R v McCann - [2016] QCA 216

SUPREME COURT OF QUEENSLAND

CITATION:

R v McCann [2016] QCA 216

PARTIES:

R
v
McCANN, Matthew Benjamin
(applicant)

FILE NO/S:

CA No 96 of 2016
DC No 317 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich – Date of Sentence: 14 March 2016

DELIVERED ON:

30 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2016

JUDGES:

Gotterson and Morrison JJA and Daubney 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 – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own plea of guilty to unlawful sodomy of a person under 18 years of age – where the 15 year old female complainant yielded to the 20 year old applicant’s insistence to engage in anal sex while they were in a relationship – where the applicant was placed on probation for three years and a conviction was recorded – where the applicant alleges that the recording of a conviction was manifestly excessive – where it is submitted that, in addition to his significant mental and physical disabilities, the recording of a conviction would add an unnecessary burden on the applicant, hindering his prospects of future employment – where it is submitted that the learned sentencing judge erred by acting upon a view that the recording of a conviction was necessary in order to subject the applicant to the reportable offender provisions – whether the recording of a conviction was manifestly excessive as to warrant appellate intervention

Penalties and Sentences Act 1992 (Qld), s 12(2)

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Kelly[2009] QCA 185, considered
R v MCA[2014] QCA 47, considered
R v Mirza; ex parte Attorney-General (Qld)[2008] QCA 23, considered
R v Pham (2015) 90 ALJR 13; [2015] HCA 39, applied
R v Rogers (2013) 231 A Crim R 290; [2013] QCA 192, considered
R v SAT (2006) 170 A Crim R 156; [2006] QCA 70, considered

COUNSEL:

M E Johnson for the applicant
C N Marco for the respondent

SOLICITORS:

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

GOTTERSON JA: The applicant, Matthew Benjamin McCann, pleaded guilty to a count of unlawful sodomy of a person under 18 years of age.[1] The count alleged that the offending against the female complainant occurred at Springfield Lakes on 14 February 2015. The plea was entered at the District Court at Ipswich on 9 October 2015.
[1]Criminal Code (Qld) s 208(1)(a).
The applicant was sentenced on 14 March 2016. It was ordered that a conviction be recorded. He was placed on probation for three years. It is a special condition of his probation that he satisfactorily complete a…

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 McCann

Details

AGLC: R v McCann [2016] QCA 216
Case: [2016] QCA 216
Decision Date: 30 August 2016

CaseChat Overview and Summary

The applicant, McCann, appealed against his sentence following a conviction on his own plea of guilty to unlawful sodomy of a person under 18 years of age. The court was required to determine whether the sentence, which included a three-year probationary period and the recording of a conviction, was manifestly excessive or inadequate. McCann contended that the recording of his conviction would disproportionately burden him, given his mental and physical disabilities, and hinder his employment prospects. Additionally, he argued that the sentencing judge erred in believing that recording the conviction was necessary to enforce the reportable offender provisions.

The court examined the principles guiding appellate intervention in sentencing, focusing on whether the sentence was manifestly excessive. The judge considered the severity of the crime, the circumstances of the case, and the potential impact of the conviction on McCann’s future. The court found that the sentence was appropriate given the gravity of the offence and the need for deterrence and protection of the community. The judge rejected the argument that the recording of the conviction would be excessively burdensome, noting that the probation period and the conditions attached were sufficient to address the offender’s circumstances without the need for additional punitive measures.

In conclusion, the court found that the sentence was neither manifestly excessive nor inadequate. The appeal against the sentence was dismissed, and the original sentence, including the recording of the conviction, was upheld.

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 McCann [2016] QCA 216
PARTIES:	R v McCANN, Matthew Benjamin (applicant)
FILE NO/S:	CA No 96 of 2016 DC No 317 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich – Date of Sentence: 14 March 2016
DELIVERED ON:	30 August 2016
DELIVERED AT:	Brisbane
HEARING DATE:	22 August 2016
JUDGES:	Gotterson and Morrison JJA and Daubney 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 – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own plea of guilty to unlawful sodomy of a person under 18 years of age – where the 15 year old female complainant yielded to the 20 year old applicant’s insistence to engage in anal sex while they were in a relationship – where the applicant was placed on probation for three years and a conviction was recorded – where the applicant alleges that the recording of a conviction was manifestly excessive – where it is submitted that, in addition to his significant mental and physical disabilities, the recording of a conviction would add an unnecessary burden on the applicant, hindering his prospects of future employment – where it is submitted that the learned sentencing judge erred by acting upon a view that the recording of a conviction was necessary in order to subject the applicant to the reportable offender provisions – whether the recording of a conviction was manifestly excessive as to warrant appellate intervention Penalties and Sentences Act 1992 (Qld), s 12(2) House v The King (1936) 55 CLR 499; [1936] HCA 40, cited R v Kelly[2009] QCA 185, considered R v MCA[2014] QCA 47, considered R v Mirza; ex parte Attorney-General (Qld)[2008] QCA 23, considered R v Pham (2015) 90 ALJR 13; [2015] HCA 39, applied R v Rogers (2013) 231 A Crim R 290; [2013] QCA 192, considered R v SAT (2006) 170 A Crim R 156; [2006] QCA 70, considered
COUNSEL:	M E Johnson for the applicant C N Marco for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent