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R v McConachy

R v McConachy

Case [2011] QCA 183 3 August 2011

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SUPREME COURT OF QUEENSLAND

CITATION:

R v McConachy [2011] QCA 183

PARTIES:

R
v
McCONACHY, Wayne John
(applicant)

FILE NO/S:

CA No 76 of 2011
DC No 160 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

3 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

3 August 2011

JUDGES:

Margaret McMurdo P, Muir JA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring to the orders made

ORDERS:

Delivered ex tempore on 3 August 2011:

1.    The application for leave to appeal is granted.

2.    The appeal is allowed.

3.    Set aside the parole release date imposed at first instance and instead substitute a parole release date of 3 August 2011.

4.    The sentence imposed at first instance is otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER – where the applicant was convicted of stealing or receiving a quantity of metal and dishonestly obtaining a related sum of money – where the applicant was sentenced to 15 months imprisonment with parole after six months – where the applicant had a minor but relevant criminal history – where the applicant was the sole carer of his three children prior to his imprisonment – where evidence before the sentencing judge supported the conclusion that the applicant's dependant children would suffer exceptional hardship upon his incarceration – where further evidence indicated that such hardship had materialised – whether the trial judge gave insufficient weight to the effect a period of actual custody would have on the applicant's children

R v Chong; ex parte A-G (Qld) (2008) 181 A Crim R 200; [2008] QCA 22, applied
R v Forrest [2003] QCA 112, cited
R v Harders [1996] QCA 390, cited

COUNSEL:

S Ryan for the applicant
G P Cash for the respondent

SOLICITORS:

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

THE PRESIDENT: The applicant, Wayne John McConachy, was convicted after a four day trial in the Brisbane District Court, of stealing or receiving (unable to say which) a quantity of metal, the property of International Ceramic Tiles Wholesale Pty Ltd, to the value of more than $5,000, and of dishonestly obtaining a sum of money from OneSteel Recycling Company Pty Ltd. He was found not guilty on three charges related to those charges. He was sentenced on each charge to 15 months imprisonment with a parole release date set after six months, namely on 24 September 2011. He applies for leave to appeal against his sentence contending that the judge gave insufficient weight to the mitigating features of his case.

He was 36 at the time of the offending and 38 at sentence. He had a relatively minor but still relevant criminal history commencing in the Magistrates Court in 1993 when he was convicted and fined for wilful damage.…

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 McConachy

Details

AGLC: R v McConachy [2011] QCA 183
Case: [2011] QCA 183
Decision Date: 3 August 2011

CaseChat Overview and Summary

In the matter of R v McConachy, the applicant sought leave to appeal against his sentence, arguing that the trial judge did not adequately consider the impact of his imprisonment on his three dependant children. The appeal was heard in the higher court where the applicant's conviction for theft and dishonestly obtaining money was not in contention. The central issue before the court was whether the trial judge appropriately weighed the effect of the applicant's imprisonment on his children. The applicant, who was the sole carer for his children prior to his incarceration, had a minor criminal history. The sentencing judge had acknowledged that the children would face exceptional hardship due to their father's imprisonment, and subsequent evidence confirmed that such hardship had indeed materialised.

The court examined whether the trial judge gave insufficient weight to the impact of the applicant's incarceration on his children, as argued by the applicant's legal representatives. The court noted that the sentencing judge had recognised the potential for exceptional hardship but did not adequately balance this consideration against the need for punishment and deterrence. The evidence presented indicated that the children's welfare was severely affected by their father's imprisonment, which the court found was not sufficiently factored into the sentencing decision. The court determined that the trial judge's assessment was flawed and did not adequately address the exceptional circumstances of the applicant's family situation.

In light of the findings, the court granted the application for leave to appeal and allowed the appeal. The parole release date was adjusted to 3 August 2011, the date of the judgment. The sentence of 15 months imprisonment was otherwise confirmed, but the modification to the parole release date aimed to alleviate the immediate impact of the applicant's incarceration on his children. The court's decision underscored the importance of considering the broader social consequences of imprisonment, particularly when dependant children are involved.

Orders

Orders of the court

Delivered ex tempore on 3 August 2011:

1. The application for leave to appeal is granted.

2. The appeal is allowed.

3. Set aside the parole release date imposed at first instance and instead substitute a parole release date of 3 August 2011.

