SUPREME COURT OF QUEENSLAND
CITATION:
R v McDonald [2016] QCA 200
PARTIES:
R
v
McDONALD, Allan David
(applicant)FILE NO/S:
CA No 300 of 2015
DC No 88 of 2015DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Gladstone – Date of Sentence: 19 November 2015
DELIVERED ON:
16 August 2016
DELIVERED AT:
Brisbane
HEARING DATE:
18 March 2016
JUDGES:
Margaret McMurdo P and Philippides JA and Burns J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. The application for leave to appeal is granted;
2. The appeal against sentence is allowed;
3. The sentence imposed for count 1 at first instance is varied by reducing the term of imprisonment to nine months;
4. The sentence imposed for count 2 at first instance is varied by ordering that the term of imprisonment be suspended after serving a period of nine months imprisonment; and
5. The sentences imposed at first instance are otherwise confirmed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of knowingly possessing child exploitation material and one count of distributing child exploitation material – where the applicant was sentenced to 12 months imprisonment for the possession count, to be released on probation for three years at the end of that term, and to three years and six months imprisonment on the distribution count, to be partially suspended after 12 months for an operational period of five years – where the distribution count was based entirely on the applicant’s admissions to police – whether the applicant was sentenced on a more serious factual basis than the evidence supported – whether the sentencing judge gave the applicant sufficient credit for the admissions made in relation to the distribution count
Criminal Code (Qld), s 207A, s 228C, s 228D
Penalties and Sentences Act 1992 (Qld), s 9AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, followed
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
R v Crouch; R v Carlisle[2016] QCA 81, cited
R v MBM (2011) 210 A Crim R 317; [2011] QCA 100, cited
R v Oliver [2003] 1 Cr App R 28; [2002] EWCA Crim 2766, followed
R v PW[2005] QCA 177, cited
R v Rooney; R v Gehringer[2016] QCA 48, cited
R v Ungvari[2010] QCA 134, citedCOUNSEL:
M J Copley QC for the applicant
S J Farnden for the respondentSOLICITORS:
Bosscher Lawyers Toowoomba for the applicant
Director of Public Prosecutions (Queensland) for the respondent
MARGARET McMURDO P: This is a concerning example of possessing and distributing graphic and disturbing child exploitation material. The primary judge, however, gave insufficient weight to the mitigating features of the applicant's otherwise good standing; plea of guilty; and co-operation with the authorities,…
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- AGLC
- R v McDonald [2016] QCA 200
- Case
- [2016] QCA 200
- Decision Date
CaseChat Overview and Summary
The legal issue before the court was whether there had been an error in principle or that the sentences imposed were "unreasonable or plainly unjust." The applicant contended that two factual errors were made by the sentencing judge, the first of which concerned the rejection of the applicant's claim that he "only actively went out and initiated trading" with other users of Kik on "one or two occasions." The court found that the applicant's claim to have only initiated trading on one or two occasions was a most unlikely proposition given the other admissions the applicant made to police.
The court found that the applicant was sentenced on a more serious factual basis than the evidence supported and that the sentencing judge wrongly constrained his discretion to only extending some latitude in a case where greater leniency was required. The court allowed the appeal against sentence and varied the sentences imposed at first instance. The term of imprisonment for count 1 was reduced to nine months, and the term of imprisonment for count 2 was suspended after serving a period of nine months imprisonment. The sentences imposed at first instance were otherwise confirmed.
Orders
Orders of the court
1. The application for leave to appeal is granted;
2. The appeal against sentence is allowed;
3. The sentence imposed for count 1 at first instance is varied by reducing the term of imprisonment to nine months;
4. The sentence imposed for count 2 at first instance is varied by ordering that the term of imprisonment be suspended after serving a period of nine months imprisonment; and
5. The sentences imposed at first instance are otherwise confirmed.
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
His Honour then imposed the sentences that are the subject of this application.Consideration In order to succeed on this application, it must be positively demonstrated that there has been an error in principle or that the sentences imposed were “unreasonable or plainly unjust”.[23] Here, it was not contended that the head sentences imposed were manifestly excessive. Rather, it was argued that errors of fact were made by the sentencing judge that resulted in his Honour proceeding on the basis that “the applicant’s culpability was greater or more extensive than was supported by the evidence or argued by the parties”[24] and, further, that his Honour “wrongly constrained his discretion to only extending some latitude”[25] in a case where greater leniency was required.[23]Hili v The Queen (2010) 242 CLR 520 at [58]-[59].[24]Applicant’s submissions at p 5.[25]Ibid at p 6.The factual basis for the sentence The applicant contended that two factual errors were made by the sentencing judge. The first concerned the rejection of the applicant’s claim that he “only actively went out and initiated trading” with other users of Kik on “one or two occasions”.[26] It was argued that the distribution count was based on the applicant’s admissions in his record of interview and that the relevant admissions were precisely to the effect of the rejected claim. It was submitted that the prosecutor in the court below did not attempt to put those admissions in issue, despite submitting that the applicant had been “on some occasions actively initiating the sharing”.[27] In this regard, it was submitted that the prosecutor had only been concerned to distinguish the applicant’s case from that of a passive distributor and was not otherwise challenging the reliability of the claim made by the applicant.[26]AR 34.[27]AR 15. It was certainly an agreed fact that the applicant made the rejected claim in his record of interview but, like the other claims that met the same fate,[28] his Honour was not bound to accept it. Indeed, there was good reason not to do so when regard was had to the other admissions the applicant made to police. The applicant searched for other users of Kik who were interested in child exploitation material. By means of the tags he appended to his user profile he also promoted his interest in that material to other users along with his preparedness to “trade” in it. The applicant conducted himself in these ways over a period that occupied about 20 months of the period charged, and it was an agreed fact that he traded material “often”[29] during that time. In order to do so, the applicant communicated with other users of Kik via the messenger service, provided links to his Dropbox account and on some occasions emailed files. Given these facts, the applicant’s claim to have only initiated trading on one or two occasions was a most unlikely proposition. This is no doubt what the sentencing judge meant when he said that the applicant’s claim did not seem to be “entirely consistent with the matters recorded in [his] record of interview”.[30][28]See above at [21] and [22].[29]AR 46.[30]AR 35.