R v McMahon - [2002] QCA 18

[2002] QCA 18

COURT OF APPEAL

McPHERSON JA
THOMAS JA
AMBROSE J

CA No 233 of 2001

THE QUEEN

SCOTT ANDREW McMAHON Applicant

BRISBANE

..DATE 06/02/2002

JUDGMENT

McPHERSON JA: This is an application for an extension of time within which to apply for leave to appeal against sentence.

The applicant was convicted on pleas of guilty in the District Court at Brisbane on 19 December 1997 and sentenced on the same day. The application was filed by the applicant on 4 September 2001, which is approximately three years and eight months beyond the time allowed for it under the Rules.

The periods of imprisonment imposed were as follows; that is, 3 years imprisonment for burglary, 12 months for stealing, 18 months for break and enter and wilful damage,
9 months imprisonment for another count of wilful damage and a further 2 years for use of a motor vehicle with a circumstance of aggravation.

The sentences for those offences were ordered to be served concurrently and so resulted in an effective 3-year sentence of imprisonment for the offences involved. They were, however, made cumulative on an earlier sentence the applicant was already serving at that time, that is, when he was sentenced for the later offences with which we are now concerned.

A recommendation was made in respect of the first sentence that the applicant be paroled on and from 20 December 2001. However, as a result of the subsequent offences, his Honour in sentencing him ordered that the applicant be considered for parole, on what I will call the upshot of the two sentencing processes, to take effect on 20 February 2002. That would have added to his existing sentence a term of imprisonment of approximately 10 months or so.

The circumstances of the offences committed can be summarised as follows. Counts 1 and 2, that is burglary and stealing, were committed on 5 April 1997, when the complainant's residence was broken into while he was away. The complainant discovered a large number of items were missing when he came back, but the applicant's fingerprints were found at the scene and he was detected in that way.

Counts 3, 4 and 5, which are the offences of break and enter, wilful damage and unlawful use of a motor vehicle were committed on 26 May 1997 when, at approximately 4.45 a.m., the police were called to a video rental store on a complaint that a break and enter was in progress. A vehicle with its engine still warm was found outside the store. It had been stolen earlier from Greenslopes where it had previously been locked and secured by the complainant. The applicant, after being called to come out of the store by police, fled the scene, but was caught after a chase. The damage to the store included jemmying open the front door and forcibly removing the cash box from an amusement machine of some kind.

To my mind, taking account of previous offence, the duration of the imprisonment…

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 McMahon

Details

AGLC: R v McMahon [2002] QCA 18
Case: [2002] QCA 18
Decision Date: 06/02/2002

CaseChat Overview and Summary

In this case, the applicant, Scott Andrew McMahon, applied for an extension of time to appeal against his sentence. The applicant was convicted and sentenced in the District Court at Brisbane on 19 December 1997. The sentences imposed were 3 years for burglary, 12 months for stealing, 18 months for break and enter and wilful damage, 9 months for another count of wilful damage and a further 2 years for use of a motor vehicle with a circumstance of aggravation. These sentences were to be served concurrently, resulting in an effective 3-year sentence of imprisonment. However, the sentences were made cumulative on an earlier sentence the applicant was already serving, adding approximately 10 months to his existing sentence. The applicant's grounds for appeal were essentially that the impact of the sentence imposed by the Court has since been altered by an Act of Parliament, which abolished remissions in respect of time being served in prison. This has resulted in the applicant being punished to a greater extent than was previously required or intended under the law applicable at the time he committed the offences.

The legal issues the court was required to decide were whether the applicant's prospects of successfully pursuing an appeal in this matter were slight, and whether the court could grant an extension of time to appeal against the sentence. The court's reasoning and outcome were that the applicant's real complaint was that he will now be serving a sentence considerably longer than may have been intended when the sentence was imposed in December 1997. However, this is the consequence of a decision or action taken by Parliament, not by the judge who imposed sentence in 1997. The court found that any hardship suffered by the applicant was not of their making and was beyond their authority to redress or put it right. The court held that the applicant has no prospect of succeeding on appeal even if they were able and disposed to grant him leave to appeal. The court rejected the application for an extension of time to appeal against the sentence.

The final orders of the Court were that the application for leave to appeal against sentence was refused.

Orders