R v Mackay - [2019] QCA 97

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mackay [2019] QCA 97

PARTIES:

R
v
MACKAY, Andrew David
(applicant)

FILE NO/S:

CA No 91 of 2019
DC No 436 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 8 April 2019 (McGill SC DCJ)

DELIVERED ON:

Date of Order: 14 May 2019
Date of Publication of Reasons: 24 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2019

JUDGES:

Fraser and Morrison JJA and Davis J

ORDER:

Date of Order: 14 May 2019

Application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – MISCELLANEOUS OFFENCES AND MATTERS – BRIBERY AND CORRUPTION – where the applicant bribed an official of the Public Trustee of Queensland in order to be given information about tenders for building work so the applicant could underquote and get the work – where the applicant was charged with three counts of official corruption, pleaded guilty to the charges, and was sentenced to two years imprisonment for each count, to be served concurrently – where the sentence is to be suspended after the applicant had served eight months imprisonment, with an operational period of four years – where the applicant seeks to appeal the sentences on the ground that they are manifestly excessive – whether the sentence should have been wholly suspended, or if a suspension was warranted, whether a lesser term of imprisonment prior to suspension should have been imposed instead

Penalties and Sentences Act 1992 (Qld), s 13A

R v Gmeinder[2001] QCA 354, cited

COUNSEL:

L K Crowley QC for the applicant
S J Bain for the respondent

SOLICITORS:

Anderson Fredericks Turner for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: The reasons for judgment of Morrison JA reflect my own reasons for joining in the orders refusing the application for leave to appeal against sentence.
MORRISON JA: Mr Mackay bribed an official of the Public Trustee of Queensland to give him information about tenders for building work, so that Mr Mackay’s business could underquote and get the work. As a result he was charged with three counts of official corruption, the maximum penalty for each being imprisonment for seven years. He was sentenced on each count to two years’ imprisonment, the sentences to be served concurrently, with those sentences being suspended after he had served eight months’ imprisonment. The operational period of the suspension was four years.
Mr Mackay seeks to challenge those sentences on the ground that they are manifestly excessive. However, no challenge is mounted to the head sentence of two years’ imprisonment. The contention is that the sentence should have been wholly suspended, or alternatively if a suspension was warranted, a suspension of less than eight months was appropriate.
Circumstances of the offending
The learned sentencing judge was provided with an agreed summary of the facts. His Honour took the view that it did not summarise the relevant facts in an…

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 Mackay

Details

AGLC: R v Mackay [2019] QCA 97
Case: [2019] QCA 97
Decision Date: 14 May 2019

CaseChat Overview and Summary

The case before the court was an appeal against sentence by the applicant, who had previously been convicted of three counts of official corruption. The applicant had bribed an official of the Public Trustee of Queensland to gain information about tenders for building work, with the intention of underquoting and securing the work. After pleading guilty, the applicant was sentenced to two years imprisonment for each count, to be served concurrently. The sentence was to be suspended after the applicant had served eight months in prison, with an operational period of four years. The applicant sought to appeal the sentences, arguing that they were manifestly excessive and that a wholly suspended sentence or a lesser term of imprisonment prior to suspension should have been imposed instead.

The court was required to determine whether the sentences imposed by the primary judge were manifestly excessive and whether the applicant was entitled to a wholly suspended sentence or a lesser term of imprisonment prior to suspension. The court considered the relevant principles of sentencing and the particular circumstances of the case, including the nature and circumstances of the offence, the culpability of the offender, and the principles of general and specific deterrence.

The court found that the sentences were not manifestly excessive, noting that the primary judge had given proper weight to the relevant sentencing considerations. The court also held that the applicant was not entitled to a wholly suspended sentence, or a lesser term of imprisonment prior to suspension, as the primary judge had exercised his discretion in a manner consistent with the relevant legal principles. The court concluded that the appeal against sentence should be dismissed.

The court refused the application for leave to appeal against sentence. The order was made on 14 May 2019.

Orders

Orders of the court

Date of Order: 14 May 2019

Application for leave to appeal against sentence is refused.

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.

CITATION:	R v Mackay [2019] QCA 97
PARTIES:	R v MACKAY, Andrew David (applicant)
FILE NO/S:	CA No 91 of 2019 DC No 436 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 8 April 2019 (McGill SC DCJ)
DELIVERED ON:	Date of Order: 14 May 2019 Date of Publication of Reasons: 24 May 2019
DELIVERED AT:	Brisbane
HEARING DATE:	14 May 2019
JUDGES:	Fraser and Morrison JJA and Davis J
ORDER:	Date of Order: 14 May 2019 Application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – MISCELLANEOUS OFFENCES AND MATTERS – BRIBERY AND CORRUPTION – where the applicant bribed an official of the Public Trustee of Queensland in order to be given information about tenders for building work so the applicant could underquote and get the work – where the applicant was charged with three counts of official corruption, pleaded guilty to the charges, and was sentenced to two years imprisonment for each count, to be served concurrently – where the sentence is to be suspended after the applicant had served eight months imprisonment, with an operational period of four years – where the applicant seeks to appeal the sentences on the ground that they are manifestly excessive – whether the sentence should have been wholly suspended, or if a suspension was warranted, whether a lesser term of imprisonment prior to suspension should have been imposed instead Penalties and Sentences Act 1992 (Qld), s 13A R v Gmeinder[2001] QCA 354, cited
COUNSEL:	L K Crowley QC for the applicant S J Bain for the respondent
SOLICITORS:	Anderson Fredericks Turner for the applicant Director of Public Prosecutions (Queensland) for the respondent