4. The sentence imposed at first instance is otherwise confirmed.

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

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v McConachy [2011] QCA 183

Most Recent Citation

R v Edwards [2011] QCA 331

Cases citing this decision · 5 of 5 shown

Stuurman v Queensland Police Service
[2021] QDC 80 Para 8

…chy[2] and R v Chong; ex parte Attorney-General[3] that the family situation was exceptional and an error occurred in the sentencing process here. [2][2011] QCA 183. [3][2008] QCA 22.…
R v Hannan; Ex parte
[2018] QCA 201 Para 34

…g judge then turned to the question of the impact on the respondent’s children:[19] “I have also taken into account the decision in R v McConachy [2011] QCA 183, and, as I have said, the principles that were outlined in R v Gadaloff cannot be ignored. In particular, in the decision of R v McConachy , the principl…
R v Illin
[2014] QCA 285 Para 1

…fenders to jail will cause significant, if not exceptional, hardship to their dependent children”, and that was a relevant factor ( R v McConachy [2011] QCA 183) although not a primary or paramount consideration in sentencing.…
R v Murray
[2014] QCA 250 Para 1

…Nor was there any other evidence that the applicant’s child would suffer exceptional hardship upon her incarceration, such as in R v McConachy [2011] QCA 183. The respondent’s counsel submitted that the applicant’s motherhood could not overwhelm the requirement that retribution and deterrence be taken into accou…
R v Edwards
[2011] QCA 331 Para 1

…d by Atkinson J, with whom Keane JA and I agreed, in R v Chong; ex parte A-G (Qld) :[10] [10][2008] QCA 22 at [29] - [34], applied in R v McConachy [2011] QCA 183 at p 5.…

View all 5 citing cases →

Cases cited in this decision · 7 of 7 shown

R v Tilley
[2019] SASCFC 28

…[30]It is true that the hardship to an offender's children cannot be allowed to overwhelm all other considerations in sentencing: See R v Tilley (1991) 53 A Crim R 1 at 3. However, as the appellant conceded in this case, the effect on a family is not irrelevant. As Cooper J observed in R v Tilley at p6: 'The public…
R v Stewart
[2010] SASCFC 72

…ount of in the exercise of the sentencing discretion but only in certain circumstances. It is then one of many factors to be taken into account. In R v Stewart (1994) 72 A Crim R 17 at 21, the Court of Criminal Appeal in Western Australia held: 'Generally the hardship caused to an offender's children is not a circums…
R v. Chong; ex parte A-G (Qld)
[2008] QCA 22

…ffect a period of actual custody would have on the applicant's children R v Chong; ex parte A-G (Qld) (2008) 181 A Crim R 200 ; [2008] QCA 22, applied R v Forrest [2003] QCA 112, cited R v Harders [1996] QCA 390, cited COUNSEL: S Ryan for the applicant G P Cash for the respondent SOLICITORS: Legal Aid Queensland…
R v D'Arrigo; ex parte
[2004] QCA 399

…[32]In R v D’Arrigo; ex parte A-G (Qld) [2004] QCA 399, the court was considering a case in which the only reason for suspending a term of imprisonment was the respondent’s position as sole carer of his young daughter. In that case it was held that the fact that the applicant was the sole carer for a 16 month old…
R v MP
[2004] QCA 170

…nderance of authority is to the effect that this consideration may be brought to account only in exceptional or extreme circumstances. See R v MP [2004] QCA 170; R v Boyle (1987) 34 A Crim R 202; Arnold v Trenerry (1997) 118 NTR 1; and R v Edwards (1996) 90 A Crim R 510.'…
R v Forrest
[2003] QCA 112

…uld have on the applicant's children R v Chong; ex parte A-G (Qld) (2008) 181 A Crim R 200 ; [2008] QCA 22, applied R v Forrest [2003] QCA 112, cited R v Harders [1996] QCA 390, cited COUNSEL: S Ryan for the applicant G P Cash for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Publi…
R. v Troy Maxwell Harders
[1996] QCA 390

…en R v Chong; ex parte A-G (Qld) (2008) 181 A Crim R 200 ; [2008] QCA 22, applied R v Forrest [2003] QCA 112, cited R v Harders [1996] QCA 390, cited COUNSEL: S Ryan for the applicant G P Cash for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for th…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
1 mention

CITATION:	R v McConachy [2011] QCA 183
PARTIES:	R v McCONACHY, Wayne John (applicant)
FILE NO/S:	CA No 76 of 2011 DC No 160 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	3 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	3 August 2011
JUDGES:	Margaret McMurdo P, Muir JA and Boddice J Separate reasons for judgment of each member of the Court, each concurring to the orders made
ORDERS:	Delivered ex tempore on 3 August 2011: 1. The application for leave to appeal is granted. 2. The appeal is allowed. 3. Set aside the parole release date imposed at first instance and instead substitute a parole release date of 3 August 2011. 4. The sentence imposed at first instance is otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER – where the applicant was convicted of stealing or receiving a quantity of metal and dishonestly obtaining a related sum of money – where the applicant was sentenced to 15 months imprisonment with parole after six months – where the applicant had a minor but relevant criminal history – where the applicant was the sole carer of his three children prior to his imprisonment – where evidence before the sentencing judge supported the conclusion that the applicant's dependant children would suffer exceptional hardship upon his incarceration – where further evidence indicated that such hardship had materialised – whether the trial judge gave insufficient weight to the effect a period of actual custody would have on the applicant's children R v Chong; ex parte A-G (Qld) (2008) 181 A Crim R 200; [2008] QCA 22, applied R v Forrest [2003] QCA 112, cited R v Harders [1996] QCA 390, cited
COUNSEL:	S Ryan for the applicant G P Cash for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent