R v McGrath

SUPREME COURT OF QUEENSLAND

CITATION:

R v McGrath [2012] QCA 45

PARTIES:

R
v
McGRATH, Paul Anthony
(applicant)

FILE NO/S:

CA No 20 of 2012
DC No 2659 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

13 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

29 February 2012

JUDGES:

Margaret McMurdo P, Margaret Wilson AJA and Daubney J
Separate reasons for judgment of each member of the Court, Margaret Wilson AJA and Daubney J concurring as to the order made, Margaret McMurdo P dissenting

ORDER:

Application for extension of time refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant was convicted of one count of stealing as a servant and one count of attempted stealing as a servant – where the applicant was sentenced to concurrent terms of two years imprisonment and 12 months imprisonment with the parole release date being fixed at the half-way point of the head sentence – where the applicant wished to appeal against the sentence on the grounds that it was manifestly excessive and that there was a lack of parity with the co-accused – whether the proposed appeal had prospects of success – whether the sentence imposed was manifestly excessive – whether the application for extension of time should be granted

Criminal Code 1899 (Qld), s 7

R v Robinson; ex parte A-G (Qld)[2004] QCA 169, cited
R v Symes [1999] QCA 200, cited

COUNSEL:

A Hoare for the applicant
S P Vasta for the respondent

SOLICITORS:

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

1. MARGARET McMURDO P: I would grant the applicant's application to extend time; grant the application for leave to appeal against sentence; allow the appeal against sentence; set aside the sentence of two years imprisonment imposed on count 1 and substitute a term of 21 months imprisonment. 

1. I am grateful to Margaret Wilson AJA whose comprehensive reasons mean that my own reasons for reaching a different conclusion can be briefly stated. 

1. The applicant's explanation for the delay is convincing.  But the question in this application is whether, if time were extended, there would be any prospect of success in his proposed application for leave to appeal against sentence. 

1. The applicant and his co-offender, Clissold, were sentenced to two years imprisonment on count 1.  A third co-offender, Renwick, was sentenced to 18 months imprisonment.  Ultimately, the applicant's principal contention was that his sentence should have been slightly less than that imposed on his co-offender, Clissold, because of Clissold's position of trust as a manager in the complainant company. 

1. In dealing with that issue, I gratefully adopt Margaret Wilson AJA's statement of facts.  Neither the applicant nor any companies with which he was involved had any business association with the complainant company.  I consider this a significant distinction between his offending and that of Clissold.  As the…