R v McQuillan - [2011] QCA 5

SUPREME COURT OF QUEENSLAND

CITATION:

R v McQuillan [2011] QCA 5

PARTIES:

R
v
McQUILLAN, Ricky James
(applicant)

FILE NO/S:

CA No 133 of 2010
DC No 1020 of 2009
DC No 197 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

8 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2011

JUDGES:

Chief Justice, Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – applicant pleaded guilty to 24 offences including breaking and entering, stealing and fraud – applicant sentenced to concurrent terms of imprisonment such that time served for new offences would be five years – sentences were made cumulative on remaining term of imprisonment for prior sentence – applicant breached parole in committing the instant offences – where applicant was to be extradited interstate to serve another term of imprisonment at conclusion of sentence – whether the term imposed was manifestly excessive in the totality of the circumstances

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – applicant taken into custody following commission of offences while on parole – parole was suspended – applicant pleaded guilty at an early stage – sentencing judge ordered parole eligibility after one third of sentence served – whether sentence failed to recognise mitigating factors – whether pre-sentence custody declaration should have been made in relation to time served following suspension of parole until sentencing for new offences

Corrective Services Act 2006 (Qld), s 209(1)
Penalties and Sentences Act 1992 (Qld), s 159A, s 160C

R v Joyce [1986] 1 Qd R 47, considered

COUNSEL:

The applicant appeared on his own behalf
D R Kinsella for the respondent

SOLICITORS:

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

[1] CHIEF JUSTICE: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 19 May 2010.

[2] He was then sentenced for offences contained in a 22 count indictment which was presented ex officio, and another two count indictment.

[3] The most serious count on the ex officio indictment was breaking and entering commercial premises and stealing computer equipment involving a loss of the order of $10,000. That occurred in 2004. He was sentenced to five years imprisonment. The other offences, which attracted two to five year concurrent terms, involved breaking and entering and stealing from nine motor vehicles, entering and stealing from four business premises, entering a business premises with intent, receiving, four counts of fraud and possessing things used in connection with unlawful entry with a circumstance of aggravation. Those offences were committed in September 2009, most of them on the same day and at the same location. The Judge…

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 McQuillan

Details

AGLC: R v McQuillan [2011] QCA 5
Case: [2011] QCA 5
Decision Date: 8/02/2011

CaseChat Overview and Summary

The applicant in this matter appealed against the sentence imposed following a guilty plea to 24 charges, including breaking and entering, stealing, and fraud. The sentence imposed was concurrent imprisonment terms such that the time served for the new offences would be five years. The sentences were cumulative on the remaining term of imprisonment for a prior sentence. The applicant breached parole in committing the instant offences and was to be extradited interstate to serve another term of imprisonment at the conclusion of the sentence. The applicant contended that the sentence imposed was manifestly excessive in the totality of the circumstances.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the sentence failed to recognise mitigating factors. The court considered whether the pre-sentence custody declaration should have been made in relation to the time served following the suspension of parole until sentencing for the new offences. The court noted that the applicant breached parole and had a history of offending while on parole. The court also noted that the applicant pleaded guilty at an early stage and that the sentencing judge ordered parole eligibility after one-third of the sentence had been served.

The court found that the sentence imposed was not manifestly excessive in the totality of the circumstances. The court noted that the applicant had a history of offending while on parole and that the sentence imposed was not disproportionate to the seriousness of the offending. The court also found that the sentence recognised the mitigating factors, including the applicant's early guilty plea. The court further found that there was no need for a pre-sentence custody declaration as the applicant had already served time in custody following the suspension of parole until sentencing for the new offences.

The application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v McQuillan [2011] QCA 5
PARTIES:	R v McQUILLAN, Ricky James (applicant)
FILE NO/S:	CA No 133 of 2010 DC No 1020 of 2009 DC No 197 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	8 February 2011
DELIVERED AT:	Brisbane
HEARING DATE:	3 February 2011
JUDGES:	Chief Justice, Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – applicant pleaded guilty to 24 offences including breaking and entering, stealing and fraud – applicant sentenced to concurrent terms of imprisonment such that time served for new offences would be five years – sentences were made cumulative on remaining term of imprisonment for prior sentence – applicant breached parole in committing the instant offences – where applicant was to be extradited interstate to serve another term of imprisonment at conclusion of sentence – whether the term imposed was manifestly excessive in the totality of the circumstances CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – applicant taken into custody following commission of offences while on parole – parole was suspended – applicant pleaded guilty at an early stage – sentencing judge ordered parole eligibility after one third of sentence served – whether sentence failed to recognise mitigating factors – whether pre-sentence custody declaration should have been made in relation to time served following suspension of parole until sentencing for new offences Corrective Services Act 2006 (Qld), s 209(1) Penalties and Sentences Act 1992 (Qld), s 159A, s 160C R v Joyce [1986] 1 Qd R 47, considered
COUNSEL:	The applicant appeared on his own behalf D R Kinsella for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent