R v MacGowan - [2015] QCA 185

SUPREME COURT OF QUEENSLAND

CITATION:

R v MacGowan [2015] QCA 185

PARTIES:

R
v
MACGOWAN, Brandon Peter
(appellant/applicant)

FILE NO/S:

CA No 246 of 2014
SC No 26 of 14

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Cairns – Unreported, 29 August 2014

DELIVERED ON:

6 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2015

JUDGES:

Holmes CJ and Gotterson JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Dismiss the appeal against conviction.

2.   Grant the application for leave to appeal against sentence.

3.   Vary the sentence imposed at first instance by deleting the requirement that the appellant serve a minimum of 30 years before his release and substituting a requirement that he serve a minimum of 24 years unless released sooner on exceptional circumstances parole under the Corrective Services Act 2006.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where the appellant was convicted of two counts of murder – where the bodies of the deceased were disposed of in a remote location – where the trial judge gave a direction on post-offence conduct, saying the jury might infer intent from the manner of the disposal of the bodies – where defence counsel agreed to the content of the direction and did not seek a redirection – where the appellant argues that the trial judge should have given a full consciousness of guilt direction – whether the trial judge erred – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted of two counts of murder and sentenced to life imprisonment with a non-parole period of 30 years – where the sentencing judge considered that the need for denunciation, punishment and community protection warranted a non-release order substantially beyond the statutory minimum of 20 years – where the sentencing judge deemed the killings, which were execution style and intended to solve financial problems, to be more serious than some of the comparable sentences for double murder – whether the sentences were manifestly excessive

Criminal Code (Qld), s 305

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, applied
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, considered
R v Brennan[2013] QCA 316, considered
R v Hayes[2008] QCA 371, considered
R v Loader (2004) 89 SASR 204; (2004) 147 A Crim R 312; [2004] SASC 234, applied
R v Maygar; Ex parte Attorney-General (Qld); R v WT; Ex parte Attorney-General (Qld)[2007] QCA 310, considered
R v Sica [2014] 2 Qd R 168; [2013] QCA 247, considered
R v Smithers[2013] QCA 90, considered
R v Stewart…

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 MacGowan

Details

AGLC: R v MacGowan [2015] QCA 185
Case: [2015] QCA 185
Decision Date: 6 October 2015

CaseChat Overview and Summary

In the case of R v MacGowan, the appellant was convicted of two counts of murder and sentenced to life imprisonment with a non-parole period of 30 years. The bodies of the deceased were discovered in a remote location, and the trial judge provided a direction to the jury on post-offence conduct, indicating that they might infer intent from the manner in which the bodies were disposed of. The appellant's counsel agreed to the content of this direction and did not seek a redirection. The appellant now argues that the trial judge should have given a full consciousness of guilt direction, claiming that the judge erred, which may have led to a miscarriage of justice.

The court considered the arguments regarding the trial judge's direction and the appellant's contention that the trial judge should have given a full consciousness of guilt direction. The court found that the trial judge's direction was not erroneous and did not result in a miscarriage of justice. The court also examined the appellant's contention regarding the sentence, which was deemed to be life imprisonment with a non-parole period of 30 years. The sentencing judge considered that the need for denunciation, punishment, and community protection warranted a non-release order substantially beyond the statutory minimum of 20 years. The court found that the sentences were not manifestly excessive or inadequate.

The court dismissed the appeal against conviction and granted the application for leave to appeal against sentence. The court varied the sentence imposed at first instance by deleting the requirement that the appellant serve a minimum of 30 years before his release and substituting a requirement that he serve a minimum of 24 years unless released sooner on exceptional circumstances parole under the Corrective Services Act 2006. The final orders were to dismiss the appeal against conviction, grant the application for leave to appeal against sentence, and vary the sentence imposed at first instance by reducing the non-parole period from 30 years to 24 years.

Orders

Orders of the court

1. Dismiss the appeal against conviction.

2. Grant the application for leave to appeal against sentence.

3. Vary the sentence imposed at first instance by deleting the requirement that the appellant serve a minimum of 30 years before his release and substituting a requirement that he serve a minimum of 24 years unless released sooner on exceptional circumstances parole under the Corrective Services Act 2006.

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 MacGowan [2015] QCA 185
PARTIES:	R v MACGOWAN, Brandon Peter (appellant/applicant)
FILE NO/S:	CA No 246 of 2014 SC No 26 of 14
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Cairns – Unreported, 29 August 2014
DELIVERED ON:	6 October 2015
DELIVERED AT:	Brisbane
HEARING DATE:	2 June 2015
JUDGES:	Holmes CJ and Gotterson JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Dismiss the appeal against conviction. 2. Grant the application for leave to appeal against sentence. 3. Vary the sentence imposed at first instance by deleting the requirement that the appellant serve a minimum of 30 years before his release and substituting a requirement that he serve a minimum of 24 years unless released sooner on exceptional circumstances parole under the *Corrective Services Act* 2006.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where the appellant was convicted of two counts of murder – where the bodies of the deceased were disposed of in a remote location – where the trial judge gave a direction on post-offence conduct, saying the jury might infer intent from the manner of the disposal of the bodies – where defence counsel agreed to the content of the direction and did not seek a redirection – where the appellant argues that the trial judge should have given a full consciousness of guilt direction – whether the trial judge erred – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted of two counts of murder and sentenced to life imprisonment with a non-parole period of 30 years – where the sentencing judge considered that the need for denunciation, punishment and community protection warranted a non-release order substantially beyond the statutory minimum of 20 years – where the sentencing judge deemed the killings, which were execution style and intended to solve financial problems, to be more serious than some of the comparable sentences for double murder – whether the sentences were manifestly excessive Criminal Code (Qld), s 305 Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, applied Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, considered R v Brennan[2013] QCA 316, considered R v Hayes[2008] QCA 371, considered R v Loader (2004) 89 SASR 204; (2004) 147 A Crim R 312; [2004] SASC 234, applied R v Maygar; Ex parte Attorney-General (Qld); R v WT; Ex parte Attorney-General (Qld)[2007] QCA 310, considered R v Sica [2014] 2 Qd R 168; [2013] QCA 247, considered R v Smithers[2013] QCA 90, considered R v Stewart…