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R v McMahon

R v McMahon

Case [2013] QCA 240 30 August 2013

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SUPREME COURT OF QUEENSLAND

CITATION:

R v McMahon [2013] QCA 240

PARTIES:

R
v
McMAHON, Patrick Scott
(applicant)

FILE NO/S:

CA No 72 of 2013
DC No 372 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

30 August 2013

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2013

JUDGES:

Margaret McMurdo P and Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal against sentence granted.

2. Appeal against sentence allowed to the limited extent of substituting a parole eligibility date of 1 September 2014 for the existing parole eligibility date of 28 February 2015.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to six counts of fraud as an employee on one indictment and to one count of fraud as an employee to the value of $30,000 or more on a later indictment – where the applicant was sentenced to two years imprisonment for each offence charged on the earlier indictment and five years imprisonment for the offence on the later indictment – where all sentences were ordered to be served concurrently and a parole eligibility date of 28 February 2015 was fixed – where the offence the subject of the later indictment was committed when the applicant was on bail for the offences the subject of the earlier indictment – where the applicant subsequently committed stealing and fraud offences while on bail for the offence the subject of the later indictment – where the applicant’s father effected restitution of the balance of the money the subject of the later indictment – where the applicant submits that an earlier parole eligibility date should have been imposed – where the applicant contends that the sentencing judge failed to give sufficient consideration to the payment of restitution, the applicant’s guilty pleas, limited criminal history and demonstrated contrition and remorse – whether the sentence was manifestly excessive

R v Alexander[2004] QCA 11, cited
R v Allen[2005] QCA 73, cited
R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, cited
R v Elliott[2000] QCA 267, cited
R v Grant-Watson[2004] QCA 77, cited
R v Jensen; ex parte A-G (Qld)[1998] QCA 275, cited
R v La Rosa; ex parte A-G (Qld)[2006] QCA 19, cited
R v Matauaina[2011] QCA 344, cited
R v O’Keefe [1959] Qd R 395, cited
R v Power[1998] QCA 32, cited
R v Scott[1997] QCA 300, cited
R v Sommerfeld [2009] QCA 333, cited
R v Ward[2008] QCA 222, cited

COUNSEL:

R J Clutterbuck for the applicant
P McCarthy for the respondent

SOLICITORS:

Ian W Bartels & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with Muir JA’s reasons for granting…

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 [2013] QCA 240
Case: [2013] QCA 240
Decision Date: 30 August 2013

CaseChat Overview and Summary

In the case of R v McMahon, the appellant, McMahon, was convicted on one indictment of six counts of fraud as an employee, and on a later indictment of one count of fraud as an employee to the value of $30,000 or more. The appellant was sentenced to two years imprisonment for each offence on the earlier indictment and five years imprisonment for the offence on the later indictment. All sentences were ordered to be served concurrently, with a parole eligibility date of 28 February 2015. The appellant applied for leave to appeal against the sentence on the grounds that it was manifestly excessive.

The legal issues before the court were whether the sentence imposed was manifestly excessive or inadequate, and whether the sentencing judge failed to give sufficient consideration to the payment of restitution, the appellant’s guilty pleas, limited criminal history, and demonstrated contrition and remorse. The court considered whether the sentence imposed was manifestly excessive, and whether the parole eligibility date should have been earlier.

The court held that the sentence was not manifestly excessive, but the parole eligibility date should be substituted with an earlier date of 1 September 2014. The court found that the sentencing judge had considered the payment of restitution, guilty pleas, limited criminal history, and demonstrated contrition and remorse, but had not given sufficient weight to these factors in determining the parole eligibility date. The court held that an earlier parole eligibility date should have been imposed.

The court granted the application for leave to appeal against sentence and allowed the appeal to the limited extent of substituting a parole eligibility date of 1 September 2014 for the existing parole eligibility date of 28 February 2015.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal against sentence allowed to the limited extent of substituting a parole eligibility date of 1 September 2014 for the existing parole eligibility date of 28 February 2015.

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.

Citations

AGLC Citation

R v McMahon [2013] QCA 240

Most Recent Citation

R v Ogden [2014] QCA 89

Cases citing this decision · 4 of 4 shown

R v Subloo
[2023] QCA 101 Para 13

…ot fix the boundaries within which future sentences may be passed.[5] [4] R v Jensen; Ex parte Attorney-General (Qld) [1998] QCA 275; R v McMahon [2013] QCA 240; R v Smallwood [2014] QCA 70. [5] Kilic [22]; Pham [47]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 [26]–[28], [41]; Director of Public Prosecut…
R v Stringer
[2014] QCA 342 Para 1

…larly rehabilitation, were also significant in this case. He argued that the applicant’s offer of compensation was a mitigating factor: R v McMahon [2013] QCA 240. The applicant’s counsel submitted that, taking into account all of the relevant features of the case, a sentence in the order of 18 months to two year…
R v Pinnuck
[2014] QCA 189 Para 1

…to demonstrate that the sentence was not manifestly excessive. They included R v McMahon [12], R v Goodger [13], and R v Smith .[14] [12] R v McMahon [2013] QCA 240. [13] R v Goodger [2009] QCA 377. [14] R v Smith [2009] QCA 204.…
R v Ogden
[2014] QCA 89 Para 1

…degree of leniency that should be applied. Those remarks are consistent with the decisions cited for the applicant. [6] R v McMahon [2013] QCA 240 and R v Jensen ; ex parte Attorney-General (Qld) [1998] QCA 275.…

View all 4 citing cases →

Cases cited in this decision · 12 of 12 shown

R v Matauaina
[2011] QCA 344 Para 1

…of $30,000 or more. Reference was made to R v Matauaina ,[10] R v Grant-Watson ,[11] R v Jensen; ex parte A-G (Qld) [12] and R v Sommerfeld .[13] [10][2011] QCA 344. [11][2004] QCA 77. [12][1998] QCA 275. [13][2009] QCA 333.…
R v Sommerfeld
[2009] QCA 333 Para 1

…0] R v Grant-Watson ,[11] R v Jensen; ex parte A-G (Qld) [12] and R v Sommerfeld .[13] [10][2011] QCA 344. [11][2004] QCA 77. [12][1998] QCA 275. [13][2009] QCA 333.…
R v Ward
[2008] QCA 222 Para 1

…counsel and that the range was supported by R v Power [18] and R v Ward .[19] [17] R v Sommerfeld [2009] QCA 333 at [36]. [18][1998] QCA 32. [19][2008] QCA 222.…
R v La Rosa; Ex parte Attorney-General (Qld)
[2006] QCA 19

…Grant-Watson [2004] QCA 77, cited R v Jensen; ex parte A-G (Qld) [1998] QCA 275, cited R v La Rosa; ex parte A-G (Qld) [2006] QCA 19, cited R v Matauaina [2011] QCA 344, cited R v O’Keefe [1959] Qd R 395, cited R v Power [1998] QCA 32, cited R v Scott [1997] QCA 300, cited R v Sommerfeld [2009] QCA 333, cited R…
R v Allen
[2005] QCA 73 Para 1

…rtunate to have the support of his family. If he is to rehabilitate, he will benefit from a lengthy period of parole supervision in the community. [1][2005] QCA 73, Jerrard JA, 11; Margaret McMurdo P, 12; Jones J agreeing with both.…
R v Grant-Watson
[2004] QCA 77 Para 1

…Reference was made to R v Matauaina ,[10] R v Grant-Watson ,[11] R v Jensen; ex parte A-G (Qld) [12] and R v Sommerfeld .[13] [10][2011] QCA 344. [11][2004] QCA 77. [12][1998] QCA 275. [13][2009] QCA 333.…
R v Alexander
[2004] QCA 11

…criminal history and demonstrated contrition and remorse – whether the sentence was manifestly excessive R v Alexander [2004] QCA 11, cited R v Allen [2005] QCA 73, cited R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, cited R v Elliott [2000] QCA 267, cited R v Grant-Watson [2004] QCA 77, cited R v Jensen…
R v Elliott
[2000] QCA 267

…04] QCA 11, cited R v Allen [2005] QCA 73, cited R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, cited R v Elliott [2000] QCA 267, cited R v Grant-Watson [2004] QCA 77, cited R v Jensen; ex parte A-G (Qld) [1998] QCA 275, cited R v La Rosa; ex parte A-G (Qld) [2006] QCA 19, cited R v Matauaina [2011] QCA 344…
R v Jensen; ex parte
[1998] QCA 275 Para 1

…to R v Matauaina ,[10] R v Grant-Watson ,[11] R v Jensen; ex parte A-G (Qld) [12] and R v Sommerfeld .[13] [10][2011] QCA 344. [11][2004] QCA 77. [12][1998] QCA 275. [13][2009] QCA 333.…
R v Power
[1998] QCA 32 Para 1

…was agreed by both counsel and that the range was supported by R v Power [18] and R v Ward .[19] [17] R v Sommerfeld [2009] QCA 333 at [36]. [18][1998] QCA 32. [19][2008] QCA 222.…
R v Scott
[1997] QCA 300 Para 1

…th a criminal history which included convictions for dishonesty. The sentence of four years imprisonment was held not to be manifestly excessive. [15][1997] QCA 300.…
R v Amituanai
[1995] QCA 80

…estly excessive R v Alexander [2004] QCA 11, cited R v Allen [2005] QCA 73, cited R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, cited R v Elliott [2000] QCA 267, cited R v Grant-Watson [2004] QCA 77, cited R v Jensen; ex parte A-G (Qld) [1998] QCA 275, cited R v La Rosa; ex parte A-G (Qld) [2006] QCA 19,…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v McMahon [2013] QCA 240
PARTIES:	R v McMAHON, Patrick Scott (applicant)
FILE NO/S:	CA No 72 of 2013 DC No 372 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	30 August 2013
DELIVERED AT:	Brisbane
HEARING DATE:	20 August 2013
JUDGES:	Margaret McMurdo P and Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Appeal against sentence allowed to the limited extent of substituting a parole eligibility date of 1 September 2014 for the existing parole eligibility date of 28 February 2015.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to six counts of fraud as an employee on one indictment and to one count of fraud as an employee to the value of $30,000 or more on a later indictment – where the applicant was sentenced to two years imprisonment for each offence charged on the earlier indictment and five years imprisonment for the offence on the later indictment – where all sentences were ordered to be served concurrently and a parole eligibility date of 28 February 2015 was fixed – where the offence the subject of the later indictment was committed when the applicant was on bail for the offences the subject of the earlier indictment – where the applicant subsequently committed stealing and fraud offences while on bail for the offence the subject of the later indictment – where the applicant’s father effected restitution of the balance of the money the subject of the later indictment – where the applicant submits that an earlier parole eligibility date should have been imposed – where the applicant contends that the sentencing judge failed to give sufficient consideration to the payment of restitution, the applicant’s guilty pleas, limited criminal history and demonstrated contrition and remorse – whether the sentence was manifestly excessive R v Alexander[2004] QCA 11, cited R v Allen[2005] QCA 73, cited R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, cited R v Elliott[2000] QCA 267, cited R v Grant-Watson[2004] QCA 77, cited R v Jensen; ex parte A-G (Qld)[1998] QCA 275, cited R v La Rosa; ex parte A-G (Qld)[2006] QCA 19, cited R v Matauaina[2011] QCA 344, cited R v O’Keefe [1959] Qd R 395, cited R v Power[1998] QCA 32, cited R v Scott[1997] QCA 300, cited R v Sommerfeld [2009] QCA 333, cited R v Ward[2008] QCA 222, cited
COUNSEL:	R J Clutterbuck for the applicant P McCarthy for the respondent
SOLICITORS:	Ian W Bartels & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent