SUPREME COURT OF QUEENSLAND
CITATION:
R v McConnell [2018] QCA 107
PARTIES:
R
v
McCONNELL, Kieran John
(applicant)FILE NO/S:
CA No 254 of 2017
DC No 1773 of 2017DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Brisbane – Date of Sentence: 3 October 2017 (Porter QC DCJ)
DELIVERED ON:
5 June 2018
DELIVERED AT:
Brisbane
HEARING DATE:
17 May 2018
JUDGES:
Sofronoff P and Fraser and Philippides JJA
ORDER:
Leave to appeal 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 pleas of guilty to one count of assault occasioning bodily harm, one count of deprivation of liberty and two counts of rape – where the offences occurred shortly after the 17 year old complainant broke off her relationship with the 18 year old applicant – where the applicant had no criminal history – where the psychological report noted the applicant had a low risk of sexually reoffending but without further intervention would be at an increased risk of reoffending if he were to find himself in the same circumstances – where the applicant was sentenced to imprisonment for five years for each count of rape and six months imprisonment on each other count to be served concurrently with parole eligibility after two years – whether the sentence was manifestly excessive
Penalties and Sentences Act 1992 (Qld), s 9(10A)
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Beaver[1992] QCA 238, cited
R v McCauley[2000] QCA 265, cited
R v Miller[2012] QCA 168, cited
R v Pickup[2008] QCA 350, cited
R v Postchild[2013] QCA 227, cited
R v Stephens (1994) 76 A Crim R 5; [1994] QCA 507, citedCOUNSEL:
G McGuire for the applicant
C N Marco for the respondentSOLICITORS:
Legal Aid (Qld) for the applicant
Director of Public Prosecutions (Queensland) for the respondent
SOFRONOFF P: I agree with the reasons of Fraser JA and the order his Honour proposes.
FRASER JA: The applicant was convicted on his own pleas of guilty to one count of assault occasioning bodily harm, one count of deprivation of liberty, and two counts of rape. Each offence was charged as a domestic violence offence. The applicant was sentenced to imprisonment for five years on each count of rape and six months imprisonment on each of the other counts. The sentences are to be served concurrently. It was also declared that eight days of pre-sentence custody was imprisonment already served under the sentence. A parole eligibility date was fixed at a time when the applicant will have served two years of the sentence.
The applicant has applied for leave to appeal against the sentence on the ground that it is manifestly excessive. The applicant submits that the sentence was rendered manifestly excessive by both the length…
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- AGLC
- R v McConnell [2018] QCA 107
- Case
- [2018] QCA 107
- Decision Date
CaseChat Overview and Summary
The court examined whether the sentencing judge had appropriately balanced the relevant considerations, particularly the applicant's age, remorse, and prospects for rehabilitation. The court noted that the sentencing judge had considered the applicant's age and the youthfulness of the complainant, appropriately weighing these factors in the context of the sentencing decision. The court also considered the applicant's remorse, noting that while there was evidence of genuine remorse, the sentencing judge did not err in finding that it was not shown at or about the time of the offending. The court found no error in the sentencing judge's consideration of the applicant's prospects for rehabilitation, despite the psychologist's report indicating a low risk of sexual reoffending with further intervention.
The court concluded that the sentence was not manifestly excessive and dismissed the appeal. The court found that the sentencing judge had appropriately exercised their discretion in considering the relevant factors, and the sentence imposed was not disproportionate. The appeal was therefore refused, and the original sentence was upheld.
Orders
Orders of the court
Leave to appeal 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
Another psychologist interviewed the applicant and administered psychological testing. That psychologist concluded that the applicant was at a low risk of sexually reoffending, but without further intervention he would be at an increased risk of reoffending if he were to find himself in the same circumstances. He demonstrates partial insight into his offending behaviour. The narrative in the psychologist’s report refers to it having been found during the police investigation that the applicant had been texting the complainant with multiple messages “apologising and asking her not to press charges against him.” The report also refers to the applicant becoming tearful and expressing deep remorse during an interview, which occurred eight and half months after the offences and four and a half months before the sentence hearing. The psychologist referred to the applicant having protective factors, including his plan to return to university, his relationships with his family and peers, his willingness to attend psychotherapy, his partial insight into his offending, that he does not use illicit substances, and that he feels guilty and remorseful about his offending. Seven favourable references about the applicant, all dated shortly before the sentence hearing, were tendered. Three of the references – by the applicant’s mother, his current partner and a close family friend – described the applicant’s remorse for his offences. Another reference also referred to the applicant taking responsibility for his behaviour at all levels. A letter of apology by the applicant to the complainant, which was dated two days before the sentence hearing, was also tendered at the sentence hearing.Consideration I do not accept the applicant’s arguments that the sentencing judge gave too much weight to the young age of the complainant and insufficient weight to the young age of the applicant and the remorse demonstrated by the applicant, and that the sentencing judge miscategorised the applicant’s prospects of rehabilitation. The sentencing judge appropriately mentioned the youthfulness of the complainant on a number of occasions, in each case in a relevant context. The applicant referred to the sentencing judge’s remark that the applicant committed the offences “at a very young age” which was “a matter of very significant weight in determining how to sentence you”, and that the circumstance that the complainant was “very young … only a 17 year old girl” was “a very significant countervailing consideration”. Taking into account and comparing the significance of these relevant sentencing considerations did not involve an error in the exercise of the sentencing discretion. The applicant referred to the sentencing judge’s statement that, “I can accept that you feel remorse for these actions, but it is … difficult to say that significant and genuine remorse, concerned with the effects on [the complainant], was shown at or about the time of the offending.” That statement was made in the context of preceding remarks that the multiple text messages of apology to the complainant, mentioned in the psychologist’s report, were sent in the context of requests that she not press charges against the applicant and that the applicant’s letter of apology to the complainant was sent only two days before the sentence hearing. There was evidence that the applicant was genuinely and significantly remorseful for his offending, including for the effects of it upon the complainant, but the sentencing judge did not err in finding that such remorse was not shown at or about the time of the offending. As the applicant submitted, the sentencing judge did not expressly refer to the statements in the references (or, I would add, in the second psychological report) that the applicant had developed genuine remorse and sorrow for his actions. But there is no reason to think that the sentencing judge did not read the references and the report. They are consistent with the sentencing judge’s acceptance that the applicant was remorseful but that his remorse was not shown at or about the time of the offending. The applicant also argued that the sentencing judge’s remark about the applicant’s letter of apology revealed that the sentencing judge was concerned about the delay but that the delay should not have detracted from the weight accorded to the expression of remorse in the letter. The letter of apology is consistent with the sentencing judge’s findings.