SUPREME COURT OF QUEENSLAND
CITATION:
R v McCusker [2015] QCA 179
PARTIES:
R
v
McCUSKER, Ronald Peter
(applicant)FILE NO/S:
CA No 48 of 2015
SC No 10 of 2014DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Bundaberg – Unreported, 16 March 2015DELIVERED ON:
Orders delivered ex tempore on 11 September 2015
Reasons delivered 29 September 2015DELIVERED AT:
Brisbane
HEARING DATE:
1 September 2015
JUDGES:
Morrison and Philippides JJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDER:
Orders delivered ex tempore on 11 September 2015:
1. That the application for leave to appeal against sentence is granted.
2. The appeal is allowed.
3. The sentence imposed on 16 March 2015 is set aside.
4. The applicant is sentenced to six years imprisonment and a declaration is made pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that 553 days spent in pre-sentence custody between 10 September 2013 and 16 March 2015 is time that is taken to be imprisonment already served under the sentence.
5. The applicant’s parole eligibility date is 11 September 2015.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant seeks leave to appeal against a sentence imposed in the Supreme Court at Bundaberg on 16 March 2015 – where the applicant plead guilty to one count of manslaughter – where the applicant was sentenced to six years and three months imprisonment with a parole eligibility date two years and thirty-seven days after the date of sentence – where the applicant and the deceased were old friends who had been drinking for several hours leading up to the deceased’s death – where the applicant was trying to prevent the deceased getting into a motor vehicle – where expert evidence revealed that the deceased died as a result of the compression of his neck by the applicant with moderate force probably for only a few seconds – where the manslaughter plea was not early but timely – where the applicant had a long and persistent criminal history – where the bulk of offences relate to burglary and dishonesty offences – where two of the offences involve violence or apprehension of violence – whether the applicant’s criminal history improperly influenced the sentencing judge’s approach – whether the sentence was manifestly excessive in all the circumstances of the case
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where further ground of appeal – where the applicant was serving a suspended sentence at the time of the killing – where the applicant also committed break and enter offences after the killing but before the date of sentence – where the applicant had already spent 553 days in prison at the date of sentence – where only 35…
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- AGLC
- R v McCusker [2015] QCA 179
- Case
- [2015] QCA 179
- Decision Date
CaseChat Overview and Summary
The applicant’s appeal centred on two primary grounds. The first was that the sentencing judge may have improperly considered the applicant’s criminal history in determining the sentence. The second was that the sentence was manifestly excessive in the circumstances of the case. The applicant also argued that the sentencing judge should have made full allowance for the time spent in pre-sentence custody, rather than only crediting 35 days of the 553 days the applicant had already spent in prison. The applicant contended that the sentence should be set aside and a new sentence imposed, taking into account the appropriate pre-sentence custody time served.
The court found merit in the applicant’s arguments. The sentencing judge’s reliance on the applicant’s criminal history, while permissible, appeared to unduly influence the sentence. Additionally, the sentence was deemed manifestly excessive considering the nature of the offence and the applicant’s personal circumstances. The court also determined that the sentencing judge should have fully accounted for the pre-sentence custody time served by the applicant. Consequently, the application for leave to appeal was granted, the appeal was allowed, and the original sentence was set aside. The applicant was sentenced to six years imprisonment, with a declaration that the 553 days spent in pre-sentence custody were to be considered as time already served under the sentence. The applicant’s parole eligibility date was set at 11 September 2015.
Orders
Orders of the court
Orders delivered ex tempore on 11 September 2015:
1. That the application for leave to appeal against sentence is granted.
2. The appeal is allowed.
3. The sentence imposed on 16 March 2015 is set aside.
4. The applicant is sentenced to six years imprisonment and a declaration is made pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that 553 days spent in pre-sentence custody between 10 September 2013 and 16 March 2015 is time that is taken to be imprisonment already served under the sentence.
5. The applicant’s parole eligibility date is 11 September 2015.
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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