R v Massey - [2002] QCA 312

SUPREME COURT OF QUEENSLAND

CITATION:

R v Massey [2002] QCA 312

PARTIES:

R
v
MASSEY, Troy William
(applicant)

FILE NO/S:

CA No 60 of 2002
SC No 408 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 August 2002

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2002

JUDGES:

McPherson and Williams JJA and Holmes 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 dismissed.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – NON-PAROLE PERIOD OR MINIMUM TERM – QUEENSLAND – where applicant who was sentenced to mandatory life imprisonment for murder was held in pre-sentence custody upon the charge of murder and other unrelated offences – where pursuant to s135(2)(b) Corrective Services Act 2000 (Qld) applicant must serve 15 years of life sentence before becoming eligible for post prison community based release - whether learned sentencing judge erred in not giving the applicant credit for 755 days in pre-sentence custody

Corrective Services Act 2000 (Qld), s 135(2)(b)
Penalties & Sentences Act 1992 (Qld), s 154(a), s 161

R v Fox [1998] QCA 121; CA No 50 of 1998, 12 June 1998, followed
R v Lace [2002] QCA 205; CA No 346 of 2001, 14 June 2002, considered
R v Skedgwell [1999] 2 Qd R 97, distinguished

COUNSEL:

A J Rafter for the applicant
R G Martin for the respondent

SOLICITORS:

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

McPHERSON JA: The application for leave to appeal should be dismissed for the reasons given by Williams JA.

WILLIAMS JA: This is a somewhat unusual application for leave to appeal against sentence. The applicant was sentenced to life imprisonment consequent upon pleading guilty to a charge of murder; in consequence he was sentenced to life imprisonment, the only sentence which could have been imposed. He had been arrested on that charge on 2 November 1999, and was sentenced on 31 January 2002. He had been in custody for the whole of that intervening period. Pursuant to s 154(a) of the Penalties & Sentences Act 1992 (the Act) the sentence started from 31 January 2002. The learned sentencing judge considered that there was no way he could give the applicant credit for time spent in pre-sentence custody, and it is that which is the subject of the application for leave to appeal against sentence.

The murder was a particularly savage one, to use a term adopted by the learned sentencing judge in his remarks on sentence. The applicant had known the deceased, Benney, for some time prior to the crime being committed on or about 25 October 1999. Benney was a drug user and the applicant, if not a user, was a producer of dangerous drugs. The applicant had previous convictions in 1996 and 1997 for production of a dangerous drug. Both…

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 Massey

Details

AGLC: R v Massey [2002] QCA 312
Case: [2002] QCA 312
Decision Date: 23 August 2002

CaseChat Overview and Summary

The case of R v Massey involved an appeal against the sentence imposed on the applicant, who had been found guilty of murder. The applicant had been held in pre-sentence custody not only for the murder charge but also for other unrelated offences. The key issue before the court was whether the sentencing judge erred by not granting the applicant credit for the 755 days he had spent in pre-sentence custody when determining the non-parole period of his mandatory life sentence. The applicant argued that pursuant to section 135(2)(b) of the Corrective Services Act 2000 (Qld), he should have been given credit for this time, thereby reducing the 15-year non-parole period before he could be eligible for post-prison community-based release.

The court examined the statutory provisions and case law to determine if the sentencing judge was required to consider the pre-sentence custody time in calculating the non-parole period. The applicant contended that the failure to give credit for this period constituted an error of law. However, the court found that the statutory framework did not mandate such credit and that the sentencing judge had discretion in this matter, which was exercised appropriately. The court held that there was no legal obligation for the judge to give credit for the pre-sentence custody period in determining the non-parole period of a life sentence. Consequently, the application for leave to appeal against the sentence was dismissed.

The court concluded that the sentencing judge's decision not to give credit for the 755 days of pre-sentence custody was within the permissible bounds of judicial discretion and did not constitute an error of law. Therefore, the applicant's application for leave to appeal was dismissed, and the original sentence remained unaltered.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed.

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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CITATION:	R v Massey [2002] QCA 312
PARTIES:	R v MASSEY, Troy William (applicant)
FILE NO/S:	CA No 60 of 2002 SC No 408 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 August 2002
DELIVERED AT:	Brisbane
HEARING DATE:	8 August 2002
JUDGES:	McPherson and Williams JJA and Holmes 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 dismissed.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – NON-PAROLE PERIOD OR MINIMUM TERM – QUEENSLAND – where applicant who was sentenced to mandatory life imprisonment for murder was held in pre-sentence custody upon the charge of murder and other unrelated offences – where pursuant to s135(2)(b) Corrective Services Act 2000 (Qld) applicant must serve 15 years of life sentence before becoming eligible for post prison community based release - whether learned sentencing judge erred in not giving the applicant credit for 755 days in pre-sentence custody Corrective Services Act 2000 (Qld), s 135(2)(b) Penalties & Sentences Act 1992 (Qld), s 154(a), s 161 R v Fox [1998] QCA 121; CA No 50 of 1998, 12 June 1998, followed R v Lace [2002] QCA 205; CA No 346 of 2001, 14 June 2002, considered R v Skedgwell [1999] 2 Qd R 97, distinguished
COUNSEL:	A J Rafter for the applicant R G Martin for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent