R v McDonald; Ex parte - [2025] QCA 85

SUPREME COURT OF QUEENSLAND

CITATION:

R v McDonald; Ex parte Attorney-General (Qld) [2025] QCA 85

PARTIES:

R
v
McDONALD, Brock Andrew
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 2 of 2025
DC No 178 of 2024

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:

District Court at Bundaberg – Date of Sentence: 11 December 2024 (Kent KC DCJ)

DELIVERED ON:

30 May 2025

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2025

JUDGES:

Bond and Brown JJA and Kelly J

ORDERS:

1.   Leave given to adduce the affidavit of Mr Prasad.

2.   Otherwise, the applications to adduce further evidence be dismissed.

3.   Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS – where the respondent pleaded guilty to the offences of assault occasioning bodily harm while armed and deprivation of liberty – where the respondent was sentenced to 2 ½ years’ imprisonment with immediate parole release after having served a little over 13 months in pre-sentence custody – where the Attorney-General appealed against the sentences on the grounds of manifest inadequacy – where insufficient attention paid to the consequences of prosecutorial choices made in framing the charges to which the respondent pleaded and for which the respondent was sentenced – where sentences imposed for kidnapping offences were not appropriate benchmarks for an appeal against sentence for deprivation of liberty – where manifest inadequacy was not demonstrated – where unnecessary to consider whether the Court of Appeal ought to exercise its residual discretion to intervene

Criminal Code (Qld), s 339, s 354, s 355
Penalties and Sentences Act 1992 (Qld), s 9(3)

R v George[2013] QCA 302, distinguished
R v Von Pearson[2006] QCA 292, distinguished

COUNSEL:

C N Marco for the appellant
C J Tessmann for the respondent

SOLICITORS:

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

THE COURT:

Overview

The respondent was convicted on his own pleas of guilty of the offences of assault occasioning bodily harm, while armed (count 1) and deprivation of liberty (count 2). The respondent was effectively sentenced to 2 ½ years’ imprisonment with immediate parole release after having served a little over 13 months in pre-sentence custody.
The Attorney-General appeals against the sentences imposed on the respondent for that offending.
On such appeals the burden on the Attorney-General is, first, to demonstrate error in the exercise of the sentencing discretion by the sentencing judge and, second, to demonstrate that the case is an appropriate case for appellate intervention.
As to the former issue the Attorney-General relies on the sole ground that the sentence imposed was manifestly inadequate. In this regard it is not enough to show that the sentence is markedly different from sentences that have been imposed in relevantly comparable cases. To the contrary, it is necessary to show that the sentence imposed was so far outside the range…

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 McDonald; Ex parte

Details

AGLC: R v McDonald; Ex parte [2025] QCA 85
Case: [2025] QCA 85
Decision Date: 30 May 2025

CaseChat Overview and Summary

In the matter of R v McDonald, the respondent pleaded guilty to the offences of assault occasioning bodily harm while armed and deprivation of liberty. The respondent was sentenced to 2 ½ years' imprisonment with immediate parole release after having served a little over 13 months in pre-sentence custody. The Attorney-General appealed against the sentences on the grounds of manifest inadequacy, arguing that insufficient attention was paid to the consequences of prosecutorial choices made in framing the charges and that the sentences imposed for kidnapping offences were not appropriate benchmarks for an appeal against sentence for deprivation of liberty. The court had to determine whether the Attorney-General's appeal demonstrated that the sentence was manifestly inadequate.

The court found that the appeal did not demonstrate manifest inadequacy of the sentence. The sentencing judge had considered all relevant factors, including the risks to the community, the serious nature of the offending, the personal circumstances of the victim, the respondent's antecedents and criminal history, and his pleas of guilty. The sentencing judge had also given particular weight to the respondent's terminal diagnosis, concluding that it was not appropriate to impose a longer sentence that the respondent might not live to see the end of. The court concluded that the appeal failed to demonstrate manifest inadequacy of the sentence and that it was unnecessary to consider the submissions regarding the Court of Appeal's residual discretion to intervene. The appeal was dismissed.

The court allowed the Attorney-General's application to adduce the affidavit of Mr Prasad to perfect the appeal record by placing before the Court the written submissions which the prosecution had relied on below. Otherwise, the applications to adduce further evidence were dismissed, as they sought to adduce evidence that would only have been relevant if the appeal had been allowed and this Court had determined to exercise its discretion to re-sentence.

The court made the following orders: (a) leave given to adduce the affidavit of Mr Prasad; (b) otherwise, the applications to adduce further evidence be dismissed; and (c) appeal dismissed.

Orders

Orders of the court

1. Leave given to adduce the affidavit of Mr Prasad.

2. Otherwise, the applications to adduce further evidence be dismissed.

3. Appeal dismissed.

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

The argument presented on behalf of the Attorney-General fails to demonstrate that the sentence was manifestly inadequate.Conclusion No error having been demonstrated; it is not necessary to consider the submissions which were made in relation to this Court’s discretion. The appeal must be dismissed. For completeness it is appropriate to observe that both the Attorney-General and the respondent applied for leave to adduce new evidence. The application by the Attorney-General to adduce the affidavit of Mr Prasad should be allowed because it sought to perfect the appeal record by placing before the Court the written submissions which the prosecution had relied on below. Otherwise, the applications sought to adduce further evidence which would only have been relevant if the appeal had been allowed and this Court had determined to exercise its discretion to re-sentence. Insofar as they sought to do so, those applications should be dismissed. The orders of the Court are:(a)Leave given to adduce the affidavit of Mr Prasad.(b)Otherwise, the applications to adduce further evidence be dismissed.(c)Appeal dismissed.

Ratio Decidendi

Legal Principle Established

The sentencing judge noted that he was to have primary regard to factors identified in s 9(3) of the Penalties and Sentences Act 1992 (Qld), expressly referencing the risks to the community; the serious nature of the offending; the personal circumstances of the victim; the respondent’s antecedents and criminal history and his pleas of guilty. His Honour found that the determining factor in deciding to accept the submission of the respondent’s counsel to adopt the bottom of the range suggested by the prosecution was the respondent’s terminal diagnosis. His Honour observed:“There seems little utility in imposing a longer sentence, which is one that on your current medical information, you may not live to see the end of. It is helpful that you will be in the community supervised on parole for a period of time, and the parole authorities will no doubt keep a careful eye on you.”Consideration of the appeal ground Before this Court counsel for the Attorney-General submitted that the sentence was manifestly inadequate and should be set aside. Counsel submitted that the Court should re-sentence so that –(a)a sentence of not less than 3 years’ imprisonment for count 1 be imposed; and(b)the sentence for count 2 be affirmed. Counsel submitted that the order made in relation to parole would depend on the head sentence imposed. Counsel submitted that it might be necessary to require the respondent to return to custody for a short period despite his already having been released on court-ordered parole. Counsel submitted that this Court should reach the conclusion that the sentence imposed was unreasonable and plainly unjust and that it was so far outside the range of sentences which could have been imposed that error must be inferred even though no specific error could be demonstrated. In support of that submission Counsel suggested that the sentencing judge must have placed undue weight on the consideration of the health of the respondent and insufficient weight on the legitimate expectations of deterrence, denunciation and protection of the community and the fact that the respondent had managed to commit the offences when he had already been the subject of his cancer diagnosis. The fundamental flaw in the submission was that the cases upon which counsel relied to support the argument either did not support the submission or were not comparable at all because they were kidnapping cases. The only case in which the charges faced by the offender might be said to have been comparable to the present case was R v George.[8] In that case, a 34-year-old female complainant had visited the offender in his unit, but she had been detained by him when she indicated a desire to leave. After she eventually escaped by climbing down a drainpipe, she was pursued by the offender who caught her and punched her to the head and torso and tried to drag her back up the stairs. He was stopped by neighbours who intervened to assist. The complainant suffered multiple lacerations, swelling, and bruising to her face and body, a subgaleal haematoma and fractured ribs. The offender was 46 years of age at the time of the offending and was 48 years of age at sentence. He had a serious and lengthy criminal history that included prior convictions of violence that had attracted periods of imprisonment.[8]R v George [2013] QCA 302.

CITATION:	R v McDonald; Ex parte Attorney-General (Qld) [2025] QCA 85
PARTIES:	R v McDONALD, Brock Andrew (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 2 of 2025 DC No 178 of 2024
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT:	District Court at Bundaberg – Date of Sentence: 11 December 2024 (Kent KC DCJ)
DELIVERED ON:	30 May 2025
DELIVERED AT:	Brisbane
HEARING DATE:	19 May 2025
JUDGES:	Bond and Brown JJA and Kelly J
ORDERS:	1. Leave given to adduce the affidavit of Mr Prasad. 2. Otherwise, the applications to adduce further evidence be dismissed. 3. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS – where the respondent pleaded guilty to the offences of assault occasioning bodily harm while armed and deprivation of liberty – where the respondent was sentenced to 2 ½ years’ imprisonment with immediate parole release after having served a little over 13 months in pre-sentence custody – where the Attorney-General appealed against the sentences on the grounds of manifest inadequacy – where insufficient attention paid to the consequences of prosecutorial choices made in framing the charges to which the respondent pleaded and for which the respondent was sentenced – where sentences imposed for kidnapping offences were not appropriate benchmarks for an appeal against sentence for deprivation of liberty – where manifest inadequacy was not demonstrated – where unnecessary to consider whether the Court of Appeal ought to exercise its residual discretion to intervene Criminal Code (Qld), s 339, s 354, s 355 Penalties and Sentences Act 1992 (Qld), s 9(3) R v George[2013] QCA 302, distinguished R v Von Pearson[2006] QCA 292, distinguished
COUNSEL:	C N Marco for the appellant C J Tessmann for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent