R v McPherson - [2024] QCA 33

SUPREME COURT OF QUEENSLAND

CITATION:

R v McPherson [2024] QCA 33

PARTIES:

R
v
McPHERSON, Shane Mathew
(applicant)

FILE NO/S:

CA No 27 of 2024
SC No 73 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Rockhampton – Date of Sentence: 7 February 2024 (Crow J)

DELIVERED ON:

Date of Order: 4 March 2024
Date of Publication of Reasons: 12 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2024

JUDGES:

Mullins P and Fraser AJA and Kelly J

ORDER:

Date of Order: 4 March 2024

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 one count of possession of cocaine in excess of two grams and one count of possession of cannabis in excess of 500 grams – where the possession of cannabis was not for commercial purposes – where the offending occurred within one month of a suspended sentence of 18 months was imposed – where the applicant was sentenced to two years imprisonment to be served cumulatively with the whole of the 18 month suspended sentence – whether the sentence was manifestly excessive

Penalties and Sentences Act1992 (Qld), s 147, s 160F

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v Armstrong[2005] QCA 116, considered
R v Clarke[1995] QCA 111, followed
R v Coutts[2016] QCA 206, cited
R v Hawke[2021] QCA 179, considered
R v Kalaja[2002] QCA 508, distinguished
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited
R v Neto[2016] QCA 217, cited
R v Warren[2014] QCA 175, cited

COUNSEL:

S A Lynch for the applicant
S J Muir for the respondent

SOLICITORS:

Phillips Crawford Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P: For the reasons given by Kelly J, I joined in the order of the Court made on 4 March 2024 refusing the application for leave to appeal against sentence. As the reasons of Kelly J demonstrate, there may have been other ways in which the sentences could have been structured, but the applicant failed to show that the sentence that was imposed was manifestly excessive.
The sentencing was complicated by the need for the Court to deal with the suspended imprisonment that had been imposed only one month before he committed the subject offences. It is implicit in the learned sentencing judge’s explanation in the sentencing remarks for selecting a sentence of two years’ imprisonment for count 1, that the sentencing judge contemplated that, but for the activation of the suspended period of imprisonment, the sentences for counts 1 and 2 would have been cumulative. Even though the possession of the cocaine that was the subject of count 1 was for personal use and the possession of the cannabis…

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 33
Case: [2024] QCA 33
Decision Date: 12 March 2024

CaseChat Overview and Summary

The case of R v McPherson involved the applicant appealing against a sentence imposed by the court following a guilty plea to charges of drug possession. The applicant admitted to possessing cocaine in excess of two grams and cannabis in excess of 500 grams. Notably, the possession of cannabis was not for commercial purposes. The applicant had previously been sentenced to an 18-month suspended sentence, which was imposed within one month before the current offending occurred. Upon being found guilty, the applicant was sentenced to two years imprisonment, to be served cumulatively with the entire 18-month suspended sentence. The applicant sought to appeal against the sentence, arguing that it was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. This required the court to consider the severity of the offence, the applicant’s criminal history, and the circumstances surrounding the reoffending within a short period after the completion of a suspended sentence. The court had to balance these factors against the principles of sentencing to determine if the sentence was disproportionate to the offence committed. Additionally, the court needed to assess whether there were any grounds for interference with the sentence imposed by the trial judge.

In determining the appeal, the court examined the totality of the circumstances and the sentence's proportionality. The court found that the sentence was not manifestly excessive, taking into account the seriousness of the drug possession charges, the recent nature of the offence following a suspended sentence, and the need for the sentence to reflect the gravity of the repeated offending. The court held that the sentence was appropriate and did not warrant interference. Consequently, the application for leave to appeal was refused. The court’s decision emphasised the importance of considering the cumulative effect of sentences and the deterrence of reoffending in such circumstances.

The final order of the court was to refuse the application for leave to appeal against the sentence. This decision was made on 4 March 2024, effectively upholding the original sentence imposed by the trial judge.

Orders

Orders of the court

Date of Order: 4 March 2024

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 33
PARTIES:	R v McPHERSON, Shane Mathew (applicant)
FILE NO/S:	CA No 27 of 2024 SC No 73 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Rockhampton – Date of Sentence: 7 February 2024 (Crow J)
DELIVERED ON:	Date of Order: 4 March 2024 Date of Publication of Reasons: 12 March 2024
DELIVERED AT:	Brisbane
HEARING DATE:	4 March 2024
JUDGES:	Mullins P and Fraser AJA and Kelly J
ORDER:	Date of Order: 4 March 2024 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 one count of possession of cocaine in excess of two grams and one count of possession of cannabis in excess of 500 grams – where the possession of cannabis was not for commercial purposes – where the offending occurred within one month of a suspended sentence of 18 months was imposed – where the applicant was sentenced to two years imprisonment to be served cumulatively with the whole of the 18 month suspended sentence – whether the sentence was manifestly excessive Penalties and Sentences Act1992 (Qld), s 147, s 160F Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Armstrong[2005] QCA 116, considered R v Clarke[1995] QCA 111, followed R v Coutts[2016] QCA 206, cited R v Hawke[2021] QCA 179, considered R v Kalaja[2002] QCA 508, distinguished R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited R v Neto[2016] QCA 217, cited R v Warren[2014] QCA 175, cited
COUNSEL:	S A Lynch for the applicant S J Muir for the respondent
SOLICITORS:	Phillips Crawford Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent