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 2004DIVISION:
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 –…
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- AGLC
- R v McMillan [2005] QCA 93
- Case
- [2005] QCA 93
- Decision Date
CaseChat Overview and Summary
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
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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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