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R v McMillan

R v McMillan

Case [2005] QCA 93 8 April 2005

Manifestly Excessive Sentence

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v McMillan [2005] QCA 93

PARTIES:

R
v
McMILLAN, Jesse John
(applicant/appellant)

FILE NO/S:

CA No 278 of 2004
SC No 447 of 2003
SC No 27 of 2004
SC No 517 of 2004
SC No 518 of 2004
SC No 519 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

8 November 2004

JUDGES:

McPherson and Jerrard JJA, and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDERS:

Grant the application and allow the appeal for the limited purpose of varying the sentences as set out hereunder.1.

Set aside the declaration pursuant to s 161 of the Penalties and Sentences Act 1992 and in lieu thereof:2.

State that the applicant was held in presentence custody between 16 August and 27 September 2002 and between 30 January 2003 and 9 June 2004, a period of 538 days; (a)

Declare that that time is time already served under the sentences imposed for the offences in indictments 447/03 and 518/04; (b)

Direct that the records of the court be noted with the fact that this declaration was made and its details and the fact that the declared time was taken into account in imposing sentence; and(c)

Direct that the Chief Executive Officer (Corrective Services) be advised of the declaration and its details.(d)

Order that each of the terms of imprisonment imposed in respect of indictment 27/04 be suspended after the applicant has served a period of six months of the term for an operational period of five years.3.

Set aside the sentences imposed on indictment 519/04 and in lieu thereof:4.

Sentence the applicant to imprisonment for three years on each count, these sentences to be served concurrently;(a)

Direct that each of these sentences commence immediately after the applicant has served 2½ years of the period of imprisonment imposed in respect of the offences set out in indictments 447/03, 518/04 and 27/04; (b)

Direct that the applicant be released after he has served nine months of imprisonment under these sentences upon his giving security by recognisance in the sum of $5,000 that he will be of good behaviour for three years; (c)

Direct that the Sheriff reduce this order to writing and cause a copy to be given to the applicant, together with an explanation of the purpose and consequences of making this order; (d)

Direct that the reasons set out in paragraph [20] be entered in the records of the court.(e)

CATCHWORDS:

CRIMINAL LAW – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Concurrent, cumulative, and additional sentences, and commencement of sentence – Offences under federal and state jurisdiction – Where the applicant was sentenced to a term of imprisonment for federal offences to be served cumulatively on terms of imprisonment imposed in respect of State offences –…

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 McMillan

Details

AGLC: R v McMillan [2005] QCA 93
Case: [2005] QCA 93
Decision Date: 8 April 2005

CaseChat Overview and Summary

In the case of R v McMillan, the applicant appealed against his sentence on the grounds that it was manifestly excessive. The applicant was sentenced to a term of imprisonment for federal offences, which were to be served cumulatively on terms of imprisonment imposed in respect of state offences. The applicant argued that the sentence was manifestly excessive and should be reduced. The court had to decide whether the sentence was manifestly excessive and, if so, what the appropriate sentence should be.

The court considered the nature and circumstances of the offences, the applicant's criminal history, and the principles of sentencing. The court noted that the applicant had a significant criminal history and that the offences were serious. However, the court also noted that the applicant had shown some remorse and had taken steps to address his drug addiction. The court concluded that the sentence was not manifestly excessive but that the applicant's presentence custody should be taken into account in imposing sentence.

The court granted the application and allowed the appeal for the limited purpose of varying the sentences. The court set aside the declaration pursuant to s 161 of the Penalties and Sentences Act 1992 and in lieu thereof, declared that the applicant was held in presentence custody between 16 August and 27 September 2002 and between 30 January 2003 and 9 June 2004, a period of 538 days. The court directed that the records of the court be noted with the fact that this declaration was made and its details and the fact that the declared time was taken into account in imposing sentence. The court also set aside the sentences imposed on indictment 519/04 and in lieu thereof, sentenced the applicant to imprisonment for three years on each count, these sentences to be served concurrently. The court directed that each of these sentences commence immediately after the applicant had served 2½ years of the period of imprisonment imposed in respect of the offences set out in indictments 447/03, 518/04 and 27/04. The court directed that the applicant be released after he had served nine months of imprisonment under these sentences upon his giving security by recognisance in the sum of $5,000 that he will be of good behaviour for three years.

Orders

Orders of the court

Grant the application and allow the appeal for the limited purpose of varying the sentences as set out hereunder.1.

Set aside the declaration pursuant to s 161 of the Penalties and Sentences Act 1992 and in lieu thereof:2.

State that the applicant was held in presentence custody between 16 August and 27 September 2002 and between 30 January 2003 and 9 June 2004, a period of 538 days; (a)

Declare that that time is time already served under the sentences imposed for the offences in indictments 447/03 and 518/04; (b)

Direct that the records of the court be noted with the fact that this declaration was made and its details and the fact that the declared time was taken into account in imposing sentence; and(c)

Direct that the Chief Executive Officer (Corrective Services) be advised of the declaration and its details.(d)

Order that each of the terms of imprisonment imposed in respect of indictment 27/04 be suspended after the applicant has served a period of six months of the term for an operational period of five years.3.

Set aside the sentences imposed on indictment 519/04 and in lieu thereof:4.

Sentence the applicant to imprisonment for three years on each count, these sentences to be served concurrently;(a)

Direct that each of these sentences commence immediately after the applicant has served 2½ years of the period of imprisonment imposed in respect of the offences set out in indictments 447/03, 518/04 and 27/04; (b)

Direct that the applicant be released after he has served nine months of imprisonment under these sentences upon his giving security by recognisance in the sum of $5,000 that he will be of good behaviour for three years; (c)

Direct that the Sheriff reduce this order to writing and cause a copy to be given to the applicant, together with an explanation of the purpose and consequences of making this order; (d)

Direct that the reasons set out in paragraph [20] be entered in the records of the court.(e)

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v McMillan [2005] QCA 93

Most Recent Citation

Director of Public Prosecutions v Chadha [2025] VCC 222

Cases citing this decision · 7 of 7 shown

Director of Public Prosecutions v Chadha
[2025] VCC 222

…kling v Western Australia [2016] WASCA 124, Mill v R (1988) 166 CLR 59, Scerri v R [2010] VSCA 287, R v Osenkowski (1982) 30 SASR 212, R v McMillan [2005] QCA 93, Bugmy v The Queen (2013) 249 CLR 571 Sentence: TES of 10 years 9 months with non-parole period of 6 years and 9 months. PSD: 542 days S. 6AAA: 13 year…
R v Armstrong
[2016] QCA 243 Para 4

…that the sentence for the State offence could not be imposed cumulatively upon the other sentences and the defence did not suggest otherwise. [3][2005] QCA 93 at [22]. [4](2008) 191 A Crim R 483, 498 [78]; [2008] QCA 403 at [78] (Muir JA and Fryberg J agreeing).…
R v Pham
[2014] QCA 287 Para 1

…Cases involving frauds on the Commonwealth with non parole periods roughly comparable to that imposed here include R v McMillan [2005] QCA 93 (nine months), R v Carter [2005] QCA 402 (10 months), R v Lovel [2007] QCA 281 (nine months), R v Barton [2006] QCA 18 (10 months) and R v Grice [2006] QCA 326 (eight mont…
R v Falconi
[2014] QCA 230 Para 1

…role eligibility and non-parole periods when sentencing offenders for Queensland and Commonwealth offences is not purely a mathematical exercise. [13][2005] QCA 93, [16].…
R v Rak
[2012] QCA 26 Para 1

…ered, I conclude that it plainly was open to the jury to be satisfied by reasonable doubt of the appellant’s guilt. [31] See for example R v Ashley [2005] QCA 93, [2] per Williams JA and also R v Crosby [2002] QCA 213 at [16]-[21]; R v FI [2004] QCA 400 at [10]-[19] referred to by Keane JA in his Honour's discus…
Sweeney v Queensland Parole Board
[2011] QSC 223 Para 17

…[25][2000] QCA 320 at [27]; [2002] 1 Qd R 417 at p 424; see also R v McMillan [2005] QCA 93 at [17].…
R v NK
[2008] QCA 403 Para 1

…difficult task" involved in attempting to impose cumulative sentences under the different Commonwealth and State sentencing regimes: see R v McMillan [2005] QCA 93 at [21]. However, in my opinion the sentencing judge’s approach of combining the Federal sentences with the State sentences in the form of increased…

View all 7 citing cases →

Cases cited in this decision · 4 of 4 shown

R v Dobie
[2004] QCA 140 Para 1

…period of imprisonment” in the statutory sense: see s 4. [7] Crimes Act 1914, s 19(3)(d). [8]Section 135(2)(e). This was assumed in R v Dobie [2004] QCA 140 and MacCormack v R [2005] QSC 049. [9]See the definition of “non-parole period” in s 16 of the Crimes Act 1914.…
The Queen v Peter Brian Weiss
[2000] QCA 262 Para 1

…od for that purpose.[9]) Unfortunately, his Honour's attention was not directed to this provision, and no such direction was given. [5] R v Weiss [2000] QCA 262. [6]Section 156. I use “period of imprisonment” in the statutory sense: see s 4. [7] Crimes Act 1914, s 19(3)(d). [8]Section 135(2)(e). This was assumed…
Neal v The Queen
[1982] HCA 55 Para 1

…ther s 161 of the Penalties and Sentences Act 1992 applies to federal offences, appears to have been resolved.[12] [10]Compare Neal v The Queen (1982) 149 CLR 305. [11](1991) 57 A Crim R 80 at p 95. [12]See s 16E Crimes Act 1914 and R v Hoong [1995] 2 Qd R 182.…
MacCormack
[2005] QSC 049 Para 1

…tutory sense: see s 4. [7] Crimes Act 1914, s 19(3)(d). [8]Section 135(2)(e). This was assumed in R v Dobie [2004] QCA 140 and MacCormack v R [2005] QSC 049. [9]See the definition of “non-parole period” in s 16 of the Crimes Act 1914.…

Legislation cited in this decision · 5

Crimes Act 1914 (Cth)
16, 16F(2), 17A, 19(3)(d), 20(4) 6 mentions (from Para 1)
Corrective Services Act 2000 (Qld)
135(2)(e) 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
13(1) 2 mentions (from Para 1)
Judicial Review Act 1991 (Qld)
1 mention (from Para 1)
Penalties and Sentences Act 1985 (Vic)
1 mention (from Para 1)

CITATION:	R v McMillan [2005] QCA 93
PARTIES:	R v McMILLAN, Jesse John (applicant/appellant)
FILE NO/S:	CA No 278 of 2004 SC No 447 of 2003 SC No 27 of 2004 SC No 517 of 2004 SC No 518 of 2004 SC No 519 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	8 April 2005
DELIVERED AT:	Brisbane
HEARING DATE:	8 November 2004
JUDGES:	McPherson and Jerrard JJA, and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDERS:	Grant the application and allow the appeal for the limited purpose of varying the sentences as set out hereunder.1. *Set aside the declaration pursuant to s 161 of the Penalties and Sentences Act* 1992 and in lieu thereof:2. State that the applicant was held in presentence custody between 16 August and 27 September 2002 and between 30 January 2003 and 9 June 2004, a period of 538 days; (a) Declare that that time is time already served under the sentences imposed for the offences in indictments 447/03 and 518/04; (b) Direct that the records of the court be noted with the fact that this declaration was made and its details and the fact that the declared time was taken into account in imposing sentence; and(c) Direct that the Chief Executive Officer (Corrective Services) be advised of the declaration and its details.(d) Order that each of the terms of imprisonment imposed in respect of indictment 27/04 be suspended after the applicant has served a period of six months of the term for an operational period of five years.3. Set aside the sentences imposed on indictment 519/04 and in lieu thereof:4. Sentence the applicant to imprisonment for three years on each count, these sentences to be served concurrently;(a) Direct that each of these sentences commence immediately after the applicant has served 2½ years of the period of imprisonment imposed in respect of the offences set out in indictments 447/03, 518/04 and 27/04; (b) Direct that the applicant be released after he has served nine months of imprisonment under these sentences upon his giving security by recognisance in the sum of $5,000 that he will be of good behaviour for three years; (c) Direct that the Sheriff reduce this order to writing and cause a copy to be given to the applicant, together with an explanation of the purpose and consequences of making this order; (d) Direct that the reasons set out in paragraph [20] be entered in the records of the court.**(e)
CATCHWORDS:	CRIMINAL LAW – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Concurrent, cumulative, and additional sentences, and commencement of sentence – Offences under federal and state jurisdiction – Where the applicant was sentenced to a term of imprisonment for federal offences to be served cumulatively on terms of imprisonment imposed in respect of State offences –…