R v MCY

Case [2018] QCA 275 16 October 2018

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SUPREME COURT OF QUEENSLAND

CITATION:

R v MCY [2018] QCA 275

PARTIES:

R
v
MCY
(applicant)

FILE NO:

CA No 75 of 2018
DC No 2683 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 3 April 2018 (Porter QC DCJ)

DELIVERED ON:

Date of Order: 20 June 2018
Date of Publication of Reasons: 16 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

20 June 2018

JUDGES:

Sofronoff P and Crow and Ryan JJ

ORDERS:

Orders delivered 20 June 2018:

It is ordered that, upon the undertaking of the applicant’s solicitor to inform the applicant in terms of s 160G(5) of the Penalties and Sentences Act 1992 (Qld) forthwith and to inform the applicant forthwith to report to the appropriate parole office:

1.   Leave to appeal is granted.

2.   Appeal allowed.

3.   The order fixing the date that the defendant be released on parole be set aside.

4.   In lieu thereof, order that the applicant be released on parole on 20 June 2018.

5.   The declaration of presentence custody be set aside.

6.   It is declared that the 55 days spent in pre-sentence custody between 4 July 2017 and 17 August 2017 and between 3 April 2018 and 12 April 2018 be declared time already served under the sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the applicant was convicted of one count of burglary, with violence, while armed, in company – where the applicant was sentenced to 20 months imprisonment with parole release after four and a half months – where the applicant cooperated extensively with police –whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 13A, s 13B

Malvaso v The Queen (1989) 168 CLR 227; [1989] HCA 58, cited
R v D; Ex parte Attorney-General (Qld)[1995] QCA 332, cited
R v Galeano [2013] 2 Qd R 464; [2013] QCA 51, cited
R v Gladkowski (2000) 115 A Crim R 446; [2000] QCA 352, cited

COUNSEL:

D R Wilson for the applicant
P J McCarthy for the respondent

SOLICITORS:

Rostron Carlyle Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: The offence of entering a dwelling with intent to commit an indictable offence, threatening actual violence, armed with a dangerous weapon and in company, to which the applicant pleaded guilty, is a serious one. The applicant was sentenced to 20 months imprisonment with a parole release date of 30 June 2018, which meant that, after taking into account time served on remand, she would be released after serving four and a half months imprisonment. The applicant applied for leave to appeal against her sentence and, after hearing oral argument, the Court granted her leave to appeal and set aside that part of the order concerning parole and, instead, ordered that she be released on parole on that day. The result was that she had served 55 days…

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 MCY

Details

AGLC: R v MCY [2018] QCA 275
Case: [2018] QCA 275
Decision Date: 16 October 2018

CaseChat Overview and Summary

In the matter of R v MCY, the applicant appealed against the sentence imposed on them following a conviction for one count of burglary with violence while armed, in company. The applicant was sentenced to 20 months imprisonment with parole release after four and a half months. The applicant argued that their cooperation with the police warranted a more lenient sentence. The legal issues before the court were whether the sentence was manifestly excessive and whether the court had the discretion not to send the applicant to custody again even if the sentence imposed at first instance was proper.

The court considered the relevant cases and the principles of sentencing in determining the appropriate sentence. The court observed that the sentence of three years' imprisonment with parole after 10 months was relatively high, taking into account the applicant's role in the offending, the absence of physical harm, and the applicant's personal circumstances. The court also noted that it is rarely possible or useful to rank offending on a stepped scale of seriousness. Instead, an appropriate sentence is one which takes into account the nature and seriousness of the offence, the personal circumstances and antecedents of an offender, and all other relevant matters which will vary from case to case.

The court allowed the appeal and reduced the period of actual custody to seven months' imprisonment. The court set aside the order fixing the date that the defendant be released on parole and ordered that the applicant be released on parole on 20 June 2018. The court also declared that the 55 days spent in pre-sentence custody be declared time already served under the sentence.

