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R v McQuire & Porter (No 2)

R v McQuire & Porter (No 2)

Case [2000] QCA 40 25 February 2000

Appeal

Miscarriage of Justice

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SUPREME COURT OF QUEENSLAND

CITATION: R v McQuire & Porter (No. 2) [2000] QCA 40

PARTIES: R
v
McQUIRE, Kevin Andrew
(applicant/appellant)
and
PORTER, Robert
(applicant)

FILE NO/S: CA No 280 of 1999
CA No 280 of 1999A
CA No 280 of 1999B
CA No 308 of 1999
DC No 9 0f 1997

DIVISION: Court of Appeal

PROCEEDING: In CA No 280 of 1999: Application for extension of time (Appeal against conviction)
In CA No 280 of 1999A: Application for leave to appeal against sentence
In CA No 280 of 1999B: Appeal against conviction
In CA No 308 of 1999: Application for leave to appeal against sentence

ORIGINATING COURT:
District Court at Southport

DELIVERED ON: 25 February 2000

DELIVERED AT: Brisbane

HEARING DATE: 7 February 2000

JUDGES: de Jersey CJ, McMurdo P, Byrne J
Separate reasons for judgment of each member of the Court; McMurdo P and Byrne J concurring as to the orders made, de Jersey CJ dissenting in part.

ORDER:
1)   In CA No 280 of 1999 application for extension of time within which to appeal against convictions refused.

2)   In CA No 280 of 1999B appeal against refusal of application for permanent stay of proceedings and leave to change plea dismissed.

3)   In CA No 280 of 1999A application for leave to appeal against sentence granted. Appeal against sentence allowed to the extent of :

a)    Substituting for 10 February 2000, the date by which the sum of $161,250 was to be paid by way of compensation, 10 April 2000; and

b)    adding a recommendation that the applicant/appellant McQuire be released on parole after serving three years of the sentence of imprisonment.

4)   In CA No 308 of 1999: Application for leave to appeal against sentence granted. Appeal against sentence allowed to the extent of

a)   Setting aside the recommendation for parole; and

b)   Substituting a recommendation that the applicant/appellant Porter be released on parole after serving two-and-a-half years of the sentence of imprisonment.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – MISCARRIAGE OF JUSTICE – whether time in which to appeal should be extended – whether letting pleas of guilty stand produces miscarriage of justice – whether guilty plea induced by Crown’s plea bargain – whether Attorney-General’s appeal contrary to Crown’s undertaking – whether applicant/appellant would have pleaded guilty if aware Attorney General’s right to appeal subsisted – whether reasonable to await outcome of first appeal and further sentencing before raising these grounds – ability to appeal from District Court refusal of stay of proceedings and withdrawal of guilty plea

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – whether sentences manifestly excessive – whether sentence failed to properly reflect pleas of guilty, lack of prior convictions, remorse, suffering and anxiety – parity – whether capacity to pay compensation

CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – THEFT –…

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 & Porter (No 2)

Details

AGLC: R v McQuire & Porter (No 2) [2000] QCA 40
Case: [2000] QCA 40
Decision Date: 25 February 2000

CaseChat Overview and Summary

The applicants/appellants in these appeals, McQuire and Porter, were convicted of misappropriation of property with aggravation. The dispute primarily concerns the validity of their convictions and the sentences imposed upon them. The appeals were heard in the Court of Criminal Appeal of Victoria. The central legal issues revolved around whether the time to appeal should be extended, the fairness of the pleas of guilty, the impact of the Crown's plea bargain on the pleas, the Attorney-General's right to appeal against the convictions, and the appropriateness of the sentences imposed.

The Court examined whether the applicants/appellants would have pleaded guilty if they were aware that the Attorney General had the right to appeal, and if there was a miscarriage of justice that would warrant an extension of the appeal time. The Court also considered whether it was reasonable for the applicants/appellants to wait for the outcome of the first appeal and further sentencing before raising these grounds. The Court further assessed whether the sentences were manifestly excessive and if they failed to adequately reflect the applicants' pleas of guilty, lack of prior convictions, remorse, and the suffering and anxiety experienced by the victims. The Court deliberated on the principle of parity, comparing the sentences with each other and with those of other offenders, and whether the capacity to pay compensation should be considered.

The Court held that the application for an extension of time within which to appeal against the convictions was refused. The appeal against the refusal of a permanent stay of proceedings and leave to change plea was also dismissed. However, the Court granted leave to appeal against the sentences. The Court allowed the appeal against the sentence in CA No 280 of 1999A, modifying the compensation payment deadline and recommending parole for McQuire after serving three years. Similarly, the Court allowed the appeal against the sentence in CA No 308 of 1999, setting aside the parole recommendation and suggesting parole for Porter after serving two-and-a-half years.

The Court's orders included the refusal of the application for an extension of time to appeal against convictions in CA No 280 of 1999 and the dismissal of the appeal against the refusal of a permanent stay of proceedings and leave to change plea in CA No 280 of 1999B. In CA No 280 of 1999A, the Court granted leave to appeal against sentence, allowing the appeal to the extent of modifying the compensation deadline and recommending parole for McQuire. In CA No 308 of 1999, the Court granted leave to appeal against sentence, setting aside the parole recommendation and suggesting parole for Porter.

Orders

Orders of the court

1) In CA No 280 of 1999 application for extension of time within which to appeal against convictions refused.

2) In CA No 280 of 1999B appeal against refusal of application for permanent stay of proceedings and leave to change plea dismissed.

3) In CA No 280 of 1999A application for leave to appeal against sentence granted. Appeal against sentence allowed to the extent of :

a) Substituting for 10 February 2000, the date by which the sum of $161,250 was to be paid by way of compensation, 10 April 2000; and

b) adding a recommendation that the applicant/appellant McQuire be released on parole after serving three years of the sentence of imprisonment.

4) In CA No 308 of 1999: Application for leave to appeal against sentence granted. Appeal against sentence allowed to the extent of

a) Setting aside the recommendation for parole; and

b) Substituting a recommendation that the applicant/appellant Porter be released on parole after serving two-and-a-half years of the sentence of imprisonment.

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.

Citations

AGLC Citation

R v McQuire & Porter (No 2) [2000] QCA 40

Most Recent Citation

R v Webber [2000] QCA 316

Cases citing this decision · 12 of 12 shown

R v NV
[2018] QCA 310

…R v Gadaloff [1999] QCA 286 , cited R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242 , cited R v McQuire (2000) 110 A Crim R 348; [2000] QCA 40 , cited R v Wade [2012] 2 Qd R 31; [2011] QCA 289 , followed R v Westphal [2009] QCA 223 , cited R v VI [2013] QCA 218 , applied COUNSEL: J J Allen QC, with J Lodziak, for…
R v Rooney; R v Gehringer
[2016] QCA 48

…CLR 520; [2010] HCA 45, considered R v Hoad [2005] QCA 92, considered R v McQuire & Porter (No 2) (2000) 110 A Crim R 348; [2000] QCA 40, cited R v Robertson (2008) 185 A Crim R 441 [2008] QCA 164, considered R v Ruha, Ruha & Harris; Ex parte Director of Public Prosecutions (Cth) [2011] 2 Qd R 456; [2010] QCA 1…
Denning and Garden v The Queen
[2013] QDC 185

…[3]Boag (1994) 73 Australian Criminal Reports 35, 37; Meissner v R (1995) 184 CLR 132, 157; R v McQuire and Porter (2) [2000] QCA 40 at paras 32 and 74; R v Moxham [2000] QSC 152.…
R v Ngo; R v Truong
[2010] QCA 151 Para 2

…hus conserving the time and resources of the prosecution and others.[11] [10] Ryan v The Queen (2001) 206 CLR 267 at 275. [11]C.f. R v McQuire (No 2) [2000] QCA 40.…
R v Ungvari
[2010] QCA 134

…[1994] 2 Qd R 415; [1993] QCA 417, cited R v Ikin [2007] QCA 224, considered R v McQuire & Porter (No 2) (2000) 110 A Crim R 348; [2000] QCA 40, followed R v Taylor [2006] QCA 459, considered COUNSEL: P E Smith for the applicant M B Lehane for the respondent SOLICITORS: A W Bale & Son Solicitors for the applican…
R v Small (No.1)
[2009] QDC 319 Para 1

…stand would produce a miscarriage of justice: Boag (1994) 73 A Crim R 35; Meissner v The Queen (1995) 184 CLR 132, 157; R v McGuire & Porter (No. 2) [2000] QCA 40 at [32] and [74]; R v Carkett [2008] QCA 143 at [22]‑[26].…
R v Ku, AAC, Wy, PAG, Ky, KZ, BBL, WZ & YC; ex parte
[2008] QCA 20 Para 1

…f their duties by those whose performance is intended by the legislature to be overseen by the exercise of the right. [9] R v McQuire & Porter (No 2) [2000] QCA 40 at [35].…
MORAN v Police
[2005] SASC 375 Para 12

…1] NSWCCA 299 at [3], Ming Yuk (Raymond) Wong v DPP [2005] NSWSC 129 at [10], R v Filimoehala [2003] NSWCCA 37 at [34], R v Mc Quire & Porter (No. 2) [2000] QCA 40 at [21] – [24].…
McQuire v South Queensland Regional Community Corrections Board
[2003] QSC 414 Para 1

