R v Mallie; ex parte A-G (Qld) - [2009] QCA 109

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mallie; ex parte A-G (Qld) [2009] QCA 109

PARTIES:

R
v
MALLIE, William Michael
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

(appellant)

FILE NO/S:

CA No 347 of 2008
SC No 100 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

1 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2009

JUDGES:

McMurdo P, Chesterman JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The appeal is allowed

2. The sentence imposed in the Supreme Court at Cairns on 27 November 2008 is set aside and instead the following orders are made:

a. The respondent is sentenced to 10 years imprisonment

b. The offence is declared to be a serious violent offence

c. 145 days pre-sentence custody is declared to be time served under the sentence

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – respondent pleaded guilty to attempted murder and was sentenced to eight years imprisonment with parole eligibility after serving two years and six months – respondent had prior conviction for a similar offence – whether sentence manifestly inadequate – whether sentence failed to reflect the gravity of offence and the need for general deterrence

Penalties and Sentences Act 1992 (Qld), s 9(4), s 306(a)

R v Babsek; ex parte Attorney-General of Queensland (1999) 108 A Crim R 141;[1999] QCA 364, cited
R v Bitossi [1984] 2 Qd R 51, cited
R v Farquhar [1994] QCA 589, cited
R v Forster [2002] QCA 495, considered
R v Harms [2002] QCA 99, questioned
R v Kerwin [2005] QCA 259, considered
R v McGuren [1996] QCA 511, cited
R v Reeves [2001] QCA 91, considered
R v Ryder [1995] QCA 546, considered
R v Sauvao [2006] QCA 331, considered
R v Schaefer [2001] QCA 327, considered
R v Tevita [2006] QCA 131, cited

COUNSEL:

A W Moynihan SC and K Brisic for the appellant
B Devereaux SC and K Hillard for the respondent

SOLICITORS:

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

McMURDO P: William Michael Mallie pleaded guilty on 7 July 2008 to one count of attempted murder. He was sentenced on 27 November 2008 to eight years imprisonment with parole eligibility fixed at 5 January 2011, that is, after serving two years and six months. Pre-sentence custody of 145 days was declared as time already served under the sentence. The appellant, the Attorney‑General of Queensland, contends that the sentence is manifestly inadequate in that it fails to reflect the gravity of the offence and to sufficiently take into account the need for general deterrence.

I would allow the appeal and increase the sentence to 10 years imprisonment. As this would mean Mallie must…

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

Case: [2009] QCA 109
Decision Date: 1 May 2009

CaseChat Overview and Summary

The case of R v Mallie; ex parte A-G (Qld) involved the respondent, who had pleaded guilty to attempted murder and was sentenced to eight years imprisonment, with parole eligibility after serving two years and six months. The Attorney-General of Queensland appealed the sentence, arguing it was manifestly inadequate and failed to reflect the gravity of the offence and the need for general deterrence. The appeal was heard in the Queensland Court of Appeal.

The primary legal issues before the Court of Appeal were whether the sentence was manifestly inadequate and if it failed to reflect the gravity of the offence and the need for general deterrence. The Court considered the nature of the offence, the respondent's criminal history, and the principle that sentences should reflect the community's standards of justice and the need for general and specific deterrence. The Court also had to determine whether the original sentence was manifestly inadequate in light of these considerations.

The Court of Appeal found that the sentence was manifestly inadequate, given the gravity of the offence and the need for general deterrence. The Court noted the respondent's prior conviction for a similar offence and emphasised the importance of the community's confidence in the criminal justice system being maintained. The Court set aside the original sentence and imposed a new sentence of 10 years imprisonment, with 145 days pre-sentence custody declared as time served under the new sentence. The offence was also declared to be a serious violent offence.

The final orders of the Court of Appeal were that the appeal be allowed, the sentence imposed in the Supreme Court at Cairns on 27 November 2008 be set aside, and a new sentence of 10 years imprisonment be imposed, with 145 days pre-sentence custody declared as time served under the new sentence. The offence was declared to be a serious violent offence.

Orders

Orders of the court

1. The appeal is allowed

2. The sentence imposed in the Supreme Court at Cairns on 27 November 2008 is set aside and instead the following orders are made:

a. The respondent is sentenced to 10 years imprisonment

b. The offence is declared to be a serious violent offence

c. 145 days pre-sentence custody is declared to be time served under the 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.

CITATION:	R v Mallie; ex parte A-G (Qld) [2009] QCA 109
PARTIES:	R v MALLIE, William Michael (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 347 of 2008 SC No 100 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	1 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	1 April 2009
JUDGES:	McMurdo P, Chesterman JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal is allowed 2. The sentence imposed in the Supreme Court at Cairns on 27 November 2008 is set aside and instead the following orders are made: a. The respondent is sentenced to 10 years imprisonment b. The offence is declared to be a serious violent offence c. 145 days pre-sentence custody is declared to be time served under the sentence
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – respondent pleaded guilty to attempted murder and was sentenced to eight years imprisonment with parole eligibility after serving two years and six months – respondent had prior conviction for a similar offence – whether sentence manifestly inadequate – whether sentence failed to reflect the gravity of offence and the need for general deterrence Penalties and Sentences Act 1992 (Qld), s 9(4), s 306(a) R v Babsek; ex parte Attorney-General of Queensland (1999) 108 A Crim R 141;[1999] QCA 364, cited R v Bitossi [1984] 2 Qd R 51, cited R v Farquhar [1994] QCA 589, cited R v Forster [2002] QCA 495, considered R v Harms [2002] QCA 99, questioned R v Kerwin [2005] QCA 259, considered R v McGuren [1996] QCA 511, cited R v Reeves [2001] QCA 91, considered R v Ryder [1995] QCA 546, considered R v Sauvao [2006] QCA 331, considered R v Schaefer [2001] QCA 327, considered R v Tevita [2006] QCA 131, cited
COUNSEL:	A W Moynihan SC and K Brisic for the appellant B Devereaux SC and K Hillard for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the applicant Legal Aid Queensland for the respondent