdonald - [2008] QCA 384

SUPREME COURT OF QUEENSLAND

CITATION:

R v Macdonald [2008] QCA 384

PARTIES:

R
v
MACDONALD, Blair James
(applicant)

FILE NO/S:

CA No 219 of 2008
DC No 1363 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2008

JUDGES:

de Jersey CJ, Holmes JA and White AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. That a warrant issue for the arrest of the applicant, to lie in the Registry for seven days prior to any necessary execution; and

2. That the application be refused, save that an order be made fixing the date for the applicant to be released on parole, as the date two months and 19 days from the date of his being returned into custody consequent upon determination of this application

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to stalking with circumstances of aggravation – where the applicant was sentenced to two years imprisonment, with parole fixed after eight months – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 160B(3)

R v Foodey[2003] QCA 310, considered
R v Layfield [2003] QCA 3, considered

COUNSEL:

C A Cuthbert for the applicant (pro bono)
B G Campbell for the respondent

SOLICITORS:

Douglas Law for the applicant
Director of Public Prosecutions (Queensland) for the respondent

JERSEY CJ:de The applicant pleaded guilty to stalking the complainant over the period 27 October 2006 to 9 February 2007, with two circumstances of aggravation. The first was that in 10 of the instances, the applicant intentionally threatened to use violence against the respondent. The second was that three instances involved contravention of court orders, being a temporary protection order made on 14 November 2006 and a protection order made on 12 December 2006.

By the time the applicant was sentenced on 26 August 2008, he had been in custody for 147 days. He was arrested on the instant charges on 1 February 2007, and remained in custody until 28 June 2007 when the Supreme Court granted him bail. He was returned to custody when sentenced on 26 August 2008, and granted bail pending appeal on 5 September 2008, so that he served a further 11 days. The 147 days were declared time served under the sentence imposed, which was two years imprisonment, with parole fixed after eight months, that is, on 26 November 2008, after allowing for that period of 147 days.

The applicant was 35 years old at the time of the offending. He had what the learned sentencing Judge termed a limited criminal history.

The stalking commenced after the breakdown of the applicant’s domestic relationship with the complainant. It involved his sending her more than 200 text messages, day and night, at her home and…

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 [2008] QCA 384
Case: [2008] QCA 384
Decision Date: 4 December 2008

CaseChat Overview and Summary

The appellant, Macdonald, was convicted of stalking with aggravating circumstances and subsequently pleaded guilty. He was sentenced to two years imprisonment with parole fixed after eight months. The appellant appealed against the sentence, arguing that it was manifestly excessive. The court considered whether the sentence imposed was appropriate in the circumstances of the case, taking into account the nature of the offence and the need for deterrence and rehabilitation.

The court examined the principles governing the imposition of sentences in cases of stalking with aggravating circumstances. It considered the appellant's background, the seriousness of the offence, and the need to protect the community. The court also evaluated whether the sentence was disproportionate to the offence and whether it failed to achieve the purposes of sentencing, including deterrence and rehabilitation. The court found that the sentence was not manifestly excessive and did not warrant interference.

The court determined that while the sentence might be considered harsh, it was not so disproportionate as to be manifestly excessive. The court acknowledged the seriousness of the offence and the need for appropriate punishment and deterrence. The court also noted the importance of protecting the community and the appellant's need for rehabilitation. Ultimately, the court found that the sentence imposed was within the range of reasonable and appropriate punishments for the offence. The court refused the appeal and ordered that a warrant issue for the appellant's arrest and that he be released on parole two months and 19 days from the date of his return to custody.

Orders

Orders of the court

1. That a warrant issue for the arrest of the applicant, to lie in the Registry for seven days prior to any necessary execution; and

2. That the application be refused, save that an order be made fixing the date for the applicant to be released on parole, as the date two months and 19 days from the date of his being returned into custody consequent upon determination of this application

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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CITATION:	R v Macdonald [2008] QCA 384
PARTIES:	R v MACDONALD, Blair James (applicant)
FILE NO/S:	CA No 219 of 2008 DC No 1363 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 December 2008
DELIVERED AT:	Brisbane
HEARING DATE:	26 November 2008
JUDGES:	de Jersey CJ, Holmes JA and White AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. That a warrant issue for the arrest of the applicant, to lie in the Registry for seven days prior to any necessary execution; and 2. That the application be refused, save that an order be made fixing the date for the applicant to be released on parole, as the date two months and 19 days from the date of his being returned into custody consequent upon determination of this application
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to stalking with circumstances of aggravation – where the applicant was sentenced to two years imprisonment, with parole fixed after eight months – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 160B(3) R v Foodey[2003] QCA 310, considered R v Layfield [2003] QCA 3, considered
COUNSEL:	C A Cuthbert for the applicant (pro bono) B G Campbell for the respondent
SOLICITORS:	Douglas Law for the applicant Director of Public Prosecutions (Queensland) for the respondent