R v McManus

[2020] QCA 110

SUPREME COURT OF QUEENSLAND

CITATION:

R v McManus [2020] QCA 110

PARTIES:

R
v
McMANUS, Liam Anthony
(applicant)

FILE NO/S:

CA No 329 of 2019
SC No 1219 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 12 November 2019 (Bowskill J)

DELIVERED ON:

29 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2020

JUDGES:

Morrison JA and Ryan and Wilson JJ

ORDERS:

1.   Grant the application for leave to appeal.

2.   Allow the appeal.

3.   Set aside the order that the applicant serve the whole of the remainder of the suspended term of imprisonment.

4.   The applicant serve 9 months of the suspended term of imprisonment.

5.   Confirm the order that the applicant be eligible for parole at 12 November 2019.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant had originally been sentenced to 4 ½ years imprisonment suspended after 12 months with an operational period of 5 years for a drug possession offence – where the applicant had also been sentenced to 3 years imprisonment with a parole release date for a drug supply offence – where the applicant committed offences during the 5 year operational period and whilst on parole – where the applicant spent nearly 6 months in custody following suspension of parole which could not be declared in relation to the outstanding portion of the suspended imprisonment – where the applicant was ordered to serve the whole of the suspended sentence – whether undeclarable time spent in custody ought to have been considered in exercising the discretion to activate the whole of a suspended sentence – whether the whole of the suspended sentence should have been activated

Corrective Services Act 2006 (Qld), s 214
Penalties and Sentences Act 1992 (Qld), s 147(2), s 147(3), s 160C

R v Stevens[2006] QCA 361, cited

COUNSEL:

S L Kissick for the applicant
N L Lima for the respondent

SOLICITORS:

David Burns Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. MORRISON JA:  I have read the reasons of Wilson J and agree with those reasons and the orders her Honour proposes.

2. RYAN J:  I have read the reasons of Wilson J and agree with those reasons and the orders her Honour proposes.

3. WILSON J:  On 3 October 2017, in the Supreme Court of Queensland, the applicant pleaded guilty to a two count indictment and a number of summary offences and was sentenced as follows:

   (a)Count 1 -  possessing a schedule 1 drug in excess of 2.0 grams – 4 ½ years imprisonment, suspended after 12 months for an operational period of 5 years (“the commercial possession offence”);

   (b)Count 2 - supplying schedule 2 drugs - 3 years imprisonment with a parole release date of 8 January 2018 (“the supply offence”);

   (c)Summary offences - trespass, obstructing a police officer and two counts of stealing - convicted and not further…