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R v Mahony & Shenfield

R v Mahony & Shenfield

Case [2012] QCA 366 21 December 2012

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Mahony & Shenfield [2012] QCA 366

PARTIES:

R
v
MAHONY, Rebecca Louise
(applicant)

R
v
SHENFIELD, Andrew Scott
(applicant)

FILE NO/S:

CA No 350 of 2011
CA No 351 of 2011
SC No 959 of 2011
SC No 959 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Applications

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

22 October 2012

JUDGES:

Muir and Gotterson JJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   For Mahony, refuse the application for leave to appeal against sentence.

2.   For Shenfield,

a.      Grant the application for leave to appeal against sentence;

b.      Allow the appeal to the extent of substituting a term of 18 years imprisonment for the term imposed at sentence;

c.       Otherwise affirm the orders made at sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicants were jointly charged with numerous offences including thirteen counts of rape, making child exploitation material and torture – where the applicant Mahony was also charged with one count of attempted murder – where applicants pleaded guilty – where applicants sentenced to life imprisonment – whether the sentences imposed were manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 13(1)

Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46, cited
Markarian v The Queen (2004) 228 CLR 357; [2005] HCA 25, followed
R v D [2003] QCA 547, cited
R v Daphney [2010] QCA 236, cited
R v Farrenkothen & Farrenkothen; ex parte A-G (Qld) [2003] QCA 313, considered
R v Hornby [1996] QCA 446, cited
R v Marshall [1993] 2 Qd R 307; [1992] QCA 155, cited
R v Perini; ex parte A-G (Qld) [2011] QCA 30, cited
R v Robinson [2007] QCA 99, cited
R v Suey [2005] NSWCCA 22, distinguished
Veen v The Queen [No 2] (1987) 164 CLR 465; [1988] HCA 14, followed

COUNSEL:

S Ryan for the applicant, Mahony
R East for the applicant, Shenfield
A W Moynihan SC for the respondent

SOLICITORS:

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

MUIR JA: I agree with the reasons of Gotterson JA and with the orders he proposes.

GOTTERSON JA: The two applicants were de facto partners. Mahony was at the time of the offences a 32 year old mother of four and Shenfield a 40 year old father of two. On 9 December 2011 they both pleaded guilty in the Supreme Court at Brisbane to 30 offences. After a sentence hearing which began that day, they were sentenced on 12 December 2011 as follows:

Counts	Offence	Sentence
5, 6, 7, 9, 11, 13, 14, 15, 16, 19, 20, 29, 30	Rape: s 349…

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 Mahony & Shenfield

Details

AGLC: R v Mahony & Shenfield [2012] QCA 366
Case: [2012] QCA 366
Decision Date: 21 December 2012

CaseChat Overview and Summary

In the case of R v Mahony & Shenfield, the applicants were jointly charged with numerous serious offences, including thirteen counts of rape, making child exploitation material, torture, and, in Mahony's case, attempted murder. The applicants pleaded guilty to all charges and were subsequently sentenced to life imprisonment by the Supreme Court of Victoria. The applicants then sought leave to appeal against their sentences, arguing that the sentences imposed were manifestly excessive.

The legal issue before the Court of Appeal was whether the sentences imposed on the applicants were manifestly excessive or inadequate. The Court considered the principles applicable to appeals against sentence, particularly the standard of proof required to demonstrate that a sentence is manifestly excessive. The Court also examined the nature and severity of the crimes, the personal circumstances of the applicants, and the principle of proportionality in sentencing.

The Court found that the sentences imposed on Mahony were not manifestly excessive and denied his application for leave to appeal. However, the Court granted Shenfield's application for leave to appeal, finding that his sentence was manifestly excessive. The Court of Appeal substituted a term of 18 years imprisonment for the life sentence imposed at first instance, while affirming the other orders made at sentence. This decision underscores the importance of proportionality in sentencing and the role of appellate courts in ensuring that sentences are not manifestly excessive or inadequate.

Orders

Orders of the court

1. For Mahony, refuse the application for leave to appeal against sentence.

2. For Shenfield,

a. Grant the application for leave to appeal against sentence;

b. Allow the appeal to the extent of substituting a term of 18 years imprisonment for the term imposed at sentence;

c. Otherwise affirm the orders made at sentence.

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.

Citations

AGLC Citation

R v Mahony & Shenfield [2012] QCA 366

Most Recent Citation

R v Henderson; Ex parte Attorney-General (Qld) [2013] QCA 63

Cases citing this decision · 9 of 9 shown

R v Cdu
[2025] QCA 145 Para 9

…unds of the sentencing judge’s discretion. [2] R v Hornby [1996] QCA 446; R v Keenan [2009] QCA 236; R v Ray [2011] QCA 365; R v Mahony & Shenfield [2012] QCA 366; R v Rankmore; ex parte Attorney-General (Qld) [2002] QCA 492; R v NT [2018] QCA 106; R v Mizner [2019] QCA 198.…
R v Griffith
[2024] QDC 207 Para 28

…physical coercion. It involved cognitive distortions and lacked sympathy and insight. His risk of reoffending is high. [24] R v Mahony & Shenfield [2012] QCA 366.…
R v BEB
[2023] QCA 105 Para 15

…violent offences, he had not committed sexual offences in the past. (ii)The circumstances were less serious than the case of R v Mahony & Shenfield [2012] QCA 366. That case involved a 13-year-old complainant being subjected to deliberate repeated violence; rape and sexual degradation over a 15-hour period by a m…
R v Sea
[2023] QCA 56 Para 6

…tence and substituted a term of 18 years imprisonment. In my opinion the criminality of the applicant’s offending warranted a life sentence. [2][2012] QCA 366.…
R v Mizner
[2019] QCA 198 Para 18

…es where, by and large, the assault was opportunistic and not repeated over time. [112][2007] QCA 99. [113][1999] QCA 69. [114][2004] QCA 394. [115][2012] QCA 366. [116] Robinson , five to seven years; Daphney , four years; Shenfield , 13 years. [117] Robinson , two counts of rape; Daphney , one count of rape; TK…
Abraham v The State of Western Australia
[2014] WASCA 151 Para 5

…mson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, Phillips v The Queen [2012] VSCA 140; (2012) 222 A Crim R 149 and R v Mahony; R v Shenfield [2012] QCA 366, Pullin JA observed: A reference was first made to the New South Wales Court of Appeal decision in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000)…
Beins v The State of Western Australia [No 2]
[2014] WASCA 54

…WASCA 24 Munda v The State of Western Australia [2013] HCA 38 Phillips v The Queen [2012] VSCA 140; (2012) 222 A Crim R 149 R v Mahony; R v Shenfield [2012] QCA 366 R v McIvor [2002] NSWCCA 490; (2002) 136 A Crim R 366 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Staker v The State of Western A…
R v Turnbull
[2013] QCA 374 Para 1

…ate complainants over a long period. A comparison between R v Colless and the horrific case of R v Mahony & Shenfield [25] illustrates the point. [25][2012] QCA 366.…
R v Henderson; Ex parte Attorney-General (Qld)
[2013] QCA 63 Para 1

…isonment of 10 years or more necessarily attracts a minimum non-parole period of 80 per cent of the term of imprisonment.[20] [18][2003] QCA 547. [19][2012] QCA 366 at [52]. [20] Penalties and Sentences Act 1992 (Qld) ss 161A, 161B; Corrective Services Act 2006 (Qld) s 182.…

View all 9 citing cases →

Cases cited in this decision · 12 of 12 shown

R v Perini; ex parte A-G (Qld)
[2011] QCA 30 Para 1

…s appeal and set aside the sentence of 13 years imprisonment for manslaughter and substituted instead a sentence of 18 years imprisonment. [14] [2011] QCA 30.…
R v Daphney
[2010] QCA 236 Para 1

…orising them as bad cases, he expressed the opinion that this case was “worse” and “much worse” respectively. [7] [1996] QCA 446. [8] [2010] QCA 236.…
R v Robinson
[2007] QCA 99 Para 1

…instance of rape offences in Queensland is demonstrated by several cases which were referred to in this appeal. [10] QCC s 349(1). [11] R v Robinson [2007] QCA 99 per Keane JA at [38].…
Markarian v The Queen
[2005] HCA 25

…ntences Act 1992 (Qld), s 13(1) Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46, cited Markarian v The Queen (2004) 228 CLR 357; [2005] HCA 25, followed R v D [2003] QCA 547, cited R v Daphney [2010] QCA 236, cited R v Farrenkothen & Farrenkothen; ex parte A-G (Qld) [2003] QCA 313, considered R v Hornby [1996…
R v Suey
[2005] NSWCCA 22

…3] 2 Qd R 307; [1992] QCA 155, cited R v Perini; ex parte A-G (Qld) [2011] QCA 30, cited R v Robinson [2007] QCA 99, cited R v Suey [2005] NSWCCA 22, distinguished Veen v The Queen [No 2] (1987) 164 CLR 465; [1988] HCA 14, followed COUNSEL: S Ryan for the applicant, Mahony R East for the applicant, Shenfield A W Mo…
Markarian v The Queen
[2004] HCATrans 329

…were manifestly excessive Penalties and Sentences Act 1992 (Qld), s 13(1) Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46, cited Markarian v The Queen (2004) 228 CLR 357; [2005] HCA 25, followed R v D [2003] QCA 547, cited R v Daphney [2010] QCA 236, cited R v Farrenkothen & Farrenkothen; ex parte A-G (Qld) [2003] QCA 313,…
R v D
[2003] QCA 547 Para 1

…maximum penalty in cases in which the offender has pleaded guilty.[22] No challenge was made to these propositions by the applicants here. [19] [2003] QCA 547. [20] Per Chesterman J (McPherson JA and Mullins J concurring) at [40]. [21] [1992] QCA 155; [1993] 2 Qd R 307. [22] Per Macrossan CJ at 311.…
R v Farrenkothen and Farrenkothen; ex parte
[2003] QCA 313 Para 1

…ments, committed upon two female complainants aged 10 years and four to five years. The latter was a lineal descendant of the female respondent. [12] [2003] QCA 313.…
R v Hornby
[1996] QCA 446 Para 1

…v Daphney. [8] Categorising them as bad cases, he expressed the opinion that this case was “worse” and “much worse” respectively. [7] [1996] QCA 446. [8] [2010] QCA 236.…
R v Marshall
[1992] QCA 155 Para 1

…to these propositions by the applicants here. [19] [2003] QCA 547. [20] Per Chesterman J (McPherson JA and Mullins J concurring) at [40]. [21] [1992] QCA 155; [1993] 2 Qd R 307. [22] Per Macrossan CJ at 311.…
Veen v The Queen (No 2)
[1988] HCA 14

…CA 30, cited R v Robinson [2007] QCA 99, cited R v Suey [2005] NSWCCA 22, distinguished Veen v The Queen [No 2] (1987) 164 CLR 465; [1988] HCA 14, followed COUNSEL: S Ryan for the applicant, Mahony R East for the applicant, Shenfield A W Moynihan SC for the respondent SOLICITORS: Legal Aid Queensland for the app…
Ibbs v the Queen
[1987] HCA 46

…he sentences imposed were manifestly excessive Penalties and Sentences Act 1992 (Qld), s 13(1) Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46, cited Markarian v The Queen (2004) 228 CLR 357; [2005] HCA 25, followed R v D [2003] QCA 547, cited R v Daphney [2010] QCA 236, cited R v Farrenkothen & Farrenkothen;…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
13(1) 2 mentions (from Para 1)

CITATION:	R v Mahony & Shenfield [2012] QCA 366
PARTIES:	R v MAHONY, Rebecca Louise (applicant) R v SHENFIELD, Andrew Scott (applicant)
FILE NO/S:	CA No 350 of 2011 CA No 351 of 2011 SC No 959 of 2011 SC No 959 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Applications
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 December 2012
DELIVERED AT:	Brisbane
HEARING DATE:	22 October 2012
JUDGES:	Muir and Gotterson JJA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. For Mahony, refuse the application for leave to appeal against sentence. 2. For Shenfield, a. Grant the application for leave to appeal against sentence; b. Allow the appeal to the extent of substituting a term of 18 years imprisonment for the term imposed at sentence; c. Otherwise affirm the orders made at sentence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicants were jointly charged with numerous offences including thirteen counts of rape, making child exploitation material and torture – where the applicant Mahony was also charged with one count of attempted murder – where applicants pleaded guilty – where applicants sentenced to life imprisonment – whether the sentences imposed were manifestly excessive Penalties and Sentences Act 1992 (Qld), s 13(1) Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46, cited Markarian v The Queen (2004) 228 CLR 357; [2005] HCA 25, followed R v D [2003] QCA 547, cited R v Daphney [2010] QCA 236, cited R v Farrenkothen & Farrenkothen; ex parte A-G (Qld) [2003] QCA 313, considered R v Hornby [1996] QCA 446, cited R v Marshall [1993] 2 Qd R 307; [1992] QCA 155, cited R v Perini; ex parte A-G (Qld) [2011] QCA 30, cited R v Robinson [2007] QCA 99, cited R v Suey [2005] NSWCCA 22, distinguished Veen v The Queen [No 2] (1987) 164 CLR 465; [1988] HCA 14, followed
COUNSEL:	S Ryan for the applicant, Mahony R East for the applicant, Shenfield A W Moynihan SC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicants Director of Public Prosecutions (Queensland) for the respondent