Orders

Orders of the court

Orders delivered 20 June 2018:

It is ordered that, upon the undertaking of the applicant’s solicitor to inform the applicant in terms of s 160G(5) of the Penalties and Sentences Act 1992 (Qld) forthwith and to inform the applicant forthwith to report to the appropriate parole office:

1. Leave to appeal is granted.

2. Appeal allowed.

3. The order fixing the date that the defendant be released on parole be set aside.

4. In lieu thereof, order that the applicant be released on parole on 20 June 2018.

5. The declaration of presentence custody be set aside.

6. It is declared that the 55 days spent in pre-sentence custody between 4 July 2017 and 17 August 2017 and between 3 April 2018 and 12 April 2018 be declared time already served under the sentence.

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

In response to the applicant’s arguments about the court’s residual discretion not to send the applicant to custody a second time even if the sentence imposed at first instance was proper, the respondent noted that returning the applicant to custody for 80 days could not be considered trivial.Comparable decisions to which his Honour referred In his sentencing remarks, his Honour referred to the cases relied upon by the parties: Fitzgerald, Denham, and R v Buckley; R v Ghattas. His Honour also referred to Cockfield which was discussed in R v Buckley; R v Ghattas. Those cases were relied upon in this application also. They are discussed in chronological order below. R v Denham; Ex parte Attorney-General (Qld) was an unsuccessful appeal against sentence by the Attorney General. The penalty imposed upon Denham for a home invasion did not involve actual custody. He had previous convictions for assault. The offence arose out of his concerns for his child. Denham pleaded guilty to burglary, assault occasioning bodily harm and breaching a domestic violence order. For the offences of burglary and assault occasioning bodily harm, he was sentenced to concurrent terms of 12 months’ imprisonment, to be served by way of intensive correction in the community, with special conditions that he submit to psychiatric or psychological treatment and not contact the complainant. He was also ordered to pay $1,000 in compensation to the complainant, in default, one month’s imprisonment. For breaching a domestic violence order, he was sentenced to six months’ imprisonment, wholly suspended for an operational period of three years. The Attorney General argued that the sentences were manifestly inadequate; failed to reflect the gravity of the offending; failed to take general deterrence sufficiently into account and gave too much weight to mitigating factors. Denham and his former partner were in conflict over the custody of their child. The complainant was Denham’s former partner’s father. He was 59 years old. On the evening of 31 January 2002, in breach of a domestic violence order, Denham approached the complainant’s home. Before the complainant was able to lock the door, Denham pushed it open. He and the complainant struggled, during which Denham hit the complainant’s face four or five times, causing his nose to bleed. He kicked him and held him in a headlock. The complainant managed to escape and locked himself inside the house. Denham threw outside furniture around the yard and into the pool. When police located him, he was agitated and appeared intoxicated. The complainant’s injuries included bruising, tenderness and abrasions, as well as emotional damage. He feared for his life during the attack. His suffered ongoing pain and lived in fear of another attack. Denham had prior convictions for minor street offences and in 1999 had been sentenced to two months imprisonment, wholly suspended, for assault occasioning bodily harm, committed upon a woman who had gone to the aid of a woman he was assaulting.

Ratio Decidendi

Legal Principle Established

In allowing the appeal, and reducing the period of actual custody to seven months’ imprisonment, Applegarth J, with whom Fraser and Gotterson JJA agreed, observed that the complainant, in breach of a court order, decided to retain custody of the children. He encouraged Buckley to contact police, but she was unable to. She should have gone to the police station, but instead, she went to the complainant’s house. It was also not surprising that an upset mother would seek the complainant to comply with the court order and seek support in doing so, after she was unable to contact the police. The escalation in matters would have been appreciated by a clearer mind.[83] The complainant suffered minor physical injuries. There was no finding that a weapon had been used in the assault upon him (although he said he’d seen a man with a baseball bat). The implementation of a plan to assault the complainant if necessary could have resulted in more serious physical consequences for the complainant and others. The sentence of two years’ imprisonment was not excessive having regard to the principles of denunciation and deterrence.[84] However, requiring Buckley to serve 12 months of actual custody gave too little weight to her previous good character and antecedents and too little weight to the extenuating and subjective circumstances of her offending. His Honour supported his conclusion by reference to comparable authority, including the decision in Cockfield.[83]Opcit [96] – [100].[84]Opcit [102].Consideration of authorities The applicant argued that his Honour erred in viewing Denham and Fitzgerald as “materially less serious” than the applicant’s offending. His Honour considered Cockfield as “somewhat less serious”. The applicant submitted that such a description was “open on one view of the facts”, but that the offending in Cockfield was gratuitous. He had a relevant criminal history and he was a principal, in the sense of an active, offender.[85][85]Applicant’s outline of submissions, paragraph 32. It is rarely possible, or useful, to rank offending on a stepped scale of seriousness. While offending may be broadly categorised in terms of its seriousness, an appropriate sentence is one which takes into account the nature and seriousness of the offence, the personal circumstances and antecedents of an offender, and all other relevant matters which will vary from case to case. The respondent made this point by reference to the observation of Keane JA in R v Dwyer:[86]“An approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process.”[86][2008] QCA 117 at [37]. However, treating the comparable cases appropriately – as yardsticks[87] against which to compare the sentence nominated by his Honour as the one which would have been imposed were it not for the applicant’s co-operation – reveals the sentence (of three years’ imprisonment, with parole after 10 months) to be a relatively high one having regard to the applicant’s role in the offending (she was not a principal offender: she was directed to stay in the car); the absence of physical harm; and taking into account the applicant’s personal circumstances.[87]Consistently with Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2.

Actions

Citations

R v MCY [2018] QCA 275

Most Recent Citation

R v Smith [2019] QCA 186

Cases Citing This Decision

Urlich v The Queen [2019] ACTCA 30
Citation 1

…583 R v Graham [2000] NSWSC 1033 R v Hansen [2011] SASCFC 10; 206 A Crim R 54 R v Hookey [2004] NSWCCA 223 R v Huat Phay [2009] ACTSC 130 R v MCY [2018] QCA 275 R v Navin [2016] ACTSC 109 R v Patel (No 3) [2018] NSWSC 952 R v Pearson [2002] NSWCCA 429; 137 A Crim R 419 R v Pham [2015] HCA 39; 256 CLR 550 R v Porr…
R v Smith [2019] QCA 186
Citation 2 (Para 11)

…l harm; and taking into account the applicant’s personal circumstances”, [2] and held that it was not manifestly excessive.[3] [1][2018] QCA 275. [2][2018] QCA 275 at [181]. [3][2018] QCA 275 at [184].…

See all citing cases →

Cases Cited

R v Faf [2014] QCA 360
Citation 1 (Para 36)

…have been imposed but for all co-operation, including past co-operation. However, neither counsel drew his Honour’s attention to his error. [31][2014] QCA 360.…
R v Buckley; R v Ghattas [2014] QCA 98
Citation 2 (Para 11)

…R v Denham; Ex parte Attorney-General (Qld) [41] and to R v Buckley; R v Ghattas .[42] These authorities are discussed below. [41][2003] QCA 74. [42][2014] QCA 98.…
R v Liang [2014] QCA 87
Citation 3 (Para 2)

…facts of those cases are materially different from the applicant’s circumstances. [15](2011) 212 A Crim R 199; [2011] QCA 218 at [32] – [35]. [16][2014] QCA 87 at [16].…
Barbaro v The Queen [2014] HCA 2
Citation 4 (Para 39)

…ysical harm; and taking into account the applicant’s personal circumstances. [87]Consistently with Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2.…
R v Harbas [2013] QCA 159
Citation 5 (Para 38)

…miscarried, or otherwise mention it.[33] [32]See paragraphs 4, 5 and 6 of the respondent’s written submissions. Counsel also referred to R v Harbas [2013] QCA 159. [33]See also paragraph 3 of the applicant’s written submissions, in which he refers to his Honour’s approach to the “but for” sentence without observi…
R v Galeano [2013] QCA 51
Citation 6 (Para 4)

…must fall”: “There is no fixed “floor” or “ceiling” for the discount that may be accorded on account of co-operation”.[96] [95][2013] QCA 51. [96]Ibid [35].…
R v WAW [2013] QCA 22
Citation 7 (Para 8)

…r cooperation. It must be discernible and worthwhile, but ‘nevertheless reflect the seriousness of the offence which is being punished’.” [10][2013] QCA 22 at [49]. Footnotes omitted.…
R v McLean [2011] QCA 218
Citation 8 (Para 2)

…ng considered not to be trivial. The facts of those cases are materially different from the applicant’s circumstances. [15](2011) 212 A Crim R 199; [2011] QCA 218 at [32] – [35]. [16][2014] QCA 87 at [16].…
R v Denyer [2009] QCA 53
Citation 9 (Para 1)

…to have an applicant returned to prison for a “trivial period”.[14] [14]See R v Neivandt [2000] QCA 224 as applied by Keane JA in R v Denyer [2009] QCA 53 at [29]; R v Ellison [2000] QCA 125 per Jerrard JA at [43].…
R v Leu; R v Togia [2008] QCA 201
Citation 10 (Para 3)

…ed with a knife, is a serious matter. [4]See paragraphs 25, 32 and 36 of the applicant’s written submissions. [5](2008) 186 A Crim R 240; [2008] QCA 201. [6]Other than a stealing offence.…
R v Dwyer [2008] QCA 117
Citation 11 (Para 38)

…be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process.” [86][2008] QCA 117 at [37].…
R v Cockfield [2006] QCA 276
Citation 12 (Para 6)

…L, and was the principal beneficiary of the crime, in that the home invasion succeeded and the applicant recovered her daughter L. [9] R v Cockfield [2006] QCA 276; R v Bower-Miles [1995] QCA 453.…
R v Osenkowski [2005] SASC 142
Citation 13 (Para 9)

…ely in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform.”[1] [1] R v Osenkowski (1982) 30 SASR 212 at 212-213.…
R v Fitzgerald [2004] QCA 241
Citation 14 (Para 5)

…e court must, through the penalties imposed, take a serious stand against home invasions. There is a strong need for deterrence in that area.” [8][2004] QCA 241 at [4].…
R v Allison [2003] QCA 125
Citation 15 (Para 46)

…her daughter – a second time.[75] It was submitted that personal deterrence had already been achieved. [75]The applicant relied upon R v Allison [2003] QCA 125, Jerrard JA at [43].…
R v Denham; ex parte A-G (Qld) [2003] QCA 74
Citation 16 (Para 11)

…erred his Honour to R v Denham; Ex parte Attorney-General (Qld) [41] and to R v Buckley; R v Ghattas .[42] These authorities are discussed below. [41][2003] QCA 74. [42][2014] QCA 98.…
R v Gladkowski [2000] QCA 352
Citation 17 (Para 10)

…urt must ensure that the reduction does not result in a sentence that is an affront to community standards.” [12](1994) 76 A Crim R 75. [13][2000] QCA 352 at [7]. Citations omitted.…
R v Webber [2000] QCA 316
Citation 18 (Para 39)

…n resentencing the applicant, stated the sentence it considered appropriate, but for the applicant’s co-operation.[35] [34](2000) 114 A Crim R 381; [2000] QCA 316. [35]Ibid [6].…
R v Neivandt [2000] QCA 224
Citation 19 (Para 1)

…in “marginal cases” a residual discretion to refuse to have an applicant returned to prison for a “trivial period”.[14] [14]See R v Neivandt [2000] QCA 224 as applied by Keane JA in R v Denyer [2009] QCA 53 at [29]; R v Ellison [2000] QCA 125 per Jerrard JA at [43].…
R v Hluszanska [2000] QCA 125
Citation 20 (Para 1)

…rison for a “trivial period”.[14] [14]See R v Neivandt [2000] QCA 224 as applied by Keane JA in R v Denyer [2009] QCA 53 at [29]; R v Ellison [2000] QCA 125 per Jerrard JA at [43].…
AB v The Queen [1999] HCA 46
Citation 21 (Para 28)