…referred to the following comment in the reasons for judgment of McMurdo P in the Court of Appeal on 25 February 2000 ( R v McQuire & Porter (No. 2) [2000] QCA 40) at para 79: “The payment of compensation would have been a fact arguably entitling the applicants to a lesser penalty. No compensation had been paid…
R v McQuire
[2003] QCA 523

…d) [1999] QCA 205; CA No 70 of 1999, 8 June 1999, cited R v McQuire & Porter (2000) 110 A Crim R 348; [2000] QCA 40; CA Nos 280 and 308 of 1999, 25 February 2000, considered R v Morrison [1999] 1 Qd R 397; [1998] QCA 162; CA No 391 of 1997, 26 June 1998, cited R v Rasmussen; ex parte A-G (Qld) [2002] 1 Qd R 299;…
R v Webber
[2000] QCA 316 Para 1

…A recent decision of this Court relating to s 408C offences is McQuire and Porter (No 2) [2000] QCA 40; CA Nos 280 and 308 of 1999, 25 February 2000 involving a comparable sum of money. The two offenders were initially given suspended sentences, McQuire's being wholly suspended and Porter's suspended after 12 mo…
R v Moxham
[2000] QSC 152 Para 1

…a stand would produce a miscarriage of justice: Boag (1994) 73 A Crim R 35, 37; Meissner v R (1995) 184 CLR 132, 157; and R v McQuire & Porter (No 2) [2000] QCA 40 at paras 32 and 74. Expressing the test in this way is not in substance different from requiring an accused to point to exceptional circumstances, in…

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Cases cited in this decision · 13 of 13 shown

R v Favero
[1999] NSWCCA 320 Para 1

…The case to which Mr Hampson referred, R v Chiron [1980] 1 NSWLR 218, is distinguishable. That plea of guilty was produced by a trial judge’s ruling to admit certain “similar fact” evidence. The trial judge had observed the evidence would be “sudden death” to a chance of acquittal. Counsel advised him to plead…
R v Olbrich
[1999] HCA 54 Para 1

…pplicant other than those established by the plea of guilty. His Honour sentenced both applicants on the basis that they were equally responsible. [7](1999) 73 ALJR 1550, 1554-1555. [8][1999] 1 Qd R 397, 401.…
R v Gadaloff
[1999] QCA 286 Para 1

…ried”,[21] or “a substantial issue to have been tried …”[22]. And there is no indication of any arguable defence. [19]Cf R v Gadaloff [1999] QCA 286; 24 September 1999, para 4. [20] R v Ross NSW CCA, 60356 of 1992; 20 April 1994, per Mahoney JA, Badgery-Parker and Ireland JJ concurring. [21] R v Davies (1993) 19…
R v McQuire and Porter; ex parte
[1999] QCA 205

…n CA No 426 of 1995; 30 January 1996 R v Grice (1978) 66 Cr App R 167 R v McQuire & Porter [No 1] [1999] QCA 205; CA No 70 of 1999; 8 June 1999 R v Morrison [1999] 1 Qd R 397 R v Olbrich (1999) 73 ALJR 1550 R v Pope CA No 271 of 1996; 30 August 1996 R v Roach (1990) 54 SASR 491 R v Ross NSWCCA No 60356 of 1992; 2…
Charles v Police No. Scgrg-98-1217 Judgment No. S58
[1999] SASC 58 Para 1

…ews JJ concurring. [22] Block v Police (1994) 177 LSJS 103, per Olsson J at p 106, cited with approval by Wicks J in Charles v Police [1999] SASC 58; 24 February 1999; cf R v Roach (1990) 54 SASR 491, 497.…
R v Bailey
[1999] QCA 40 Para 1

…of six years and eight months; he was eligible for parole a little more than half way through that additional term of six years and eight months. [12][1999] QCA 40; CA No 15 of 1999, 24 February 1999.…
Maxwell v The Queen
[1996] HCA 46

…SJS 103 Charles v Police [1999] SASC 58; 24 February 1999 Everrett v The Queen (1994) 181 CLR 295 Maxwell v The Queen (1996) 70 ALJR 324 Meissner v R (1995) 184 CLR 132 R v Bailey [1999] QCA 40; 24 February 1999 R v Boag (1994) 73 A Crim R 35 R v Bulger [1990] 2 Qd R 559 R v Chapple CA No 461 of 1994; 31 March 1995 R v Chiro…
Meissner v the Queen
[1995] HCA 41 Para 1

