Keane and Fraser JJA and P Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
Application for leave to appeal against sentence refused
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER – where applicant was sentenced to seven years imprisonment, with parole eligibility date fixed after 25 months – where the sentencing judge made orders in respect of sentences which had been imposed on the applicant on earlier occasions – where applicant had a long criminal history of similar types of offending – where applicant pleaded guilty to the offences and cooperated with authorities – where applicant had difficult childhood and drug addiction – where applicant had dependent partner and child – whether time already served in custody by the applicant should be considered in sentencing for the current offences – whether the parole eligibility date was within the scope of the discretion of the sentencing judge
The applicant appeared on his own behalf D L Meredith for the respondent
SOLICITORS:
The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent
KEANE JA: I have had the advantage of reading a draft of the reasons for judgment prepared by P Lyons J. I agree that the application for leave to appeal should be refused for the reasons given by his Honour.
FRASER JA: I agree with the reasons for judgment of P Lyons J and the order proposed by his Honour.
P LYONS J: On 2 November 2009, the applicant was sentenced in respect of each of 26 offences (the current offences) to terms of imprisonment of seven years, the terms to be served concurrently. Orders were made in respect of sentences which had been imposed on the applicant on earlier occasions (the outstanding sentences). The learned sentencing judge set 1 December 2011 as the parole eligibility date for the applicant. The applicant seeks leave to appeal against the sentence. The matter on which his proposed ground of appeal focused is the parole eligibility date. In his oral submissions he made reference to the length of time he would spend in prison, including his time in custody prior to being sentenced for the current offences.
The offences
The current offences were a series of offences said to have been committed between 4 June 2008 and 13 November 2008. All of them relate to breaking and entering a dwelling house, in…
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.
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Details
AGLC
R v Mai [2010] QCA 54
Case
[2010] QCA 54
Decision Date
CaseChat Overview and Summary
The appeal heard by the court involved the applicant, who had been sentenced to seven years imprisonment for his criminal activities. The parole eligibility date was set at 25 months after the commencement of his sentence. The applicant had a history of similar criminal behaviour and had pleaded guilty to the charges. He had cooperated with authorities and had a difficult background marked by a troubled childhood and drug addiction. He also had a dependent partner and child. The applicant argued that the sentencing judge should have considered the time already served in custody and that the parole eligibility date was within the discretion of the sentencing judge.
The primary legal issues the court needed to address were whether the time already served in custody should have been taken into account in the sentencing for the current offences and whether the parole eligibility date was within the scope of the sentencing judge's discretion. The applicant argued that the sentencing judge had failed to consider the time already served and had not properly exercised their discretion in setting the parole eligibility date.
The court considered the arguments made by the applicant but ultimately found that the sentencing judge had correctly exercised their discretion in determining the sentence and the parole eligibility date. The court held that the sentencing judge had appropriately considered all relevant factors, including the applicant's criminal history, the nature of the offences, and the applicant's cooperation with authorities. The court also found that the time already served in custody was not a factor that should have been considered in the sentencing for the current offences. Consequently, the application for leave to appeal against the sentence was refused.
Orders
Orders of the court
Application for leave to appeal against sentence refused