CA No 83 of 2006 CA No 94 of 2006 SC No 262 of 2006 SC No 614 of 2005 SC No 220 of 2006
DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
22 September 2006
DELIVERED AT:
Brisbane
HEARING DATE:
5 September 2006
JUDGES:
Jerrard, Keane and Holmes JJA Judgment of the Court
ORDER:
1. In CA No 83 of 2006: Application for leave to appeal against sentence is refused 2. In CA No 94 of 2006: Application for leave to appeal against sentence is granted 3. In CA No 94 of 2006: Appeal against sentence is allowed. Delete the declaration that Shane Garry Collas was convicted of a serious violent offence
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – applicant McDougall pleaded guilty to one count of manslaughter, two counts of wilfully and unlawfully damaging a motor vehicle and one count of dangerously operating a motor vehicle – applicant was sentenced to eight years imprisonment for the offence of manslaughter with a serious violent offence declaration – concurrent but lesser terms of imprisonment were imposed for offences of wilful damage and dangerous operation of a motor vehicle – sentencing judge declared that 706 days spent in pre-sentence custody be deemed time already served – whether the serious violent offender declarations made under s 161B(3) of the Penalties and Sentences Act 1992 (Qld) rendered the eight year imprisonment sentence manifestly excessive in all the circumstances
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – applicant Collas pleaded guilty to one count of manslaughter, two counts of wilfully and unlawfully damaging a motor vehicle and one count of dangerously operating a motor vehicle – applicant pleaded guilty to assault occasioning bodily harm – sentenced to eight years imprisonment for the offence of manslaughter with serious violent offence declaration – concurrent but lesser terms of imprisonment were imposed on applicant for offences of wilful damage, dangerous operation of a motor vehicle and the assault occasioning bodily harm – sentencing judge declared that 706 days spent in pre-sentence custody be deemed time already served – whether the serious violent offender declarations made under s 161B(3) of the Penalties and Sentences Act 1992 (Qld) rendered the eight years imprisonment sentence manifestly excessive in all the circumstances
[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.
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Details
AGLC
R v McDougall and Collas [2006] QCA 365
Case
[2006] QCA 365
Decision Date
CaseChat Overview and Summary
The applicants, McDougall and Collas, each appealed against their sentences in the Supreme Court of Queensland, Court of Appeal. McDougall had pleaded guilty to one count of manslaughter, two counts of wilfully and unlawfully damaging a motor vehicle, and one count of dangerously operating a motor vehicle. He was sentenced to eight years imprisonment for the manslaughter offence, with concurrent but lesser terms for the other offences. The sentencing judge also declared that McDougall's 706 days spent in pre-sentence custody be deemed time already served. Collas had pleaded guilty to the same charges as McDougall and an additional count of assault occasioning bodily harm, resulting in a similar sentence of eight years for manslaughter. Both applicants questioned whether the serious violent offender declarations under section 161B(3) of the Penalties and Sentences Act 1992 (Qld) rendered their eight-year imprisonment sentences manifestly excessive.
The court was required to determine whether the sentences imposed on McDougall and Collas were manifestly excessive, particularly in light of the serious violent offender declarations made under section 161B(3) of the Penalties and Sentences Act 1992 (Qld). The court considered the severity of the offences, the culpability of the applicants, and the need to deter similar conduct. The court also assessed whether the sentences were consistent with those imposed in similar cases. The court gave particular attention to the impact of the serious violent offender declarations on the overall sentence and whether they contributed to making the sentences manifestly excessive.
In CA No 83 of 2006, the application for leave to appeal against sentence by McDougall was refused. The court found that the sentence was not manifestly excessive, considering the seriousness of the manslaughter offence and the need for deterrence. In CA No 94 of 2006, the application for leave to appeal against sentence by Collas was granted. The court found that the declaration that Collas was a serious violent offender was a significant aggravating factor that rendered the eight-year imprisonment sentence manifestly excessive. The appeal against sentence was allowed, and the declaration was deleted. The court considered that a sentence of seven years imprisonment was appropriate, with the 706 days already served in pre-sentence custody to be deemed time already served.
Orders
Orders of the court
1. In CA No 83 of 2006: Application for leave to appeal against sentence is refused
2. In CA No 94 of 2006: Application for leave to appeal against sentence is granted
3. In CA No 94 of 2006: Appeal against sentence is allowed. Delete the declaration that Shane Garry Collas was convicted of a serious violent offence