R v Mck - [2017] QCA 56

SUPREME COURT OF QUEENSLAND

CITATION:

R v MCK [2017] QCA 56

PARTIES:

R
v
MCK
(appellant/applicant)

FILE NO/S:

CA No 234 of 2016
CA No 114 of 2016
DC No 563 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport – Date of Conviction & Sentence: 8 April 2016

DELIVERED ON:

7 April 2017

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2016

JUDGES:

Holmes CJ and Gotterson JA and Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Dismiss the appeal against conviction.

2.   Grant the application for leave to appeal against sentence.

3.   Allow the appeal against sentence.

4.   Set aside the sentence imposed at first instance.

5.   Substitute a sentence of four years imprisonment suspended after 12 months for an operational period of five years.

6.   Declare that the appellant has served a period of 365 days between 8 April 2016 and 7 April 2017 of that sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – where the appellant was convicted on his plea of guilty to one count of maintaining an unlawful sexual relationship with a girl under 16 years, with an aggravating circumstance – where the appellant now denies his guilt – where the appellant maintains his guilty plea was not freely entered but was induced by wrong legal advice from his barrister and from a clerk represented to him as a lawyer – where the appellant asserts counsel did not take proper instructions from him – where the appellant asserts that he was unaware of the nature of the charge to which he pleaded guilty and the allegations on which it was based – whether a miscarriage of justice has occurred

CRIMINAL LAW – SENTENCE APPLICATION – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to nine years and 11 months imprisonment with parole eligibility after three years and four months – whether the sentence was manifestly excessive

R v MAN[2005] QCA 413, considered
R v SAG (2004) 147 A Crim R 301; [2004] QCA 286, cited
R v WU[2007] QCA 308, considered

COUNSEL:

P J Davis QC, and J R Jones, for the appellant/applicant
C W Heaton QC for the respondent

SOLICITORS:

Potts Lawyers for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES CJ: The appellant was granted an extension of time within which to appeal against his conviction of one count of maintaining an unlawful sexual relationship with a girl under 16 years, with the aggravating circumstance that in the course of the relationship he had carnal knowledge of her. He had also, within time, applied for leave to appeal against his sentence of nine years and 11 months imprisonment with parole eligibility after three years and four months.
The appellant was given leave to adduce further evidence in the form of affidavits from him,…

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 Mck

Details

AGLC: R v MCK [2017] QCA 56
Case: [2017] QCA 56
Decision Date: 7 April 2017

CaseChat Overview and Summary

The appellant in this case was convicted of maintaining an unlawful sexual relationship with a girl under 16 years of age, with an aggravating circumstance. The conviction arose from a guilty plea entered by the appellant, who now seeks to appeal against the conviction and the sentence. The appeal was heard by the court, which had to determine whether the conviction was valid and whether the sentence imposed was appropriate.

The court had to consider whether the appellant's guilty plea was entered freely and with a proper understanding of the charge and its implications. The appellant argued that his plea was induced by incorrect legal advice and that he was unaware of the nature of the charge and the allegations on which it was based. The court also had to consider whether the sentence imposed was manifestly excessive or inadequate.

The court found that the appellant's appeal against conviction was without merit and dismissed it. However, the court found that the appellant's application for leave to appeal against sentence should be granted. The court found that the sentence imposed was manifestly excessive and substituted a sentence of four years imprisonment, suspended after 12 months for an operational period of five years. The court also declared that the appellant had already served a period of 365 days of the sentence in question.

Orders

Orders of the court

1. Dismiss the appeal against conviction.

2. Grant the application for leave to appeal against sentence.

3. Allow the appeal against sentence.

4. Set aside the sentence imposed at first instance.

5. Substitute a sentence of four years imprisonment suspended after 12 months for an operational period of five years.

6. Declare that the appellant has served a period of 365 days between 8 April 2016 and 7 April 2017 of that sentence.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v MCK [2017] QCA 56
PARTIES:	R v MCK (appellant/applicant)
FILE NO/S:	CA No 234 of 2016 CA No 114 of 2016 DC No 563 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Southport – Date of Conviction & Sentence: 8 April 2016
DELIVERED ON:	7 April 2017
DELIVERED AT:	Brisbane
HEARING DATE:	1 December 2016
JUDGES:	Holmes CJ and Gotterson JA and Ann Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Dismiss the appeal against conviction. 2. Grant the application for leave to appeal against sentence. 3. Allow the appeal against sentence. 4. Set aside the sentence imposed at first instance. 5. Substitute a sentence of four years imprisonment suspended after 12 months for an operational period of five years. 6. Declare that the appellant has served a period of 365 days between 8 April 2016 and 7 April 2017 of that sentence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – where the appellant was convicted on his plea of guilty to one count of maintaining an unlawful sexual relationship with a girl under 16 years, with an aggravating circumstance – where the appellant now denies his guilt – where the appellant maintains his guilty plea was not freely entered but was induced by wrong legal advice from his barrister and from a clerk represented to him as a lawyer – where the appellant asserts counsel did not take proper instructions from him – where the appellant asserts that he was unaware of the nature of the charge to which he pleaded guilty and the allegations on which it was based – whether a miscarriage of justice has occurred CRIMINAL LAW – SENTENCE APPLICATION – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to nine years and 11 months imprisonment with parole eligibility after three years and four months – whether the sentence was manifestly excessive R v MAN[2005] QCA 413, considered R v SAG (2004) 147 A Crim R 301; [2004] QCA 286, cited R v WU[2007] QCA 308, considered
COUNSEL:	P J Davis QC, and J R Jones, for the appellant/applicant C W Heaton QC for the respondent
SOLICITORS:	Potts Lawyers for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent