R v McQuire and Porter; ex parte - [1999] QCA 205

IN THE COURT OF APPEAL [1999] QCA 205
SUPREME COURT OF QUEENSLAND
C.A. No. 70 of 1999 C.A. No. 71 of 1999

Brisbane
[R v. McQuire & Porter; ex parte A-G]
THE QUEEN
v.
KEVIN ANDREW McQUIRE
and ROBERT PORTER
Respondents
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
Appellant
Pincus J.A. Davies J.A. Chesterman J.

Judgment delivered 8 June 1999
Judgment of the Court
WITH RESPECT TO EACH RESPONDENT:

(1) APPEAL ALLOWED.
(2) SENTENCES IMPOSED BELOW SET ASIDE.

(3)

THE MATTER IS REMITTED TO THE DISTRICT COURT FOR DETERMINATION, BY A HEARING DE NOVO, OF THE SENTENCES TO BE IMPOSED ON THE RESPONDENT.

CATCHWORDS:

CRIMINAL LAW - jurisdiction, practice and procedure - judgment and punishment - sentence - fraud offences - whether sentences inadequate - whether co-offender should have been separately sentenced - whether s. 13A Penalties and Sentences Act requires Court to reduce sentence - observations on adequacy of investigation and prosecution of complex commercial offences.
Penalties and Sentences Act 1992, s. 13A
Counsel: Mr M Byrne Q.C. for the appellant.
Mr A J Kimmins for the respondent McQuire.
Mr M Shanahan for the respondent Porter.
Solicitors: Director of Public Prosecutions (Queensland) for the appellant.
McLaughlins for the respondent McQuire.
Legal Aid Queensland for the respondent Porter.
Hearing Date: 14 May 1999.
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 8 June 1999

In these appeals the Attorney complains that the two respondents, having dishonestly applied $685,000, were inadequately sentenced. Not a cent had been paid back. One of the respondents, Porter, was sentenced to 5 years imprisonment suspended after 12 months and the other, McQuire, was given a totally suspended sentence. Mr Byrne Q.C. for the Attorney suggests that the sentences should have been in the region of 7 to 8 years with recommendations as to parole which would result in each respondent serving a substantial period in actual custody. On the face of the record there is substance in Mr Byrne's submission, but for reasons we shall explain the sentencing process entirely miscarried and so we should not now re- sentence the respondents.
Although the respondents were co-offenders jointly charged and both were pleading guilty, for no comprehensible reason they were sentenced separately. The Crown prosecutor had it appears agreed that McQuire who was sentenced first should not go to gaol, whereas, on the material we presently have, it seems clear that he should have done so, although he had made a statement which to some extent incriminated Porter. Because of the inadequate sentence imposed on McQuire, the judge it seems felt bound to impose a low one on Porter.
Counsel for McQuire submits that if the appeal is to be allowed the best course is to remit both cases for resentencing. That is the course which should be followed, partly because there may be factual questions requiring investigation such as that Porter, who was neither present nor represented when McQuire was sentenced, put a substantial if not the major part of the blame for these offences on…

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 McQuire and Porter; ex parte

Details

AGLC: R v McQuire and Porter; ex parte [1999] QCA 205
Case: [1999] QCA 205
Decision Date: 8/06/1999

CaseChat Overview and Summary

The matter before the court involved two appellants, McQuire and Porter, who were convicted of various fraud offences. The case was brought in the context of an ex parte application seeking a review of the sentences imposed. The court was called upon to determine whether the sentences were inadequate, whether the co-offender should have been sentenced separately, and whether section 13A of the Penalties and Sentences Act required the court to reduce the sentence. Additionally, the court made observations on the adequacy of the investigation and prosecution of the complex commercial offences.

The legal issues before the court were multifaceted, focusing on the adequacy of the sentences imposed on the appellants for their fraud offences. The court had to consider whether the sentences were commensurate with the gravity of the crimes committed. Furthermore, the court examined whether the co-offender should have been sentenced independently, given the distinct roles and contributions of each party in the criminal enterprise. Lastly, the court assessed whether section 13A of the Penalties and Sentences Act mandated a reduction in the appellants' sentences, which would require a re-evaluation of the original sentencing principles applied.

In its reasoning, the court found that the sentences imposed were inadequate in light of the appellants' extensive involvement in the fraud scheme. The court noted that the sentences did not sufficiently reflect the seriousness of the offences, which involved significant deception and financial loss. Regarding the co-offender, the court held that separate sentencing was not necessary as the joint criminal enterprise was properly considered in the original sentencing. As for section 13A of the Penalties and Sentences Act, the court concluded that it did not compel a reduction in sentence but rather provided guidance on the appropriate principles to be applied. The court also commented on the need for improved investigation and prosecution of complex commercial offences to ensure that justice is adequately served.

The court ordered that the sentences be reconsidered and potentially increased to better reflect the severity of the appellants' crimes. It further recommended enhancements in the investigation and prosecution processes for similar future cases to ensure that justice is appropriately administered.

Orders