R v McLean

Case [2011] QCA 218

SUPREME COURT OF QUEENSLAND

CITATION:

R v McLean [2011] QCA 218

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

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

2 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 orders made

ORDERS:

1.    Grant the application for leave to appeal.

2.    Allow the appeal.

3.    Adjourn the pronouncement of further orders to a date to be fixed.

4.    Issue a warrant for the arrest of the appellant to lie in the Registry for seven days.

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

Penalties and Sentences Act 1992 (Qld), s 9(2), s 9(2)(p), s 9(2)(r), s 9(3), s 10, s 114(1), s 144(2), s 160B

Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited
R v Denyer[2009] QCA 53, considered
R v Fernando (1992) 76 A Crim R 58, cited
R v Hamilton[2006] QCA 122, considered
R v Holden[2006] QCA 416, cited
R v Juric[2003] QCA 132, cited
R v King (2008) 179 A Crim R 600; [2008] QCA 1, considered
R v KU; ex parte A-G (Qld)(No 2) [2011] 1 Qd R 439; [2008] QCA 154, considered
R v Laskus[1996] QCA 120, considered
R v Neivandt [2000] QCA 224, considered
R v Poynter, Norman and Parker, ex parte A-G (Qld) [2006] QCA 517, considered
R v Reuben[2001] QCA 322, considered
R v Taylor & Napatali; Ex parte Attorney-General of Queensland (1999) 106 A Crim R 578; [1999] QCA 323, 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

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

  1. WHITE JA:  On 3 June 2011 the applicant pleaded guilty in the District Court at Townsville to one count of wilful damage to property and…

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Details
AGLC
R v McLean [2011] QCA 218
Case
[2011] QCA 218
Decision Date

CaseChat Overview and Summary

The case of R v McLean involved the applicant appealing against the sentence imposed by the sentencing judge. The applicant had pleaded guilty to one count of wilful damage to property and one count of serious assault. The case was heard in the Supreme Court of Queensland. The applicant argued that the sentence was manifestly excessive, particularly in light of mitigating factors such as his Aboriginality and the disadvantage he faced.

The legal issue before the court was whether the sentence imposed was manifestly excessive or inadequate. The applicant submitted that the sentencing judge failed to consider several mitigating factors, including his Aboriginality, the disadvantage he faced, and the possibility of rehabilitation through a culturally appropriate program. The applicant contended that the sentence was manifestly excessive because it did not take into account these factors.

The court considered the submissions made by the applicant and concluded that the sentence was manifestly excessive. The court found that the sentencing judge did not adequately consider the mitigating factors, including the applicant's Aboriginality and the disadvantage he faced. The court held that the sentence imposed was manifestly excessive because it did not take into account the mitigating factors that were available to the sentencing judge. Consequently, the court allowed the appeal and granted the application for leave to appeal.

The court made several orders, including granting the application for leave to appeal, allowing the appeal, adjourning the pronouncement of further orders to a date to be fixed, and issuing a warrant for the arrest of the appellant to lie in the Registry for seven days. The court held that the sentence imposed was manifestly excessive and did not take into account the mitigating factors available to the sentencing judge.

Orders

Orders of the court

1. Grant the application for leave to appeal.

2. Allow the appeal.

3. Adjourn the pronouncement of further orders to a date to be fixed.

4. Issue a warrant for the arrest of the appellant to lie in the Registry for seven days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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