R v Maguire - [2001] QCA 55

SUPREME COURT OF QUEENSLAND

CITATION: R v Maguire [2001] QCA 55

PARTIES: R
v
MAGUIRE, Jay Leslie
(applicant/appellant)

FILE NO/S: CA No 240 of 2000
DC No 1986 of 2000

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 27 February 2001

DELIVERED AT: Brisbane

HEARING DATE: 6 February 2001

JUDGES: Davies JA, Williams JA, Mackenzie J
Separate reasons for judgement of each member of the Court, each concurring as to the orders made

ORDER:
1. Application for leave to appeal against sentence granted.

2. Appeal allowed to the extent of deleting the recommendation that the applicant be eligible for parole after serving 20 months and in lieu thereof insert a recommendation that he be eligible to apply for parole on 16 September 2003.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – whether sentence manifestly excessive in all the circumstances - where applicant pleaded guilty to property offences – where applicant later committed offences against property and the person whilst on parole – where applicant aged 20 with an extensive criminal history – sentencing judge imposed a sentence of five years – sentence at top of range but not excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant concerned with period he would serve in custody before being eligible for parole – where recommendation by sentencing judge that he be eligible for parole after serving 20 months of first sentence – effect should be given to what the sentencing judge saw as the appropriate date for parole

Corrective Services Act 1988 (Qld), s 116(1)(d), s 185, s 190(2), s 191
Corrective Services Act 2000 (Qld) s 207B
Corrective Services Regulations 1989 (Qld), reg 28
Penalties and Sentences Act 1992 (Qld), s 156A, s 157

Booth (1999) 105 A Crim R 288, applied
Burton (1995) 83 A Crim R 453, considered
Cutajar (1995) 85 A Crim R 280, considered
Doyle [1996] 1 Qd R 407, considered
McCormick: ex parte Attorney General, [1999] QCA 354; (CA 205 of 1999, 27 August 1999), considered

COUNSEL: The appellant appeared on his own behalf
B G Campbell for the respondent

SOLICITORS: The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

DAVIES JA: I agree with the orders proposed by Williams JA and with his reasons.

WILLIAMS JA: The applicant, Jay Leslie Maguire, seeks leave to appeal against a sentence imposed on 24 August 2000. The only ground taken is that the "sentence is manifestly excessive in all the circumstances". It became clear from submissions made by the applicant, who appeared on his own behalf, that his primary concern was the period he…

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 Maguire

Details

AGLC: R v Maguire [2001] QCA 55
Case: [2001] QCA 55
Decision Date: 27 February 2001

CaseChat Overview and Summary

In the case of R v Maguire, the appellant, who had a significant criminal history, appealed against his sentence following a guilty plea to property offences. The sentencing judge had imposed a five-year sentence, which was at the top of the sentencing range but was deemed not to be excessive given the appellant's criminal history and subsequent offending while on parole. The appellant sought to reduce his sentence on the grounds that it was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed by the sentencing judge was manifestly excessive in all the circumstances. The court had to consider the appellant's extensive criminal history, the nature and circumstances of the current offences, and the appellant's conduct while on parole. The appellant argued that the sentence should be reduced, particularly in relation to the period he would serve in custody before being eligible for parole.

The court acknowledged the appellant's extensive criminal history but found that the sentence imposed was not manifestly excessive. The court also considered the recommendation by the sentencing judge that the appellant be eligible for parole after serving 20 months of the sentence. The court deleted this recommendation and instead inserted a recommendation that the appellant be eligible to apply for parole on 16 September 2003, aligning with the sentencing judge's intended timeframe.

The court granted the application for leave to appeal against the sentence and allowed the appeal to the extent of modifying the parole eligibility recommendation. This modification aimed to reflect the sentencing judge's original intention regarding the appropriate date for parole eligibility.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal allowed to the extent of deleting the recommendation that the applicant be eligible for parole after serving 20 months and in lieu thereof insert a recommendation that he be eligible to apply for parole on 16 September 2003.

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 Maguire [2001] QCA 55
PARTIES:	R v MAGUIRE, Jay Leslie (applicant/appellant)
FILE NO/S:	CA No 240 of 2000 DC No 1986 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	27 February 2001
DELIVERED AT:	Brisbane
HEARING DATE:	6 February 2001
JUDGES:	Davies JA, Williams JA, Mackenzie J Separate reasons for judgement of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence granted. 2. Appeal allowed to the extent of deleting the recommendation that the applicant be eligible for parole after serving 20 months and in lieu thereof insert a recommendation that he be eligible to apply for parole on 16 September 2003.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – whether sentence manifestly excessive in all the circumstances - where applicant pleaded guilty to property offences – where applicant later committed offences against property and the person whilst on parole – where applicant aged 20 with an extensive criminal history – sentencing judge imposed a sentence of five years – sentence at top of range but not excessive CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant concerned with period he would serve in custody before being eligible for parole – where recommendation by sentencing judge that he be eligible for parole after serving 20 months of first sentence – effect should be given to what the sentencing judge saw as the appropriate date for parole Corrective Services Act 1988 (Qld), s 116(1)(d), s 185, s 190(2), s 191 Corrective Services Act 2000 (Qld) s 207B Corrective Services Regulations 1989 (Qld), reg 28 Penalties and Sentences Act 1992 (Qld), s 156A, s 157 Booth (1999) 105 A Crim R 288, applied Burton (1995) 83 A Crim R 453, considered Cutajar (1995) 85 A Crim R 280, considered Doyle [1996] 1 Qd R 407, considered McCormick: ex parte Attorney General, [1999] QCA 354; (CA 205 of 1999, 27 August 1999), considered
COUNSEL:	The appellant appeared on his own behalf B G Campbell for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent