R v McArdle - [2004] QCA 7

SUPREME COURT OF QUEENSLAND

CITATION:

R v McArdle [2004] QCA 7

PARTIES:

R
v
McARDLE, Michael Joseph
(applicant)

FILE NO/S:

CA No 338 of 2003
DC No 1372 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

5 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2004

JUDGES:

McMurdo P and McPherson JA and Mackenzie 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 refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant convicted on guilty plea of 62 counts of indecent dealing and sentenced to six years imprisonment with recommendation for eligibility for post-prison community based release after two years – where offences committed by priest on children in parish – where three periods of offending spanning 22 years – where applicant had rehabilitated and confessed to offences – where applicant frail and elderly – where remorse shown – whether mitigating factors were adequately taken into account

R v C; ex parte A-G (Qld) [2003] QCA 510, CA No 328 of 2003, 13 November 2003, considered
R v Wright [1996] QCA 104, CA No 10 of 1996, 19 April 1996, considered

COUNSEL:

A Boe for the applicant
S G Bain for the respondent

SOLICITORS:

Boe Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant pleaded guilty on the 8th of October 2003 to 62 counts of indecent dealing. He was sentenced to an effective term of imprisonment of six years with a recommendation for eligibility for post-prison community based release after two years, a penalty imposed only on the most serious of the offences. He contends that the sentence was manifestly excessive.

Fifty-six counts concerned boys under 14 years and six counts of girls under 14 years. The offences involved 16 children. They occurred during three time periods and spanned 22 years. Counts 1 to 23 were committed between 1965 and 1967, counts 24 to 59 between 1972 and 1978 and counts 60 to 62 from 1985 to 1987.

The applicant was ordained as a Catholic priest in 1962 when he was 27 years old. He met the complainant children through the church's communities in the various provincial Queensland areas in which he ministered. He was aged between 29 and 51 over the offending period and was 68 years old at sentence. The offences were committed on 14 boys aged from 8 to 13 years and two girls aged from 10 to 13 years.

The conduct concerning the boys included kissing and fondling the boys genitals and pushing his own erect penis against the boys' bodies and on one occasion he forced his tongue into a boy's mouth; placing the boys' hands on his penis; on some occasions masturbating the boys; on…

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 McArdle

Details

AGLC: R v McArdle [2004] QCA 7
Case: [2004] QCA 7
Decision Date: 5 February 2004

CaseChat Overview and Summary

In the matter of the Commonwealth versus McArdle, the applicant, previously a priest, was convicted on a guilty plea to 62 counts of indecent dealing with children within his parish. The sentencing court imposed a six-year imprisonment term, recommending the applicant for eligibility for post-prison community-based release after serving two years. The applicant, contending that mitigating factors were inadequately considered, sought leave to appeal against the sentence. The legal issues before the court revolved around whether the sentencing court appropriately assessed the circumstances of the offender, including the applicant's rehabilitation, confession, frailty, and demonstrated remorse.

The court scrutinised the sentencing court's consideration of the mitigating factors presented by the applicant. It evaluated the comprehensive nature of the offending, which spanned three distinct periods over 22 years, against the mitigating aspects of the applicant's advanced age, genuine remorse, and efforts toward rehabilitation. The court found that the sentencing judge had sufficiently acknowledged these factors and weighed them against the gravity of the crimes committed. The court determined that the sentence imposed was appropriate, taking into account the need for punishment, deterrence, and the rehabilitation of the offender.

Consequently, the court concluded that the sentencing court had appropriately balanced the mitigating factors with the severity of the offences. The applicant's advanced age, remorse, and rehabilitation efforts, while significant, did not warrant a reduction in the custodial sentence. The court held that the sentence reflected the seriousness of the crimes and the need to protect the community. Therefore, the application for leave to appeal against the sentence was dismissed.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 McArdle [2004] QCA 7
PARTIES:	R v McARDLE, Michael Joseph (applicant)
FILE NO/S:	CA No 338 of 2003 DC No 1372 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	5 February 2004
DELIVERED AT:	Brisbane
HEARING DATE:	5 February 2004
JUDGES:	McMurdo P and McPherson JA and Mackenzie 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 refused
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant convicted on guilty plea of 62 counts of indecent dealing and sentenced to six years imprisonment with recommendation for eligibility for post-prison community based release after two years – where offences committed by priest on children in parish – where three periods of offending spanning 22 years – where applicant had rehabilitated and confessed to offences – where applicant frail and elderly – where remorse shown – whether mitigating factors were adequately taken into account R v C; ex parte A-G (Qld) [2003] QCA 510, CA No 328 of 2003, 13 November 2003, considered R v Wright [1996] QCA 104, CA No 10 of 1996, 19 April 1996, considered
COUNSEL:	A Boe for the applicant S G Bain for the respondent
SOLICITORS:	Boe Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent