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R v McAnally

R v McAnally

Case [2016] QCA 329 9 December 2016

Appeal

Sentencing

Dangerous Operation of a Vehicle

Possession of Dangerous Drugs

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v McAnally [2016] QCA 329

PARTIES:

R
v
McANALLY, Grant Andrew
(applicant)

FILE NO/S:

CA No 175 of 2016
SC No 384 of 2015
SC No 180 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 24 June 2016

DELIVERED ON:

9 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2016

JUDGES:

Fraser and Morrison and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was driving with his infant son and another passenger when he was stopped by police – where the police found a package of white powder in the car, which was shown later to be heroin – where the applicant started driving the car slowly, contrary to police directions – where the applicant drove into a police vehicle in front of him – where the police struggled to get him out of the car, and resorted to using a Taser on the applicant – where the police eventually succeeded in restraining and arresting the applicant – where the applicant pleaded guilty to one count of possession of a dangerous drug (heroin) in excess of two grams and one count of dangerous operation of a vehicle with a circumstance of aggravation, being adversely affected by an intoxicating substance – where the applicant was sentenced to six months’ imprisonment for the first count and two years’ imprisonment for the second count, to be served concurrently – where the applicant was also disqualified from holding or obtaining a driver’s licence for two years – where the applicant contends on appeal that the sentence was manifestly excessive on two points, firstly, that the imposition of a sentence requiring six months to be served infringed the totality principle, and secondly, that five days of pre-sentence custody should have been taken into account – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 159A(1)

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177; [2014] QCA 206, cited
R v Collier[2003] QCA 314, considered
R v Gordon (1994) 71 A Crim R 459, cited
R v LAE (2013) 232 A Crim R 96; [2013] QCA 189, cited
R v McAnally[2001] QCA 66, cited
R v McCoy (2015) 70 MVR 250; [2015] QCA 48, considered
R v McCusker[2015] QCA 179, considered
R v Smith (2004) 145 A Crim R 397; [2004] QCA 126, considered

COUNSEL:

The applicant appeared on his own behalf
C…

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 McAnally

Details

AGLC: R v McAnally [2016] QCA 329
Case: [2016] QCA 329
Decision Date: 9 December 2016

CaseChat Overview and Summary

In this case, the applicant was convicted and sentenced for possession of heroin and dangerous operation of a vehicle. The applicant was driving with his infant son and another passenger when he was stopped by police. A package of white powder was found in the car, which was later identified as heroin. The applicant drove slowly against police directions and subsequently collided with a police vehicle. After a struggle, the police used a Taser on the applicant and eventually restrained and arrested him. The applicant pleaded guilty to possession of a dangerous drug and dangerous operation of a vehicle with an aggravating circumstance. He was sentenced to six months' imprisonment for the drug charge and two years' imprisonment for the driving charge, to be served concurrently, and was disqualified from holding or obtaining a driver's licence for two years.

The legal issues before the court were whether the sentence was manifestly excessive. The applicant argued that the six-month sentence for drug possession infringed the totality principle, and that five days of pre-sentence custody should have been taken into account. The court considered whether the sentence was manifestly excessive, taking into account the totality principle and pre-sentence custody. The court found that the sentence was not manifestly excessive on the grounds presented by the applicant.

The court found that the sentence was not manifestly excessive. The court noted that the six-month sentence for drug possession was within the range of sentences that could be imposed for such an offence. The court also noted that the totality principle was not infringed because the two-year sentence for dangerous operation of a vehicle was appropriate given the aggravating circumstances. Furthermore, the court found that the five days of pre-sentence custody did not need to be taken into account because the applicant had not raised this issue at the time of sentencing. The application for leave to appeal against sentence was refused.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

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.

Citations

AGLC Citation

R v McAnally [2016] QCA 329

Most Recent Citation

R v DBQ [2018] QCA 210

Cases citing this decision · 7 of 7 shown

R v Campbell
[2022] QCA 135 Para 20

…d:[83] “The relevant principles, insofar as the application of the principle of totality in this case was concerned, are summarised in R v McAnally [2016] QCA 329 at paragraphs 41 to 43. Relevantly, when a custodial sentence is to be imposed which will be cumulative upon or which will overlap with an existing cus…
R v Ponting
[2022] QCA 83 Para 8

…ributable.[25] [25]See R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177 at 181 [19]; R v Berns [2020] QCA 36 at p 6; R v McAnally [2016] QCA 329 at [42]-[43]. See also R v Whitely [2021] QSC 154 at [7].…
R v Wilson
[2022] QCA 18 Para 8

…at [20]. [22][2021] QCA 278 at [216]. [23][2021] QSC 154 at [7] and the cases there cited ( R v Berns [2020] QCA 36 at p 6, and R v McAnally [2016] QCA 329 at [42] - [43]).…
R v Whitely
[2021] QSC 154 Para 7

…cumulative effect of the penalties imposed and the need to avoid a crushing sentence.[1] [1] R v Berns [2020] QCA 36 at pp 6-7; see also R v McAnally [2016] QCA 329 at [41]-[43].…
Stuurman v Queensland Police Service
[2021] QDC 80 Para 7

…nciple. Leighton and Macklin make that clear. But it is clear a court must have regard to the cumulative effect of the sentence. [8][2020] QCA 36. [9][2016] QCA 329 at [41]-[43].…
R v Berns
[2020] QCA 36

…The relevant principles, insofar as the application of the principle of totality in this case was concerned, are summarised in R v McAnally [2016] QCA 329 at paragraphs 41 to 43. Relevantly, when a custodial sentence is to be imposed which will be cumulative upon or which will overlap with an existing custodial s…
R v DBQ
[2018] QCA 210 Para 24

