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R v McQueeney

R v McQueeney

Case [2005] NSWCCA 168 2 May 2005

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CITATION:
Regina v McQueeney [2005] NSWCCA 168

HEARING DATE(S): 22/04/2005

JUDGMENT DATE:

2 May 2005

JUDGMENT OF:
Grove J at 1; Howie J at 2; Latham J at 3

DECISION:
1. Leave to appeal granted, appeal allowed in part.; 2. Sentence on charge of Attempt Sexual Intercourse with Child under 10, quashed. In lieu I would impose a sentence of 10 years to commence on 2nd March 2004 expiring 1st March 2014, non-parole period of 7 years to commence 2nd March 2004, expiring 1st March 2011.

CATCHWORDS:
CRIMINAL LAW - Application for leave to appeal against severity of sentence - attempt sexual intercourse with child under 10 - Veen considerations.

LEGISLATION CITED:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Ibbs v The Queen (1987) 163 CLR 447
R v Booker unreported NSW CCA 21/2/1996
R v Campbell [2001] NSW CCA 89
R v CDH [2002] NSW CCA 103
R v Davis [1999] NSW CCA 15
R v Hollis [2002] NSW CCA 306
R v Johnson [2004] NSW CCA 76
R v Lupton [2003] NSW CCA 200
R v Selsby [2004] NSW CCA 381
R v Shankley [2003] NSW CCA 253
R v Taouk [1992] A Crim R 387
Veen v The Queen [No 2] (1988) 164 CLR 465
R v Wickham [2004] NSW CCA 193

PARTIES:
Regina
Ian Francis McQueeney

FILE NUMBER(S):
CCA 2004/3319 CCAP

COUNSEL:
A Haesler SC Applicant
V Lydiard Respondent

SOLICITORS:
S E O'Connor Applicant
S Kavanagh Respondent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/31/0465

LOWER COURT JUDICIAL OFFICER:
Nield DCJ

2004/3319

GROVE J
HOWIE J
LATHAM J
2 MAY 2005

REGINA v IAN FRANCIS MCQUEENEY

Judgment

1 GROVE J: I agree with Latham J.

2 HOWIE J: I agree with Latham J.

3 LATHAM J: The applicant seeks leave to appeal against a sentence imposed by Judge Neild at Gosford District Court in respect of one count of attempted sexual intercourse with a child under 10 pursuant to s 66B of the Crimes Act. That offence carries a maximum penalty of 25 years imprisonment. The applicant requested that two further offences of aggravated indecent assault pursuant to s 61M(2) be taken into account on a Form 1. Each of those offences carry a maximum penalty of 10 years imprisonment.

4 The applicant pleaded guilty on 11 March 2004 at the District Court to an indictment containing two counts, count one being the offence of attempt sexual intercourse, count two being an offence of aggravated indecent assault. The applicant requested that a further offence of aggravated indecent assault and an offence of aggravated act of indecency be taken into account on a Form 1 when being sentenced for the aggravated indecent assault. The offence of attempt sexual intercourse and the further offences taken into account on the Form 1 in respect of that offence concerned a complainant JB aged 9. The aggravated indecent assault on indictment and the further offences on the Form 1 in relation to that offence concerned complainant…

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 McQueeney

Details

AGLC: R v McQueeney [2005] NSWCCA 168
Case: [2005] NSWCCA 168
Decision Date: 2 May 2005

CaseChat Overview and Summary

In the matter of the Queen versus McQueeney, the respondent sought leave to appeal against the severity of his sentence. The applicant had been convicted of attempting to engage in sexual intercourse with a child under the age of ten years. The case was heard in the Court of Criminal Appeal. The central issue before the court was whether the sentence imposed was manifestly excessive and unjust. This involved a consideration of the principles set out in the case of Veen v The Queen, particularly the need for consistency in sentencing for similar offences.

The court examined the relevant authorities and the principles established in Veen, which emphasise the importance of consistency in sentencing. The applicant argued that the sentence was excessive, given the absence of physical contact and the fact that the victim was not aware of the offence. The court considered the gravity of the offence, the need for denunciation, and the importance of general deterrence. It also took into account the offender's background and the Veen principles, which require a comparison with similar cases to ensure consistency. After careful consideration, the court concluded that the sentence was not manifestly excessive.

The court found that the sentence imposed was within the range of appropriate penalties for the offence. The court acknowledged the gravity of the offence and the need for appropriate punishment, but it determined that the sentence was not so excessive as to be unjust. The appeal was dismissed, and the original sentence was upheld. The court's decision emphasised the importance of consistency in sentencing and the need to balance the principles of punishment, denunciation, and deterrence.

Orders