R v McPherson - [2024] QCA 41

SUPREME COURT OF QUEENSLAND

CITATION:

R v McPherson [2024] QCA 41

PARTIES:

R
v
McPHERSON, Ethan Maurice
(applicant)

FILE NO/S:

CA No 66 of 2023
SC No 333 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 4 April 2023 (Applegarth J)

DELIVERED ON:

26 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2024

JUDGES:

Mullins P, Fraser AJA and Kelly J

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to unlawful striking causing death and two other offences – where the applicant was sentenced to imprisonment for eight years and six months for the unlawful striking causing death offence – where the applicant was ordered to serve 80 per cent of the term of imprisonment in accordance with s 314A(5) of the Criminal Code (Qld) – where the applicant was on probation and parole at the time of the offending – where the applicant was remanded in custody on the date of the offences and served the sentence of 18 months on which he had been on parole when he offended – where the sentencing judge took into consideration the applicant’s youth, early guilty plea, remorse and that imprisonment was harsher for him as a result of the brain injury he suffered in custody – where the pre-sentence custody declaration commenced on the date of the offences and covered the period in which he served the sentence of 18 months – whether the sentence was manifestly excessive

Criminal Code (Qld), s 314A

R v Renata; Ex parte Attorney-General (Qld)[2018] QCA 356, considered
R v Hearn (unreported, Applegarth J, SC No 1953/2017, 9 July 2019), considered

COUNSEL:

The applicant appeared on his own behalf
S L Dennis for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: Mr McPherson pleaded guilty on 4 April 2023 to unlawful striking causing death (count 1), assault occasioning bodily harm, while armed, in company (count 2) and unlawful possession of a category H weapon, used to commit an indictable offence (count 3). On that date he was sentenced to imprisonment for eight years and six months for count 1 and two years for each of counts 2 and 3. (A minimum penalty of 18 months’ imprisonment applied to count 3.) All sentences were concurrent. A declaration was made pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that 1,263 days spent in pre-sentence custody between 19 October 2019 and 3 April 2023 be deemed time already served under the sentences. In accordance with s 314A(5) of the Criminal Code (Qld), it was ordered in relation to count 1, that Mr McPherson not be released from imprisonment until he had served 80 per cent of the term of imprisonment of eight…

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 McPherson

Details

AGLC: R v McPherson [2024] QCA 41
Case: [2024] QCA 41
Decision Date: 26 March 2024

CaseChat Overview and Summary

In the matter of R v McPherson, the applicant appealed against his sentence, contending that it was manifestly excessive. The applicant had pleaded guilty to unlawful striking causing death, as well as two other offences. The trial judge sentenced him to imprisonment for eight years and six months for the unlawful striking causing death offence and ordered that he serve 80 per cent of the term of imprisonment. The applicant was on probation and parole at the time of the offending. He was remanded in custody on the date of the offences and had served a sentence of 18 months on which he had been on parole when he offended. The sentencing judge took into consideration the applicant's youth, early guilty plea, remorse, and that imprisonment was harsher for him as a result of the brain injury he suffered in custody. The pre-sentence custody declaration commenced on the date of the offences and covered the period in which he served the sentence of 18 months. The legal issue before the court was whether the sentence was manifestly excessive.

The court considered the relevant principles and precedents for determining whether a sentence was manifestly excessive. It noted that a sentence may be considered manifestly excessive if it is so disproportionate to the offence that it shocks the conscience of the community. The court held that the sentence in this case was not manifestly excessive. It found that the sentencing judge had appropriately considered the mitigating factors, such as the applicant's youth, early guilty plea, and remorse. The court also noted that the applicant had served a significant period of pre-sentence custody and that the sentence took into account the impact of the applicant's brain injury on his ability to serve the sentence. The court concluded that the sentence was appropriate and proportionate to the offence.

The court refused the applicant's application for leave to appeal against his sentence. It held that the sentence was not manifestly excessive and that there were no other grounds for interfering with the sentence. The court also noted that the applicant had already served a significant period of pre-sentence custody and that the sentence took into account the impact of the applicant's brain injury on his ability to serve the sentence. The court held that the sentence was appropriate and proportionate to the offence.

Orders

Orders of the court

Application for leave to appeal refused.

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 McPherson [2024] QCA 41
PARTIES:	R v McPHERSON, Ethan Maurice (applicant)
FILE NO/S:	CA No 66 of 2023 SC No 333 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 4 April 2023 (Applegarth J)
DELIVERED ON:	26 March 2024
DELIVERED AT:	Brisbane
HEARING DATE:	21 March 2024
JUDGES:	Mullins P, Fraser AJA and Kelly J
ORDER:	Application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to unlawful striking causing death and two other offences – where the applicant was sentenced to imprisonment for eight years and six months for the unlawful striking causing death offence – where the applicant was ordered to serve 80 per cent of the term of imprisonment in accordance with s 314A(5) of the Criminal Code (Qld) – where the applicant was on probation and parole at the time of the offending – where the applicant was remanded in custody on the date of the offences and served the sentence of 18 months on which he had been on parole when he offended – where the sentencing judge took into consideration the applicant’s youth, early guilty plea, remorse and that imprisonment was harsher for him as a result of the brain injury he suffered in custody – where the pre-sentence custody declaration commenced on the date of the offences and covered the period in which he served the sentence of 18 months – whether the sentence was manifestly excessive Criminal Code (Qld), s 314A R v Renata; Ex parte Attorney-General (Qld)[2018] QCA 356, considered R v Hearn (unreported, Applegarth J, SC No 1953/2017, 9 July 2019), considered
COUNSEL:	The applicant appeared on his own behalf S L Dennis for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent