R v Mei - [2024] QCA 223

SUPREME COURT OF QUEENSLAND

CITATION:

R v MEI [2024] QCA 223

PARTIES:

R
v
MEI
(applicant)

FILE NO/S:

CA No 131 of 2024
DC No 335 of 2024

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 6 June 2024 (Fantin DCJ)

DELIVERED ON:

15 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

11 November 2024

JUDGES:

Mullins P and Flanagan JA and Doyle AJA

ORDERS:

1.   The application for leave to appeal against sentence is granted.

2.   The appeal is allowed but only to the extent of varying the orders made on 6 June 2024 as follows:

a.   Substitute that part of the pre-sentence custody declaration that declares the part of the pre-sentence custody to be imprisonment already served under the sentences to be “the period from 25 August 2023 until 5 June 2024 inclusive, a total of 286 days” in lieu of “the period from 2 September 2023 until 5 June 2024 inclusive, a total of 278 days”.

b.   Substitute “15 November 2024” for “9 June 2025” as the date the applicant is eligible for parole.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to five domestic violence offences which he committed on 1 June 2022 – where the applicant was sentenced for the offences on 6 June 2024, with a head sentence of three and a half years’ imprisonment – where all the sentences were ordered to be served concurrently – where the applicant had previously been sentenced for domestic violence offences against the same complainant on 27 September 2021 – where the primary judge ordered that the sentences for Counts 1 to 4 be served cumulatively “on any other term of imprisonment” which the applicant was liable to serve – where, at the time he committed the June 2022 offences, the applicant was still serving his sentence for the September 2021 offences, but was on parole – where following the June 2022 offending, the applicant remained in the community for a period of eight days before he was remanded into custody – where the primary judge considered that the applicant should be eligible for parole after serving 50% of his combined period of imprisonment, and set a parole eligibility date at 9 June 2025 – where this parole eligibility date was set by reference to his period of imprisonment of six years, being the previous sentences of two and a half years’ imprisonment and three and a half years’ imprisonment for Count 1 – where the relevant legislation requires that a parole eligibility date must be a date relating to the offender’s “period of imprisonment”, which is defined to mean an “unbroken duration” of imprisonment – whether the eight days the applicant spent in the community prior to being remanded in custody meant that his period of imprisonment was not “unbroken” – whether the primary judge erred…

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 Mei

Details

AGLC: R v Mei [2024] QCA 223
Case: [2024] QCA 223
Decision Date: 15 November 2024

CaseChat Overview and Summary

The applicant, Mei, appealed against the sentence imposed by the primary judge for five domestic violence offences committed on 1 June 2022. The applicant had previously been sentenced for domestic violence offences against the same complainant on 27 September 2021, and was still serving his sentence for these offences when he committed the June 2022 offences. He was sentenced on 6 June 2024 to a head sentence of three and a half years’ imprisonment, with all sentences to be served concurrently. The primary judge ordered that the sentences for Counts 1 to 4 be served cumulatively on any other term of imprisonment the applicant was liable to serve, and set a parole eligibility date of 9 June 2025. The applicant argued that his period of imprisonment was not “unbroken” because he had been in the community for eight days before being remanded in custody, and that the primary judge erred in setting a parole eligibility date by reference to a period of imprisonment of six years commencing on 9 June 2022.

The legal issues for the court were whether the eight days the applicant spent in the community prior to being remanded in custody meant that his period of imprisonment was not “unbroken”, and whether the primary judge erred in setting a parole eligibility date by reference to a period of imprisonment of six years, commencing on 9 June 2022. The court considered the relevant legislation, which required that a parole eligibility date must be a date relating to the offender’s “period of imprisonment”, which is defined to mean an “unbroken duration” of imprisonment. The court noted that the primary judge had considered the applicant’s previous sentence and the date of the June 2022 offences in setting the parole eligibility date. However, the court found that the primary judge had erred in setting the parole eligibility date by reference to a period of imprisonment of six years, commencing on 9 June 2022, rather than a period of imprisonment of five years and 286 days, commencing on 25 August 2023.