…t a prisoner may be permitted to withdraw pleas of guilty in circumstances where letting them stand produces a miscarriage of justice: Meissner v R (1995) 184 CLR 132,157; Boag (1994) 73 A CrimR 35, 37. In Meissner , Dawson J said:…
Everett v the Queen
[1994] HCA 49 Para 1

…ual possibility of an Attorney’s appeal. It is compelling to think that, advised of the constraints on an Attorney in such appeals (cf. Everett v R (1994) 181 CLR 295), and acknowledging his inclination to take “a pragmatic decision aimed at minimising the risk of … going to jail”, he would have proceeded in precisel…
Kitchen v The Attorney-General of Victoria
[1989] HCATrans 55 Para 1

…ossibility that the admissions inherent in the pleas might be unreliable. [24] [23]See Attorney-General (South Australia) v Kitchen and Roberts (1989) 51 SASR 54, 65. [24]Mr Hardcastle did testify of “difficulties” that could have been encountered in the prosecution case at a trial. This, however, appears to be a re…
V.R. 140 at 146, per Winneke, P., and R. v. D
[1999] VSCA 148 Para 1

…A somewhat similar point arose in R v D [1999] VSCA 148, unreported, No 245 of 1998, 23 September 1999, where at trial, evidence was admitted against an accused of a plea of guilty entered at committal. The accused had determined to plead guilty initially on the basis of legal advice which was in some respects err…
[1971] AC 481
[1971] AC 481 Para 1

…s entitlement to change his plea was a discretionary matter for the primary judge: see S v Recorder of Manchester .[2] [1](1996) 70 ALJR 324, 328. [2][1971] AC 481, 491, approved in Maxwell v The Queen , 328.…
[1970] 2 QB 321
[1970] 2 QB 321 Para 1

…King's affidavit suggests that McQuire freely gave his written instructions to plead guilty prior to any visit by counsel to the judge's chambers. [4][1970] 2 QB 321, 326-327. [5](1978) 66 Cr App R 167. [6](1991) 93 Cr App R 187.…

Legislation cited in this decision · 3

District Court Act 1967 (Qld)
118 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
9(2) 2 mentions (from Para 1)
Judicial Review Act 1991 (Qld)
1 mention (from Para 1)

CITATION:	R v McQuire & Porter (No. 2) [2000] QCA 40
PARTIES:	R v McQUIRE, Kevin Andrew (applicant/appellant) and PORTER, Robert (applicant)
FILE NO/S:	CA No 280 of 1999 CA No 280 of 1999A CA No 280 of 1999B CA No 308 of 1999 DC No 9 0f 1997
DIVISION:	Court of Appeal
PROCEEDING:	In CA No 280 of 1999: Application for extension of time (Appeal against conviction) In CA No 280 of 1999A: Application for leave to appeal against sentence In CA No 280 of 1999B: Appeal against conviction In CA No 308 of 1999: Application for leave to appeal against sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	25 February 2000
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2000
JUDGES:	de Jersey CJ, McMurdo P, Byrne J Separate reasons for judgment of each member of the Court; McMurdo P and Byrne J concurring as to the orders made, de Jersey CJ dissenting in part.
ORDER:	1) In CA No 280 of 1999 application for extension of time within which to appeal against convictions refused. 2) In CA No 280 of 1999B appeal against refusal of application for permanent stay of proceedings and leave to change plea dismissed. 3) In CA No 280 of 1999A application for leave to appeal against sentence granted. Appeal against sentence allowed to the extent of : a) Substituting for 10 February 2000, the date by which the sum of $161,250 was to be paid by way of compensation, 10 April 2000; and b) adding a recommendation that the applicant/appellant McQuire be released on parole after serving three years of the sentence of imprisonment. 4) In CA No 308 of 1999: Application for leave to appeal against sentence granted. Appeal against sentence allowed to the extent of a) Setting aside the recommendation for parole; and b) Substituting a recommendation that the applicant/appellant Porter be released on parole after serving two-and-a-half years of the sentence of imprisonment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – MISCARRIAGE OF JUSTICE – whether time in which to appeal should be extended – whether letting pleas of guilty stand produces miscarriage of justice – whether guilty plea induced by Crown’s plea bargain – whether Attorney-General’s appeal contrary to Crown’s undertaking – whether applicant/appellant would have pleaded guilty if aware Attorney General’s right to appeal subsisted – whether reasonable to await outcome of first appeal and further sentencing before raising these grounds – ability to appeal from District Court refusal of stay of proceedings and withdrawal of guilty plea CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – whether sentences manifestly excessive – whether sentence failed to properly reflect pleas of guilty, lack of prior convictions, remorse, suffering and anxiety – parity – whether capacity to pay compensation CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – THEFT –…