R v McMahon - [2004] QCA 460

SUPREME COURT OF QUEENSLAND

CITATION:

R v McMahon [2004] QCA 460

PARTIES:

R
v
McMAHON, Justin Brian

(applicant)

FILE NO/S:

CA No 337 of 2004

DC No 2010 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

25 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2004

JUDGES:

McPherson JA, Jerrard JA, Philippides J

Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDER:

1.   Application for leave to appeal and appeal allowed;

2.   The sentence imposed on 3 September 2004 is varied by omitting the recommendation for parole (PPCBR);

3.   It is declared that the applicant be eligible for parole (PPCBR) on 3 September 2004

CATCHWORDS:

CRIMINAL LAW – PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS – QUEENSLAND – where applicant convicted and sentenced for a series of armed robberies in 1997 – whilst in custody he confessed to an additional armed robbery, and pleaded guilty to it in 2004 – the learned sentencing judge did not intend to punish the applicant further for the additional armed robbery, as it was part of the series of offences in 1997, and, accordingly, gave the applicant a concurrent term of imprisonment, but made a parole recommendation after 18 months, on the assumption that she was obliged to do so by s 157 Penalties and Sentences Act – where applicant already eligible for parole prior to sentencing – whether learned sentencing judge erred by making parole recommendation

Penalties and Sentences Act 1997, s 157

R v Fifita [2004] QCA 201; CA No 22 of 2004, 11 June 2004, cited

R v McCormick; ex parte A-G (Qld) [1999] QCA 354; CA No 205 of 1999, 27 August 1999, cited

COUNSEL:

A J Moynihan for the applicant

D L Meredith for the respondent

SOLICITORS:

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

McPHERSON JA: This is an application for leave to appeal against sentence on 3rd September 2004. The applicant pleaded guilty to one count of armed robbery and one count of unlawful use of a motor vehicle and was sentenced to a term of six years' imprisonment in respect of it with a recommendation for parole after 18 months. This term of imprisonment was to be served concurrently with the cumulative sentences that the appellant was and is serving for other offences.

The subject offence was one of a series of other armed robberies committed by the applicant in late 1996 and early 1997 for which he had already been sentenced in October 1997.

To explain the issues raised by this application it is necessary to set out the details of those other offences although the only matter that falls to be considered here is, in the end, the recommendation for parole after 18 months.

On 5th November 1993 the applicant was sentenced by Judge Kimmins to four years' imprisonment for five counts of unlawful use…

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 [2004] QCA 460
Case: [2004] QCA 460
Decision Date: 25 November 2004

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus McMahon, the applicant, a former prisoner, contested the legality of a parole recommendation made by the sentencing judge during her imprisonment. The applicant had been convicted and sentenced for a series of armed robberies committed in 1997. While in custody, she confessed to an additional armed robbery and pleaded guilty to it in 2004. The sentencing judge imposed a concurrent term of imprisonment for the additional offence but recommended parole after 18 months. The applicant argued that the sentencing judge erred by making this recommendation, as she was already eligible for parole prior to the sentencing.

The primary legal issue before the court was whether the sentencing judge was obligated to recommend parole under section 157 of the Penalties and Sentences Act. The applicant contended that the sentencing judge should not have made a parole recommendation, given that she was already eligible for parole before the sentencing. The court examined whether the sentencing judge had the discretion to make a parole recommendation under the relevant statutory provisions and if such a recommendation was appropriate in the circumstances of the case.

The court found that the sentencing judge did not err in making a parole recommendation, as the applicant was indeed already eligible for parole before the sentencing. However, the court determined that the sentencing judge was mistaken in believing that she was obliged to make a parole recommendation under section 157 of the Penalties and Sentences Act. The court held that the sentencing judge had the discretion to decide whether or not to make a parole recommendation and that, in this case, it was not necessary to make one. The court concluded that the applicant was eligible for parole on the date of the sentencing, and the parole recommendation was therefore improper.

The court allowed the application for leave to appeal and the appeal. The sentence imposed on 3 September 2004 was varied by omitting the recommendation for parole. The court declared that the applicant was eligible for parole on 3 September 2004.

Orders

Orders of the court

1. Application for leave to appeal and appeal allowed;

2. The sentence imposed on 3 September 2004 is varied by omitting the recommendation for parole (PPCBR);

3. It is declared that the applicant be eligible for parole (PPCBR) on 3 September 2004

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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CITATION:	R v McMahon [2004] QCA 460
PARTIES:	R v McMAHON, Justin Brian (applicant)
FILE NO/S:	CA No 337 of 2004 DC No 2010 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	25 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	25 November 2004
JUDGES:	McPherson JA, Jerrard JA, Philippides J Separate reasons for judgment of each member of the court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal and appeal allowed; 2. The sentence imposed on 3 September 2004 is varied by omitting the recommendation for parole (PPCBR); 3. It is declared that the applicant be eligible for parole (PPCBR) on 3 September 2004
CATCHWORDS:	CRIMINAL LAW – PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS – QUEENSLAND – where applicant convicted and sentenced for a series of armed robberies in 1997 – whilst in custody he confessed to an additional armed robbery, and pleaded guilty to it in 2004 – the learned sentencing judge did not intend to punish the applicant further for the additional armed robbery, as it was part of the series of offences in 1997, and, accordingly, gave the applicant a concurrent term of imprisonment, but made a parole recommendation after 18 months, on the assumption that she was obliged to do so by s 157 Penalties and Sentences Act – where applicant already eligible for parole prior to sentencing – whether learned sentencing judge erred by making parole recommendation Penalties and Sentences Act 1997, s 157 R v Fifita [2004] QCA 201; CA No 22 of 2004, 11 June 2004, cited R v McCormick; ex parte A-G (Qld) [1999] QCA 354; CA No 205 of 1999, 27 August 1999, cited
COUNSEL:	A J Moynihan for the applicant D L Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Qld) for the respondent