R v McLean

SUPREME COURT OF QUEENSLAND

CITATION:

R v McLean [2011] QCA 248

PARTIES:

R
v
McLEAN, Richard David
(applicant)

FILE NO/S:

CA No 144 of 2011
DC No 396 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application – Further Orders

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

Judgment delivered 2 September 2011
Further orders delivered 23 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2011

JUDGES:

Fraser and White JJA, and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the further orders made

FURTHER ORDERS:

1.Vary the sentence imposed in the District Court on 3 June 2011 with respect to count 2 as follows:

(a)set aside the order suspending the sentence of six months imprisonment and the operational period of two years;

(b)order instead that the appellant be released on parole on the 27th day of October 2011.

2.Otherwise confirm the sentence and orders made in the District Court.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of wilful damage to property (count one) and one count of serious assault (count two) – where the applicant was a resident of Palm Island – where the applicant spat in the face of a police officer – where the applicant was sentenced to 14 days imprisonment on count one and six months imprisonment on count two to be suspended after serving two months imprisonment with an operational period of two years – where the applicant claimed that the sentencing judge failed to consider mitigating factors in his favour including Aboriginality and disadvantage – whether the sentence was manifestly excessive

R v McLean [2011] QCA 218, cited

COUNSEL:

R East for the applicant
M B Lehane for the respondent

SOLICITORS:

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

FRASER JA: I agree with the reasons of White JA and the further orders proposed by her Honour.

WHITE JA: On 2 September 2011 this court made certain orders[1] including that the pronouncement of further orders be adjourned to a date to be fixed. The circumstances which gave rise to the court making that order were these – the appellant had been released on bail pending the outcome of his application for leave to appeal against the sentence which had been imposed on him in the District Court at Townsville on 3 June 2011. His application for leave to appeal was successful. In lieu of the sentence of imprisonment for six months to be suspended after serving two months with an operational period of two years on count 2, the court indicated that the appellant was to be sentenced to imprisonment for six months to be released on parole after serving two months. By the time of the hearing of the application the appellant had left his bail address without notice to the authorities. Section 160B of the Penalties and Sentences Act 1992 (Qld) requires a sentencing court to fix a date for release on parole when the sentence is one of three years or less and not a serious violent offence or a sexual offence. This court could not do so while the appellant remained at large.
[1]R v McLean [2011] QCA 218.

The appellant was taken into police custody on 17 September 2011 and returned to the Townsville Correctional Facility on 19 September 2011.[2] Pre-sentence custody from 1 June 2011 to 3 June 2011 was declared as imprisonment already served under the sentence imposed on 3 June. As mentioned, the appellant was released on appeal bail on 21 June 2011. Corrective Services in Townsville in a communication to the Registrar of this court, copied to the parties’ lawyers, has calculated 21 days served to the date he was taken into police custody. He has spent a further six days in custody to 23 September 2011, the date of pronouncement of these orders. The appellant has the remainder of the two months’ imprisonment to serve, that is, 34 days.
[2]Pre-sentence Custody Certificate 20 September 2011.

The further orders are:

1. Vary the sentence imposed in the District Court on 3 June 2011 with respect to count 2 as follows:

(a) set aside the order suspending the sentence of six months imprisonment and the operational period of two years;

(b) order instead that the appellant be released on parole on the 27th day of October 2011.

2. Otherwise confirm the sentence and orders made in the District Court.

PHILIPPIDES J: I agree with the further orders proposed by White JA and with her Honour’s reasons for those orders.

The case of R v McLean involved the appellant, a resident of Palm Island, who pleaded guilty to one count of wilful damage to property and one count of serious assault. The appellant was sentenced to 14 days imprisonment for count one and six months imprisonment for count two, with the latter to be suspended after serving two months and subject to an operational period of two years. The appellant appealed the sentence, contending that it was manifestly excessive and that the sentencing judge failed to adequately consider mitigating factors, including his Aboriginality and personal disadvantage. The appeal was heard in the Queensland Court of Appeal.

The primary legal issues before the court were whether the sentence imposed was manifestly excessive or inadequate and whether the sentencing judge failed to consider appropriate mitigating factors. The appellant argued that the sentencing judge did not sufficiently consider his Aboriginality and personal circumstances, which could have influenced the imposition of a lesser sentence. The Crown maintained that the sentence was appropriate and reflected the seriousness of the offences committed.

The court examined the sentencing principles and the relevant factors that should be considered in determining the appropriate sentence. The court recognised that Aboriginality and personal disadvantage could be relevant mitigating factors but held that the sentencing judge had adequately considered these aspects. The court found that the sentence was not manifestly excessive, taking into account the nature and circumstances of the offences. The court concluded that the sentencing judge had exercised their discretion correctly, and the appeal was dismissed.

The Queensland Court of Appeal dismissed the appellant's appeal against sentence. The court found that the sentencing judge had appropriately considered the mitigating factors, including the appellant's Aboriginality and personal disadvantage. The court held that the sentence imposed was not manifestly excessive and was proportionate to the offences committed. The original sentence of 14 days imprisonment for count one and six months imprisonment for count two, suspended after serving two months with an operational period of two years, was upheld.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	R v McLean [2011] QCA 248
PARTIES:	R v McLEAN, Richard David (applicant)
FILE NO/S:	CA No 144 of 2011 DC No 396 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application – Further Orders
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	Judgment delivered 2 September 2011 Further orders delivered 23 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	25 August 2011
JUDGES:	Fraser and White JJA, and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the further orders made
FURTHER ORDERS:	1.Vary the sentence imposed in the District Court on 3 June 2011 with respect to count 2 as follows: (a)set aside the order suspending the sentence of six months imprisonment and the operational period of two years; (b)order instead that the appellant be released on parole on the 27th day of October 2011. 2.Otherwise confirm the sentence and orders made in the District Court.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of wilful damage to property (count one) and one count of serious assault (count two) – where the applicant was a resident of Palm Island – where the applicant spat in the face of a police officer – where the applicant was sentenced to 14 days imprisonment on count one and six months imprisonment on count two to be suspended after serving two months imprisonment with an operational period of two years – where the applicant claimed that the sentencing judge failed to consider mitigating factors in his favour including Aboriginality and disadvantage – whether the sentence was manifestly excessive R v McLean [2011] QCA 218, cited
COUNSEL:	R East for the applicant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent