R v McNamara - [2022] QCA 73

SUPREME COURT OF QUEENSLAND

CITATION:

R v McNamara [2022] QCA 73

PARTIES:

R
v
McNAMARA, Nicholas Michael
(applicant)

FILE NO/S:

CA No 292 of 2021
SC No 1214 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 20 October 2021 (Martin J)

DELIVERED ON:

10 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2022

JUDGES:

Fraser and McMurdo and Bond JJA

ORDERS:

1.   Grant leave to appeal.

2.   Allow the appeal.

3.   Vary the parole eligibility date to 5 November 2022.

4.   On counts 1, 2 and 3:

a.   declare that the applicant was held in pre-sentence custody from 5 March 2021 to 21 October 2021, a total of 231 days;

b.   declare that none of that time is taken to be imprisonment already served under the sentence.

5.   Vary the term imposed on count 3 to three months’ imprisonment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to three counts of possessing dangerous drugs – where a sentence of five years’ imprisonment was imposed on count 1, a sentence of 12 months’ imprisonment was imposed on count 2, and a sentence of 12 months’ imprisonment was imposed on count 3 – where the applicant appeals the terms imposed on counts 1 and 3, each upon the basis that the sentence is manifestly excessive – where the respondent concedes that the sentence imposed on count 3 is manifestly excessive – whether the sentence imposed on count 1 is manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAISNT SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to three counts of possessing dangerous drugs – where a sentence of five years’ imprisonment was imposed on count 1, a sentence of 12 months’ imprisonment was imposed on count 2, and a sentence of 12 months’ imprisonment was imposed on count 3 – where 231 days of pre-sentence custody served by the applicant was time in custody in relation to proceedings for the offence, although the applicant was also serving a previous sentence of imprisonment – where s 159A(1) of the Penalties and Sentences Act 1992 (Qld) requires time held on remand for an offence to be taken to be imprisonment already served under the sentence, unless otherwise ordered by the court – where the sentencing judge moderated the head sentence to allow the applicant the benefit of the period of pre-sentence custody – where, when s 159A(1) is engaged, the court must make an order under s 159(A)(3) or s 159(A)(3B) of the Penalties and Sentences Act 1992 (Qld) – whether the applicant should be re-sentenced

Penalties and Sentences Act 1992 (Qld), s 159, s 159A

R v Brunning [2018] QCA 263, cited
R v Gray [2016] QCA 322, cited
R v Hawke [2021] QCA 179, considered
R v Nicholson [2016]…

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 McNamara

Details

AGLC: R v McNamara [2022] QCA 73
Case: [2022] QCA 73
Decision Date: 10 May 2022

CaseChat Overview and Summary

The appeal in R v McNamara involved the appellant, who had pleaded guilty to three counts of possessing dangerous drugs. The primary issue before the court was whether the sentences imposed were manifestly excessive. The appellant contested the sentences for counts 1 and 3, claiming they were excessively harsh. The respondent conceded that the sentence for count 3 was indeed excessive. The court was required to determine whether the sentence for count 1 was also manifestly excessive and whether the appropriate statutory provisions had been followed concerning the applicant's pre-sentence custody.

The court examined whether the sentence imposed on count 1 was manifestly excessive and whether the statutory requirements regarding the applicant's pre-sentence custody were adhered to. It was noted that the applicant had served 231 days in pre-sentence custody, but this time was not considered as time already served under the sentence. Under section 159A(1) of the Penalties and Sentences Act 1992 (Qld), time held on remand for an offence must be taken as imprisonment already served unless otherwise ordered by the court. The sentencing judge had moderated the head sentence to allow the applicant the benefit of the pre-sentence custody, but the court found this to be an error as section 159A(1) necessitated a specific order under sections 159A(3) or 159A(3B). Consequently, the court found that the appellant should be re-sentenced.

Following the analysis, the court granted leave to appeal, allowed the appeal, and varied the parole eligibility date to 5 November 2022. It declared that the appellant was held in pre-sentence custody from 5 March 2021 to 21 October 2021, a total of 231 days, and none of that time was taken as imprisonment already served under the sentence. The court also varied the term imposed on count 3 to three months' imprisonment.

Orders

Orders of the court

1. Grant leave to appeal.

2. Allow the appeal.

3. Vary the parole eligibility date to 5 November 2022.

4. On counts 1, 2 and 3:

a. declare that the applicant was held in pre-sentence custody from 5 March 2021 to 21 October 2021, a total of 231 days;

b. declare that none of that time is taken to be imprisonment already served under the sentence.

5. Vary the term imposed on count 3 to three months’ imprisonment.

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 McNamara [2022] QCA 73
PARTIES:	R v McNAMARA, Nicholas Michael (applicant)
FILE NO/S:	CA No 292 of 2021 SC No 1214 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 20 October 2021 (Martin J)
DELIVERED ON:	10 May 2022
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2022
JUDGES:	Fraser and McMurdo and Bond JJA
ORDERS:	1. Grant leave to appeal. 2. Allow the appeal. 3. Vary the parole eligibility date to 5 November 2022. 4. On counts 1, 2 and 3: a. declare that the applicant was held in pre-sentence custody from 5 March 2021 to 21 October 2021, a total of 231 days; b. declare that none of that time is taken to be imprisonment already served under the sentence. 5. Vary the term imposed on count 3 to three months’ imprisonment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to three counts of possessing dangerous drugs – where a sentence of five years’ imprisonment was imposed on count 1, a sentence of 12 months’ imprisonment was imposed on count 2, and a sentence of 12 months’ imprisonment was imposed on count 3 – where the applicant appeals the terms imposed on counts 1 and 3, each upon the basis that the sentence is manifestly excessive – where the respondent concedes that the sentence imposed on count 3 is manifestly excessive – whether the sentence imposed on count 1 is manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAISNT SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to three counts of possessing dangerous drugs – where a sentence of five years’ imprisonment was imposed on count 1, a sentence of 12 months’ imprisonment was imposed on count 2, and a sentence of 12 months’ imprisonment was imposed on count 3 – where 231 days of pre-sentence custody served by the applicant was time in custody in relation to proceedings for the offence, although the applicant was also serving a previous sentence of imprisonment – where s 159A(1) of the Penalties and Sentences Act 1992 (Qld) requires time held on remand for an offence to be taken to be imprisonment already served under the sentence, unless otherwise ordered by the court – where the sentencing judge moderated the head sentence to allow the applicant the benefit of the period of pre-sentence custody – where, when s 159A(1) is engaged, the court must make an order under s 159(A)(3) or s 159(A)(3B) of the Penalties and Sentences Act 1992 (Qld) – whether the applicant should be re-sentenced Penalties and Sentences Act 1992 (Qld), s 159, s 159A R v Brunning [2018] QCA 263, cited R v Gray [2016] QCA 322, cited R v Hawke [2021] QCA 179, considered R v Nicholson [2016]…