R v Mao; ex parte

Case [2006] QCA 99

SUPREME COURT OF QUEENSLAND

CITATION:

R v MAO; ex parte A-G [2006] QCA 99

PARTIES:

R
v
MAO
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 37 of 2006
DC No 3319 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2006

JUDGES:

de Jersey CJ, Williams and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Allow the appeal1.  

Set aside the sentences imposed in the District Court on 19 January 20062.  

In respect of each count, order that the respondent be imprisoned for 12 months, suspended after six months for an operational period of two years, the sentences to be served concurrently3.  

4.Declare that the periods already served in custody, referable to these offences, being two days from 24 May 2004 to 25 May 2004, and 70 days from 19 January 2006 to 30 March 2006, are taken to be time already served under the sentences now imposed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – whether otherwise appropriate sentence should be modified to avoid risk of deportation – whether sentencing Judge did so – whether risk of deportation of any relevance to sentencing process

Migration Act 1958 (Cth), s 501
Penalties and Sentences Act 1992 (Qld), s 9

The following cases were cited:

A-G (Qld) v T [2001] QCA 398; Appeal No 118 of 2001, 24 September 2001
R v B [2003] QCA 105; CA No 336 of 2002, 14 March 2003
R v Bob ex parte Attorney-General [2003] QCA 129; CA No 377 of 2002, 21 March 2003
R v GA [1999] QCA 009; CA No 417 of 1998, 4 February 1999
R v GO; ex parte A-G (Qld) [2004] QCA 453; CA No 201 of 2004, 26 November 2004
R v Hill [1995] QCA 450; CA No 303 of 1995, 5 September 1995
R v Jap, unreported, Court of Criminal Appeal of NSW, Sully J, 20 July 1998
R v K [2003] QCA 521; CA No 290 of 2003, 20 November 2003
R v Latumeten and Murwanto [2003] NSWCCA 70
R v M [2003] QCA 556; CA No 359 of 2003, 11 December 2003
R v Moffat [2003] QCA 095; CA No 439 of 2002, 11 March 2003
R v O [2001] QCA 040; CA No 310 of 2000, 15 February 2001
R v Pham [1996] QCA 003; CA No 435 of 1995, 6 February 1996
R v Pham [2005] NSWCCA 94; No 3008 of 2004, 22 March 2005
R vRichardson [2000] QCA 166; CA No 18 of 2000,…

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Details
AGLC
R v Mao; ex parte [2006] QCA 99
Case
[2006] QCA 99
Decision Date

CaseChat Overview and Summary

In the matter of R v Mao, the applicant, the Attorney-General for the State of New South Wales, sought to appeal against the sentence imposed on Mao, the respondent, by the District Court. Mao had been convicted on various counts relating to offences against the person. The central issue before the court was whether the original sentencing judge had appropriately considered the risk of deportation of the respondent in determining the sentence, and if not, whether the sentence should be modified to avoid the risk of deportation.

The court considered whether the sentencing judge had erred by not taking into account the risk of deportation when imposing the sentence. It was held that while the risk of deportation was not a determinative factor in the sentencing process, it was a relevant consideration that the sentencing judge should have taken into account. The court concluded that the sentencing judge had failed to properly consider this factor, which warranted the intervention of the appellate court. The court also noted that the sentences imposed were inadequate in light of the seriousness of the offences committed by the respondent.

Accordingly, the appeal was allowed, and the sentences imposed by the District Court were set aside. The court ordered that the respondent be imprisoned for 12 months, suspended after six months for an operational period of two years, to be served concurrently. Additionally, the periods already served in custody were declared to be time already served under the new sentences imposed by the court.

Orders

Orders of the court

Allow the appeal1.

Set aside the sentences imposed in the District Court on 19 January 20062.

In respect of each count, order that the respondent be imprisoned for 12 months, suspended after six months for an operational period of two years, the sentences to be served concurrently3.

4.Declare that the periods already served in custody, referable to these offences, being two days from 24 May 2004 to 25 May 2004, and 70 days from 19 January 2006 to 30 March 2006, are taken to be time already served under the sentences now imposed

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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