The court allowed the appeal but only to the extent of varying the orders made on 6 June 2024. The court substituted the part of the pre-sentence custody declaration that declared the part of the pre-sentence custody to be imprisonment already served under the sentences to be “the period from 25 August 2023 until 5 June 2024 inclusive, a total of 286 days” in lieu of “the period from 2 September 2023 until 5 June 2024 inclusive, a total of 278 days”. The court also substituted “15 November 2024” for “9 June 2025” as the date the applicant is eligible for parole. The court noted that the primary judge had considered the applicant’s previous sentence and the date of the June 2022 offences in setting the parole eligibility date, but had erred in setting the date by reference to a period of imprisonment of six years, commencing on 9 June 2022, rather than a period of imprisonment of five years and 286 days, commencing on 25 August 2023. The court found that the primary judge’s error was material and affected the fairness of the sentencing process.

Orders

Orders of the court

1. The application for leave to appeal against sentence is granted.

2. The appeal is allowed but only to the extent of varying the orders made on 6 June 2024 as follows:

a. Substitute that part of the pre-sentence custody declaration that declares the part of the pre-sentence custody to be imprisonment already served under the sentences to be “the period from 25 August 2023 until 5 June 2024 inclusive, a total of 286 days” in lieu of “the period from 2 September 2023 until 5 June 2024 inclusive, a total of 278 days”.

b. Substitute “15 November 2024” for “9 June 2025” as the date the applicant is eligible for parole.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v MEI [2024] QCA 223
PARTIES:	R v MEI (applicant)
FILE NO/S:	CA No 131 of 2024 DC No 335 of 2024
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns – Date of Sentence: 6 June 2024 (Fantin DCJ)
DELIVERED ON:	15 November 2024
DELIVERED AT:	Brisbane
HEARING DATE:	11 November 2024
JUDGES:	Mullins P and Flanagan JA and Doyle AJA
ORDERS:	1. The application for leave to appeal against sentence is granted. 2. The appeal is allowed but only to the extent of varying the orders made on 6 June 2024 as follows: a. Substitute that part of the pre-sentence custody declaration that declares the part of the pre-sentence custody to be imprisonment already served under the sentences to be “the period from 25 August 2023 until 5 June 2024 inclusive, a total of 286 days” in lieu of “the period from 2 September 2023 until 5 June 2024 inclusive, a total of 278 days”. b. Substitute “15 November 2024” for “9 June 2025” as the date the applicant is eligible for parole.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to five domestic violence offences which he committed on 1 June 2022 – where the applicant was sentenced for the offences on 6 June 2024, with a head sentence of three and a half years’ imprisonment – where all the sentences were ordered to be served concurrently – where the applicant had previously been sentenced for domestic violence offences against the same complainant on 27 September 2021 – where the primary judge ordered that the sentences for Counts 1 to 4 be served cumulatively “on any other term of imprisonment” which the applicant was liable to serve – where, at the time he committed the June 2022 offences, the applicant was still serving his sentence for the September 2021 offences, but was on parole – where following the June 2022 offending, the applicant remained in the community for a period of eight days before he was remanded into custody – where the primary judge considered that the applicant should be eligible for parole after serving 50% of his combined period of imprisonment, and set a parole eligibility date at 9 June 2025 – where this parole eligibility date was set by reference to his period of imprisonment of six years, being the previous sentences of two and a half years’ imprisonment and three and a half years’ imprisonment for Count 1 – where the relevant legislation requires that a parole eligibility date must be a date relating to the offender’s “period of imprisonment”, which is defined to mean an “unbroken duration” of imprisonment – whether the eight days the applicant spent in the community prior to being remanded in custody meant that his period of imprisonment was not “unbroken” – whether the primary judge erred…