…eference was made to R v KN ,[6] R v AAF [7] and R v B ;[8] and the general considerations as outlined by Jerrard JA in R v SAG .[9] Consideration [5][2016] QCA 329. [6][2005] QCA 74. [7][2008] QCA 235. [8][1995] QCA 636. [9](2004) 147 A Crim R 301; [2004] QCA 286. The totality principle…

View all 7 citing cases →

Cases cited in this decision · 11 of 11 shown

R v McCusker
[2015] QCA 179 Para 13

…nsidered “technical at best”.[36] That is not the case here, where the two sets of offences were disparate and unconnected.[37] [34] R v McCusker [2015] QCA 179. [35] McCusker at [17]-[26]. [36] McCusker at [15]. [37]The present offences all occurred on 20 September 2014 in the circumstances described above; the…
R v McCoy
[2015] QCA 48 Para 37

…about rehabilitation; and (l)the comparable cases put forward, namely R v Collier ,[19] R v McCoy .[20] [19][2003] QCA 314. [20][2015] QCA 48. Relevant principles…
R v Kendrick
[2015] QCA 27 Para 3

…which that total period is attributable .’” [27] R v Beattie; Ex parte Attorney-General (Qld) [2014] QCA 206, at [19]. See also R v Kendrick [2015] QCA 27, at [34]. [28]With whom Holmes and Gotterson JJA concurred. Emphasis added; internal footnotes omitted.…
R v Beattie; Ex parte Attorney-General (Qld)
[2014] QCA 206 Para 3

…criminality involved in all of the offences to which that total period is attributable .’” [27] R v Beattie; Ex parte Attorney-General (Qld) [2014] QCA 206, at [19]. See also R v Kendrick [2015] QCA 27, at [34]. [28]With whom Holmes and Gotterson JJA concurred. Emphasis added; internal footnotes omitted.…
R v LAE
[2013] QCA 189 Para 2

…totality of the criminality and totality of the sentences.”[26] [26]McHugh J at 308. Citations omitted. See R v LAE (2013) 232 A Crim R 96; [2013] QCA 189 at [33].…
R v Hunter
[2006] VSCA 129 Para 5

…s for which the person is being sentenced, but for the sentence which the person is currently serving .” [30] LAE at [36]. [31] R v Hunter [2006] 14 VR 336 at [30]. Emphasis added.…
R v Smith
[2004] QCA 126 Para 25

…ssive speed. He was sentenced to 15 months’ imprisonment, suspended after four months. At issue was whether a custodial sentence was warranted. [43][2004] QCA 126.…
R v Collier
[2003] QCA 314 Para 37

…n to his intentions about rehabilitation; and (l)the comparable cases put forward, namely R v Collier ,[19] R v McCoy .[20] [19][2003] QCA 314. [20][2015] QCA 48. Relevant principles…
R v McAnally
[2001] QCA 66 Para 32

…ve to appeal is that he committed the offence while he was subject to a probation order imposed in the District Court in 1998.” [14] R v McAnally [2001] QCA 66. [15][2001] QCA 66 at page 3, Ambrose and Wilson JJ concurring.…
Postiglione v the Queen
[1997] HCA 26

…s 159A(1) Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177; [2014] QCA 206, cited R v Collier [2003] QCA 314, considered R v Gordon (1994) 71 A Crim R 459, cited R v LAE…
Mill v The Queen
[1988] HCA 70

…was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 159A(1) Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177; [2014] QCA 206, cited R v Collier [2003] QCA…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
159A(1) 2 mentions (from Para 6)

CITATION:	R v McAnally [2016] QCA 329
PARTIES:	R v McANALLY, Grant Andrew (applicant)
FILE NO/S:	CA No 175 of 2016 SC No 384 of 2015 SC No 180 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 24 June 2016
DELIVERED ON:	9 December 2016
DELIVERED AT:	Brisbane
HEARING DATE:	25 November 2016
JUDGES:	Fraser and Morrison and Philip McMurdo JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was driving with his infant son and another passenger when he was stopped by police – where the police found a package of white powder in the car, which was shown later to be heroin – where the applicant started driving the car slowly, contrary to police directions – where the applicant drove into a police vehicle in front of him – where the police struggled to get him out of the car, and resorted to using a Taser on the applicant – where the police eventually succeeded in restraining and arresting the applicant – where the applicant pleaded guilty to one count of possession of a dangerous drug (heroin) in excess of two grams and one count of dangerous operation of a vehicle with a circumstance of aggravation, being adversely affected by an intoxicating substance – where the applicant was sentenced to six months’ imprisonment for the first count and two years’ imprisonment for the second count, to be served concurrently – where the applicant was also disqualified from holding or obtaining a driver’s licence for two years – where the applicant contends on appeal that the sentence was manifestly excessive on two points, firstly, that the imposition of a sentence requiring six months to be served infringed the totality principle, and secondly, that five days of pre-sentence custody should have been taken into account – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 159A(1) Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177; [2014] QCA 206, cited R v Collier[2003] QCA 314, considered R v Gordon (1994) 71 A Crim R 459, cited R v LAE (2013) 232 A Crim R 96; [2013] QCA 189, cited R v McAnally[2001] QCA 66, cited R v McCoy (2015) 70 MVR 250; [2015] QCA 48, considered R v McCusker[2015] QCA 179, considered R v Smith (2004) 145 A Crim R 397; [2004] QCA 126, considered
COUNSEL:	The applicant appeared on his own behalf C…