R v McCusker

The applicant in the matter of R v McCusker sought leave to appeal against a sentence imposed by the Supreme Court at Bundaberg on 16 March 2015. The applicant had pleaded guilty to one count of manslaughter. The applicant was sentenced to six years and three months imprisonment with parole eligibility set two years and thirty-seven days after the date of sentence. The applicant and the deceased were old friends who had been drinking for several hours before the deceased’s death. The applicant was trying to prevent the deceased from getting into a motor vehicle when the deceased died from compression of his neck by the applicant with moderate force, likely for only a few seconds. The applicant had a long and persistent criminal history, primarily involving burglary and dishonesty offences, with two instances of violence or apprehension of violence.

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.