…“special leniency”. He asked his Honour to sentence the applicant in such a way as to not require her to serve any more time in custody.[57] [54](1999) 198 CLR 111. [55]Applicant’s police statement, paragraph 9. [56]Closed court transcript, 1-7, 35 – 47. [57]Ibid, 1-8, 30 – 45.…
R v Houghton & Genrich [1998] QCA 137
Citation 22 (Para 4)

…involving assault of an occupant in his or her home, they are extremely serious; the more so when there are two or more invaders involved.” [7][1998] QCA 137 at page 6.…
R v Wentt [1995] QCA 613
Citation 23 (Para 37)

…home are commonly regarded as sufficiently serious to demand custodial sentences, even in the case of persons of previous good character.” [73][1995] QCA 613.…
R v Bower-Miles & Smith [1995] QCA 453
Citation 24 (Para 6)

…ciary of the crime, in that the home invasion succeeded and the applicant recovered her daughter L. [9] R v Cockfield [2006] QCA 276; R v Bower-Miles [1995] QCA 453.…
R v D & Attorney-General of Queensland [1995] QCA 332
Citation 25 (Para 3)

…is “so disproportionate to the gravity of the offence and the personal circumstances of the offender as to affront community standards”.[94] [93][1995] QCA 332. [94]Ibid.…
Malvaso v the Queen [1989] HCA 58
Citation 26

…er the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 13A, s 13B Malvaso v The Queen (1989) 168 CLR 227; [1989] HCA 58, cited R v D; Ex parte Attorney-General (Qld) [1995] QCA 332 , cited R v Galeano [2013] 2 Qd R 464; [2013] QCA 51 , cited R v Gladkowski (2000) 115 A Crim R 446; [20…
Chamberlain v The Queen (No 1) [1983] HCA 13
Citation 27 (Para 4)

…peal which does not currently exist.” [17][2000] QCA 224 at [31] – [32]. [18] Ex parte Maher [1986] 1 Qd R 303 ; Chamberlain v The Queen [No 1] [1983] HCA 13; (1983) 153 CLR 514 at 519.…

Legislation Cited

Penalties and Sentences Act 1992 (Qld) 13A
2 mentions (from Para 2)
Criminal Code Act 1899 (Qld)
1 mention (from Para 33)
Drugs Misuse Act 1986 (Qld)
1 mention (from Para 12)

CITATION:	R v MCY [2018] QCA 275
PARTIES:	R v MCY (applicant)
FILE NO:	CA No 75 of 2018 DC No 2683 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 3 April 2018 (Porter QC DCJ)
DELIVERED ON:	Date of Order: 20 June 2018 Date of Publication of Reasons: 16 October 2018
DELIVERED AT:	Brisbane
HEARING DATE:	20 June 2018
JUDGES:	Sofronoff P and Crow and Ryan JJ
ORDERS:	Orders delivered 20 June 2018: It is ordered that, upon the undertaking of the applicant’s solicitor to inform the applicant in terms of s 160G(5) of the Penalties and Sentences Act 1992 (Qld) forthwith and to inform the applicant forthwith to report to the appropriate parole office: 1. Leave to appeal is granted. 2. Appeal allowed. 3. The order fixing the date that the defendant be released on parole be set aside. 4. In lieu thereof, order that the applicant be released on parole on 20 June 2018. 5. The declaration of presentence custody be set aside. 6. It is declared that the 55 days spent in pre-sentence custody between 4 July 2017 and 17 August 2017 and between 3 April 2018 and 12 April 2018 be declared time already served under the sentence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the applicant was convicted of one count of burglary, with violence, while armed, in company – where the applicant was sentenced to 20 months imprisonment with parole release after four and a half months – where the applicant cooperated extensively with police –whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 13A, s 13B Malvaso v The Queen (1989) 168 CLR 227; [1989] HCA 58, cited R v D; Ex parte Attorney-General (Qld)[1995] QCA 332, cited R v Galeano [2013] 2 Qd R 464; [2013] QCA 51, cited R v Gladkowski (2000) 115 A Crim R 446; [2000] QCA 352, cited
COUNSEL:	D R Wilson for the applicant P J McCarthy for the respondent
SOLICITORS:	Rostron Carlyle Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent