R v Mrsic; ex parte A-G (Qld) - [2005] QCA 349

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mrsic; ex parte A-G (Qld) [2005] QCA 349

PARTIES:

R
v
MRSIC, Ivan
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 185 of 2005
SC No 10 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

23 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2005

JUDGES:

Jerrard and Keane JJA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal allowed

2. The respondent's existing sentence is set aside and, instead, the respondent is sentenced to seven years imprisonment to be served concurrently with his present sentence with a recommendation that he be eligible for post-prison community based release on 13 May 2007

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OTHER OFFENCES - where the respondent had pleaded guilty to unlawfully producing more than 500 grams of cannabis sativa - where the respondent had been sentenced to imprisonment for seven years with a recommendation that he be considered for post-prison community based release on 13 May 2006 - where the respondent was already serving a sentence of imprisonment for other offences - where effect of recommendation was that the respondent would not serve any additional time in gaol for the unlawful production offence - where the respondent was 64 years of age and had a history of heart disease - whether, in all the circumstances, the sentence imposed at first instance was manifestly inadequate

R v Guthrie [2002] QCA 509; (2002) 135 A Crim R 292, cited

R v Irlam; ex parte A-G [2002] QCA 235; CA No 157 and CA No 173 of 2002, 28 June 2002, applied

R v Morcus [2003] QCA 279; CA No 113 of 2003, 8 July 2003, cited

R v Panichelli & Petrosanec [1995] QCA 348; CA No 146 and CA No 148 of 1995, 5 June 1995, cited

COUNSEL:

M R Byrne for the appellant
B G Devereaux for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondent

JERRARD JA: In this appeal I have read the reasons for judgment of Keane JA and the orders proposed by His Honour, and agree with those. The effect of the recommendation for parole made by the learned sentencing judge is that, if followed, the respondent would be released on post-prison community based release on the same date – 13 May 2006 – as that on which he would be released after completing the 10 year sentence imposed for manslaughter on 18 June 1997. The offence of unlawful production of cannabis sativa, for which he was sentenced on 18 May 2005, and which was committed between 1 March 2004…

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.

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Details

Case: [2005] QCA 349
Decision Date: 23 September 2005

CaseChat Overview and Summary

In the case of R v Mrsic; ex parte A-G (Qld), the respondent had pleaded guilty to producing more than 500 grams of cannabis sativa. He was sentenced to imprisonment for seven years, with a recommendation that he be considered for post-prison community based release on 13 May 2006. However, as the respondent was already serving a sentence for other offences, the effect of the recommendation was that he would not serve any additional time in gaol for the unlawful production offence. The Attorney-General sought an appeal against the sentence, arguing that it was manifestly inadequate in all the circumstances.

The court was required to decide whether the sentence imposed at first instance was manifestly inadequate, taking into account the respondent's age, health issues, and the nature of the offence. The court noted that the respondent was 64 years old and had a history of heart disease. The court also considered the fact that the recommendation for post-prison community based release would not result in any additional time being served for the unlawful production offence. The court found that the sentence imposed at first instance was manifestly inadequate.

The court set aside the existing sentence and sentenced the respondent to seven years imprisonment to be served concurrently with his present sentence, with a recommendation that he be eligible for post-prison community based release on 13 May 2007. The court relied on several precedents, including R v Guthrie, R v Irlam; ex parte A-G, R v Morcus, and R v Panichelli & Petrosanec. The appeal was allowed, and the respondent's existing sentence was set aside.

Orders

Orders of the court

1. Appeal allowed

2. The respondent's existing sentence is set aside and, instead, the respondent is sentenced to seven years imprisonment to be served concurrently with his present sentence with a recommendation that he be eligible for post-prison community based release on 13 May 2007

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.

CITATION:	R v Mrsic; ex parte A-G (Qld) [2005] QCA 349
PARTIES:	R v MRSIC, Ivan (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 185 of 2005 SC No 10 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	23 September 2005
DELIVERED AT:	Brisbane
HEARING DATE:	19 September 2005
JUDGES:	Jerrard and Keane JJA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal allowed 2. The respondent's existing sentence is set aside and, instead, the respondent is sentenced to seven years imprisonment to be served concurrently with his present sentence with a recommendation that he be eligible for post-prison community based release on 13 May 2007
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OTHER OFFENCES - where the respondent had pleaded guilty to unlawfully producing more than 500 grams of cannabis sativa - where the respondent had been sentenced to imprisonment for seven years with a recommendation that he be considered for post-prison community based release on 13 May 2006 - where the respondent was already serving a sentence of imprisonment for other offences - where effect of recommendation was that the respondent would not serve any additional time in gaol for the unlawful production offence - where the respondent was 64 years of age and had a history of heart disease - whether, in all the circumstances, the sentence imposed at first instance was manifestly inadequate R v Guthrie [2002] QCA 509; (2002) 135 A Crim R 292, cited R v Irlam; ex parte A-G [2002] QCA 235; CA No 157 and CA No 173 of 2002, 28 June 2002, applied R v Morcus [2003] QCA 279; CA No 113 of 2003, 8 July 2003, cited R v Panichelli & Petrosanec [1995] QCA 348; CA No 146 and CA No 148 of 1995, 5 June 1995, cited
COUNSEL:	M R Byrne for the appellant B G Devereaux for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent