R v McGuire - [2017] QCA 250

SUPREME COURT OF QUEENSLAND

CITATION:

R v McGuire [2017] QCA 250

PARTIES:

R
v
McGUIRE, Sheridan Louise
(applicant)

FILE NO/S:

CA No of 268 of 2016
DC No 427 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich – Date of Sentence: 9 September 2016 (Horneman-Wren SC DCJ)

DELIVERED ON:

27 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

5 June 2017

JUDGES:

Morrison and Philippides JJA and Boddice J

ORDER:

The application for leave to appeal be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – where on 8 September 2016 a jury found the applicant guilty of one count of robbery in company, one count of threatening violence, one count of assault occasioning bodily harm in company, two counts of common assault, one count of deprivation of liberty, one count of rape and one count of torture – where the applicant was sentenced to eight years imprisonment on the court of torture, with that offence being declared a serious violent offence – where the co-offender pleaded guilty to similar offences with a lesser degree of offending – where the co-offender was sentenced to six years imprisonment on the count of torture, with no serious violent offence declaration – where the applicant seeks leave to appeal her sentence – where the applicant contends the sentencing Judge erred in proceeding to incorporate the rape as a particular of the torture offence – where it is submitted that co-offenders cannot have different acts forming a similar offence – where the applicant contends the sentence imposed on the co-offender was a proper exercise of the sentencing Judge’s discretion – where the applicant submits the declaration of a serious violent offence in relation to her offending, but not that of the co-offender violates the principle of parity – where the applicant contends the sentence imposed was manifestly excessive as a result of the serious violent offence declaration – whether the sentencing Judge erred in regarding the count of rape as a particular of the count of torture – whether issues of parity arose in the circumstances – whether the sentence imposed was manifestly excessive

Green v The Queen (2011) 244 CLR 462, [2011] HCA 49, cited
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited

COUNSEL:

A M Hoare for the applicant
J A Wooldridge for the respondent

SOLICITORS:

Kilroy & Callaghan Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I have had the considerable advantage of reading the draft reasons of Boddice J. That permits me to express my own in short form.
I agree with the reasons of Boddice J except for the resolution of ground 2, where I differ as to whether the parity principle is invoked in this case.
The applicant and Hayman were…

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 McGuire

Details

AGLC: R v McGuire [2017] QCA 250
Case: [2017] QCA 250
Decision Date: 27 October 2017

CaseChat Overview and Summary

The applicant sought leave to appeal against her conviction and sentence, but subsequently abandoned the appeal against conviction. She sought leave to appeal against her sentence on three grounds: the sentencing Judge erred in considering the rape offence a particular of the torture offence; the sentencing Judge erred by imposing a sentence that had a marked disparity to that imposed on her co-accused for the torture offence; and the sentence imposed was manifestly excessive by reason of the declaration that the offence was a serious violent offence.

The applicant argued that the sentencing Judge erred in regarding the count of rape as a particular of the count of torture. The applicant submitted that co-offenders cannot have different acts forming a similar offence. The applicant also argued that the sentence imposed on the co-offender was a proper exercise of the sentencing Judge’s discretion. The applicant further submitted that the declaration of a serious violent offence in relation to her offending, but not that of the co-offender, violated the principle of parity. Finally, the applicant contended that the sentence imposed was manifestly excessive as a result of the serious violent offence declaration.

The Court considered the comparable authorities and found that they supported the sentencing Judge’s conclusion that the applicant’s sustained conduct over an extended period, which was designed to inflict pain and humiliation, justified a sentence of between eight and 10 years imprisonment. The imposition of a declaration that the offence was a serious violent offence justified the imposition of a sentence to the lesser end of that range. However, the Court concluded that the sentencing discretion miscarried in the applicant’s case because of the marked disparity between her sentence and that imposed on Hayman. The sentence imposed on appeal is not to be seen as indicative of the sentence to be imposed in similar circumstances.

Orders The Court ordered that leave to appeal against sentence be granted and the appeal against sentence be allowed. The sentence imposed for the offence of torture was set aside and the applicant was sentenced to six years imprisonment for the offence of torture with a declaration that the offence was a serious violent offence. The orders otherwise made at sentence remain. The application for leave to appeal was refused.

Orders

Orders of the court

The application for leave to appeal be refused.

Background

Background to the litigation

By notice of appeal, filed 5 October 2016, the applicant appealed against her conviction and sought leave to appeal against her sentence. The applicant has abandoned the appeal against conviction. She seeks leave to appeal against her sentence on three grounds. First, that the sentencing Judge erred in considering the rape offence a particular of the torture offence. Second, that the sentencing Judge erred by imposing a sentence that had a marked disparity to that imposed on her co-accused for the torture offence. Third, that the sentence imposed was manifestly excessive by reason of the declaration that the offence was a serious violent offence.Background The applicant was born on 26 April 1978. She was aged 37 years at the time of the offences and 38 at sentence. The applicant had a limited and dated criminal history. She has not previously been sentenced to any periods of imprisonment. Hayman was aged 27 at the time of the offences and 29 at sentence. He had a more extensive criminal history with previous offences of violence. He had previously been sentenced to imprisonment. The complainant was born on 25 June 1977. She knew both the applicant and Hayman. She had resided in a house with the applicant until a few months before these events. The complainant had also been “sex buddies” with Hayman before he commenced a relationship with the applicant.[27] All were users of methylamphetamine.[27]AB 114/5.Offences The offences were committed between 29 April 2015 and 5 May 2015. They involved one extended episode. However, the offences themselves were confined to two discrete occasions, one on 29 April 2015 and one on 3 May 2015. On 28 April 2105, the complainant travelled to the applicant’s residence for the purposes of buying drugs. She met with Hayman and the applicant. Each injected drugs. The applicant remained at that residence overnight. On the following day, a dispute arose between the complainant and Hayman. Hayman accused the complainant of having taken his drugs. The applicant, who had been asleep, awoke at that point. The applicant also accused the complainant of having taken Hayman’s drugs. The applicant and Hayman demanded the complainant pay them. They threatened the complainant that if she did not hand her keycard to the applicant she would be taken for a “boot ride”. The complainant understood this to mean she would be taken out to the bush and killed. All three travelled to a service station when money was withdrawn from the complainant’s account. These events constituted the offence of robbery in company. After the complainant returned to the house with the applicant and Hayman, the complainant was made to sit on a chair in the kitchen. She was questioned by both the applicant and Hayman about the missing drugs. The complainant was duct-taped to a chair by the applicant. The taping was so tight the complainant had difficulty breathing. Whilst in this position, Hayman threatened the complainant with a machete. The complainant was told that every question she got wrong would cost her a finger. The applicant held the complainant’s hands on the table. Those events represented the count of threatening violence.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The comparable authorities referred to by both the prosecution and the defence on sentence, and on appeal amply supported the sentencing Judge’s conclusion that the applicant’s sustained conduct over an extended period which was designed to inflict pain and humiliation justified a sentence of between eight and 10 years imprisonment. The imposition of a declaration that the offence was a serious violent offence justified the imposition of a sentence to the lesser end of that range.Conclusion The applicant has established that as a consequence of the sentence imposed on Hayman subsequent to her sentence, there is such a marked disparity between her sentence and that imposed on Hayman so as to justify a conclusion that the sentencing discretion miscarried in the applicant’s case. But for that marked disparity, the applicant would not have succeeded in establishing that the sentence imposed was manifestly excessive in all the circumstances. The sentence imposed on appeal is not to be seen as indicative of the sentence to be imposed in similar circumstances of sustained torture over an extended period of time involving an act of sexual assault undertaken in order to inflict pain and humiliation.Orders I would order:1.Leave to appeal against sentence be granted.2.The appeal against sentence be allowed.3.The sentence imposed for the offence of torture be set aside.4.The applicant be sentenced to six years imprisonment for the offence of torture with a declaration that the offence was a serious violent offence.5.The orders otherwise made at sentence remain.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v McGuire [2017] QCA 250
PARTIES:	R v McGUIRE, Sheridan Louise (applicant)
FILE NO/S:	CA No of 268 of 2016 DC No 427 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich – Date of Sentence: 9 September 2016 (Horneman-Wren SC DCJ)
DELIVERED ON:	27 October 2017
DELIVERED AT:	Brisbane
HEARING DATE:	5 June 2017
JUDGES:	Morrison and Philippides JJA and Boddice J
ORDER:	The application for leave to appeal be refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – where on 8 September 2016 a jury found the applicant guilty of one count of robbery in company, one count of threatening violence, one count of assault occasioning bodily harm in company, two counts of common assault, one count of deprivation of liberty, one count of rape and one count of torture – where the applicant was sentenced to eight years imprisonment on the court of torture, with that offence being declared a serious violent offence – where the co-offender pleaded guilty to similar offences with a lesser degree of offending – where the co-offender was sentenced to six years imprisonment on the count of torture, with no serious violent offence declaration – where the applicant seeks leave to appeal her sentence – where the applicant contends the sentencing Judge erred in proceeding to incorporate the rape as a particular of the torture offence – where it is submitted that co-offenders cannot have different acts forming a similar offence – where the applicant contends the sentence imposed on the co-offender was a proper exercise of the sentencing Judge’s discretion – where the applicant submits the declaration of a serious violent offence in relation to her offending, but not that of the co-offender violates the principle of parity – where the applicant contends the sentence imposed was manifestly excessive as a result of the serious violent offence declaration – whether the sentencing Judge erred in regarding the count of rape as a particular of the count of torture – whether issues of parity arose in the circumstances – whether the sentence imposed was manifestly excessive Green v The Queen (2011) 244 CLR 462, [2011] HCA 49, cited Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
COUNSEL:	A M Hoare for the applicant J A Wooldridge for the respondent
SOLICITORS:	Kilroy & Callaghan Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent