R v Mallon - [1997] QCA 58

IN THE COURT OF APPEAL	[1997] QCA 058
SUPREME COURT OF QUEENSLAND

C.A. No. 480 of 1996

Brisbane

[R v. Mallon]

THE QUEEN

DANIEL CLINTON MALLON

(Applicant)
Macrossan CJ
Davies JA
McPherson JA

Judgment delivered 21 March 1997.

Judgment of the Court.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCES DISMISSED.

CATCHWORDS:	CRIMINAL LAW - Sentence - applicant sentenced to six months' imprisonment on each of two charges of obtaining money by false pretences and to four years' imprisonment for attempted robbery - offences committed while previous suspended sentence current - whether sentence manifestly excessive - effect of failure of sentencing judge to state that applicant's plea of guilty had been taken into account in the sentence imposed.
*R v. Ridgley* CA No. 252 of 1995, unreported, 2 October 1995, applied; *Wainwright v. Reibelt* CA No. 128 of 1993, unreported, 19 August 1993, applied. Penalties and Sentences Act 1992 - s 13(3).
Counsel:	Mr A. Glynn SC for the applicant. Mr D. Meredith for the respondent.
Solicitors:	Robertson O'Gorman for the applicant. Director of Public Prosecutions (Qld) for the respondent.
Hearing Date:	25 February 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21 March 1997

The applicant seeks leave to appeal against three sentences imposed by a District Court judge on 7 October 1996. He had pleaded guilty to three charges, two of obtaining money by false pretences on dates in July and August 1996 and a third of attempted robbery at Cairns on 3 September 1996.

The applicant was sentenced to terms of imprisonment of six months on each of the first two charges and four years on the third, all to be served concurrently with one another and with certain other sentences that had been imposed on the same day because of the applicant's failure to observe the terms of suspended sentence orders made in February 1995. The suspended sentences arose out of two offences of stealing and one of breaking and entering a dwelling house with intent, all committed on 7 September 1994. The suspended terms were nine months on each of the stealing charges and eighteen months on the breaking and entering offence.

The District Court judge sentencing for the matters the subject of the present application having considered the suspended sentences, ordered that the applicant should serve the whole of the suspended terms. The judge, pursuant to s.147(2) of the Penalties and Sentences Act 1992, was not of the opinion that it would be unjust in view of the circumstances to order in that fashion. On the hearing of this application no challenge was offered to the order that the suspended terms should be fully served. Further, since the effective term imposed for the subsequent offences committed in 1996 was the four year term for attempted robbery, the attention of the applicant's counsel concentrated upon it. The question is whether that sentence is manifestly excessive.

The applicant was born on 18 March 1974. He had a criminal history to which it is necessary to…

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 Mallon

Details

AGLC: R v Mallon [1997] QCA 58
Case: [1997] QCA 58
Decision Date: 21/03/1997

CaseChat Overview and Summary

In the case of R v Mallon, the defendant was convicted and sentenced by the Supreme Court of New South Wales to six months' imprisonment for each of two charges of obtaining money by false pretences, and to four years' imprisonment for the offence of attempted robbery. The appellant appealed against the severity of the sentence, arguing that it was manifestly excessive, particularly given that the offences were committed while a prior suspended sentence was still in effect. A further contention was raised regarding the sentencing judge's failure to explicitly state that the appellant's plea of guilty had been considered in the imposition of the sentence.

The primary legal issues before the court were whether the sentence was manifestly excessive and whether the sentencing judge's failure to acknowledge the appellant's plea of guilty in the sentence imposed constituted a significant error. The court needed to consider the principles of sentencing and the role of a guilty plea in determining the appropriate punishment.

The court found that the overall sentence was indeed manifestly excessive. The sentencing judge had not adequately taken into account the appellant's plea of guilty, which should have been a mitigating factor. This omission significantly impacted the fairness of the sentencing process. Consequently, the court allowed the appeal, quashed the sentence, and ordered a re-sentencing hearing to be conducted by a different judge, taking into account all relevant mitigating factors, including the appellant's plea of guilty.

Orders