R v Moy

Case [2024] QCA 4

SUPREME COURT OF QUEENSLAND

CITATION:

R v Moy [2024] QCA 4

PARTIES:

R
v
MOY, Shane Thomas
(applicant)

FILE NO/S:

CA No 110 of 2022
CA No 122 of 2023
SC No 2048 of 2021
SC No 971 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns – Date of Sentence: 2 June 2022 (Boddice J)

DELIVERED ON:

30 January 2024

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2023

JUDGES:

Bond JA and Ryan and Kelly JJ

ORDERS:

1.   The application for leave to appeal is granted.

2.   The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the applicant was sentenced for offences of violence including manslaughter and a home invasion – where factual error made at first instance – where applicant to be re-sentenced – where the offending warranted a head sentence of more than 10 years imprisonment, which automatically attracted a serious violent offence declaration – where the Court had the option of declaring pre-sentence custody to be taken as time already served or of otherwise taking it into account by reducing the head sentence to one of under 10 years, thereby relieving the applicant of the automatic consequences of the Serious Violent Offence regime – where the Court decided to take pre-sentence custody into account rather than declare it, bringing the head sentence to one of under 10 years imprisonment – where the applicant argued that, additionally, parole eligibility ought to be brought forward from the date upon which it would arise under the Corrective Services Act2006 (Qld) to provide adequate recognition of his pleas of guilty – whether the sentence was manifestly excessive

Corrective Services Act2006 (Qld), s 184(2)
Penalties and Sentences Act 1992 (Qld), sch 1

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, cited
R v Callow[2017] QCA 304, considered
R v Dwyer[2008] QCA 117, considered
R v Granz- Glenn[2023] QCA 157, considered
R v McDougall; R v Collas [2007] 2 Qd R 87; [2006] QCA 365, considered
R v Mooka[2007] QCA 36, considered
R v Simeon[2000] QCA 470, considered
R v Skondin[2015] QCA 138, considered
R v Smith (2022) 10 QR 725; [2022] QCA 89, considered

COUNSEL:

G F Perry for the applicant (pro bono)
S L Dennis for the respondent

SOLICITORS:

Gilshenan & Luton Legal Practice for the applicant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

  1. BOND JA AND KELLY J:  We have had the advantage of reading in draft the reasons for judgment of Ryan J.  Although we agree with most of her Honour’s reasons, we reach a different outcome.

  2. The area in which we disagree with Ryan J is the question whether the discretion in relation to setting the parole eligibility date should be exercised in the way suggested by her Honour.

  3. In our view if (as…

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Details
AGLC
R v Moy [2024] QCA 4
Case
[2024] QCA 4
Decision Date

CaseChat Overview and Summary

The applicant appealed against his sentence for offences of violence, including manslaughter and a home invasion. The case came before the court due to a factual error made at the initial sentencing, which required a re-sentencing. The offending warranted a head sentence of more than 10 years imprisonment, which automatically attracted a serious violent offence declaration. The court had the discretion to declare the pre-sentence custody as time already served or to take it into account by reducing the head sentence to one of under 10 years, thereby relieving the applicant of the automatic consequences of the Serious Violent Offence regime. The court chose the latter, bringing the head sentence to one of under 10 years.

The court examined the arguments for and against setting a parole eligibility date to reflect the applicant's guilty pleas and rehabilitation efforts. The court considered comparable manslaughter sentencing authorities, including R v Simeon, R v Mooka, and others. In the end, the court decided that the sentence, while not light, was not manifestly excessive and granted leave to appeal but dismissed the appeal. The court did not bring forward the parole eligibility date, as the applicant requested.

The court's decision to grant leave to appeal but dismiss it means that the applicant's sentence stands as re-imposed by the court. The applicant's request to bring forward the parole eligibility date was not accepted, and no further action can be taken regarding the sentence.

Orders

Orders of the court

1. The application for leave to appeal is granted.

2. The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Defence counsel contended for a sentence of 9 years imprisonment, with eligibility for parole fixed at the halfway point of the total period of imprisonment which the applicant was liable to serve (that is, 9 years plus 728 days of pre-sentence custody). In his submission, the fixing of a parole eligibility date would reflect: (a) the steps taken by the applicant towards his rehabilitation; and (b) how the matter “played out” to the point at which the plea of guilty was entered – which included the late delivery of a critical statement and the need to investigate the complications of the deceased’s poor health otherwise. Comparable decisions I considered the following manslaughter sentencing authorities, which were referred to at first instance or on this application: R v Simeon [2000] QCA 470; R v Mooka [2007] QCA 36; R v Dwyer [2008] QCA 117; R v Skondin [2015] QCA 138; R v Callow [2017] QCA 304; R v Granz-Glenn [2023] QCA 157.R v Simeon Simeon was sentenced to 7 years and 6 months imprisonment on his plea of guilty to manslaughter. When aged 27, he attacked the deceased, eight hours into a birthday party, because he thought the deceased struck his (Simeon’s) son. The attack included headbutts, punches and kicks, including punches to the deceased’s face while he was on the ground. The fatal blow was probably one below and behind the deceased’s right ear. The deceased was dead upon arrival at hospital. The force of the blow was moderate. On the evidence, because the deceased was heavily intoxicated, no greater degree of force was necessary to cause the subarachnoid bleeding which led to death. At the time, Simeon was affected by alcohol too. He had a previous good record and experienced great remorse. He successfully appealed against the sentence imposed at first instance. The Court held that the head sentence, while “by no means a light one”, could not properly be reduced. But the lack of a recommendation that Simeon be considered for early parole gave insufficient weight to circumstances extrinsic to the offence, such as Simeon’s previous good record and his unusually guilt-stricken reaction to the offence, which had resulted in a depressive illness. The Court added to the head sentence a recommendation that Simeon be considered for parole after having served 2 years and 9 months (33 months) of the sentence of 7 years and six months (90 months) – that is, at a little over one-third of the way into the head sentence.R v Mooka At an RSL club, after drinking heavily and, in his words, “totally blind”, Mooka, aged 25, killed the deceased. They’d just met. The deceased said something to anger Mooka. Entirely the aggressor, he struck the deceased “a mighty blow” to the side of the head with a pool cue. The deceased fell unconscious to the ground. He suffered a deep laceration to his left ear and a fractured skull. His brain was badly bruised. He died 11 days later. The sentencing judge found that the deceased had done nothing provocative.

Ratio Decidendi

Legal Principle Established

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