R v McGinniss

[2015] QCA 34

SUPREME COURT OF QUEENSLAND

CITATION:

R v McGinniss [2015] QCA 34

PARTIES:

R
v
McGINNISS, Matthew Alan
(applicant)

FILE NO/S:

CA No 171 of 2014
SC No 637 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 March 2015

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2015

JUDGES:

Carmody CJ and Fraser and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant had pleaded guilty to one count of trafficking in Schedule 1 dangerous drugs and one count of possession of a dangerous drug in excess of 200 grams – where the applicant was sentenced to 10 years imprisonment with the declaration that the conviction was a serious violent offence conviction for the trafficking offence and a concurrent eight years imprisonment for the possession offence – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant had commenced upon rehabilitation prior to sentencing – where the sentencing judge, in passing sentence, referred to evidence that the applicant had commenced upon rehabilitation – where rehabilitation was not complete – whether the sentencing judge failed to give any or any appropriate weight to the applicant’s rehabilitation

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Bradforth[2003] QCA 183, considered
R v Feakes[2009] QCA 376, considered
R v Galeano[2013] 2 Qd R 464; [2013] QCA 51, considered
R v Illin[2014] QCA 285, cited
R v Johnson[2014] QCA 79, considered
R v Kashton [2005] QCA 70, considered
R v Prendergast[2012] QCA 164, cited
R v Rizk & Raciti[2004] QCA 359, cited
R v Safi[2015] QCA 13, cited

COUNSEL:

G McGuire for the applicant
D L Meredith for the respondent

SOLICITORS:

Guest Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. CARMODY CJ:  I agree with Fraser JA’s proposed order and his reasons.  The order of the court is that the application for leave to appeal is refused.

2. FRASER JA:  On 12 June 2014 the applicant was convicted on his pleas of guilty of one count of trafficking in dangerous drugs and one count of possession of a dangerous drug in excess of 200 grams.  On the first count he was sentenced to 10 years imprisonment, with an automatic serious violent offence declaration having the effect of requiring him to serve eight years imprisonment before becoming eligible for parole.  He was sentenced to a concurrent term of eight years imprisonment on the second count.  The applicant has applied for leave to appeal against…