R v McGrath

[2001] QCA 131

SUPREME COURT OF QUEENSLAND

CITATION:

R v M [2001] QCA 131

PARTIES:

R
v
M
(applicant/appellant)

FILE NO/S:

CA No 369 of 2000

SC No 362 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Sentence application

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

10 April 2001

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2001

JUDGES:

Thomas and Williams JJA and Dutney J
Judgment of the Court

ORDER:

1.   Application for leave to appeal against sentence granted and appeal allowed;

2. Sentence below set aside and replaced with a sentence of six years imprisonment with a declaration that the conviction is a conviction of a serious violent offence pursuant to part 9A of the Penalties and Sentences Act;

3. Order that further reasons for judgment handed down to the parties today be not further published and that a copy thereof be placed in a sealed envelope together with a revised copy of the transcript of that part of the proceedings which were not conducted in open court, and that it be opened only by order of the court or upon an application under s 188(2) of the Penalties and Sentences Act.

CATCHWORDS:

CRIMINAL LAW – OFFENCES AGAINST THE PERSON – ATTEMPTED MURDER – DECLARATION OF SERIOUS VIOLENT OFFENCE – where applicant convicted of attempted murder – where applicant declared to be convicted of a serious violent offence – Penalties and Sentences Act 1992, s 161B(3)(b)

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – APPEAL AGAINST SENTENCE – applicant’s past co-operation and promise of future cooperation – need for separate consideration – Penalties and Sentences Act 1992 s 9, s 13A, s 188(2)

PROCEDURE – COURTS – RULES OF COURT - PROCEEDINGS IN OPEN COURT OR IN CAMERA – JUDGMENTS AND ORDERS – STATEMENT OF REASONS FOR DECISION – OTHER MATTERS – where part of proceedings in camera – power of Court of Appeal to proceed in camera – whether protection of offenders from recrimination sufficient reason to justify proceeding in camera – court to act publicly as far as it safely can – whether court has power to alter both open sentence and indicative sentence under s 13A(7)(b)(ii) of Penalties and Sentences Act 1992 – suggested procedure in s 13A matters upon appeal

Penalties and Sentences Act 1992 (Qld), s 9(2)(g), s(9)(2)(i), s 9(2)(q) s 161B(3)(b), s 13A, s 188(2), s 188(4)

Supreme Court of Queensland Act 1991, s 128

The Queensland Law Society Inc, Ex parte [1984] 1 Qd R 166, considered

R v AC [2001] QCA 56, CA No 234 of 1999, 27 February 2001, considered

R v Gladkowski [2000] QCA 352, CA No 165 of 2000, 1 September 2000, considered

COUNSEL:

A J Rafter for the appellant
R G Martin for the respondent

SOLICITORS:

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

1. THE COURT: This is an application for leave to appeal against a sentence for attempted murder.  The applicant was sentenced to seven years and six months imprisonment,…